1. Criminal Law

Criminal Law

Playlist: 32 Videos: 75 Minutes


Topics: Learning Material

Introduction to Criminal Law
The chapter introduces the concept of criminal law and the procedures for enforcing those laws. It will explore the Constitutional authority of the government to pass criminal laws, the enforcement methods, and identifies specific types of criminal laws. It breaks down criminal conduct into the basic elements necessary to demonstrate criminal liability. It explores the process and procedure for enforcing criminal laws and the Constitutional limitations on the government that serve to protect individual rights. Lastly, it explores numerous federal and state criminal statutes that routinely affect business practices. For further written and video explanation, discussion and practice questions, see Criminal Law (Intro)

What is Criminal Law?
Criminal law is public law passed by the federal, state, or local government. It restricts or requires affirmative conduct of its citizens under the threat of prosecution. These prohibitions may be in the form of a statute, common law rule, regulatory rule or decision, or local ordinance. Criminal laws prohibit conduct that is either considered, “malum in se” or “malum prohibitum”. Malum in se - means that conduct is inherently wrong without regard to a statute proscribing the conduct. Malum prohibitum - means that conduct is not necessarily wrong or evil, but it is made illegal based upon a law. The authority for each type of law may differ, but generally criminal laws are enforced by the government and exist to protect the health, safety, and welfare of citizens. This includes protecting the property and rights of those citizens. Failing to comply with criminal laws can result in fines or imprisonment. For further written and video explanation, discussion and practice questions, see What is Criminal Law?

Elements of a Crime
Every crime is composed of certain elements. Common among all crimes are the physical and mental characteristic of the defendant in failing to comply with the criminal law. Actus Reus - Actus Reus is a latin phrase meaning, “guilty act”. This element simply means that the individual committed the act proscribed by the statute. In some cases a threat to act or a failure to act constitutes the crime. In any event, the defendant must be responsible for that action or inaction. Mens Rea - Mens rea is a latin phrase meaning a “guilty mind”. This generally means that there must be some mental intent to commit the act that is wrongful under the law. “General intent” crimes simply require that the individual intend to do the act that constitutes a crime, without specific intent as to the results of the harmful action. Criminal Negligence - If an actor intends a physical act that is negligent under the circumstances, she may be criminally liable for the harm resulting from the action. Generally, the action must pose a foreseeable risk of harm and the actor’s failure to observe due care brings about that harm. Strict Liability Crimes - This type of crime does not require a defendant’s mens rea. That is, if an individual undertakes an action, regardless of whether there was intent, she is criminally liable. “Specific intent” crimes require that the individual have the intent to achieve that harmful result or be indifferent or reckless with regard to the probable results of her conduct. The specific intent requirement is generally satisfied if the defendant acts recklessly with regard to the potential harm that could result from her actions or inactions. Intentional Crime - The actor intends the physical act and the likely result of that act constituting a crime. Criminal Recklessness - An actor may be criminally liable for undertaking an action without regard for the potential harm to persons or property. Generally, the actor must understand the substantial risk and consciously disregard it. In some instances, a guilty act may constitute more than one crime. This may be the case when one crime is a “lesser-included offense” of another crime. That is, less than all of the elements required for one crime may meet all of the elements of another crime. For example, theft may be a lesser-included crime of burglary. A general intent crime may be a lesser-included offense of a specific intent crime. For further written and video explanation, discussion and practice questions, see What are the elements of a crime?

Misdemeanor vs Felony
Criminal conduct is generally classified by the level of severity and the potential punishment from breaking the law. The two primary classifications of crimes are as follow: Misdemeanor - A misdemeanor is crime of lesser significance that is punishable by a fine or a joint sentence of less than one year. Felonies - Felonies are more serious crimes that are punishable by fine or imprisonment in a penitentiary for a period of one year or more. Historically, the common law identified “treason” as a class of serious offense that was separate from a felony. Also, today, many jurisdictions identify a less severe form of criminal act, known as an “infraction”. The infraction is generally a minor violation of an ordinance or regulation. For further written and video explanation, discussion and practice questions, see Classifications of crimes - Misdemeanor vs Felony Criminal Charges?

