Chapter 7 Criminal Law

Question 1

Criminal Law (4 characteristics)

Answer 1

Wrongs against society or individuals.

Question 2

1. Government prosecutes crimes

Answer 2

Parties are “the prosecution” or “the state” or “the people” against the “defendant.” Victim of the crime is not a party.

Question 3

2. Violations of Statute

Answer 3

Not common law crimes. Criminal law violations.

Question 4

3. Procedural Safeguards for Defendant and Higher Burden of Proof, Constitutional Guarantees.

Answer 4

Needs higher burden of proof to win the case. Different rules than a civil case.

Question 5

4. Criminal Sentences Based on Magnitude of Wrong (guilty)

Answer 5

Not based on the literal victim itself.

Question 6

Classification of Crimes (3 Ways)

Answer 6

Felonies, Misdemeanors, and Infractions.

Question 7

Felonies

Answer 7

Punishable by a year or more in prison.

Question 8

Misdemeanor

Answer 8

Punishable by a fine or less than a year in jail.

Question 9

Infractions

Answer 9

Subset of misdemeanors, no jail or minimal jail time.

Question 10

Basis of Criminal Liability

Answer 10

1. Act (Actus Reus) and 2. State of Mind (Mens Rea). Must be a criminal act and a criminal mind!

Question 11

Act (Actus Reus)

Answer 11

Some affirmative action is necessary.
Omission may be an act where a legal duty to act is imposed by law (failure to file a tax return).
Thinking about committing a crime is not a crime! Even for an attempted crime some act in furtherance of the crime must be proven. Think of the example about the roommate and the dirty room scenario!

Question 12

State of Mind (Mens Rea)

Answer 12

Some wrongful mental state is necessary (i.e. knowingly or intentionally).
Recklessly and Negligently!
State vs. Kadijah.
Strict liability crimes.

Question 13

Recklessly

Answer 13

Recognizing some known risk of substantial or unjustifiable harm and acting anyway.

Question 14

Negligently

Answer 14

Acting (or failing to act) when some risk of harm was known or should have been known to the defendant.

Question 15

State vs. Kadijah

Answer 15

CT supreme court agreed with her, if you are asleep you can not be acting intentionally. She was charged with “intentionally failing to appear in court”. She said she was asleep she could not be acting intentionally (she won).

Question 16

Strict Liability Crimes

Answer 16

No mens rea required, because the act took place that is enough to be charged. (Statutory rape is an example)

Question 17

Six Difficulties When Prosecuting Corporations!

Answer 17

Mens Rea. 
The nature of corporate decision-making/action. 
What penalty? 
Disparate resources. 
"Too Big to Nail". 
"Enron/Fastow" Defense.

Question 18

1. Mens Rea (Difficulty when Prosecuting Corporations)

Answer 18

Who has the guilty mind? A corporation is not a human and does not have a mind, it acts through its people.

Question 19

2. The Nature of Corporate Decision-Making/Action

Answer 19

Fragmented; uncoordinated. May have individuals acting criminally unbeknownst to upper management. May have everyone acting legally, but the sum total of the outcome is criminal? Think about Pinto and Ford!

Question 20

3. What Penalty?

Answer 20

Stigmatization is not the same as with a private person. How much is enough for a fine? Some corporations are willing to take hits by fines to achieve other goals. Managers may be willing to use the corporation for their personal self- interest.

Question 21

4. Disparate Resources

Answer 21

Corporate resources may be superior to those of the prosecuting government, on top of all the constitutional procedural safeguards designed for individual defendants. Think about Indiana vs. Ford.

Question 22

Indiana vs. Ford

Answer 22

Decided to prosecute Ford for vehicular homicide. Its like David vs. Goliath in this case. Ford was found not guilty (Corporation had all the resources in the world to win). Ford said the driver was going more than 35 mph.

Question 23

5. “Too Big to Nail”

Answer 23

Think about the Pfizer Story. Pfizer committed “off label use” crime, and they were caught . If they were guilty then they would be disqualified from Medicare/Medicaid systems meaning Pfizer would go under ! This means then there would be no more drugs! Pfizer set up a subsidiary to be charged with federal crimes and then pleads not guilty, and pays off the fines (subsidiary was there so the entity would be indicted when crime occurred). Banks do this now too! (set up subsidiary’s to be charged with federal crimes so they will not lose out on federal benefits).

