Crimes. The Criminal Law. Nature of Crime

Transcription

1 Crimes The Criminal Law Criminal law is increasingly being used to control corporate behavior. Advocates argue that it is a better deterrent than damage awards and other civil remedies. Shareholders often bear the burden of civil penalties; whereas, criminal laws can impact corporate officers personally, as well as effectively terminate convicted companies (e.g., Arthur Anderson) Nature of Crime Crimes are public wrongs acts prohibited by the state or federal government. Committed against the People e.g., People of California vs. OJ, People of U.S. v. Martha Stewart Persons convicted of crimes bear the stigma of a criminal conviction and criminal sanctions, face incarceration, fines. 1

2 Classifications of Crime Malum en se vs. malum prohibitum crimes Malum en se: an offense that is evil or wrong from its own nature irrespective of statute Malum prohibitum: an offense prohibited by statute but not inherently evil or wrong e.g., Drug and traffic offenses, regulatory offenses (insider trading), Crimes are classified as felonies or misdemeanors. Felony a serious crime punishable by lengthy penal confinement (> one year). Misdemeanor a lesser offense involving much less culpability than felonies. Infractions quasi-criminal violations punishable by fines but not confinement. Purpose of the Criminal Sanction Under the utilitarian view, criminal sanctions should prevent socially undesirable behavior. The purpose of the criminal sanction also includes deterrence, rehabilitation, incapacitation, and retribution. Punishment? Essentials of Crime To convict a defendant of a crime: The alleged act must violate a criminal statute. He had to have criminal intent. Exception: Strict liability crimes (e.g., traffic offenses, statutory rape, most malum prohibitum crimes unless statute says otherwise) 2

3 Defendant s Criminal Intent Actus Reus The act or omissions that comprise the physical elements of a crime as required by statute Mens Rea Most serious crimes require the appropriate mens rea, or criminal intent as well as the act. Three possible mens rea are intentional conduct, reckless conduct, or even negligence. People are normally held to have intended the natural and probable consequences of their acts (e.g., shooting into a crowd) Criminal recklessness: conscious disregard of a substantial risk of harm (e.g., driving 100 MPH on sidewalk) Criminal negligence: Failure to perceive a substantial risk of harm that a reasonable person would have perceived (e.g., violation of statute meant to protect others) Also, Strict Liability No intent required for some crimes Constitutional Limits The U.S. Constitution limits what types of behavior can be criminalized. Prohibits ex post facto criminal laws. Laws passed after the act Cannot criminalize constitutionally protected behavior such as free speech or right to privacy. Due process requires that the prohibited behavior be defined precisely enough to give notice that the behavior breaks the law. Cannot impose cruel and unusual punishments. Habeas Corpus Also: Procedural protections (discussed infra) Presumption of Innocence/Reasonable Doubt Defendants in criminal cases are presumed innocent until proven guilty. Note that presumption of innocence applies to the jury and trial judge not police or prosecutors. Reasonable Doubt burden of proof on prosecution 3

4 Defendant s Criminal Capacity The criminal law recognizes three general types of incapacity: Intoxication, infancy, and insanity. Defendant s Criminal Capacity In some cases, voluntary intoxication may reduce (i.e., mitigate) the degree of defendant s liability. At common law, children younger than 14 years old could not form criminal intent. Juvenile offenders are treated differently from adult offenders. However, today many juveniles are tried as adults Insanity may constitute a complete defense to the crime. Distinguish: Clinical vs. Criminal Insanity One can be diagnosed as medically insane and not be criminally insane Very rarely a successful defense Criminal Procedure Governs the investigation, arrest, prosecution, and appeal of accused defendants. Subject to constitutional safeguards Fourth, Fifth, Sixth Amendments 4

5 Criminal Prosecutions Arrest Booking administrative procedure for recording the defendant s arrest and alleged offenses. Charges filed by prosecutor Information formal charges filed by prosecutor. Indictment formal charges returned by a grand jury. In California: Felony and misdemeanor charges are alleged in a formal document called a complaint. Article 1, Section 8 of the California Constitution authorizes the two felonycharging procedures. Overwhelming majority of all criminal prosecutions initiated by information. Initial appearance magistrate informs defendant of the charges against him and his constitutional rights. Preliminary hearing Optional hearing in felony information cases to determine whether there is probable cause to believe defendant committed a felony. CA: Where an indictment is issued by the grand jury, the accused is not afforded the safeguard of an independent judicial evaluation of the evidence. Criminal Prosecutions Arraignment defendant is brought before a court, informed of the charges, and asked to enter a plea. Plea guilty, not guilty, nolo contendere (no contest). Note: No such plea as innocent Jury determines defendant s guilt or absence of guilt, not innocence. Criminal Prosecutions Trial defendant is entitled to a jury trial if incarceration for more than six months is the possible penalty. In California, any felony or misdemeanor defendant has right to jury trial Right can be waived 5

