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Chapter 8 Business and Online Crimes. Purpose of Criminal Laws. Allow people to coexist peacefully Allow commerce to flourish Protect people and property from injury by others. United States Criminal Law System. Person charged is presumed innocent until proven guilty.

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Chapter 8 business and online crimes

Chapter 8

Business and Online Crimes


Purpose of criminal laws
Purpose of Criminal Laws

  • Allow people to coexist peacefully

  • Allow commerce to flourish

  • Protect people and property from injury by others


United states criminal law system
United States Criminal Law System

  • Person charged is presumed innocent until proven guilty.

  • Theburden of proofis on the government

  • Accused must be found guilty beyond a reasonable doubt.

  • In most other systems, person is presumed guilty unless he can prove otherwise.


Crime

Any act done by an individual in violation of those duties that he or she owes to society and for the breach of which the law provides that the wrongdoer shall make amends to the public.


Penal codes and regulatory statutes
Penal Codes and Regulatory Statutes

  • Statutes are the source of criminal law.

  • State penal codes define in detail:

    • The activities considered to be crimes within their jurisdiction; and

    • The penalties that will be imposed for their commission.


Penal codes and regulatory statutes continued
Penal Codes and Regulatory Statutes (continued)

  • A comprehensive federal criminal code defines federal crimes.

  • State and federal regulatory statutes often provide for criminal violations and penalties.


Penalties imposed for crimes
Penalties Imposed for Crimes

  • Fines

  • Imprisonment

    • Means of incapacitating wrongdoer

    • Rehabilitation

    • Deterrent for others

    • Prevent personal retribution

  • Both fines and imprisonment

  • Probation


Parties to a criminal action
Parties to a Criminal Action

  • In a criminal lawsuit, the government is the plaintiff.

  • The government is represented by a lawyer called the prosecutor.

  • The accused is the defendant.

  • The accused is represented by a defense attorney.


Classification of crimes
Classification of Crimes

Felonies

Misdemeanors

Violations


Felonies
Felonies

  • Felonies are the most serious kinds of crimes.

  • Felonies include crime that are mala in se – inherently evil.

  • Most crimes against persons and certain business-related crimes are felonies.

  • Usually punishable by imprisonment.

  • Mandatory sentencing for some crimes.


Misdemeanors
Misdemeanors

  • Misdemeanorsare less serious than felonies.

  • They are crimes mala prohibita – not inherently evil but are prohibited by society.

  • Many crimes against property are misdemeanors.

  • Usually punished by fines and imprisonment up to one year.


Violations
Violations

  • Crimes that are neither a felony nor a misdemeanor

  • Punishable by fines and, occasionally, a few days of incarceration.


Essential elements of a crime
Essential Elements of a Crime

Criminal Act

Criminal Intent

Chapter 1


Criminal act
Criminal Act

  • The defendant must have actually performed the prohibited act.

  • Actus reus (guilty act) – the actual performance of the guilty act.

  • Merely thinking about a crime is not a crime, because no action has been taken.


Criminal intent
Criminal Intent

  • Mens rea (evil intent)

    • Possession of the requisite state of mind when act performed

  • Specific intent

    • Accused purposefully, intentionally, or with knowledge commits a prohibited act

  • General intent

    • Showing of recklessness or lesser degree of mental culpability

  • Non-intent crime

    • Imposes criminal liability without a finding of mens rea


Criminal acts as the basis for tort action
Criminal Acts as the Basis for Tort Action

  • An injured party may bring a civil tort action against a wrongdoer who has caused the party injury during the commission of a criminal act.

  • Civil lawsuits are separate from the government’s criminal action against the wrongdoer.

  • Criminal is often judgment proof.



Criminal procedure
Criminal Procedure

Pretrial Criminal Procedure

The Criminal Trial

Chapter 1


Pretrial criminal procedure
Pretrial Criminal Procedure

  • Pretrial criminal procedure consists of several distinct stages including:

    • Arrest

    • Indictment or Information

    • Arraignment

    • Plea Bargaining


Arrest
Arrest

  • Police must obtain arrest warrant based on showing probable cause

    • Must show substantial likelihood that they committed crime

  • Warrantless arrests allowed when police arrive during commission of crime, “hot pursuit” situations, or where likely evidence will be destroyed


Indictment or information
Indictment or Information

  • Grand jury

    • Determines whether there is enough evidence to hold accused for trial

    • Serious crimes

    • Issues an indictment

  • Magistrate

    • Determines whether there is enough evidence

    • lesser crimes

    • Issues an information


Arraignment
Arraignment

  • If indictment or information issued, arraignment is next procedure.

