Crime

“He threatens many that hath injured one.”

Ben Jonson, English Dramatist

“Most of the evils of life arise from man’s being unable to sit still in a room.”

Blaise Pascal, French Scientist and Religious Essayist

Criminal law: Prohibits and punishes conduct that threatens public safety and welfare◦ Prosecution - Only the government can prosecute a

crime Restitution: A court order that a guilty defendant

reimburse the victim for the harm suffered◦ Burden of proof - In a civil case, the plaintiff must

prove her case only by a preponderance of the evidence Beyond a reasonable doubt: The very high burden

of proof in a criminal trial, demanding much more certainty than required in a civil trial

◦ Right to a jury - Facts of a case are decided by a judge or jury Criminal defendant has a right to a trial by jury for

any charge that could result in a sentence of six months or longer

◦ Felony: A serious crime, for which a defendant can be sentenced to one year or more in prison

◦ Misdemeanor: A less serious crime, often punishable by less than a year in a county jail

Conduct outlawed◦ Prosecution must show that the defendant’s

alleged activity is outlawed by a statute◦ Fifth and Fourteenth Amendments to the

Constitution require that language of criminal statutes be clear and definite enough that: Ordinary people can understand what conduct is

prohibited Police are discouraged from arbitrary and

discriminatory enforcement

Voluntary act◦ A defendant is not guilty of a crime if she was

forced to commit it If she acted under duress Guilty: A judge or jury’s finding that a defendant has

committed a crime Entrapment

◦ When the government induces the defendant to break the law: The prosecution must prove beyond a reasonable

doubt that the defendant was predisposed to commit the crime

Prohibits the government from making illegal searches and seizures of:◦ Individuals, corporations, partnerships, and other

organizations Goal is to protect the individual from the

powerful state

Warrant - Must specify with reasonable certainty the place to be searched and the items to be seized◦ A search conducted with a warrant violates the

Fourth Amendment if: There was no probable cause to issue the warrant The warrant does not specify the place to be

searched and the things sought The search extends beyond what is specified in the

warrant

Probable cause: Likely that evidence of crime will be found in the place to be searched

Searches without a warrant – Possible under seven circumstances◦ Plain view◦ Stop and frisk◦ Emergencies◦ Automobiles◦ Lawful arrest◦ Consent◦ No expectation to privacy

Exclusionary rule - Under which, evidence obtained illegally may not be used at trial◦ Two exceptions to the exclusionary rule:

Inevitable discovery: Permits the use of evidence that would inevitably have been discovered even without the illegal search

Good faith exception: So long as the police reasonably believed the warrant was valid, the search is legal

The Patriot Act – An antiterrorist law passed in response to the attacks of September 11, 2001◦ Designed to give law enforcement officials greater

power to investigate and prevent potential terrorist assaults

National security letter: Issued by FBI to communications firms such as Internet service providers and telephone companies◦ Demanded that the recipient furnish to the

government its customer records, without ever divulging to anyone what it had done

The Fifth Amendment - Protects criminal defendants—both the innocent and the guilty in several ways◦ Due process: Requires fundamental fairness at

all stages of the case◦ Self-incrimination - Bars the government from

forcing any person to provide evidence against himself

◦ Exclusionary rule◦ Miranda rights

Guaranteed by the Sixth Amendment at all important stages of the criminal process◦ The government must appoint a lawyer to

represent, free of charge, any defendant who cannot afford one

Indictment◦ Grand jury: A group of ordinary citizens who

decides whether there is probable cause the defendant committed the crime with which she is charged

◦ Indictment: The government’s formal charge that the defendant has committed a crime and must stand trial

Arraignment - A clerk reads the formal charges of the indictment

Discovery - During the months before trial, both prosecution and defense will prepare the most effective case possible

Plea bargain: An agreement in which the defendant pleads guilty to a reduced charge◦ The prosecution recommends to the judge a

relatively lenient sentence

Trial and appeal - When there is no plea bargain, the case must go to trial

Double jeopardy: A criminal defendant may be prosecuted only once for a particular criminal offense

Punishment - The Eighth Amendment prohibits cruel and unusual punishment◦ Also outlaws excessive fines

Forfeiture: A civil law proceeding that is permitted by many different criminal statutes

Larceny: The trespassory taking of personal property with the intent to steal it◦ Trespassory taking - Someone else originally has

the property Fraud: Deception for the purpose of taking

money or property from someone◦ Wire fraud and mail fraud◦ Theft of honest services◦ Insurance fraud

Arson: The malicious use of fire or explosives to damage or destroy real estate or personal property

Embezzlement: The fraudulent conversion of property already in the defendant’s possession

If someone commits a crime within the scope of his employment and with the intent to benefit the corporation, the company is liable

Workplace crimes◦ Occupational Safety and Health Act of 1970

(OSHA): Sets safety standards for many industries

Hiring illegal workers◦ Illegal to knowingly employ unauthorized workers◦ The employer must complete an I-9 form within

three days of hiring a worker

Racketeer Influenced and Corrupt Organizations Act (RICO): A powerful federal statute used in many criminal prosecutions and civil lawsuits◦ RICO prohibits using two or more racketeering

acts to accomplish any of these goals: Investing in or acquiring legitimate businesses with

criminal money Maintaining or acquiring businesses through criminal

activity Operating businesses through criminal activity

◦ Racketeering acts: Any of a long list of specified crimes, such as embezzlement, arson, mail fraud, wire fraud, and so forth

◦ Treble damages: A judgment for three times the harm actually suffered, as well as attorney’s fees

Money laundering: Consists of taking the proceeds of certain criminal acts and either:◦ Using the money to promote crime◦ Attempting to conceal the source of the money

Other crimes - An increasing number of federal and state statutes are designed to punish those who harm the environment

Fines - Most common punishment for a corporation

Compliance programs◦ Federal Sentencing Guidelines: The detailed

rules that judges must follow when sentencing defendants convicted of crimes in federal court

◦ Compliance program: A plan to prevent and detect criminal conduct at all levels of the company

For a compliance plan to be deemed effective:◦ The program must be reasonably capable of

reducing the prospect of criminal conduct◦ Specific, high-level officers must be responsible

for overseeing the program◦ The company must not place in charge any

officers it knows or should have known are likely to engage in illegal conduct

◦ The company must effectively communicate the program to all employees and agents

◦ The company must ensure compliance

““Crime has an enormous impact on Crime has an enormous impact on business. Companies are victims of business. Companies are victims of crimes, and sometimes they also crimes, and sometimes they also

commit criminal actions. Successful commit criminal actions. Successful business leaders are ever-vigilant to business leaders are ever-vigilant to

protect their company from those protect their company from those who wish to harm it, whether from who wish to harm it, whether from

the inside or the outside.”the inside or the outside.”