Glossary of Business Law: Business Crimes and Criminal Law
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- A violation of a statute for which the government imposes a punishment:
- "Guilty act"—the actual performance of the criminal act:
- Actus reus
- What actions would be seen as aiding and abetting the commission of a crime?
- Rendering support, assistance, or encouragement to the commission of a crime; harboring a criminal after he or she has committed a crime.
- A hearing during which the accused is brought before a court and is informed of the charges against him or her and asked to enter a plea:
- A document for a person's detainment based upon a showing of probable cause that the person committed the crime:
- Arrest warrant
- What are the 2 main steps of an arraignment?
- Accused is:
(1) informed of the charges against him
(2) asked to enter a plea.
- Willfully or maliciously burning another's building:
- When a crime is attempted but not completed:
- Attempt to commit a crime
- A rule that says a client can tell his or her lawyer anything about the case without fear that the attorney will be called as a witness against the client:
- Attorney-client privilege
- When one person gives another person money, property, favors, or anything else of value for a favor in return:
- Bribery ("kickback" or "payoff")
- Taking personal property from another's home, office, commercial, or other type of building:
- When 2 or more persons enter into an agreement to commit a crime and an overt act is taken to further the crime:
- Criminal conspiracy
- Obtaining title to property through deception or trickery:
- Criminal fraud (Also known as false pretenses or deceit)
- What clause and Amendment protects criminal defendants from torture and other abusive punishment?
- The cruel and unusual punishment clause of the 8th Amendment
- The fraudulent conversion of property by a person to whom that property was entrusted:
- What protects persons from being tried twice for the same crime?
- The double jeopardy clause of the 5th Amendment
- A rule that says evidence obtained from an unreasonable search and seizure can generally be prohibited from introduction at a trial or administrative proceeding against the person searched:
- Exclusionary rule
- Fraudulently making or altering a written document that affects the legal liability of another person:
- Threat to expose something about another person unless that other person gives money or property:
- Extortion (blackmail)
- A jury that cannot come to a unanimous decision about the defendant's guilt:
- Hung jury (The government may choose to retry the case)
- The charge of having committed a crime, based on the judgment of a grand jury:
- Indictment (usually issued for felonies)
- "Evil intent"—the possession of the required state of mind to commit a prohibited act:
- Mens rea
- A collection of criminal statutes:
- Penal codes
- When the accused admits to a lesser crime than charged. In return, the government agrees to impose a lesser sentence than might have been obtained had the case gone to trial:
- Plea bargain
- The charge of having committed a crime, based on the judgment of a judge:
- Information (usually issued for misdemeanors) (D.A.)
- The use of mail to defraud another person:
- Mail fraud
- When a person knowingly receives stolen property and intends to deprive the rightful owner of that property:
- Receiving stolen property
- Taking personal property from another's person by use of fear or force:
- What are all search and arrest warrants based on?
- Probable cause
- A warrant issued by a court that authorizes the police to search a designated place for specified contraband, articles, items, or documents:
- Search warrant (Must be based on probable cause)
- States that no person shall be compelled in any criminal case to be a witness against him or herself:
- Self-incrimination clause of the 5th Amendment
- Standard for imposing criminal liability without a finding of mens rea (intent):
- Strict or absolute liability
- Any search and seizure by the government that violates the 4th Amendment.
- Unreasonable search and seizure
- Incomplete crimes and crimes committed by non-participants:
- Inchoate Crimes
- List 2 issues that are protected by the 5th Amendment:
- 1) Protection against self incrimination
2) Protection against double jeopardy
- What must be done before an accused person can be brought to trial?
- Accused person must be formally charged with a crime before he can be brought to trial. Usually this is done by issuing a grand jury indictment or a D.A.'s information statement.
- What makes it a federal crime to access a computer knowingly to obtain restricted federal government information, financial records of financial institutions, and consumer reports of consumer reporting agencies?
- Counterfeit Access Device and Computer Fraud and Abuse Act of 1984
- Who is allowed to appeal the court's decision in a criminal trial?
- 1) if the defendant is found guilty, he CAN appeal.
2) if the defendant is found innocent, the government CANNOT appeal.