Bringing Criminal Charges
The general process for initiating criminal charges against an accused is as follows: arrest, initial appearance, bringing charges, arraignment, trial burden. Each step of the criminal process may vary slightly among jurisdictions. Prosecution of a violation of a criminal law is carried out in an Article III court (judicial branch court). Article I courts (administrative courts) do not prosecute violations of criminal law. For further information about each step of this process, including written and video explanation, discussion and practice questions, see What is the process for bringing criminal charges?

Executing and Arrest
Law enforcement officers generally carry out arrests. There must be “probable cause” for a government official to make an arrest. This may include observance of the criminal activity or based upon reliable evidence. If an officer does not witness the illegal conduct or have immediate evidence in her possession regarding the commission of the crime, she must generally seek an arrest warrant prior to arresting a suspect. A judicial officer (generally a magistrate judge) must hear evidence and make a determination as to whether probable cause exists to arrest someone. If the magistrate determines that probable cause exists, she will issue an arrest warrant that empowers the police to arrest the individual. The police must execute the arrest warrant within the terms of the authority granted by the judicial officer. For written and video explanation, discussion and practice questions, see What is the process for executing an arrest?

Miranda Rights
Once an individual is under arrest, the government agent (collectively referred to as “police officer” or “officer”) will generally make the individual aware of her constitutional rights against self-incrimination. A “Miranda warning” is a written or verbal statement to the arrested individual substantially as follows, “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided to you at no cost.” Once the police officer delivers the Miranda warning, anything that the defendant says in response to questions from the officer may be used in court. If the officer fails to advise the defendant of her rights, any statements made by the defendant pursuant to interrogation are not admissible at trial. There are, however, a number of exceptions to this rule: Unsolicited Statements; Public Safety Exception; Other Evidence Sufficient of Conviction Rule; Unequivocally and Assertively Request Counsel. The limited exceptions to the requirement to inform an accused of her Miranda rights are subject to some degree of controversy. For further information on each exception, including written and video explanation, discussion and practice questions, see What are the exceptions to reading "Miranda Rights"?

Initiating Criminal Charges - Process
If criminal conduct constitutes a misdemeanor, the prosecutor will file a document called an “information” with the court. This document attests that there is sufficient evidence to bring charges against the defendant. If the alleged criminal conduct constitutes a felony, the prosecutor must submit the case to a “grand jury” to seek an indictment. A grand jury is a group of citizens chosen at random to serve this judicial function. The grand jury must consist of at least 16 citizens who live in the court’s jurisdiction. The grand jury will hear evidence and vote on whether to send a case to trial. To issue an indictment, a majority of the grand jury must vote that a crime has been committed and that there is sufficient evidence to warrant the accused standing trial. The grand jury does not determine guilty or innocence; rather, it determines whether probable cause exists to believe the accused committed the alleged crime. The grand jury has broad investigatory power, such as the authority to subpoena business records or witnesses to testify. Grand jury proceedings are kept confidential to protect the accused. To issue an indictment, the court will issue a “true bill”. If the grand jury declines to indict, it will issue a “no true bill”. If an indictment is issued, the indicted person is still presumed to be innocent until convicted by a court of law. For further written and video explanation, discussion and practice questions, see What is the process for initiating criminal charges?

