Business Law Jane Mallor 16e - Test Bank

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FALSE

Special deterrence results when the punishment of an offender deters him/her as opposed to others from committing similar offenses.

TRUE

The guidelines were created with a view to reducing judicial discretion in sentencing and minimizing disparities among sentences imposed on defendants who committed the same offenses.

Refer: Figure 1

TRUE

In the 2005 United States v. Booker case, the Supreme Court stated that in the case of a judge’s sentencing decision being challenged on appeal, the governing standard will be one of reasonableness.

FALSE

The U.S. Constitution prohibits ex post facto criminal laws. This means that a defendant’s act must have been prohibited by statute at the time he/she committed it and that the penalty imposed must be the one provided for at the time of his/her offense.

FALSE

Torts are private wrongs and crimes are public wrongs, acts prohibited by the state or federal government.

TRUE

The Supreme Court has established that obscene expressions receive no First Amendment protection.

TRUE

The Constitution limits the type of punishment imposed on convicted offenders in criminal cases. The Eighth Amendment forbids cruel and unusual punishments in criminal cases.

TRUE

The Fourteenth Amendment’s Equal Protection Clause prohibits criminal statutes that discriminatory treat certain persons differently.

FALSE

Voluntary intoxication does not serve as a complete defense to criminal liability although it may decrease the degree of a defendant’s responsibility.

TRUE

Defendants in criminal cases are presumed innocent until proven guilty. This is called presumption of innocence.

FALSE

At a preliminary hearing, the prosecutor must provide enough evidence to prove that there is a probable cause to believe the accused committed a felony for which the accused is being charged.

FALSE

Although the literal language of the Bill of Rights refers only to federal government actions, the U.S. Supreme Court has applied the guarantees of the Bill of Rights to State government action through the Fourteenth Amendment Due Process Clause.

FALSE

The protection enjoyed by owners of residential property under the Fourth Amendment is far greater than that enjoyed by owners of commercial property. The Supreme Court has ruled in O’Connor v. Ortega that alleged violations of the Fourth Amendment in the realm of commercial property need to be studied on a case-to-case basis.

Refer: United States v. SDI Future Health, Inc. case

TRUE

Officers may conduct a warrantless search of an arrestee, the items in his/her possession and items within their control. This is called a search incident to lawful arrest and is used to protect an officer while also protecting potential evidence.

FALSE

During a ‘Terry Stop’ the Supreme Court has held that the Fourth Amendment permits such police action as a pat down search of a detain person in order to determine if that individual is carrying a weapon and could endanger the officers.

TRUE

The Foreign Intelligence Surveillance Court can issue the “sneak and peek” warrants where the FBI need not produce the warrant for the property owner or possessor to see and need not notify an absent property owner or possessor that the search took place.

FALSE

The Fifth Amendment protects against compelled testimonial self-incrimination by establishing that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” This provision prevents the government from coercing a defendant into making incriminating statements and thereby assisting in his/her own prosecution. The Fifth Amendment does give protection to individuals in a civil case.

TRUE

In its decision in Miranda v. Arizona the United States Supreme Court established procedural requirements to safeguard the Fifth Amendment by requiring police to inform criminal suspects of their rights prior to an interrogation.

FALSE

The Sixth Amendment provision has been interpreted to mean not only that the accused in a criminal case may employ his/her own attorney but also that an indigent criminal defendant is entitled to court-appointed counsel.

TRUE

Recognizing the problem that it may be impossible to prove that any higher level corporate official was involved in corporate offenses, the courts generally follow this rule.

A felony is a serious crime such as murder, sexual assault, arson, drug-dealing, or a theft or fraud offense of sufficient magnitude. Felonies are punishable by lengthy confinement of the convicted offender to a penitentiary, as well as by a fine.

Generally considered only quasi-criminal, infractions usually are punishable by fines but not by confinement in jail.

