5-1 1 Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved.McGraw-Hill/Irwin

5-2 2 Crimes Intentional Torts Negligence and Strict Liability Intellectual Property and Unfair Competition Crimes and Torts P A R T

5-3 Criminal Law and Procedure PA E TR HC 5 Wherever Law ends, Tyranny begins. John Locke

5-4 Describe the nature and elements of a crime, including evidence required Understand Constitutional limitations, defenses, and protections within criminal law Explain criminal procedure Discuss corporate crime, including RICO and computer-based crimes Learning Objectives

5-5 Nature of Crimes Crimes are public wrongs, classified from most serious to least serious as: –Felony –Misdemeanor –Infraction Purpose of criminal sanctions: incapacitation, deterrence, rehabilitation,

5-6 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

5-7 Constitutional Protections Bill of Rights: first ten amendments to the U.S. ConstitutionBill of Rights –Literally binds only the federal government, but applied to states through the due process clause of the Fourteenth Amendment

5-8 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. ConnecticutGriswold v. Connecticut

5-9 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 Constitutional Limitations

5-10 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

5-11 Criminal Procedure Arrest and booking of defendant Arrest report filed with prosecutor If defendant charged, complaint filed Initial appearance of defendant before judicial officer Preliminary (probable cause) hearing

5-12 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

5-13 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 Constitutional Protections

5-14 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

5-15 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 warrantKyllo v. United States Thermal image of hand

5-16 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 searches –Exigent circumstances (Kentucky v. King)

5-17 The Exclusionary Rule Prevents the use of evidence seized in an illegal search in a subsequent trial of the defendant –Supreme Court has narrowed operation of the rule –See Hudson v. MichiganHudson v. Michigan

5-18 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

5-19 Scope of Fifth Amendment Self-incrimination privilege applies to –Testimonial admissions, so 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 offense

5-20 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

5-21 White Collar Crimes Under modern rule, a company 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

5-22 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

5-23 White Collar Crimes Bribery and Illegal Gratuities –Example: 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 Boyle v. United StatesBoyle v. United States

5-24 Thought Questions Are constitutional protections for criminal matters overly broad or too narrow? What do you think about the corporate crime cases in the text?