Arraignment & Initial Appearance
The "initial appearance" is the first court proceeding for a defendant. Generally, the first appearance will take place with 24-72 hours of arrest. The judge will review whether probable cause exists to detain the individual on the subject charges. During the initial appearance, the judge will review the defendant’s rights. It is a restatement of the Miranda warning as well as reassurance of other certain constitutional rights afforded the defendant, including: the right to remain silent; the right to be represented by counsel (and appointment of counsel if indigent); the right to know all charges against her; the right to a preliminary hearing; the right to seek pre-trial release (if the Judge so grants). This process helps ensure that the defendant’s 5th Amendment right against self-incrimination is preserved. The "arraignment" is the judicial proceeding that officially starts the trial process. At the arraignment the court will officially inform the defendant of the charges against her. She will be asked to respond to the charges in the form of a plea of guilty, not guilty, or no contest. In some cases, the initial appearance and arraignment will take place at the same time. This is particularly true when there is no formal arrest. Often, white-collar crimes do not involve a traditional arrest. If the grand jury hands down an indictment, the defendant will voluntarily appear before the court for a combined initial appearance and arraignment. For further written and video explanation, discussion and practice questions, see What is the "Arraignment" and "Initial Appearance"

Search and Seizure
The 4th Amendment protects individuals against “unreasonable search and seizure”. More specifically, the police must obtain a court order before searching the individual’s body or any physical location where the defendant has an expectation of privacy. To obtain a search order, the government must demonstrate to a judicial official (generally a magistrate judge) that there is probable cause to believe that the suspect or private location contains evidence of a crime. There are certain limitations to the requirement that the government secure a search warrant before searching private property. The most common exceptions include: Exigent Circumstances, Grab area, US Entry or Exit. To learn more about these exceptions, protections for businesses, the exclusion of unlawfully obtained evdidence, and for further written and video explanation, discussion and practice questions, see What are the 4th Amendment protections against "Search and Seizure"?

5th Amendment Protections

The 5th Amendment provides several procedural, due process rights to citizens. In additional to the right to due process of law, the 5th Amendment includes the following notable protections: Right to Grand Jury, Protection Against Self-incrimination, Protection Against Double jeopardy. Procedural due process rights apply to civil, administrative, and criminal proceedings. The basic premise is that individuals enjoy 5th Amendment protections from government infringement of their rights (including rights to property). To learn more about these protection and for further written and video explanation, discussion and practice questions, see What are the 5th Amendment criminal law protections?

6th Amendment Protections
The 6th Amendment provides numerous procedural protections for someone who is subject to the prosecutorial process. These protections include: Speedy and Public Trial; Trial by Jury; Informed of Charges; Confront One’s Accuser; Right of Subpoena; Right to Counsel. The rights afforded under the 6th Amendment have been interpreted broadly to ensure adequate protection of a criminal defendant’s rights. For further written and video explanation, discussion and practice questions, see What are the 6th Amendment criminal law protections?

8th Amendment Protections
The 8th Amendment prohibits the Federal Government from imposing “excessive bail, excessive fines, and cruel and unusual punishment” on individuals pursuant to criminal prosecution. These protections have been extended to state governments as well. The prohibition against cruel and unusual punishment has been the subject to extensive interpretation over the years. This has particularly been the case with regard to capital punishment. Generally, the standard for what constitutes cruel and unusual punishment has become increasingly broad. For further written and video explanation, discussion and practice questions, see What are the 8th Amendment criminal law protections?

Crimes Against Property
Each state adopts its own criminal statutes. Some of the more common types of named criminal offenses against someone else’s property include: Larceny; Robbery; Burglary; Extortion; Embezzlement; Fraud, False Pretenses, and Theft by Deception. There are many statutory and common-law charges involving the property of others. These above-mentioned examples, however, are generally uniform across jurisdictions. For further written and video explanation, discussion and practice questions, see Crimes Against the Property of Others

What is Fraud?
The elements of the crime of fraud vary between jurisdictions. Consistent with the federal fraud statute, fraud is the unlawful taking of another’s property through the following types of knowing and willful conduct: falsifying, concealing, or covering up any trick, scheme, or device; making any material false fictitious, or fraudulent statement or representation about a material fact; or making or using any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry. Related charges, commonly known as “false pretenses” and “theft by deception” generally constitute the following types of conduct: intentionally creating or reinforcing an impression that is false; failing to correct an impression that is false and that the person does not believe to be true if there is a confidential or fiduciary relationship between the parties; preventing another from acquiring information that is relevant to a transaction; and failing to disclose a known lien or other legal impediment to property being transferred. For further written and video explanation, discussion and practice questions, see Activity Constituting Fraud

