Criminal and Tort Law

This week of class, we examine Chapter 7 (Criminal Law) and Chapter 8 (Tort Law). In the Learning Unit for this week of class, there is a video involving the OJ Simpson criminal trial and a link to a NY Times article involving the OJ Simpson civil case (posted below). For those who are younger, you may not remember this case. I remember it well because the entire country watched this case unfold on television since news media is allowed to use video cameras in criminal trials in California (which is not allowed in Pennsylvania). After watching the video and reading the news article, please answer the following questions:

1. How does the difference between criminal law and civil law impact the verdicts (criminal case for murder and the civil case for wrongful death) in these two cases brought against OJ Simpson;

2. Who are the parties in the criminal case against OJ Simpson? Who are the parties in the civil case against OJ Simpson?

3. Do you think a person who is acquitted of a crime should ever be held liable in a civil case based on the same exact facts? Why or why not?

Instructions:

Each student must post an answer to my question which would be your initial response (200-500 words in length) and contain two references to the textbook readings.

This link for Ebook: https://www.cengage.com/dashboard/#/course-confirmation/MTPQZQ5NQN1Z/initial-course-confirmation

ACC 150
THE LEGAL ENVIRONMENT OF BUSINESS

With Doreen Smith, Esquire

Chapter 7

GENERAL PRINCIPLES OF
CRIMINAL LAW

Nature and Classification of Crimes.
A crime is a violation of the law that is punished as an offense against the state or government.
A misdemeanor is punishable by less than a year in prison. A felony is a crime that is punishable by imprisonment of over a year.
Elements of a crime:
Mental state or intent and
Act or omission

GENERAL PRINCIPLES

Basis of Criminal Liability.

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Chapter 8

BUSINESSES

Corporate Liability

Corporations can be held liable for the actions of their employees.

Officers and Agents of Corporations

When a business manager knows of illegal conduct by and employee or authorized the action, he or she can be held liable under criminal law.

Under federal law, an executive must actively engage in the underlying crime to be found criminally liable.

PENALTIES

Forfeiture
Giving up property used or gained from a criminal act.
Criminal Penalties
Corporate Integrity Agreements
Federal Sentencing Guidelines
Officer and Executive Banishment
Barring executive and officer from working in the field.

SOX

Sarbanes-Oxley (SOX)
Federal statute passed after the Enron-WorldCom debacles
Sets standards for public companies and accountants.
Obstruction of Justice: SOX.
Felony for anyone (including company employees, auditors, attorneys, and consultants), “to alter, destroy, mutilate, conceal, cover up, ……..[records or documents to] obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States.”

SOX

SOX:
Auditors must retain work papers for 5 years
Destruction of documents prior to that time constitutes a felony with a penalty of 20 years in prison
Corporate officers must certify their financial statements when issued.

SOX PENALTIES

Up to 20 years penalty for mail or wire fraud
Violation of pension laws can be up 10 years and fines up to $100,000
Corporate fraud can result in fine of $1 million and 10 years or for a willful violation $5 million and 20 years.

WHITE-COLLAR CRIMES

Money Laundering.

Crime is the knowing and willful participation in a financial transaction involving unlawful proceeds in order to disguise the source of the funds.

Money Laundering Control Act (2000), amended by Patriot Act and Bank Secrecy Act.
Patriot Act expands coverage. Banks are more involved in supervising accounts.

WHITE-COLLAR CRIMES

Racketeering Influenced and Corrupt Organizations (RICO)

Federal law targeting organized crime
The government has used this law to prosecute a wide variety of criminals (not just organized crime)
Criminal conviction can result in $25,000 fine and 20 years in prison
A civil plaintiff can recover treble damages (3 times actual damages) and attorneys fees

WHITE-COLLAR CRIMES

Bribery

Giving of money, property or benefit to influence that person’s judgment.

Foreign Corrupt Practices Act

Federal criminal statute applies to a US business that gives bribes to a foreign entity (more about this law in the International law chapter).

Extortion and Blackmail.

Extortion: public officer makes illegal demand for money.
Blackmail: Extortion demands made by a nonpublic official.

WHITE-COLLAR CRIMES

Counterfeiting

Making a document or coin that appears genuine but is not (needs fraudulent intent)

Forgery

Fraudulently making or altering an instrument. Example-such as signing someone else’s name on a check.

Perjury

Knowingly giving false testimony.

WHITE-COLLAR CRIMES

Bad Checks

Using a check knowing there is insufficient funds in the bank to cover the check

Credit Card Crimes

Possess or use a credit card without the permission of the card owner

Embezzlement

The fraudulent taking of another’s property or money by a person who has been entrusted with the property or money

COMMON LAW CRIMES

Larceny
Wrongful taking of the property of another
Robbery
Taking personal property in the presence of the victim by force or fear.
Burglary
Breaking and entering into a dwelling of another with the intent to commit a felony
Arson
Willful and malicious burning of another’s dwelling.

CRIMINAL LAW AND THE COMPUTER

What is a Computer Crime?
The unauthorized taking of information from a computer is a crime under both federal and state statutes.
Theft of hardware and software
Dealt with under laws that deal with theft
Intentional damage
Intentional damage through malware or using a virus can be a crime depending on the law in the state where the crime occurred.

CRIMINAL LAW AND THE COMPUTER

Economic Espionage by Computer.

Economic Espionage Act (federal law): felony to steal, appropriate, or take, copy, duplicate, sketch, draw, photograph, download, upload, alter, destroy, replicate, transmit, deliver, send, mail, or communicate information from a computer to an unauthorized person
Electronic Fund Transfer Crimes (federal law)
Makes it a crime to use any counterfeit, stolen, or fraudulently obtained card to obtain money or goods.
Digital Millennium Copyright Act (federal law)
Makes it a federal offense to circumvent or create programs to circumvent encryption to copy copyrighted material (without authority to do so)

CONSTITUTIONAL
RIGHTS FOR BUSINESSES

U.S. Constitution protects both individuals and businesses from violation of rights by the government.