  • Accused informed of all charges

  • Asked to enter a plea

    • Guilty

    • Not guilty

    • Nolo contendre

      • Does not admit guilt, but agrees to penalty

      • Cannot be used as evidence of liability in civil trials


Plea bargaining
Plea Bargaining

  • Allows accused to plead to lesser crime

  • Saves money, time

  • Avoids risk of trial

  • Prevents further overcrowding of jails


The criminal trial
The Criminal Trial

  • All jurors must unanimously agree before the accused is found guilty of the crime charged.

  • If one juror has reasonable doubt about the guilt of the accused, the accused is not guilty.

  • If jurors cannot agree, jury considered to be a hung jury.

  • If all of the jurors agree that the accused did not commit the crime, the accused is innocentof the crime charged.


The criminal trial continued
The Criminal Trial (continued)

After trial, the following rules apply:

  • If the defendant is found guilty, he or she may appeal.

  • If the defendant is found innocent, the government cannot appeal.

  • If it is a hung jury, the government may choose to retry the defendant.


Crimes affecting business

Robbery

Burglary

Larceny

Theft

Receiving stolen property

Arson

Forgery

Extortion

Credit card crimes

Bad checks

Crimes Affecting Business


Robbery
Robbery

  • In common law, robbery is the taking of personal property by use of fear or force.

  • If a weapon is used, it is considered armed or aggravated robbery.


Burglary
Burglary

  • In common law, burglary was the breaking and entering of a dwelling at night.

  • It has been extended to include daytime entry of any structure.


Larceny
Larceny

  • In common law, larceny was the wrongful and fraudulent taking of another person’s personal property.

  • Neither the use of force nor entry into a structure is required

  • Some states distinguish between grand and petit larceny, based on value of property taken


Theft
Theft

  • Some states group robbery, burglary, and larceny together under the heading of theft

  • Distinguish between grand theft and petit theft

    • Based on dollar value of property taken


Receiving stolen property
Receiving Stolen Property

  • Crime of knowingly receiving stolen property with the intention of depriving rightful owner of that property.

  • Property must be tangible property.


Arson
Arson

  • In common law, arson was the malicious or willful burning of another’s dwelling.

  • Now has been extended to all structures.

  • Has also be extended to structure’s owner.


Extortion
Extortion

  • Obtaining a property from another, with their consent, induced through actual or threatened force, violence, or fear

  • Blackmail

  • Under color of official light

    • Extortion by public officials


White collar crimes
White Collar Crimes

  • Forgery

  • Embezzlement

  • Bribery

  • Criminal fraud


Forgery
Forgery

  • Written documents fraudulently made or altered

  • Change affects legal liability of another


Embezzlement
Embezzlement

  • Fraudulent conversion of property by person to whom property is entrusted

  • Key is that property was entrusted to person


Bribery
Bribery

  • Requires intent

    • Offeror commits crime when bribe is offered

    • Commercial bribery often referred to as kickback or payoff

    • Bribe can be of anything of value


Criminal fraud
Criminal Fraud

  • Obtaining title to property through deception or trickery

  • Also called false pretenses or deceit

  • Mail and wire fraud

    • Federal law prohibits use of mail or wires to defraud persons


The foreign corrupt practices act
The Foreign Corrupt Practices Act

  • Makes it illegal for American companies, or their officers, directors, agents, or employees, to bribe a foreign official, a foreign political party official, or a candidate for foreign political office.

  • Requires firms to keep accurate books and records of all foreign transactions.


Racketeer influenced and corrupt organizations act rico
Racketeer Influenced and Corrupt Organizations Act (RICO)

  • Makes it a federal crime to acquire or maintain an interest in, use income from, or conduct or participate in the affairs of an enterprise through a pattern of racketeering activity.


Racketeer influenced and corrupt organizations act rico continued
Racketeer Influenced and Corrupt Organizations Act (RICO), continued

  • Two acts within a ten year period sufficient

  • Convicted individuals can be fined up to $25,000 and receive 20 years imprisonment

  • Must forfeit property and business interests gained by RICO violations


Criminal conspiracy
Criminal Conspiracy

  • Two or more persons enter into an agreement to commit a crime

  • Requires an overt act

  • Crime does not have to be committed


Money laundering
Money Laundering

  • Money Laundering Control Act

    • Knowingly engage in monetary transaction through financial institution involving property worth more than $10,000.

