Criminal Liability

Two elements to be convicted of a crime

1. Performance of the criminal act
2. State of mind or intent of the actor
There should be concurrence between two elements meaning that these elements should occur
together.
The Criminal Act
 Act of commission: A person must do something to be accused of a crime.
 Prohibited act is known as actus reus
 An act of omission can be a crime if the person had a legal obligation to perform that act.
 A person must be punished for causing a harm to the society
 Attempt of crime can also be punishable if a person had taken substantial steps towards
the criminal objective.
State of Mind
The mental state (Mens rea) is also essential to establish a criminal liability.
Criminal Negligence or Recklessness:
 Required mental state is present even when the criminal act was because of recklessness
or negligence
 A defendant is criminally reckless
 If the defendant should’ve foreseen the risk, even if they are not aware
 Involuntary manslaughter
Strict Liability and Overcriminalization
An increasing number of laws and regulations have imposed criminal sanctions for strict liability
crimes these are offenses that do not require a wrongful mental state to establish a criminal
liability
Criminalizing conduct without intent leads to overcriminalization
Removal of requirement of intent, malice or criminal motive increases the likelihood of people
committing crimes without the knowledge of the law or even innocently.
Corporate Criminal Liability
Corporation cannot incur a criminal liability because it acts through its agents
Now corporations are fined and denied certain legal purposes even though a corporation cannot
have an intent to commit a crime.
Liability of the Corporate Entity
Corporations are liable for crimes committed by their employees and managers during the scope
of their employment
Can be criminally liable for the failure to perform certain acts that are imposed by the law
Prosecutor must show that the crime could’ve been prevented or there was consent, knowledge
of the act by the person who was in the supervisory position
Liability of the Corporate Officers and Directors
Corporate directors and officers are personally liable for the crimes they commit regardless of
whether the crime was committed for their private benefit or on the behalf of the corporation
Responsible corporate officer: Criminal liability on the corporate officer even if they were not
directly involved in the violation but they should’ve known about it.

Types of Crime
5 broad categories
Violent Crime
Violence against persons, cause them to suffer harm or death
Classified into degrees
Intent, weapon, level of pain and suffering experienced by the victim
Property Crime
Economic gain or damaging of someone else’s property
Offender seeks to gain the property of another.
Burglary: Breaking and entering someone else’s dwelling with an intent to commit a felony.
Aggravated burglary
Larceny: Unlawful taking or carrying of someone else’s property with the intent to permanently
deprive the owner of the possession.
Stealing or theft
Can also be sued for tort law
Arson: Willful and malicious burning of someone else’s property
Receiving Stolen Goods: Receiving party should know or should’ve known that the goods are
stolen, intent to deprive the owner of their good.
Forgery: The fraudulent making or altering of any writing in a way which changes legal rights
and liabilities to another
Obtaining Goods by False Pretenses: Buying something and knowing that a person has
insufficient funds to purchase it. Purchasing goods from someone else’s credit card (false
pretense)
Public Order Crime
Victimless crimes because they mostly harm the offender but leads to an environment with a
higher number of violent and property crimes.
White Collar Crime
Illegal act or a series of illegal acts committed using some non-violent means to obtain a personal
or business advantage.
Embezzlement: Person entrusted with property or funds, fraudulently appropriates them.
Convert funds for personal benefit and then cover it up.
 Take funds from the victim or third party both are embezzling
 Creating fictious people and writing checks to them
Problems with Prosecution
Embezzler who returns the stolen funds may not be prosecuted because the person may be
unwilling to make a complaint, owner may not want to crime to become public knowledge,
returning money is not a defense
Mail and Wire Fraud: Federal crime to use mails to defraud the public, mailing or writing
something for the purpose of executing a scheme to defraud by false pretenses. Contemplating or
organizing a scheme to defraud by false pretenses.
Bribery: Offering someone to give something of value to influence a public official to serve a
private interest. Intent must be present and proved, accepting a bribery is a separate legal crime
Bankruptcy Fraud: Transfer of money to favored creditor by the debtor, creditor may file a
false claim against the debtor
Insider Trading: Finds out and sells information about the plans of publicly listed corporations
and then discloses it. People should not disclose inside information, and it is illegal to give that
information to others so that they can trade based on that information.
Theft of other Intellectual Property: Trade secrets are a valuable intellectual property and theft
of trade secrets is a federal crime. Also, a crime to possess them knowing that they were stolen or
acquired without the owner’s authorization. Any property acquired because of violation and any
property used in the commission of the violation is subject to criminal forfeiture. Forfeiture of
any assets gained or any means to gain the asset.
Organized Crime
Operates illegitimately by providing illegal goods and services. Counterfeiting and credit card
scams
Money Laundering: Profits from organized crimes and illegal activities, are difficult to deposit,
launder dirty money to make it clean through legitimate businesses.
RICO
Statute makes it a federal crime to:
1. Use income obtained from racketeering activity to purchase interest in an enterprise
2. Acquire or maintain interest in an enterprise through racketeering activity.
3. Conduct or participate in the interest of an enterprise through racketeering activity
4. Conspire to do any of the preceding activities.
Criminal Provisions: Prosecutor performed at least two of the offenses. Forfeit the assets that
were involved in or were an instrumentality of the activity.
Civil Liability: Divestiture or dissolution, sue and recover three times the losses,