- Issue: Party who brings the action
- Civil Law: Plaintiff
Criminal Law: Government
- What Act makes it a federal crime to use, furnish, sell, or transport a counterfeit, stolen, lost, or fraudulently obtained ATM card, code number, or other device used to conduct electronic funds transfers?
- Electronic Funds Transfer Act
- What Amendment allows the right to public jury trial?
- 6th Amendment
- Issue: Trial by jury
- Civil Law: Trial by jury except for equity
Criminal Law: Trial by jury
- Crimes usually involving cunning and deceit rather than physical force:
- White-collar crimes
- The use of telephone or telegraph to defraud another person:
- Wire fraud
- What Amendment is violated during an unreasonable search and seizure?
- 4th Amendment
- Issue: Burden of proof
- Civil Law: Preponderance of the evidence
Criminal Law: Beyond a reasonable doubt
- Issue: Jury vote
- Civil Law: Judgment for the plaintiff requires specific jury vote (e.g. 9 of 12 jurors)
Criminal Law: Conviction requires unanimous jury vote
- A crime that is neither a felony nor misdemeanor that is usually punishable by a fine:
- TRUE OR FALSE
One act may be the basis for both a criminal case and a civil lawsuit.
- Issue: Sanctions and penalties
- Civil Law: Monetary damages and equitable remedies
Criminal Law: Imprisonment, capital punishment, fine, probation
- What is a necessary element in the crime of kickback?
- What amendment guarantees the right to have the assistance of a lawyer?
- 6th Amendment
- During an arraignment, a plea of nolo contendere means that the defendant:
- Will not admit guilt, but will accept a penalty.
- Who is usually involved with the embezzlement of a company?
- Company employees
" " representatives
" " agents
- What Act permits roving wiretaps on persons suspected of involvement in terrorism?
- The Federal Antiterrorism Act of 2002
- What is the difference between a criminal act and criminal intent?
- For a criminal act to occur, the perpetrator must actually perform the crime. With criminal intent the accused does not have to commit the crime yet, but must be in a state of mind to do so.
- List in order the pretrial procedure of a criminal case.
- 1) arrest
2) indictment or information
4) plea bargaining
- TRUE OR FALSE
The government has the right to search businesses premises without a search warrant.
- What federal legislation criminalizes fraud in which an unauthorized person appropriates another person's identity, bank accounts, and credit card accounts?
- The Identity Theft and Assumption Deterrence Act
- When are "warrantless searches" permitted?
- Warrantless searches are permitted only
(1) incident to arrest
(2) where evidence is in plain view
(3) where it is likely that evidence will be destroyed
These searches are judged by the probable cause standard.
- What is the primary source of criminal law?
- Inherently evil crimes:
- Felonies "mala in se" (Most crimes against people and some business-related crimes).
- Criminal intent that is found where the accused purposefully, intentionally, or w/ knowledge commits a prohibited act:
- Specific intent
- What are the 4 purposes of imprisonment?
- 1) incapacitate the criminal so he will not harm others.
2) provide a means to rehabilitate the criminal.
3) deter others from similar conduct.
4) inhibit personal retribution by the victim.
- When a criminal does not have the money to pay a civil judgement:
- Judgement proof
- Who often enters the plea of nolo contendere?
- Corporate defendents
- Crimes that are not inherently evil but are prohibited by society:
- Misdemeanors "mala prohiibita" (Most crimes against property).
- In a criminal case, there is no crime is ____ cannot be proven
- Mens rea (e.g. no crime is committed if one person accidentally injures another person)
- The administrative procedure for recording the arrest, fingerprinting, etc.:
- List 3 reasons why the government engages in plea bargaining:
- 1) save costs
2) avoid the risks of a trial
3) prevent overcrowding prisons
- The likelihood that a person has either committed or is about to commit a crime:
- Probable cause
- Criminal intent that is found where there is a showing of recklessness or a lesser degree of mental culpability:
- General intent
- The process of creating the appearance that large amounts of money obtained from serious crimes, such as drug trafficking or terrorist activity, originated from a legitimate source:
- Money Laundering
- Has forgery been committed if one spouse signs the other spouse's payroll check for deposit in a joint checking account at the bank?
- No...signing another person's signature without intent to defraud is NOT forgery.