6 Constitutional Safeguards Bill of Rights and Due Process applies to federal defendants and, through the 14 th Amendment, selectively incorporated to apply to state defendants. Fourth, Fifth, Sixth and Eight Amendments Only parts of 5 and 8 apply to state defendants (Grand jury indictment and excessive fines and bail not incorporated) The Selective Incorporation of the Bill of Rights Fourth Amendment Prohibits unreasonable searches and seizures. Protects reasonable expectation of privacy. If no REP, no 4 th Amendment protections e.g., Inspection of heavily regulated industries, health and code inspections of businesses, parolees and probationers, drug testing of certain classes of railroad and public employees, random drug testing of school children, Naked-eye aerial surveillance of a person's backyard or through the partially open roof of an outbuilding does not constitute a search (but, see Kyllo v. United States, briefing assignment). As a general rule, warrantless searches are per se unreasonable. Exceptions (Require Probable Cause): Motor vehicles, incident to lawful arrest, consent, plain view doctrine, exigent circumstances (e.g., person in danger, armed and dangerous, hot pursuit, destruction of evidence, violent crime scene, officer safety, etc.), inventory search during impound Probable Cause: Police or prosecution must make showing of more likely than not crime has occurred, or preponderance of the evidence. Compare: Police only need Reasonable Suspicion to detain person or car, search K-12 student belongings/lockers at school, public employer work-related searches of employee offices, desks, and file spaces Reasonable suspicion is a reasonable belief on the part of the officer -- based on experience, observations, and/or information from others -- that criminal activity is "afoot" sufficient to warrant police intervention - Terry v. Ohio To justify a patdown frisk during a Terry stop, a police officer must have a reasonable fear that he or she "is dealing with an armed and dangerous individual. Borders and customs, airports, government buildings, search may be required for entry A non-coercive conversation between an officer and a civilian does not require any articulable basis under the Fourth Amendment The Exclusionary Rule serves as the basic remedy in cases of Fourth Amendment violations. Evidence obtained in violation of constitutional rights may be suppressed. USA Patriot Act 6

7 Fifth Amendment Protects against compelled testimonial selfincrimination. Due process Both procedural and substantive Right to silence is part of the Miranda warnings. Miranda not in Constitution Created by SCOTUS in Documentary evidence is not generally covered by the right to silence. Incriminating papers, passwords Nor is suspect s name covered. The Double Jeopardy Clause Protects defendants from multiple criminal prosecutions for the same offense. But charging different offenses for same act, different jurisdictions may be OK Sixth Amendment Speedy trial. Balancing test Time may be waived by defendant Impartial jury. Public Trial Confront and cross-examine prosecution s witnesses. Right to counsel. Eighth Amendment Forbids cruel and unusual punishments. Usually only applies post-conviction Death penalty: See 5 th Amendment nor be deprived of life, liberty, or property, without due process of law; Also, prohibits excessive fines and bail Bail can be pre- or post-conviction 7

8 Evolution of Corporate Criminal Liability Under common law, a corporation was not liable for the criminal acts of its employees. Corporations now may face criminal liability for almost any offense. Modern rule: A corporation may be liable for criminal offenses committed by employees who acted within the scope of their employment and for the benefit of the corporation. Problems with Punishing Corporations A criminal conviction does not stigmatize a corporation in the same way that it stigmatizes an individual. Cash fines may be too small to be an effective deterrence. Fines large enough to deter may harm innocent stakeholders. See: Martha Stewart case Individual Liability for Corporate Crime Individuals acting in corporate capacity are subject to personal criminal liability. Includes corporate officers (e.g., President, CEO) Problems Mens rea Modern approach includes both corporate and individual liability for crimes. White-Collar Crimes Nonviolent criminal offenses committed by businesspeople and business organizations Regulatory offenses SEC, FDA, Antitrust, EPA, etc. See also, obstruction, lying to federal agents, conspiracy Fraudulent acts e.g., Obtaining money or property through false pretenses, bad checks, false credit statements, short weights and measures, bankruptcy fraud (fed), workers comp fraud, mail& wire fraud (fed), any fraud involving interstate commerce gives federal agencies jurisdiction. Sarbanes-Oxley Act (2002) (p. 305) Bribery Domestic and foreign RICO violations Created for Mafia, but extended to many types of business that commit pattern of racketeering activity Other Examples : Antitrust violations, computer/internet fraud, credit card fraud, phone/telemarketing fraud, bankruptcy fraud, healthcare fraud, environmental law violations, insurance fraud, mail fraud, government fraud, tax evasion, financial fraud, securities fraud, insider trading, bribery, kickbacks, counterfeiting, public corruption, money laundering, embezzlement, economic espionage, and trade secret theft. Intellectual Property No Electronic Theft Act No financial gain required Penalties of up to five years in prison and up to $250,000 in fines Digital Millennium Copyright Act (DMCA) (see infra) 8

9 Computer Crime Common state provisions prohibit: Unauthorized access to a computer system Hacking or physical access Tampering with files or causing damage to a system Including viruses, worms, trojans Invading the privacy of others. Using computers to commit fraud or theft See also, ID theft. phishing Harassment/stalking Child porn Trafficking in passwords or access codes. Can be part of state theft or burglary statute. CA: Computer Crimes listed under Larceny, 502 CPC Computer Crime Many federal statutes have been enacted/amended to fight computer crimes. ACCESS DEVICE FRAUD. 18 U.S.C Fraud and related activity in connection with access devices. COMPUTER FRAUD AND ABUSE ACT. 18 U.S.C Fraud and related activity in connection with computers. CAN-SPAM ACT. 15 U.S.C Controlling The Assault of Non-Solicited Pornography and Marketing Act of EXTORTION AND THREATS. 18 U.S.C EXTORTION and THREATS. Interstate communications. IDENTITY THEFT AND ASSUMPTION DETERRENCE ACT of U.S.C Fraud and related activity in connection with identification documents, authentication features, and information. WIRE FRAUD. 18 U.S.C Fraud by wire, radio, or television. No Electronic Theft ("NET") Act. 17 U.S.C Criminal Offenses. (criminal copyright infringement) Digital Millennium Copyright Act of 1998 (DMCA). 17 U.S.C Circumvention of copyright protection systems. Electronic Communications Privacy Act, 18 U.S.C. 2701, et seq. (STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS) Trade Secrets Act. 18 U.S.C Theft of trade secrets. Economic Espionage Act. 18 U.S.C Economic Espionage. PROTECT Act Child pornography Homeland Security Act of 2002 (Amendments) Patriot Act 9

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