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Business Law Text Notes Essay

Nature of Crimes

Crimes are public wrongs- acts prohibited by the state or federal government. Typically classified as a felony or a misdemeanor:

Felony- A serious crimes such as murder, sexual assault and involve significant moral culpability on the offender’s part. These are punishable by lengthy prison sentences, fines, loss of voting rights, revoking of professional licenses. Misdemeanor- A lesser offense such as disorderly conduct or battery resulting in minor physical harm to the victim. These usually involve much less moral culpability by the offender than those of felony offenses. Punishable by lesser fines and confinement in prison.

Purpose of the Criminal Sanction

Under the utilitarian view people believe that prevention of socially undesirable behavior is the only purpose of criminal penalties. This goal of prevention includes three major components: deterrence, rehabilitation, and incapacitation.

Deterrence- Under this theory threat or imposition of punishment deters crimes in two ways:
1. Special Deterrence- when punishment of an offender deters him from committing further crimes
2. General Deterrence- when punishment of a wrongdoer deters other from committing similar offenses Factors influencing the effectiveness of deterrence are:

1. Likelyhood crime will be detected
2. That detection will be followed by prosecution
3. That Prosecution will result in conviction
4. The severity of the punishment is a key factor

Rehabilitation- Involves changing offenders attitudes or values so they are less inclined to commit future offenses.

Incapacitation- Incarcerating offenders so they are less likely to commit crimes while imprisoned.

Essentials of Crime
To convict a defendant of a crime the government must:
1. Demonstrate his alleged acts violated a criminal statute 2. Prove beyond a reasonable doubt that he committed those acts and 3. Prove that he had the capacity to form a criminal intent

Crimes are statutory offenses. A behavior is not a crime unless congress or state legislature has criminalized it.

Constitutional Limitations on Power to Criminalize Behavior
The US Constitution prohibits ex post facto criminal laws. This means that to be illegal the offenders act must have been illegal at the time of the offense and the penalty imposed must be the one provided for at the time of her offense.

Equal Protection Clause
This prohibits criminal statutes that treat certain persons of the same class or arbitrarily discriminate among different classes of people. -The Eighth Amendment of the Constitution forbids cruel and unusual punishment

Proof Beyond a Reasonable Doubt
Fundamental safeguard is a defendant is innocent until proven guilty or the presumption of innocence. The Due Process Clauses require the government to overcome this presumption by proving all charges beyond a reasonable doubt.

Defendant’s Criminal Intent and Capacity
Most serious crimes required mens rea or criminal intent as an element. Proof that the defendant had the capacity to form the required criminal intent is a prerequisite of criminal responsibility. Criminal law recognizes three types of incapacity: intoxication, infancy, and insanity.

Criminal Procedure

Criminal Prosecutions: An Overview
-Persons arrested for allegedly committing a crime are taken to the police station and booked. -Booking is an admin procedure for recording the suspect’s arrest. -After the booking police file an arrest report with the prosecutor who decides whether to charge the person with an offense -If she decides to prosecute she prepares a complaint

-The suspect is then taken to the judge for an initial appearance. During this appearance the judge informs the suspect of the charges against him and outlines the suspect’s constitutional rights. -In the case of a felony charge there is an additional preliminary hearing where the prosecutor must present enough evidence to determine probable cause that the suspect committed the felony. -If probable cause exists the judge binds over the suspect for a trial in the appropriate court -After the bindover the formal charge against the defendant is filed with the trial court

-The formal charge consists of either an information filed by the prosecutor or an indictment returned by a grand jury -Once an information or indictment is filed an arraignment occurs where the defendant is brought before the court, informed of the charges and asked to enter a plea. -The defendant may plea guilty, not guilty or nolo contendere, which means the defendant does not contest the charges but does not admit guilt -Once the plea is entered the defendant chooses what type of trial that will take place. Persons accused of serious crimes for which incarcerations for more than six months is possible have a right to jury trial or he can waive his right and have a bench trial, judge only.

Role of Constitutional Safeguards
The Bill of Rights and the first 10 Amendments to the US Constitution set forth rights of criminal defendants

Fourth Amendment
Protects people from arbitrary and unreasonable governmental violations of their privacy rights.
-Against unreasonable search and seizure without probable cause

Reasonable Expectation of Privacy
4th Amendment only protects people from search where there is a reasonable expectation of privacy.

Warrant Requirement and Exceptions
The court held that searches without warrants are unreasonable.

Exclusionary Rule
Evidence seized in an illegal search without a warrant is inadmissible in court and any information obtained during an illegal search that leads to a later discovery is inadmissible in court as well.

The USA Patriot Act
A statute that gave the government a broad ranging freedom to conduct searches of property, internet activity, bank accounts and other activities that used to require a warrant.

The Fifth Amendment
This amendment protects against compelled testimonial self-incrimination by establishing no person shall be compelled in any criminal case to be a witness against himself. This prevents government coercion of a suspect into making self-incriminating statements.

Miranda Rights- a fifth amendment right which requires police to inform suspects before interrogating them their rights to remain silent and have an attorney present.

Production of Records
The fifth amendment protects people against compelled production of their private papers. However, this is not the case for corporations, since corps do not enjoy 5th amendment rights corporations and corp officers must present business records.

Double Jeopardy
A 5th amendment provision that states someone can not be tried twice for the same offense.

Sixth Amendment
Entitles defendant’s to a speedy trial by an impartial jury and gurantees them the right to cross examine the witnesses against them. Also provides the defendant is entitled to a court appointed attorney or the right to provide her own attorney for her defense.

White Collar Crimes and the Dilemmas of Corporate Control
White Collar Crime is the term used for a variety of non violent criminal offenses committed by business persons and business organizations.

Today a corporation may be held liable for criminal offenses committed by employees who acted within the scope of their employment and for the benefit of the corporation.

The Sarbanes-Oxley Act
This act created the Public Company Accounting Oversight Board in charge of regulation of public accounting firm’s audits of corporations in response to a wave of financial scandal.


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