Criminal Law and Business Crimes Lecture notes
1. Define and list the essential elements of a crime, and distinguish between felonies and
misdemeanors
2. Describe criminal procedure, including arrest, indictment, arraignment, and the criminal
trial.
3. List and describe crimes against persons and property including major white-collar crimes, such as mail fraud, embezzlement and bribery and computer crimes
4. Describe the scope of the Racketeer Influenced and Corrupt Organizations Act (RICO).
5. Explain the constitutional safeguards provided by the Fourth, Fifth, Sixth and Eighth Amendments to the U.S. Constitution.
6. Describe the Foreign Corrupt Practices Act.
Crimes are offenses against society that are prosecuted by the state or the government. Penalties for committing crimes include fines and imprisonment.
Goals of punishment include general deterrence, special deterrence, rehabilitation, incapacitation (restraint), social condemnation, and retribution.
Elements of a crime: mens rea and actus reus
Classification of crimes: felonies, misdemeanors, violations
Criminal burden of proof government must prove beyond reasonable doubt
arrest, indictment, arraignment, alford plea, no lo contendre, plea bargaining, appeal
The Fourth Amendment
The Fourth Amendment protects individuals and corporations from unreasonable searches and seizures. Its primary purpose is to protect persons from unwarranted intrusions into their individual privacy. Reasonable searches and seizures based on probable cause are lawful.
Exclusionary rule, tainted evidence, fruit of the poisonous tree
The Fourth Amendment protects commercial buildings as well as private homes.
Illegal search and seizure issues- a) was the search incident to a valid arrest b) was the search warrant validly issued c) was there valid consent to a search without a warrant d) does the warrant accurately describe the place to be searched
The Fifth Amendment
The Fifth amendment:
1) requires indictment by a grand jury for capital offense or infamous crime 2) prohibits double jeopardy 3) requires just compensation in eminent domain proceedings 4) contains a due process clause 5) protects against compulsory self-incrimination
Businesses cannot assert the privilege. Recognized privileges between attorney-client, etc.
The Sixth Amendment
Its protections give one the right to:
1) obtain a speedy and public trial 2) have a trial by by an impartial jury 3) be informed of the charge against him or her 4) confront one's accuser 5) subpoena witnesses in one's favor 6) have the assistance of an attorney
The Seventh Amendment
The Seventh amendment guarantees the right to trial by jury in suits at common law where the amount in controversy exceed $20. There is no Constitutional right to jury trial in suits in equity, in cases against the government, or when causes of action did not exist in common law but have been created by legislation.
The Eighth Amendment
Prohibits excessive bail and cruel and unusual punishment
Foreign Corrupt Practices Act
Companies cannot bribe foreign officials if it is meant to influence the awarding of new business or the retention of a continuing business activity
It requires firms to keep accurate books and records of all foreign transactions.
Inchoate Crimes
Inchoate crimes are crimes committed by nonparticipation or that are incomplete
criminal conspiracy
attempt to commit a crime
aiding and abetting the commission of a crime
Crimes Affecting Business
robbery
burglary
larceny
theft
receiving stolen property
arson
forgery
extortion
credit-card crimes
bad check legislation
White collar crimes
criminal fraud
mail fraud
wire fraud
embezzlement
bribery
computer crimes
RICO
Intellectual Property Rights and Cyberspace Law Lecture notes
Art.1, Section 8 of the United States Constitution provides:
The Congress shall have Power... to promote the Progress of Science and useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
Patents- Federal law -
Patents protect novel, useful, non-obvious products, processes, designs, improvements or plants can be patented. U.S. follows first to invent rule. Protected from honest and dishonest infringement and are valid for 20 years. An application containing a written description must be filed with the U.S. Patent and Trademark Office.
Trade Secrets- state law
Any formula, pattern, device, program, compilation, method, technique or process that: (1) derives actual/ potential economic value from not being generally known or ascertainable by proper means by others who could obtain economic value from its use; and (2) is the subject of reasonable efforts to maintain its secrecy
Trademarks and Service Marks- federal law
A trademark/servicemark is a distinctive word, phrase, symbol or design, or combination thereof, that identifies the goods or services of a business. A trademark normally appears on the product or its packaging; a servicemark appears in advertising for the services. Whether protection is granted depends on whether the mark is generic, descriptive, suggestive, fanciful/arbitrary, or has a secondary meaning.
Courts consider several factors in determining a trademark infringement (1) the degree of similarity between the trademark and the other product in appearance and suggestion (2) the likelihood of confusion (3) was it a deliberate attempt to benefit from the goodwill and reputation of the protected product
Trade Dress- primarily federal law (Lanham Act)
The packaging or labeling of a product or service, including shape, color, design and lettering. Protected if it distinguishes and identifies the product or service with a single source.
Section 43(a) of the Lanham Act provides:
(1) Any person who...{uses} any word, term, name, symbol or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which--
(a) is likely to cause confusion, or to cause mistake, or to deceive...or
(b) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities or geographic origin of his or her or another's goods, services or commercial activities,
shall be liable in a civil action by any person...likely to be damaged by such act.
Section 43(c) of the Lanham Act protects owners of trademarks and servicemarks from the misuse of such marks by others.
Copyrights- federal law
Protects tangible expressions of an idea in the form of literary, musical or dramatic works, pantomimes or choreographic works, pictorial and sculptural works, motion picture/audiovisual works, and sound recordings. The filing of an application for registration is not required as a precondition to copyright protection.
Fair use doctrine- Under section 107 of the Copyright Act, the reproduction of copyrighted works for teaching purposes (including multiple copies for classroom use) falls under the "fair use" doctrine and is not an infringement of copyright. Making a photocopy of an article in a scholarly journal or taping a television program for "purposes such as ... scholarship, or research, is not an infringement. Four factors (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes (2) the nature of the copyrighted works (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work
Computer Crime- The Counterfeit Access Device and Computer Fraud Abuse Act of 1984 prohibits the unauthorized access to, or use of, certain types of information, including restricted governmental information, information contained in a financial institution's records, and information in a consumer reporting agency's files on consumers.
The Berne Convention involves national treatment of copyrights by requiring each member nation must automatically extend the protection of its the other signatory nations' nationals and to work originally published in a member nations jurisdiction.