CrimesIntentional Torts

Negligence and Strict LiabilityIntellectual Property and Unfair

Competition

© 2010 The McGraw-Hill Companies, Inc. All rights reserved.

Crimes

Wherever Law ends,Tyranny begins.

John Locke

© 2010 The McGraw-Hill Companies, Inc. All rights reserved.

The nature and elements of a crime Constitutional limitations on criminal law Criminal procedure Constitutional protections Corporate crime

Learning Objectives

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Nature of Crimes

Crimes are public wrongs, classified from most serious to least serious as Felony Misdemeanor Infraction

Purpose of criminal sanctions (fines or imprisonment): deterrence, rehabilitation, incapacitation

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Elements

To convict a defendant of a crime, the government must Demonstrate that alleged acts violated a

criminal statute Prove beyond a reasonable doubt that the

defendant committed the acts Prove the defendant had the capacity of

criminal intent Courts narrowly interpret criminal statutes

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Constitutional Limitations

Government may not enact an ex post facto (after the fact) law Thus a person cannot be charged with a

crime for an act that when committed was not a crime

Constitutionally-protected behavior cannot be criminal Example: Griswold v. Connecticut

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Constitutional Limitations

First Amendment allows government to regulate indecent speech and does not protect obscene expression To determine if expression is obscene,

courts apply the three-part Miller test Example: Supreme Court applied the

Miller test to strike down most of the Congressional efforts to criminalize obscenity on the Internet

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Proof and Intent

Defendants are presumed innocent until proven guilty beyond a reasonable doubt

Most serious crimes require proof of the defendant’s mens rea, or criminal intent Defendant must have had capacity to

form criminal intent Three types of incapacity recognized:

intoxication, infancy, and insanity

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Criminal Procedure

Arrest and booking of defendant Arrest report filed with prosecutor If defendant charged, complaint filed

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Initial appearance of defendant before judicial officer

Preliminary (probable cause) hearing

Criminal Procedure

If probable cause exists, formal charge – information or indictment – filed with court

Arraignment of defendant in which defendant enters a plea Guilty, not guilty, nolo contendere (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

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Constitutional Protections

Bill of Rights: first ten amendments to the U.S. Constitution Literally binds only the

federal government, but applied to states through the due process clause of the Fourteenth Amendment

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Constitutional Protections

Fourth Amendment protects persons against unreasonable and arbitrary searches and seizures Interpreted by Supreme Court to protect

a reasonable expectation of privacy General rule: warrantless searches are

unreasonable (unconstitutional) See United States v. Hall

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What is a Search?

Many Fourth Amendment cases carve out exceptions to the general rule, establishing activities that do not constitute a search: Visual observation of things or activities

in public view Narcotics detection dogs used in a public

place to investigate luggage or cars Enhanced aerial photography of a facility

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What is a Search?

But the Supreme Court in Kyllo v. United States, held a device not in public use to examine what would otherwise be hidden is a search, thus presumptively unreasonable without a warrant

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Warrantless Searches

Supreme Court has held that constitutional warrantless searches include: 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 searches5 - 15

The Exclusionary Rule

The exclusionary rule prevents the use of evidence seized in an illegal search in a subsequent trial of the defendant Supreme Court

restricts the operation of the rule

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The Fifth Amendment

The Fifth Amendment provides a privilege or protection against compelled testimonial self-incrimination Practical meaning: a person may remain

silent if making a statement would assist the government in prosecuting the person

Miranda warnings safeguard the right Also prohibits prosecutorial comments at

trial about the defendant’s failure to testify

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Scope of Fifth Amendment

Self-incrimination privilege applies to Testimonial admissions, thus police may

compel a defendant to provide non-testimonial evidence (fingerprints, body fluids, hair)

Applies only to humans (not corporations) Applies only if a defendant could be charged

with a crime (not merely a civil lawsuit) Double jeopardy clause protects

defendants from multiple criminal prosecutions for the same offense5 - 18

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

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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

Numerous policy debates about how to deal with corporate crime

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White Collar Crimes

Regulatory offenses Example: violating the Clean Water Act

Fraudulent acts Examples: false claims, fraudulent

concealment, wire fraud Sarbanes-Oxley Act violations

Example: Knowingly altering documents or business records with the intent to impede a government investigation

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White Collar Crimes

Bribery and Illegal Gratuities Such as violating Foreign Corrupt Practices

Act Racketeer Influenced and Corrupt

Organizations Act (RICO) violations Example of criminal RICO: using income

derived from a “pattern of racketeering activity”

Example of civil RICO: See Cedric Kushner Promotions Ltd. v. King

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