Understanding Crime: Statutes, Punishments, and Business Crimes - Prof. Victor Bongard, Study notes of Business and Labour Law

Download Understanding Crime: Statutes, Punishments, and Business Crimes - Prof. Victor Bongard and more Study notes Business and Labour Law in PDF only on Docsity! Chapter 8 – Crime - Text Outline I. Introduction A. White Collar Crime - Costs society tens of billions of dollars annually, it is more costly than “street crime”. II. Crime, Society, and Law A. Criminal Law – prohibits conduct threatening to the people and social stability. Most criminal law is made up of statutes. 1. Prosecution – it is the government that prosecutes crim. 2. Jury Right – a defendant has a right to a jury for any charge that could result in a sentence of six months or longer. The defendant can waive his right. 3. Punishment – can include a fine, prison sentence, and/or restitution a. Guilty – a court’s finding that a defendant has committed a crime. b. Acquit – a court’s finding that a defendant has NOT committed a crime. c. Restitution – a court order that guilty defendants reimburse the victim for the harm suffered. 4. Felony / Misdemeanor a. Felony – a serious crime, for which a defendant can be sentenced to one year or more in prison. b. Misdemeanor – a less serious crime, often punishable by less than a year in a county jail. B. Punishment 1. Restraint – putting someone in confinement to protect society. 2. Deterrence a. Specific Deterrence – intended to teach the defendant that crime carries a heavy price tag. b. General Deterrence – demonstrates to society that crime should be shunned. 3. Retribution – giving back to the criminal what he deserves. Related to the idea of vengeance. a. Immanuel Kant (1724 – 1804) – German philosopher, rejected deterrence by believing people were more important and must be treated as an ends in themselves. b. Vengeance – when a serious crime occurs, society wants the perpetrator to suffer. 4. Rehabilitation – to provide training to an offender so that he may return to a normal life. Most criminal justice exports believe little rehabilitation occurs in prison. C. The Prosecution’s Case 1. Conduct Outlawed – an statute exists making an action illegal. 2. Burden of Proof – beyond a reasonable doubt. Requires much more evidence than required in a civil court. 3. Actus Reus (“the guilty act”) – prosecution must prove that the defendant voluntarily committed a prohibited act. 4. Mens Rea (“guilty state of mine”) – proves the mental state of mind of the defendant. a. General Intent – must prove actus reus in that he intended to commit the act. b. Specific Intent – the defendant intended to do something beyond the physical act. (i.e.burglary requires the intent to steal property) c. Reckless or negligent conduct  Criminal recklessness – consciously disregarding a substantial risk of injury (i.e. pointing a gun at someone)  Criminal negligence – deviation from reasonable conduct; lesser charge. (i.e. hunter shooting before finding out if it is man or beast) 1 d. Strict Liability – in these cases only he is guilty regardless of mental status and only need to prove actus reus. D. Defenses 1. Insanity – a defendant who can prove he was insane at the time of the criminal act will be declared not guilty, and remanded to a mental health facility until he is no longer a danger to society. a. M’Naghten Rule  Must show an identifiable mental disease.  Must show he did not understand the nature of the act or that it was wrong. b. Bieber v. People – Bieber killed someone as a result of mental state caused by long term drug use. Even though he was not on drugs at the time, he was suffering from amphetamine delusional disorder. Bieber plead guilty by reason of insanity. He was found criminally responsible because it was due to drug use regardless of the time. 2. Entrapment – when the government induces the defendant to break the law, the prosecution must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. III. Crimes that Harm Business A. Larceny – taking the personal property with the intent to steal it. 1. 12 cents of a dollar spent in retail stores covers the shoplifting to support the habit of drug misuse. 2. $25 million in merchandise is stolen each year from retail stores. B. Fraud – deception used to obtain money or property. 1. Wire and mail fraud – interstate fraud involving mail, telegram, telephone, radio, or television 2. Insurance fraud (i.e. burning a building to collect insurance) 3. Medicare fraud – using false statements, bribes, or kickbacks to obtain Medicare payments. C. Embezzlement – fraudulent conversion of property already in the defendant’s possession. D. Computer Crime 1. Computer Fraud and Abuse Act – prohibits using a computer to commit theft, espionage, trespass, fraud or damaging another computer. 2. Access Device Fraud Act – outlaws fraudulent use of cards, codes, account numbers and other devices to obtain money, goods or services. (i.e. reprogramming a cell phone to bill another account) 3. Identity Theft and Assumption Act –bars the use of false identification to commit fraud or other crime. (i.e. USA v. Dragon – Dragon received a 44 month sentence for identity theft.) 4. Wire and Electronic Communications Interception Act – crime to intercept most wire, oral, and electronic communications. IV. Crimes Committed By Business A. Agent – anyone who works on the behalf of the corporation. 1. If any agent commits a criminal act within the scope of his employment and with the intent to benefit the corporation, the company is liable. 2. Commonwealth (MA) v. Angelo Todesca Corp. – A truck driver drives a truck without a backup alarm at the request of another within the company. The truck driver kills a police officer while doing road work. The truck was in line of a series of trucks that had alarms, but when he backed up the police officer did not realize that his truck had none of such. Fined $2,500 which the appeals court affirmed. 2