- Exortion of a public official:
- Extortion "under color of official right".
- What is a key element in proving that embezzlement has been committed?
- If the stolen property was ENTRUSTED to the embezzler.
- What does not have to be proven to be liable for the crime of criminal conspiracy?
- The crime itself does not have to be committed. However, it must been proven that there was an AGREEMENT and some OVERT ACT was taken to further the crime.
- During which step of a pretrial criminal procedure is the accused formally chargedd w/ the specific crimes?
1) Grand jury indicts accused.
2) D.A. issues an information statement.
- What elements must me proven for a person to be found guilty of most crimes?
- 1) Criminal Act "actus reus"
2) Criminal Intent "mens rea"
- What happens during the arraignment of a pretrial criminal procedure?
- The accused is informed of his charges and enters a PLEA in court. (not guilty, guilty, or nolo contendere)
- What crime has been committed if a bank teller flees w/ money that was deposited by depositors? Why?
- Embezzlement...the employer (bank) entrusted the bank teller to take deposits from its customers.
- TRUE OR FALSE
The offeror of a bribe can only be found liable for the crime if the offeree accepts the bribe.
- FALSE...the offeror can still be liable even if the offeree rejects the bribe.
- What can the police do if they have probably cause to believe that a crime has or is committed but have no time to obtain a warrant?
- The police can still arrest the suspect because they have probable cause.
- What must be proven for a person to be liable for a criminal conspiracy?
- Must prove that an OVERT ACT was taken to further the crime.
- How does embezzlement differ from robbery, burglary, and larceny?
- Embezzlement: property is taken by someone who HAS been entrusted w/property.
R,B,L: property is taken by someone NOT entrusted w/ property.
- TRUE OR FALSE
All states require that a criminal act and criminal intent must be proven to be committed of a crime.
Some statutes impose criminal liability on strict, or absolute, liablity, where mens rea is not required.
- What is the most prevalent from of business crime?
- What plea cannnot be used as evidence of liability against the accused at a subsequent civil trial?
- Nolo contendere
- What did the Supreme Court rule in the arrest case of Atwater v. Lago Vista, TX?
- The 4th Amendment PERMITS a police officer to make a warrantless arrest to a minor criminal offense if he has probable cause.
- What is the difference between not guilty and innocent?
- Not Guilty: found if any jurors have a reasonable doubt about the guilt of the accused (even 1 juror).
Innocent: found if ALL jurors agree that accused did not commit crime.
Shoplifting a watch from Dillard's
- The misappropriation or use of another person's credit card:
- Credit-card crimes
Stealing CDs from a man's car while he is in a restaurant.
- List the 10 main crimes affecting business.
- Robbery, burglary, larceny, theft, receiving stolen property, arson, forgery, extortion, credit-card crimes, & bad check legislation.
- What is the maximum penalty for mail, wire, and Internet fraud?
- 20 years in prison
- The making, drawing, or delivery of a check when you know that there are insufficient funds on your account to cover the check:
- Bad check legislation
- List the 5 main white-collar crimes.
- Embezzlement, criminal fraud, mail fraud, wire fraud, & bribery.
- What what the question at hand in the Atwater v. Lago Vista, TX case?
- Does the 4th Amendment permit police to make a warrantless arrest to a minor criminal offense?
- Does the defendent always have the option of choosing to plead nolo contendere?
- No,the goverment has the option of accepting nolo contendere or required the defendent to plead guilty or not guilty.
- List the 3 main inchoate crimes:
- Criminal conspiracy, attempt to commit a crime, & aiding and abbetting the commission of a crime.
Pickpocketing a man's wallet without him ever knowing.
- Evidence obtained from an unreasonable search and seizure:
- Tainted evidence
- An exception to the exclusionary rule: evidence obtained by the use of a warrant later found to be unsupported by probable cause is admissible if the investigating officers reasonably believed that the warrant was valid:
- A good faith exception to the exclusionary rule
- What was the Supreme Court's issue in the Kyllo v. United States search case?
- Does the use of a thermal-imaging device to detect relative amounts of heat coming from a private home constitute an unconstitutional search in violation of the Fourth Amendment?
