BLAW Exam 3

Criminal burden of proof

proof beyond a reasonable doubt; harsher penalties than those applied in civil cases 

High threshold of civil law reasoning

Law would rather have guilty people go free than have innocent people be incarcerated 

Civil liability for criminal acts

government pursues criminal path to protect society, civil cases compensate victims for their loss 

Larceny

unlawful taking away of another person's or business's personal property with the intent to permanently deprive the owner of it

Mens rea

guilty mind, blameworthy mental state proven beyond reasonable doubt in a criminal case, state of mind 

Actus reus

physical voluntary act must be committed, sometimes can be a failure to do something (pay taxes)

Corporate crime/white collar crime

occurs from economic pressure on managers and employees for results 

Liability of the corporate entity

corporate officers and directors are personally liable for crimes they commit. 

United v Park (1975)

CEO park got notice from FDA that there was rodent infestation in his factory, he delegated it off to his legal partner, a few months later FDA says he still has infestation, he follows up with his partner, he was eventually arrested because rodent infestation was not handled. Park was held liable for the inaction of his subordinate. He was found guilty as a responsible corporate officer. 

Officers and directors liable

they authorized the conduct or they knew about the conduct and did nothing or had insufficient action

Violent crime

murder, sexual assault, rape, robbery

Property crime

burglary, larceny, theft of trade secrets, theft of services, arson, receipt of stolen goods, forgery

Public order crime

gambling, prostitution

Embezzlement

wrongfully appropriates to himself or to another property of another in his care or custody, often happens in business world, trusted with property and wrongfully take it 

Arson

unlawful burning of a building, structure, vehicle 

Forgery

falsely making, altering, imitating a document or signature, with the intent to deceive or defraud someone else 

burglary

unlawful entry of a structure with the intent to commit a crime, such as theft or a felony

White collar crime

mail and wire fraud, bribery, bankruptcy fraud, theft of trade secrets and intellectual property, insider trading

rico

government must prove a pattern of racketeering activity and defendant committed at least two offenses

felonies

punishable by death or imprisonment over 1 year

Misdemeanors

punishable by fine or jail for less than 1 year. Petty offenses are minor violations such as jaywalking or violations of building codes 

Different levels to larceny

greater criminal punishments for greater value of property

justifiable use of force

self-defense of people and property can use deadly force if reasonable belief of imminent death or serious injury, cannot use deadly force to protect property alone 

Necessity

criminal act necessary to prevent greater harm; a threat from someone else makes you commit a crime 

Insanity

person who suffers from mental illness may be incapable of state of mind required for the crime 

mistake

of fact may excuse crime

duress

wrongful threat induces another to perform a criminal act 

Entrapment

key issue: was the defendant pre-disposed to commit the act 

Statue of limitations

state must initiate criminal proceedings within statutory period

Immunity

government grants immunity from prosecution in exchange for assistance 

Fourth amendment

right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated and no warrants shall issue but upon probable cause

Search warrant

before police can search your property need warrant

Exclusionary rule

evidence obtained in violation of the fourth amendment is excluded from trial, including "Fruits of the Poisonous Tree" If government goes too far and exceeds 4th amendment rights and wrongfully obtains evidence, then the evidence cannot be used against them in court  

Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb

in 5th amendment, person cannot be prosecuted for the same crime more than once

Nor shall be compelled in any criminal case to be a witness against himself

in 5th amendment, protection against self-incrimination, only in criminal cases, pleading 5th amendment right, right to remain silent

Miranda rule

required police to inform suspects of their constitutional rights 

Exceptions to Miranda

public safety, certain confessions, suspect must be unequivocally assert right to counsel 

Miranda warnings

given when individuals are in custody, custody means inability to leave, not necessarily in jail, right to attorney, right to silence, notice of evidence use of statements 

Sentencing guidelines

shift away from mandatory sentencing, increased penalties for certain crimes, first step act 2018 for federal system easing punitive mandatory minimum, earn credits for good behavior, elements of rehabilitation

Trademarks

words, pictures, designs or symbols used to identify a product, distinguishes product in the marketplace

Trademark registration

apply to it at the uspto to apply for trademarks or patents

Statutory protection of trademarks

Lanham trademark act creates incentives for companies to invest, prevents unjust enrichment of companies who infringe

Trade dress

colors, shapes and designs associated with a product, allowing their use is likely to create confusion, consumer surveys are used to establish if consumers will be misled. Coca cola has trade dress protection on the shape/design of their bottle 

Counterfeit goods

importation of goods that bear a fake trademark damages US businesses and may present serious health risks 

Penalties for infringement

civil suits and criminal penalties 

Trademark infringement remedies

owner can seek injunction against further infringement, owner can recover damages, plus profits wrongfully received from unauthorized use of trademark, court can also order destruction of goods 

Service mark

like trademark but used to distinguish services of one person/company from another 

Trade name protection

common law protections for businesses which have not registered name, to extent name is known in geographic area 

Patent

first person to invent, not file, gets protection; almost anything is patentable except laws of nature, natural phenomenon and abstract ideas

Danger of filing patent

if it gets denied, everyone has access to the information and can use it. Patent attorneys can help navigate this process

Copyrights

intangible property right granted by federal statute to creator of a literary or artistic production of a specified type, works created after 1978 have automatic protection for life of the author plus 70 years, more artistic in nature

Protected expression

pictorial, graphic and sculptural works (cartooons, maps, posters, stuffed animals)

Protected expression

only the expression of an idea can be copyrighted, not the idea itself

Copyright infringement

whenever unauthorized copying occurs, damages can criminal prosecution; infringer may have to pay for profits, costs, attorney fees

Fair use

copyrighted material may be used under certain circumstances without committing copyright infringement; short quotes, research copies, criticism, commentary and parody

Fair use in court

judges will look at how much was being copied, what was the impact on the demand for the copyrighted material, purpose of it being copied (educational, parody, etc.)

Trade secrets

customer lists, customer information, data processed in a certain way. Data that may not or should not be copyrighted, patented. Information can be kept indefinitely if it is kept secret, downside is if it is lawfully discovered, then they can legally use it

Uniform trade secrets

protects employers from having former employees take trade secrets to new employer 

Industrial espionage act

makes it a federal crime to transfer trade secrets to another 

NDA

non-disclosure agreements, prohibits from sharing any proprietary information to anyone without written authorization to do so, if you do, looking at federal crimes