Good Faith Defense to Fraud
Fraud requires knowing and willful conduct carried out with the intent to defraud someone. As such, good faith in one’s actions is a defense to the allegations. The defense is that the defendant acted in good faith and did not have the necessary intent to defraud anyone. It does not matter that a person’s statement or belief is wrong, there is no action for fraud unless intent is deceive is present. Further, an individual’s lack of due care in making a statement is not relevant in determining fraud. For further written and video explanation, discussion and practice questions, see Good Faith as a Defense to Fraud

Common Types of Business Fraud
Many examples of business fraud include a scheme or plan designed to take from a person the tangible right of honest services. Below are some common examples of fraud in the business context: Mail or Wire Fraud; Securities Fraud; Insurance Fraud; Healthcare Fraud; Tax Fraud. For further written and video explanation, discussion and practice questions, see Common Types of Business Fraud

Conspiracy
Conspiracy involves an agreement between individuals to commit a crime. Conspiracy is a separate charge or crime than the crime agreed to by the parties. In a conspiracy, each member becomes the agent of the other member(s). Each person in the conspiracy does not have to know all of the details. Each person simply needs to understand that the plan is illegal and knowingly and willfully join in that plan on one occasion. The conspiracy or conspired act does not have to be successful. The formal elements of a conspiracy charge are as follows: Multiple People; Mutual Understanding; Willfulness; Overt Act; Purposeful Act. The essence of a conspiracy offense is the making of an agreement followed by the commission of any overt act in furtherance of that agreement. While direct evidence is preferable, circumstantial evidence may be used to prove a conspiracy. For further written and video explanation, discussion and practice questions, see Conspiracy as a Criminal Charge

Obstruction of Justice
Obstruction of justice is an intentional act carried out with the intent to obstruct the legislative or judicial process. This charge seeks to protect legislative, judicial, and administrative proceedings. For further written and video explanation, discussion and practice questions, see Obstruction of Justice as a Criminal Charge

False Statement

Generally a false statement means making a statement when there is a legal obligation to avoid mistruths. This can arise in several contexts, for example: False Statement to a Bank or False Statement to a Federal Agency. For further written and video explanation, discussion and practice questions, see False Statement as a Criminal Charge

Aiding and Abetting
Aiding and abetting involves providing assistance to someone accused of a crime. The assistance must relate to the criminal activity, such as assistance preparing to commit the crime, covering up the criminal activity, or evading law enforcement. This charge can be very similar to conspiracy. Under state law, the crime of aiding and abetting is often referred to as “accessory”. An individual can be an accessory before or after the commission of the crime. “Accessory before the fact” means that the individual helps in preparation of the criminal activity. “Accessory after the fact” means that the individual helps conceal or cover up the crime. For further written and video explanation, discussion and practice questions, see Aiding and Abetting or Conspiracy to a Crime

White Collar Crime
White-collar crime characterizes crimes by criminals of high socioeconomic status or individuals who hold high-ranking, professional positions, such as corporate executives. More broadly, it includes any offense that occurs in a business or professional setting. These crimes can either be for personal gain or with the purpose of harming or benefiting the business. For further written and video explanation, discussion and practice questions, see What is White Collar Crime

Conduct Endangering Workers
In some instances, a corporate official may be charged with a crime for conduct committed in furtherance of her job duties. Particularly, conduct by business officials that endanger workers may be criminal in nature. This type of conduct is often made illegal through regulations of a governing agency. For further written and video explanation, discussion and practice questions, see Crimes or Conduct Endangering Workers

