Chapter 5 review Flashcards
Criminal Law
defines the relationships between citizens or between citizens and their government
Civil Law
examples:
- Preponderance of the evidence standard (50/50).
- Goal of making injured party “whole” through financial restitution and/or injunction.
defines what a crime is. Usually state versus defendant Beyond a reasonable doubt evidence standard. Goals: Deterrence (specific and general) Retribution Rehabilitation Incapacitation
Criminal Law
To be guilty of a crime, you generally need both:
Actus Reus – A criminal or guilty act
Mens Rea – A criminal or guilty mind
Criminal Liability
Unless its strict liability Purpose Knowledge Recklessness Negligence
Model penal code
No mens rea requirement
Tammie shoots a gun in a crowded area…
1 Tammie wants to shoot Sam, her ex-boyfriend and kill him
2 Tammie does not want to kill anyone but she knows she will accidentally shoot & kill someone
3 Tammie knows there is a chance someone might be killed but she does not care
4 Tammie believes she is shooting blanks when she is, in fact, not shooting blanks
- Purpose
- knowledge
- Recklessness
- Negligence
Company/Employee liability:
- Can a company be held criminally liable for the actions of their employees?
- Can a corporate officer be held criminally liable for the actions of the employees of their company?
- Can an employee be held criminally liable for their actions as an employee?
- Yes
- Yes
- Yes
Corporate Criminal Liability
Can a corporation be criminally liable?
Yes, under imputed liability
a corporation is not a legal person and cannot have the necessary mens rea.
Acting with the direct knowledge and permission of the corporation
Actual authority
ex. telling employees to sell to minors
a reasonable person would have believed that the employee was authorized by the company to act in a certain manner because of representations made by the corporation to a third party
Apparent authority
ex. make employees think it is okay to sell to minors.
Officers may also be criminally liable for criminal acts of employees, even if they didn’t know about the act, if he or she fails to meet their responsibility as corporate leaders to ensure compliance with the law
Responsible Corporate officer doctrine
Homicide, rape, assault
Violent crimes
Burglary, larceny, arson, forgery
property crimes
intoxication, prostitution
public order crimes
Hacking,, phishing
Cybercrimes
Serious crime that is punishable by death or by imprisonment for more than one year.
Felony
more than a year of jail time
A lesser crime than a felony, punishable by a fine or incarceration in jail for up to one year
Misdemeanor
up to a year of jail time
In criminal law, the least serious kind of criminal offense, such as a traffic or building code violation
Petty offense
no jail time
An accused cannot be punished for a more serious offense and also for the lesser included offense under the merger doctrine
The two crimes merge together.
A Ponzi scheme is an investment fraud that involves the payment of purported returns to existing investors from funds contributed by new investors.
For the scheme to work, the organizer must continue to attract new investors in order to have the money to make existing customers believe they are profiting from a legitimate business.
Generally, scheme organizers are personally benefiting from the money invested rather than actually investing that money on behalf of their clients.
illegal
A type of theft that occurs when a fiduciary is lawfully entrusted with personal property of another and then fraudulently takes or uses that property for his or her own gain.
Embezzlement
Example, Melody is an accountant who pays the bills for Med-company Inc. She writes a personal check to her husband. She intends to repay the money when things improve in her personal life
The intentional taking, copying, or using another’s trade secrets with the knowledge the owner of the trade secret will be injured by such action.
Theft of trade secrets
Example: Guy works for Pepsi and takes the recipe to Mountain Dew and tries to sell it to Coca Cola.
The knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.
Fraud
- Mail Fraud (Using postal services)
- Wire Fraud (Using electronic means of communication)
- Bankruptcy Fraud (concealing assets from bankruptcy proceedings)
- Perjury (telling an untruth while under oath to tell the truth)
specific types of fraud
Ricky sends paperwork by mail to his insurance company claiming damage to the roof of his business when there has not been any damage. This might be mail fraud.
Allison is considering bankruptcy. She sells her $12,000.00 diamond ring to her sister for $1.00. This might be bankruptcy fraud.
Fraud example
bribing a Public official*
- need intent
- anything of value can be offered
- crime occurs at the time the bribe is offered (not accepted)
Foreign Corrupt Practices Act of 1977
Foreign Officials
Made it a crime to bribe foreign officials to gain a business advantage
Tipper/Tippee
Tipper is the person who gives the tip
Tippee is the person who gets the tip. Tippee only liable if they knew the information was not public
transferring illegally obtained money through legitimate people or accounts so that its original source cannot be traced
Money Laundering
Enables prosecution of criminal organization “bosses” for the crimes of their subordinates. The criminal acts are imputed as part of a larger “criminal enterprise.”
Racketeer Influenced and Corrupt Organizations Act (RICO) –
– breaking and entering into the dwelling house of another at nighttime with the intent to commit a felony
Burglary
– stealing tangible property with the intent to deprive the owner of the property
Larceny
taking of property by force, intimidation or threat of violence with the intent to deprive the owner of the property
Robbery
malicious burning of the dwelling of another person
Arson
making or altering a writing with the intent to defraud
Forgery
ex. signing a name that is not yours.
intentionally misrepresenting a material fact to a person in order to persuade another to transfer property
Obtaining goods by false pretenses
wrongfully using a public office to obtain assets from a victim
Extortion
wrongfully obtaining assets by threat
Blackmail
act of receiving property that the defendant knew or should have known was stolen with the intent to deprive the real owner of such property
Receiving stolen goods
using credit card information to obtain an unauthorized benefit
Credit card fraud
to knowingly transfer or use another person’s identity without authorization with the intent to commit a crime
Identity theft
ex. fake I.D.