    • Knowingly engage in a financial transaction involving proceeds of an illegal activity.

    • If convicted, fines can be assessed up to $500,000 or twice the value of the property and up to 20 years in prison


Corporate criminal liability
Corporate Criminal Liability

  • Corporations may be held criminally liable for actions of their officers, employees, or agents.

  • Corporate directors, officers, and employees are personally liable for the crimes they commit while acting on behalf of the corporation.


Unreasonable searches and seizures
Unreasonable Searches and Seizures

  • The Fourth Amendment protects persons and corporations from overzealous investigative activities by the government.

  • Reasonable search and seizure by the government is lawful.

  • Search warrants based on probable cause are necessary in most cases.


Exclusionary rule
Exclusionary Rule

  • Evidence obtained from an unreasonable search and seizure can generally be prohibited from introduction at a trial or administrative proceeding against the person searched.

  • Evidence is freely admissible against other people

  • Good faith exception

    • Evidence may be introduced if law enforcement reasonably believed that they were acting pursuant to valid search warrant


Searches of business premises
Searches of Business Premises

  • Government may not search businesses without a search warrant

  • Certain hazardous and regulated business are exceptions

    • Subject to warrantless searches provided statutory procedures met


Federal antiterrorism act of 2001
Federal Antiterrorism Act of 2001

  • In response to the events of September 11, 2001, Congress enacted a new federal Antiterrorism Act.

  • The act assists the government in detecting and preventing terrorist activities and investigating and prosecuting terrorists.


Federal antiterrorism act of 2001 continued
Federal Antiterrorism Act of 2001 (continued)

  • The act contains the following main features:

    • Special Intelligence Court

    • Nationwide Search Warrant

    • Roving Wiretaps

    • Sharing of Information

    • Detention of Non-citizens

    • Bioterrorism Provision

    • Anti-Money Laundering Provisions


Privilege against self incrimination
Privilege Against Self-Incrimination

  • The Fifth Amendment states that no person shall be compelled in any criminal case to be a witness against him- or herself.

  • This protection applies in federal cases and is extended to state and local criminal cases through the Due Process Clause of the Fourteenth Amendment.


Privilege against self incrimination continued
Privilege Against Self-Incrimination (continued)

  • Protection against self-incrimination applies only to natural persons who are accused of crimes.

  • Corporations and partnerships (artificial persons) cannot raise this protection.

    • Business records of corporations are not generally protected from disclosure.


Miranda rights
Miranda Rights

  • Supreme Court held that the Fifth Amendment right against self-incrimination is not useful unless suspect had knowledge of the right

  • Rights must be read before interrogation

  • Any statements or confessions obtained before the rights are read can be excluded


Attorney client privilege
Attorney-Client Privilege

  • Client can tell his or her lawyer anything about the case without fear that the attorney will be called as a witness against the client.

    • Psychiatrist/psychologist-patient privilege

    • Priest/minister/rabbi/clergy-penitent privilege

    • Spousal privileges

    • Parent-child privilege

    • There is no accountant-client privilege under federal law.


Immunity from prosecution
Immunity from Prosecution

  • Government may offer person immunity from prosecution in exchange for testimony

  • Government cannot pursue charges for that crime against the person

  • Person loses their right to assert their Fifth Amendment privilege

  • Partial grants of immunity may be offered


Protection against double jeopardy
Protection Against Double Jeopardy

  • The double jeopardy clause of the Fifth Amendment protects persons from being tried twice for the same crime.

  • If the same criminal act involves several different crimes, the accused may be tried for each of the crimes with no double jeopardy.

  • If the same act violates the laws of two or more jurisdictions, each jurisdiction may try the accused without violating the double jeopardy clause.


Right to a public trial
Right to a Public Trial

  • The Sixth Amendment guarantees certain rights to criminal defendants. These rights are:

    • To be tried by an impartial jury of the state or district in which the accused crime was committed.

    • To confront (cross-examine) the witnesses against the accused.

    • To have the assistance of a lawyer.

    • To have a speedy trial.


Protection against cruel and unusual punishment
Protection Against Cruel and Unusual Punishment

  • Eighth Amendment protects criminal defendants from torture or other abusive punishment.

    • This clause does not prohibit capital punishment.


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