- What was the Supreme Court's issue and holding in the Maryland v. Dyson search and seizure case?
- ISSUE: If there is probable cause, must the police first obtain a search warrant before searching an automobile?
HOLDING: Under the "automobile exception" to the 4th Amendment, an auto can be searched w/out a warrant as long as there is probable cause.
- What was the Supreme Court's decision in the Kyllo v. United States search case?
- The Court held that the thermal-imaging of a home constitutes a search w/in the 4th Amendment and may be done only with a warrant.
- What was the Supreme Court's issue in the City of Indianapolis v. Edmond search and seizure case?
- Are highway checkpoint programs, whose primary purpose is the discovery and interdiction of illegal narcotics, consistent with the Fourth Amendment?
- What was the Supreme Court's holding in the City of Indianapolis v. Edmond search and seizure case?
- The court held that b/c the checkpoint program's primary purpose was indistinguishable from the general interest in crime control, that it violated the 4th Amendment. Police may not conduct roadblocks whose primary purpose is to detect evidence of ordinary wrongdoing. Such roadblocks must have a specific primary purpose, such as keeping roadways safe from impaired drivers.
- To whom does the 5th Amendment's protection from self-incrimination apply
- Applies only to natural persons accused of crimes.
Does NOT apply to artificial persons (business such as corporations & partnerships).
- What was the Supreme Court's issue and holding in the 1966 Miranda v. Arizona case?
- ISSUE: Does the police practice of interrogating individuals w/out notifiying them of their right to counsel and their protection against self-incrimination violate the Fifth Amendment?
HOLDING: Yes, Miranda Rigts must be read. Anything said before is inadmissible at trial.
- What does a suspect lose once he is granted immunity from prosecution?
- He loses the right to assert his Fifth Amendment privilege.
- When does the Attorney-Client privilege apply?
- Applies only if the accused gives the attorney information in his or her capacity as an attorney. It does not apply if the accused gives the attorney information as a friend or neighbor or such.
- What is an exception to the Fifth Amendment's confidentiality privilege's?
- A spouse or child who is beaten by a spouse or parent may testify against the accused.
- What are 2 exceptions to the double jeopardy clause of the Fifth Amendment?
- 1) If the same criminal act involves several different crimes, the accused may be tried for each of the crimes.
2) If the same act violates the laws of 2 or more jurisdictions, each jurisdiction may try the accused.
- How many states have enacted special statutes that create an accountant-client privilege?
- 20 (Federal courts still do not recognize these laws)
- What are the 4 rights that the Sixth Amendment guarantees to criminal defendants?
- 1) To be tried by an impartial jury.
2) To cross-examine the witness.
3) To have the assistance of a lawyer.
4) To have a speedy trial.
- What are the 4 privileges that are recognized by the Fifth Amendment?
- 1) Psychiatrist/psycholoist-patient
- What evidence is NOT protected by the Fifth Amendment?
- Nontestimonial evidence (e.g. fingerprints, body fluids, etc.)
- What is an exception to the Fourth Amendment's protection against warrantless searches of business premises?
- Certain REGULATED INDUSTRIES may be subject to warrantless searches authorized by statute.
- Even though the Eighth Amendment protects against cruel and unusual punishment, it does not prohibit ____.
- Capital punishment
- What crime will a man be charged with if he holds up a marker to a clerk's back and tells the clerk that it is a gun?
- Man will be charged w/ ARMED ROBBERY
Even though he did not have a real weapon, the marker created a dangerous atmosphere so it was considered a dangerous weapon.
- How many jury members are there for felony trials where the punishment is imprisonment at hard labor?
- 12 person jury
10/12 must agree in order for defendant to be charged.
The only exception to this rule is CAPITAL PUNISHMENT (12/12 must agree).
- What are the 3 types of cases where a bill of indictment MUST be issued?
- 1) murder
2) aggr. rape
3) aggr. kidnapping
- Who created the test for insanity?
- Lord McNaughten
- If a defendant has been indicted, then he does not have the right to what?
- A preliminary exam
- Compare a plea of nolo contendere w/ a guilty plea:
- In a criminal case, guilty and nolo contendere basically mean the same thing ("guilty").
However, nolo contendere cannot be used against the defendant in a civil case.