Property crime examples:
1. Rick burns down Anna’s garage which is attached to her house.
- Rick takes Phil’s checkbook and uses it to buy groceries.
- Rick takes David’s credit card and uses it at Target signing David’s name on the receipt.
- Dwelling and Arson
- Larceny, forgery, obtain goods by false pretenses.
- Larceny, forgery, obtain goods by false pretenses, identity theft, credit card fraud.
– unauthorized access of another’s computer with intent to change the settings or access information
Hacking
accessing computer information with the intent to commit a fraud
Phishing
society generally condones or approves of the act under the circumstance.
Justification
society does not condone but determines punishment is less appropriate because of mitigating circumstances.
Excuse
- I broke the law to avoid an even greater harm.
- Example, speeding in order to transport dying victim to hospital.
- Generally a defense when acting in response to emergency not of your own making.
- Society approves of this act.
Justification: Necessity
self defense
- I broke the law to avoid a different harm (maybe greater)
- Example, I stole something for a drug dealer because he threatened to kill my family if I didn’t.
- Society doesn’t condone but understands the reasonable person might have behaved in the same way under the circumstances.
Excuse: Duress
Duress: when you act in response to a threat and you create a crime.
- Threat was greater than the crime committed.
A person may be justified in using force against another person; however, there are limits to this rule. While a person can use force to protect himself or others from a real or threatened attack, the force used must be reasonable and not excessive under the circumstances.
Self defense
– can use lethal force without retreating if attacked in your own home.
Castle doctrine
Mistake of Fact:
For specific-intent crimes an honest mistake may negate one of the elements of the offense
You walk off with someone’s bag because you thought it was yours.
Can you use this if a crime is strict liability?
Not larceny
NO
Model penal Code Test
(KNOW) for Exam
Must prove defendant lacked substantial capacity either to appreciate the criminality of their conduct or to conform their conduct to the requirements of the law as a result of a mental disease or defect.
A public official gets the defendant to commit a crime that he or she would not have committed had it not been for overbearing actions of the public official.
Entrapment
not a good defense
Like the insanity defense, this is difficult to prove.
Louis is standing outside his apartment on a public sidewalk. An undercover police officer offers Louis alcohol. Louis is underage. Louis takes the alcohol and drinks it. The police officer then arrests Louis.
Not Entrapment
intoxication on the part of the defendant was not intentional
Involuntary Intoxication
Example: the drink of the defendant was spiked with a hallucinogen drug
Works to negate the mental intent required by a crime
intoxication was brought about by the defendant’s intentional acts
Voluntary intoxication
larceny, burglary, arson
ex. Works to negate only specific intent crimes as the act of getting drunk can be viewed as negligent
Criminal suspect “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”
Miranda rights
Protection from double jeopardy
Can’t be tried for a crime a second time if found “not guilty” the first time
Right against self-incrimination
Miranda v. Arizona case held that police must advise you of your constitutional rights before subjecting you to custodial interrogation
Right of due process
At a minimum you must be given notice and a hearing before you can be deprived of life, liberty or property.
Fifth Amendment protection
Right to a speedy/public trial
Right to an impartial jury (facing > 6 months of prison)
Right to be informed of the charges against you
Right to confront all witnesses
Right to have production of favorable witnesses
Right to an attorney
Sixth Amendment Protection
Search warrant – an order granted by a public authority, such as a judge, that authorizes law enforcement personnel to search particular premises or property
Probable Cause – reasonable grounds to believe that evidence of a crime is currently located in the place, or on the person to be searched.
There are many exceptions to the warrant requirement
Exigent Circumstances, Emergency, and Plain View Searches are just a few. (consent)
Fourth Amendment Protection
ex. flush the drugs
A police officer is standing on the public sidewalk when he smells an odor of marijuana. He looks to his right and sees Marley smoking marijuana behind a house. The house is owned by Marley. The police arrest Marley and confiscate his marijuana pipe and drugs.
Search warrant example
Plain View Search
In a business setting police still need a warrant but businesses have a lower expectation of privacy so it is easier for a government official to get a warrant.
In highly regulated industries no warrant is needed to do regular administrative searches because the public interest in regulation outweighs the privacy interest.
Fourth Amendment
any evidence that is obtained in violation of the accused’s constitutional rights is automatically excluded at trial
Exclusionary Rules
Example: Police obtain a confession from Rita but they did not read her the Miranda rights and were legally required to do so. Rita’s confession would be excluded at trial.
Need a warrant unless there us no time to get one
Arrest
Defendant appears before judge
Initial Appearance
Grand jury issues an indictment (serious crimes)
Grand jury determines whether or not there is probable cause for a trial
Magistrate issues a criminal information for lesser crimes and this means no grand jury (less serious crimes)
Indictment or Information
court proceeding in which defendant hears charges in court and enters a plea
Arraignment
Pleas
Guilty “I did it”
Not guilty “I did not do it”
Nolo contendere “I am not saying I did it but I will accept the consequences”
State often wants information from criminals so the prosecution offers them immunity (meaning no liability for criminal acts disclosed to state)
immunity
the defendant and prosecution enter into a deal and the defendant gets a more lenient sentence.
Plea bargaining