Fourth Amendment Rights for Businesses.

Search and Seizure: Warrants. The Fourth Amendment protects against unreasonable searches.

Government must obtain a search warrant based on probable cause.

Exceptions to Warrant Requirement: Emergencies and Plain View.

CONSTITUTIONAL
RIGHTS FOR BUSINESSES

Fourth Amendment Rights for Businesses.

Business Records and Searches

Requires a search warrant

The records sought can be at an accountant’s or attorney’s office

Protections for Privileged Records and Documents.

Includes: attorney-client privilege and other privileges.

CRIMINAL PROCEDURE
RIGHTS FOR BUSINESSES

Fifth Amendment Self-Incrimination Rights for Businesses.

Self-Incrimination. The Fifth Amendment protects against self-incrimination and provides due process. Does not apply to corporations, only individuals. Disclosures of corporate records must be made.

CONSTITUTIONAL
RIGHTS FOR BUSINESSES

Fifth Amendment

Self-Incrimination Rights for Businesses.

Miranda Rights.

The rights that must be given to a person who is to be interrogated in relationship to a crime

Due Process Rights for Businesses.

Due Process is the right to be heard, question witnesses, and present evidence before any criminal conviction.

Sixth Amendment requires a speedy trial

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Chapter 8

ACC 150
THE LEGAL ENVIRONMENT OF BUSINESS

With Doreen Smith, Esquire

Chapter 8

GENERAL PRINCIPLES

What is a Tort?

Civil wrong that interferes with one’s property or person. A common tort is a negligence action which often impact a business (such as a slip and fall action or car accident).

Torts distinguished from crimes/contracts

Crime arises from violation of public duty, whereas tort arises from violation of private duty. Same act can be both a crime and a tort.

A breach of contract action is not a tort.

CIVIL VS. CRIMINAL CASE

Criminal
Burden of Proof—beyond a reasonable doubt
Case brought by government
Guilty person would pay a fine, serve time in prison or receive the death penalty

Civil
Burden of Proof—By the preponderance of the evidence
Case brought by a private party
A Defendant may pay damages for what they did wrong.

GENERAL PRINCIPLES

Types of Torts:

Intentional (see below for specific torts)
Civil wrong that results from intentional conduct. This a a category of torts that includes assault, battery and defamation.
Negligence
Civil wrong that results from careless conduct
Strict Liability
Civil wrong for which there is absolute liability because the activity is inherently dangerous

INTENTIONAL TORTS

Assault

Intentional conduct that threatens a person with a well-founded fear of imminent harm.

Battery

Intentional, wrongful touching of another (the completion of the assault).

False Imprisonment

Intentional detention without consent.
Shopkeeper’s Privilege
Defense to a claim of false imprisonment for retail stores.
Permits detention for reasonable time with reasonable suspicion.

INTENTIONAL TORTS

Intentional Infliction of Emotional Distress.

Outrageous conduct which goes beyond all bounds of decency.

Invasion of Privacy—three separate torts:

Intrusion into plaintiff’s private affairs.
Public disclosure of private facts.
Appropriation of another’s name, likeness or image for commercial advantage.

INTENTIONAL TORTS

Defamation.

Untrue statement published to a third party that damages a person’s property interest.
Requires three elements: statement, publication and damages
Slander is oral defamation.
Libel is written (broadcast, internet).

INTENTIONAL TORTS

Defamation: Privilege.

Absolute Privilege: when members of Congress speaking on floor of senate or House, witnesses in court proceedings.
Qualified Privilege: as long as released without malice and a retraction is made.
Example—news media

INTENTIONAL TORTS

Product Disparagement
When someone makes a false statement about a business or product.
Wrongful Interference with Contracts
When a third party interferes with someone else’s freedom to contract.

NEGLIGENCE

Negligence exists when a person acts with less care than is reasonable, causing foreseeable injury.
Elements of a negligence claim:

1. Duty,

2. Breach,

3. Causation and

4. Damages

NEGLIGENCE

Duty and Breach

There is a general duty to act as a reasonably prudent person in a similar circumstance.

A professional (doctor, lawyer, accountant) must act at the same skill level as other professionals in same field.

The second element is that the defendant breached that duty established by statute or under the reasonable person standard.

NEGLIGENCE

Causation. Connects duty with injuries to plaintiff—two types of causation:

“But For” defendant’s action, plaintiff would not have suffered the injury.

Proximate Cause: plaintiff’s injury was foreseeable.

NEGLIGENCE

Damages.

Past and future pain and suffering, physical impairment, medical care, loss of earning capacity. Experts help juries “quantify” the injuries.

Joint and Several Liability: when actions of two or more defendants impose liability on all actors. Each one is responsible for all injuries.

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NEGLIGENCE

Defenses to Negligence.

Contributory Negligence: plaintiff’s partial negligence bars recovery for his injuries.

Comparative Negligence: determines the fault of both parties. Plaintiff receives partial recovery based on percentage of defendant’s fault.

NEGLIGENCE

Defenses to Negligence. (continued)

Assumption of Risk: burden is on defendant to prove plaintiff knew about risk and chose to proceed.

Express Assumption: usually exculpatory writing.

Implied Assumption: subjective, based on circumstances.

STRICT LIABILITY

What is Strict Liability?

Absolute liability imposed by law to protect the public or ultra-hazardous activities such as dynamite excavations.

Imposing Strict Liability.

Can involve transportation of toxic materials, but most common is product liability.
Strict Liability also refers to products liability (this topic will be revisited in Chapter 24)

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