Crimes & Torts

2. 2 Crimes & Torts Crimes Intentional Torts Negligence & Strict Liability Intellectual Property & Unfair Competition McGraw-Hill/Irwin Business Law, 13/e © 2007 The McGraw-Hill Companies, Inc. All rights reserved.

3. Crimes 5 C H E A P T R “Wherever Law ends, Tyranny begins.” John Locke

4. Learning Objectives • The nature and elements of a crime • Constitutional limitations on criminal law • Criminal procedure • Constitutional protections • Corporate crime 5 - 4

5. Nature of Crimes • Crimes are public wrongs, classified from most serious to least serious as • Felony • Misdemeanor • Infraction • To convict a defendant, government must • Demonstrate alleged acts violated criminal statute • Prove defendant’s guilt beyond reasonable doubt • Prove defendant had criminal intent 5 - 5

6. Proof and Intent • Defendants presumed innocent until proven guilty beyond a reasonable doubt • Most serious crimes require proof of defendant’s capacity for criminal intent (mens rea) • Incapacity recognized: intoxication, infancy, and insanity 5 - 6

7. Criminal Procedure • Arrest and booking of defendant • Arrest report filed with prosecutor • If defendant charged, complaint filed • Defendant’s initial appearance before judge • Preliminary (probable cause) hearing • If probable cause exists, formal charge – information or indictment – filed with court 5 - 7

8. Criminal Procedure • Arraignment of defendant in which defendant enters a plea • Guilty, not guilty, no contest • Defendant who pleads not guilty and faces incarceration for more than six months may choose a jury trial • Bench trial (judge only) also available 5 - 8

9. Constitutional Protections • Bill of Rights: first ten amendments to the U.S. Constitution • Applies to federal government and to states through due process clause of Fourteenth Amendment • Constitutionally-protected behavior cannot be criminal 5 - 9

10. Fourth Amendment • Fourth Amendment protects persons against unreasonable and arbitrary searches and seizures (protects privacy) • General rule: warrantless searches are unreasonable (unconstitutional) • SeeUnited States v. Hall • Many Fourth Amendment cases carve out exceptions to the general rule, establishing activities that do not constitute a search 5 - 10

11. Warrantless Searches • Supreme Court has held that constitutional warrantless searches include: • The area within an arrestee’s immediate control • Premises police enter in hot pursuit of an armed suspect • Stop-and-frisk searches for weapons • Inventory searches of property (e.g., briefcase, automobile) in an arrestee’s possession • Consensual searches 5 - 11

12. The Exclusionary Rule • Exclusionary rule prevents use of evidence seized in an illegal search in a subsequent trial of the defendant Supreme Court restricts operation of the rule 5 - 12

13. Fifth Amendment • Fifth Amendment provides a privilege or protection against compelled testimonial self-incrimination • Practical meaning: person may remain silent if making a statement would assist government in prosecuting the person • Miranda warnings safeguard the right • Also prohibits prosecutorial comments at trial about the defendant’s failure to testify 5 - 13

14. Scope of Fifth Amendment • Self-incrimination privilege applies to • Testimonial admissions (non-testimonial evidence allowed, such as fingerprints, body fluids, hair) • Humans only (not corporations) • A defendant only if he/she could be charged with a crime (not merely a civil lawsuit) • Double jeopardy clause protects defendants from multiple criminal prosecutions for the same offense 5 - 14

15. Sixth Amendment • Applies to criminal cases by guarantees of a: • Speedy trial • Impartial jury • Right to confront and cross-examine witnesses • Right to effective assistance of counsel 5 - 15

16. White Collar Crimes • Under modern rule, a business organization may be liable for criminal offenses committed by employees who acted within the scope of their employment and for the benefit of the corporation 5 - 16

17. Specific White Collar Crimes • Regulatory offenses • Fraudulent acts • Sarbanes-Oxley Act violations Bribery and Illegal Gratuities • Racketeer Influenced and Corrupt Organizations Act (RICO) violations • Computer crime 5 - 17

18. Test Your Knowledge • True=A, False = B • To convict a defendant of a crime, the government must prove beyond a reasonable doubt that the defendant committed the acts • Writing an editorial using obscenities is not a crime since all speech is fully protected by the First Amendment to the Constitution • Only felonies with possibile imprisonment require proof of the defendant’s mens rea, or criminal intent 5 - 18

19. Test Your Knowledge • True=A, False = B • A defendant may choose one of three pleas: guilty, not guilty, and no contest • The Bill of Rights is the first dozen amendments to the Constitution • The Fourth Amendment provides a privilege from self-incrimination and double jeopardy • The Fifth Amendmentprotects persons against unreasonable and arbitrary searches 5 - 19

20. Test Your Knowledge • Multiple Choice • Sixth Amendment to the Constitution guarantees • (a) Speedy trial • (b) Right to confront and cross-examine witnesses • (c) Right to effective assistance of counsel • (d) Impartial jury • (e) All of the above 5 - 20

21. Test Your Knowledge • Multiple Choice • Which would not be a legal search under the Constitution? • (a) Taking bag of shredded documents from the dumpster of a suspect • (b) Aerial surveillance of a manufacturing plant • (c) Thermal imaging device to detect heat in a home • (d) A stop-and-frisk search for weapons 5 - 21

22. Thought Questions • What would you do if your employer asked you to do something you believed to be a crime? • What would you do if you were arrested and you were NOT guilty of any crime? 5 - 22