Question 24

6. “Enron/Fastow” Defense

Answer 24

“The corporation made me do it!”. “It’s not MY fault, it’s the company’s fault”. Puts more focus on corporate liability if individuals attempt to shift blame.

Question 25

Solutions to the Difficulties when Prosecuting Corporations (Six of these)

Answer 25

1) Vicarious Criminal Liability. 2) More Criminal Responsibility on Criminals for corporate conduct. 3) Strict Liability. 4) Dissemination of guidelines for corporate prosecution. 5) Increased penalties. 6) Recent trends.

Question 26

1. Vicarious Criminal Liability

Answer 26

If the employee committed a criminal act, acted within the scope of his employment and with a general intent to benefit the corporation, then the then the corporation may be criminally liable for the employee’s conduct (as well as the employee). Even if the corporation did not actually get any benefit–or lost money. One person is liable for the actions of another! (Even for a tort) Think about the example with the accounting intern that needs to get coffee for the office!

Question 27

Motive and Method of Vicarious Criminal Liability

Answer 27

The Motive: is to try to root out criminal corporate culture. The Method: is to use the legal theory of vicarious liability to tag corporate employers for wrongdoing of their employees.

Question 28

Wisconsin vs. Knutson Inc.

Answer 28

They could have just went after the one employee (bucket loader who electrocuted another worker) but they chose to go after the whole corporation, who chose to not promote safety policies and protection! The Court: Said the company was liable! And Vicarious liability was imposed!

Question 29

2. More Criminal Responsibility on Individuals for Corporate Conduct

Answer 29

Responsible Corporate Officer Doctrine: Points the finger at policy makers in a corporation! 1) The individual is in a position of responsibility which allows a person to influence corporate policies or activities 2) There is a nexus between the individual’s position and the violation in question such that the individual could have influenced the corporate actions which constituted the violations. 3) The individual’s actions or inactions facilitated the violations. Think of State of CT Pool case: Prosecuted the president of the pool company in this case! They said he had the responsibility to prevent this.

Question 30

U.S. vs. Park (1975)

Answer 30

They find that rodent droppings are on the meat at Acme Markets Warehouse. They tell Mr. Park to clean it up. He tells the warehouse men too but they do not clean it up, when the meat is checked again they droppings are there again. Mr. Park (the CEO) is criminally prosecuted alone under the Responsible Corporate Officer Doctrine. The Court said he had the ability to make this not happen anymore (the rodent droppings and bad conditions), so you are personally liable!

Question 31

3. Strict Liability

Answer 31

Or reduced mental state responsibility, crimes to protect a substantial public interest (health or safety). Is it effective to prosecute the individual and not the corporation?

Question 32

U.S. vs. Hanousek (Ninth Circuit 1999)

Answer 32

Government prosecuted Hanousek for polluting the river (he did not strike the oil to pollute the river literally). (A backhoe operator pierced an oil pipeline and 1000-1500 gallons spilled into the Skegway River). The Court: Hanousek is found guilty (liable) due to plain language of the statute from Congress, despite he is in the trailer reviewing invoices despite not actually committing the crime!

Question 33

4. Dissemination of Guidelines for Corporate Prosecution

Answer 33

“If you do a, b, c . . . Then maybe we will not prosecute you.” This is how you can avoid being prosecuted for crimes, put in policies, training, compliances etc. Corporations now know what they have to do when they find someone in the organization that has committed a crime!

Question 34

5. Increased Penalties

Answer 34

Think of Sarbanes Oxley Act.

Question 35

6. Recent Trends

Answer 35

Rise of the Deferred Prosecution Agreement. DPA: Like private probation, if you change your policies over the next few years and improve (being monitored by an outside agency); if you do these things you will not be prosecuted! Instead of prosecuting corporations, they are being passed, so the money is being paid to some monitoring agency. (It smells funky!)