chapters 7,13 Flashcards
Know the standard of proof needed for a civil case and for a criminal case.
(Preponderance of the evidence for civil, beyond a reasonable doubt for criminal)
Know the difference between a felony and a misdemeanor, in terms of maximum prison sentence.
(Misdemeanor = up to one year. Felony = more than one year)
Do all crimes require a showing of intent by the perpetrator?
Federal Crimes. The federal criminal code now lists more than four thousand criminal offenses, many of which do not require a specific mental state. In addition, several hundred thousand federal rules can be enforced through criminal sanctions, and many of these rules do not require intent.
Strict liability crimes are particularly common in environmental laws, laws aimed at combatting illegal drugs, and other laws affecting public health, safety, and welfare.
State Crimes. Many states have also enacted laws that punish behavior as criminal without the need to show criminal intent.
In corporate crime, may the corporation itself, in addition to the individual corporate agents, be criminally charged?
Liability of the Corporate Entity
Today, corporations are normally liable for the crimes committed by their agents and employees within the course and scope of their employment.Footnote For liability to be imposed, the prosecutor typically must show that the corporation could have prevented the act or that a supervisor within the corporation authorized or had knowledge of the act. In addition, corporations can be criminally liable for failing to perform specific duties imposed by law (such as duties under environmental laws or securities laws).
Understand the different categories of crime:
violent crime, crime against property, white collar crime, crimes against public order, and organized crime.
Know which rights are provided to criminal suspects under the 4th and 5th Amendments to the U.S. Constitution:
protection from unreasonable search and seizure; protection from double jeopardy; protection from self-incrimination; right to due process.
Also under the 6th and 8th Amendments:
right to speedy trial; right to jury trial; right to confront witnesses; right to counsel (attorney), protection from excessive bail while awaiting trial; protection from cruel and unusual punishment.
The Miranda ruling
does not create any new Constitutional rights for criminal suspects, but requires that they be informed of their Constitutional rights.
What is the “exclusionary rule”?
Under what is known as the exclusionary rule, any evidence obtained in violation of the constitutional rights spelled out in the Fourth, Fifth, and Sixth Amendments generally is not admissible at trial. All evidence derived from the illegally obtained evidence is known as the “fruit of the poisonous tree,” and normally must also be excluded from the trial proceedings. For instance, if a confession is obtained after an illegal arrest, the arrest is the “poisonous tree,” and the confession, if “tainted” by the arrest, is the “fruit.”
The purpose of the exclusionary rule is to deter police from conducting warrantless searches and engaging in other misconduct. The rule can sometimes lead to injustice, however. If evidence of a defendant’s guilt was obtained improperly (without a valid search warrant, for instance), it normally cannot be used against the defendant in court.
Cyber criminals usually cannot be caught and punished by U.S. authorities if
they are operating from foreign countries.
Know the 4 types of negotiable instruments:
drafts and checks (orders to pay), and promissory notes and certificates of deposit (promises to pay).
“sight draft”
(payable on sight, or on demand, or at presentment)
“time draft”
(payable at a specified future time)
Know the requirements for an instrument to be considered a negotiable instrument.
Must be in writing; signed by the maker or drawer; unconditional promise to pay; state a fixed amount of money; payable on demand or at a definite time; payable to order or to bearer.
“order” instrument
(made out to a specific person or business)
“bearer” instrument
(not made out to a specific party)
Order instrument requires
an indorsement by the payee in order to be transferred.
Know the difference between these kinds of indorsements:
A blank indorsement does not specify a particular indorsee and can consist of a mere signature
A special indorsement contains the signature of the indorser and identifies the person to whom the instrument is made payable—that is, it names the indorsee [UCC 3–205(a)]. Words such as “Pay to the order of Rick Clay” or “Pay to Rick Clay,” followed by the signature of the indorser, create a special indorsement. An instrument indorsed in this way is an order instrument.
Know the 3 requirements which the holder of an instrument must meet, in order to be considered a holder in due course (“HDC”):
the HDC paid value for the instrument; the HDC accepted the instrument in good faith; and the HDC had no notice that the instrument was defective.
The transfer of an instrument which has been signed, as a general rule,
makes the person who signed it liable for payment of the instrument (primary or secondary).
A person who transfers or presents an instrument for payment which he has not signed may
be liable for payment anyway, based on implied transfer warranties or implied presentment warranties.
“universal” defenses
will apply to any holder, even an HDC.
“personal” defenses
will apply to an ordinary holder but not to an HDC.
Know what is needed for all parties to be discharged from liability on an instrument:
payment in full, cancellation by the holder, or material alteration.