Bribery or Illegal Kickbacks
Offering, receiving, or soliciting something of value for the purpose of influencing the action of an official in the discharge of her public or legal duties is illegal in both the domestic and international contexts. Under federal law, this sort of activity is prohibited by the Foreign Corrupt Practices Act, which specifically serves to prevent kickbacks to facilitate business transactions. For further written and video explanation, discussion and practice questions, see Bribery or Illegal Kickback as a Crime

Racketeer Influenced and Corrupt Organizations Act (RICO)

This law imposes criminal and civil liability upon those businesspersons who engage in certain prohibited activities that directly affect interstate commerce. The law is commonly used to impose criminal sanctions and forfeiture of resources used in furtherance of the criminal enterprise. Elements of a RICO action include: Involvement in an Enterprise and Pattern of Racketeering. The law makes it unlawful for any person employed by or associated with any enterprise to conduct or participate in a violation of the law. The law foresees two separate entities — person and the enterprise. Generally, employment alone is insufficient to hold someone liable under RICO. For further written and video explanation, discussion and practice questions, see Racketeer Influenced and Corrupt Organization Act

False Claimes Act

The False Claims Act (FCA) is a federal law that provides criminal and civil sanctions for those who commit fraud against the US Government. It is well known for authorizing a special type of civil action, “Qui Tam” or “Whistleblowing”, which allows a civil plaintiff to bring an action against a company on behalf of the Federal Government. The criminal and civil provisions of the FCA prohibit a long list of conduct. The unique aspect of the FCA is that it allows individuals reporting criminal fraud against the government and those bringing Qui Tam actions to receive a portion of the proceeds recovered by the government. For an example list of prohibited activity and written and video explanation, discussion and practice questions, see The False Claims Act

Sarbanes-Oxley

The Sarbanes-Oxley Act (SOX) is a set of federal laws addressing criminal and unethical conduct of public company boards and management. It also addresses the accounting and auditing practice of firms servicing these public companies. The criminal sanctions under the statute are as follows: Title VIII & XI - This portion of SOX contains the "Corporate and Criminal Fraud Accountability Act of 2002". Title IX - This portion of SOX is called the "White Collar Crime Penalty Enhancement Act of 2002”. SOX was passed in the wake of numerous corporate scandals that rocked the financial markets, such as World Com, TyCo, Enron & Arthur Andersen. For further written and video explanation, discussion and practice questions, see Sarbanes Oxley Act

Cyber Crime
Federal law provides that a person who intentionally accesses a computer without authorization or exceeds authorized access to obtain classified, restricted, or protected data, or attempts to do so, is subject to criminal prosecution. For further written and video explanation, discussion and practice questions, see What is Cyber Crime

Defense to Criminal Conduct
Common defenses to criminal conduct include: Negating Mental Capacity; Negating Intent; Duress; Necessity; Entrapment; Justifiable Use of Force. The availability or applicability of any defense depends upon the type and nature of the criminal charges.For further written and video explanation, discussion and practice questions, see Common Defenses to Criminal Conduct

Criminal Punishments
For further written and video explanation, discussion and practice questions, see Types of Punishment for Criminal Activity

Theories of Criminal Punishment

Criminal statutes carry numerous forms of punishment or sanction for criminal conduct including, Fines; and Incarceration. Other losses of rights or privileges pursuant to criminal conduct include: the right to vote, the right to own a firearm, and the privilege of driving. These punishments are not exclusive. Criminal conduct may carry multiple punishments. For further written and video explanation, discussion and practice questions, see Theories Behind Criminal Punishment

Federal Sentencing Guidelines
Numerous theories or philosophies exist for imposing some form of sanction upon criminal conduct, including: Retribution, Deterrence, Incapacitation, Rehabilitation, and Restoration. Legislators and judicial figures do not have to state their reasoning when passing criminal statutes or handing down criminal sentences. For further written and video explanation, discussion and practice questions, see Theories Behind Criminal Punishment.


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