Bài giảng Quản trị kinh doanh - Crimes and torts

1 Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved.McGraw-Hill/Irwin2CrimesIntentional TortsNegligence and Strict LiabilityIntellectual Property and Unfair CompetitionCrimes and TortsPARTCriminal Law and ProcedurePAETRHC5Wherever Law ends,Tyranny begins.John LockeDescribe the nature and elements of a crime, including evidence requiredUnderstand Constitutional limitations, defenses, and protections within criminal lawExplain criminal procedureDiscuss corporate crime, including RICO and computer-based crimesLearning ObjectivesNature of CrimesCrimes are public wrongs, classified from most serious to least serious as:FelonyMisdemeanorInfractionPurpose of criminal sanctions: incapacitation, deterrence, rehabilitation, ElementsTo convict a defendant of a crime, the government mustDemonstrate that alleged acts violated a criminal statuteProve beyond a reasonable doubt that the defendant committed the actsProve the defendant had the capacity of criminal intentCourts narrowly interpret criminal statutes Constitutional ProtectionsBill of Rights: first ten amendments to the U.S. ConstitutionLiterally binds only the federal government, but applied to states through the due process clause of the Fourteenth AmendmentConstitutional LimitationsGovernment may not enact an ex post facto (after the fact) lawThus 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. ConnecticutFirst Amendment allows government to regulate indecent speech and does not protect obscene expressionTo 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 InternetConstitutional LimitationsProof and IntentDefendants are presumed innocent until proven guilty beyond a reasonable doubtMost serious crimes require proof of the defendant’s mens rea, or criminal intentDefendant must have had capacity to form criminal intentThree types of incapacity recognized: intoxication, infancy, and insanityCriminal ProcedureArrest and booking of defendantArrest report filed with prosecutorIf defendant charged, complaint filedInitial appearance of defendant before judicial officer Preliminary (probable cause) hearingCriminal ProcedureIf probable cause exists, formal charge – information or indictment – filed with court Arraignment of defendant in which defendant enters a pleaGuilty, not guilty, nolo contendere (no contest)Defendant who pleads not guilty and faces incarceration for more than six months may choose a jury trialBench trial (judge only) also available Fourth Amendment protects persons against unreasonable and arbitrary searches and seizures Interpreted by Supreme Court to protect a reasonable expectation of privacyGeneral rule: warrantless searches are unreasonable (unconstitutional)See United States v. HallConstitutional ProtectionsWhat 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 carsEnhanced aerial photography of a facilityWhat 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 warrantThermal image of handWarrantless SearchesSupreme Court has held that constitutional warrantless searches include: Area within an arrestee’s immediate controlPremises police enter in hot pursuit of an armed suspectStop-and-frisk searches for weaponsInventory searches of property (e.g., briefcase, automobile) in an arrestee’s possessionConsensual searchesExigent circumstances (Kentucky v. King)The Exclusionary RulePrevents the use of evidence seized in an illegal search in a subsequent trial of the defendant Supreme Court has narrowed operation of the ruleSee Hudson v. MichiganThe Fifth AmendmentThe 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 rightAlso prohibits prosecutorial comments at trial about the defendant’s failure to testifyScope of Fifth AmendmentSelf-incrimination privilege applies toTestimonial 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 offenseSixth AmendmentApplies to criminal cases by guarantees of aSpeedy trialImpartial juryRight to confront and cross-examine witnessesRight to effective assistance of counselWhite Collar CrimesUnder 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 corporationNumerous policy debates about how to deal with corporate crimeWhite Collar CrimesRegulatory offensesExample: violating the Clean Water ActFraudulent actsExamples: false claims, fraudulent concealment, wire fraudSarbanes-Oxley Act violationsExample: Knowingly altering documents or business records with the intent to impede a government investigationWhite Collar CrimesBribery and Illegal GratuitiesExample: violating Foreign Corrupt Practices ActRacketeer Influenced and Corrupt Organizations Act (RICO) violationsExample of criminal RICO: using income derived from a “pattern of racketeering activity” Example of civil RICO: See Boyle v. United StatesThought QuestionsAre constitutional protections for criminal matters overly broad or too narrow?What do you think about the corporate crime cases in the text?