Defenses to Criminal Liability:

Mental state justified criminal actions procedural violations can also act as defenses.
Justifiable Use of Force:
Self-defense: Defense of property, defense of someone else’s property and the prevention of a
crime. Deadly force and non-deadly force
People can use non deadly force to prevent a crime
Reasonably dangerous bodily harm will occur if force is not used.
Necessity:
Criminal act was necessary to prevent a greater harm. Defense of necessity.
Insanity:
Person with mental illness is incapable of the state of mind to commit a crime. Does not enable
the individual to avoid imprisonment, rarely used and mostly unsuccessful.
M’Naghten test: A person did not know the nature and quality of the act performed or did not
know the act was wrong.
Mistake:
A mistake of fact which makes commission necessarily makes the crime excusable
Duress:
Duress occurs when the wrongful threat of one person induces another person to commit the act
which he or she wouldn’t have performed otherwise. Can be used as a defense against all crimes
except murder. Person must have reasonably believed they were in danger and the belief must be
reasonable in the eyes of the jury
Entrapment
 Prevent police officers or government agents from enticing people to commit a crime and
then prosecute them later for those crimes.
 Both the suggestion and inducement must take place
 Prevent them from pushing an individual into a criminal act
Statute of Limitation:
 State must begin proceeding within a certain number of years.
 Tolled suspended or stopped if the person is a minor or not in the jurisdiction
Immunity
Against self-incrimination, cannot be a witness against oneself
Agreement to prosecute for less serious offense in return for information
Plea bargaining
Criminal Procedures:
Protection of the constitutional rights of an individual:
1. Protection against unreasonable searches or seizures
2. Not warrant for a search or arrest can be issued without any cause
3. No one should be deprived of life, liberty, and freedom without the due process of law.
4. Protection against double jeopardy
5. A person cannot be a witness or incriminate against themselves
6. Prohibition against excessive bail and fines and against cruel and unusual punishment
7. A speedy trial, a trial by jury, a public trial, the right to confront witnesses, and the right
to a lawyer at various stages in some proceedings.
The Exclusionary Rule:
 Any evidence obtained in violation of the constitutional rights are generally not
admissible at trial.
 Fruit of the poison tree must be excluded from the trial proceedings
 The purpose of the exclusionary rule is to deter police from warrantless searches and
engaging in misconduct.
The Miranda Rule:
Confessions obtained from suspects are not admissible if the suspect had not been advised of
their right to remain silent and other constitutional rights.
Exceptions: Public safety
Criminal Process: Arrest, indictment or information and trial.
Arrest: Warrant for arrest, probable cause, no warrant if there is no time but officer is judged by
the standard of probable cause.
Indictment or Information: Formally charged of commission before they can be brought to trial,
issued by a grand jury then it is indictment. A grand jury hears the state’s evidence and
determine whether a reasonable basis exists for the crime and a trial should be held.
For lesser crimes, individuals are charged with a crime by an information or criminal complaint.
A prosecutor issues it if they think that there is sufficient evidence to bring the individual to trial.
Trial: Burden of proof lies on the prosecutor, which is higher than in a criminal case, guilt must
be established beyond a reasonable doubt. Rules are designed to ensure that evidence presented
at trials is relevant, reliable, and not prejudicial towards the defendant.
Federal Sentencing Guidelines