- When is theft considered a misdemeanor?
- If the stolen item is worth less than $300.
- When will the government usually bring criminal conspiracy charges against the accused?
1) The defendant's have been thwarted in their efforts to commit the crime.
2) There is insufficient evidence to prove the crime.
- What law protect the Federal government from mcorrupt practices of government contractors and other businesses?
- The Civil False Claims Act (the "whistle blowers statute")
- When is theft considered a felony?
- If the stolen item is worth more then $500.
- If you are acting as a "lookout" for someone committing a crime or the driver of a get-away car, what are you guilty of?
- You are guilty of being a PRINCIPAL of the crime
- Have you committed a crime if you harbor or conceal your friend from the police to keep her from being arrested?
- Yes, you have acted as an ACCESSORY AFTER THE FACT (this offense is not as bad as being a principal ti a crime).
- What 2 elements must there be to prove that a person has acted as a principal element of a crime?
- That person:
1) directly committed the crime.
2) aided and abetted in the commission of the crime.
- What was Cloud guilty of in the U.S. v. Cloud case?
- Cloud acted as a PRINCIPAL to his friend's crime because Cloud knew that his friend was falsely filling out documents for his business.
- Lawsuits that are brought when there is knowledge of past or present fraud on the United States federal government to bring suit on behalf of the government:
- qui tam cases
- What was the issue and holding of the U.S. v. Cloud case?
- ISSUE: Was Cloud guilty of aiding and abetting a bank fraud?
HOLDING: Yes, Cloud was guilty of aiding and abetting and acted as a principal in the crime.
- When are warrentless searches permitted?
- 1) CONSENT to search.
2) INCIDENT TO ARREST.
3) EXIGENCT CIRCUMSTANCES (evidence is likely to be destroyed).
4) Evidence is IN PLAIN VIEW.
5) AUTOMOBILE EXCEPTION.
6) GOOD FAITH EXCEPTION.
- How many jury are present during misdemeanor cases?
- What was the court's ruling in the Hughes Aircraft case?
- The court ruled that Hughes may be found guilty of criminal conspiracy even though his alleged co-conspirator was acquitted of the same crime.
- What was the original, common law belief of the guilt of corporations? What is the modern belief?
- Common law believed that corporations were unable to have mens rea (guilty mind). However, modern courts allow criminal liability for corporations.
- TRUE OR FALSE:
At a criminal trial, the majority of jurors must find the defendant guilty in order for him to be sentenced.
At a criminal trial, the jurors must unanimously agree before the accused is found guilty of the crime.
- John has just embezzled money from his employer in the amount of $1000. He has probably committed:
- A felony since this is a serious crime. It would be defined as a felony in most jurisdiction and would require imprisonment.
- James gave his mother a ring valued at $2000 that he had stolen from an ex-girlfriend, Meg. James' mother wore the ring to church where Meg spotted it on her finger. Meg confronted her and asked for the ring back, at which point James' mother said it was
- She could be arrested for receiving stolen property; however, the crime requires that the person receiving stolen property KNOWINGLY received stolen property and intend to deprive the rightful owner of that property. In James' mother's case the knowledge and intent requirements would be difficult to prove.
- What will happen to a case in the event of a hung jury?
- The government may or may not choose to proceed against the defendant in a new trial, but the issue of guilt or innocence has not been resolved by this jury.
- Melissa works at a chiropractic clinic. One day, a salesman for orthopedic foot gear told Melissa that for each client she knew that needed foot/posture-improving products that she referred to him, she would receive a $50 bonus. The clinic ordinarily gav
- Both Melissa and the salesman may be guilty of bribery: him for offering to bribe her, and her for accepting the offer and performing the favor for money.
- Cynthia helped her boyfriend, Bobby, out by driving the car Bobby used to rob a bank. He told her to sit in the car while he ran in to make a deposit. Instead, he held up the bank teller at gunpoint. When they were caught, both of them were charged with
- Cynthia will not be judged guilty because she had no criminal intent (mens rea) since she believed he went in to make a deposit.
- Which is true about corporate criminal liability?
- Corporate directors, officers, and employees are individually liable for crimes they personally commit, whether for personal benefit or on behalf of the corporation.
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