Persons accepting the utilitarian view believe that prevention of socially undesirable behavior is the only proper purpose of criminal penalties. This prevention goal includes three major components: deterrence, rehabilitation, and incapacitation.

Recidivism is the phenomenon of repeat offenses by previously punished offenders.

Rehabilitation of convicted offenders involves changing their attitudes or values so that they are not inclined to commit future offenses. It serves as a way to prevent future offenses.

Probation is effectively a conditional sentence that suspends the usual imprisonment and/or fine if the offender “toes the line” and meets other judicially imposed conditions for the period specified by the court. It is sometimes granted to first-time offenders.

Crimes are statutory offenses. A given behavior is not a crime unless Congress or a state legislature has criminalized it.

The U.S. Constitution prohibits ex post facto criminal laws. This means that a defendant’s act must have been prohibited by statute at the time he/she committed it and that the penalty imposed must be the one provided for at the time of his/her offense.

By prohibiting laws that unreasonably restrict freedom of speech, the First Amendment plays a major role in limiting governmental power to enact and enforce criminal laws.

Commercial speech receives a less substantial First Amendment shield known as “intermediate protection.”

The Eighth Amendment forbids cruel and unusual punishments. This prohibition furnishes, for example, the constitutional basis for judicial decisions establishing limits on imposition of the death penalty.

The Equal Protection Clause comes from the Fourteenth Amendment and prohibits criminal statutes that discriminate against certain classes of individuals.

Defendants in criminal cases are presumed innocent until proven guilty. The Due Process Clauses require the government to overcome this presumption by proving beyond a reasonable doubt every element of the offense charged against the defendant.

Most serious crimes require mens rea, or criminal intent, as an element. The level of fault required for a criminal violation depends on the wording of the relevant statute.

In the criminal context, recklessness generally means that the accused consciously disregarded a substantial risk that the harm prohibited by the statute would result from his/her actions. Negligence means that the accused failed to perceive a substantial risk of harm that a reasonable person would have perceived.

Although intoxication is a not a complete defense to criminal liability, it may diminish the degree of a defendant’s responsibility.

The prosecutor must provide sufficient details at the preliminary hearing of a felony case to prove that there is a probable case. If the magistrate is convinced so, he/she will bind over the defendant for trial in the appropriate court.

In an arraignment the defendant is brought before the court, informed of the charges and asked to enter a plea.

Indictment of an accused prior to a preliminary hearing normally eliminates the need for a preliminary hearing because the indictment serves essentially the same function as a magistrate’s probable cause determination.

An information is a formal charge signed by the prosecutor outlining the facts supporting the charges against the defendant.

The Fourth Amendment protects persons against arbitrary and unreasonable governmental violations of their privacy rights. Citizens are not protected against all searches and seizures. The Court has denied protection to places, items, or matters as to which it found no reasonable expectations of privacy, such as open fields, personal bank records, and voluntary conversations between criminal defendants and government informants.

The Supreme Court has held that the Fourth Amendment’s protection extends to such places as a private dwelling, offices and mail. The court has denied Fourth Amendment protections to items left in an open field.

Customs searches, stop-and-frisk searches for weapons, and administrative inspections of closely regulated businesses, are allowed even in the absence of a warrant.

In Riley v. California the court held that the search-incident-to-arrest doctrine does not justify a search of an arrestee’s cellphone or smartphone without a warrant.

The exclusionary rule serves as the basic remedial device in cases of Fourth Amendment violations. Under this rule, evidence seized in illegal searches cannot be used in a subsequent trial against an accused whose constitutional rights were violated.

Under the exclusionary rule, evidence seized in illegal searches cannot be used in a subsequent trial.

Under the exclusionary rule, evidence seized in illegal searches cannot be produced as evidence in a trial. Since Holt did not a have a lawful warrant to search Hood’s apartment, the prosecution cannot produce their findings as evidence in court.

The Patriot Act allows the federal government significantly expanded ability to conduct searches in terrorism case. Under the Patriot Act the federal government will seek warrants from the FISA court.

Commentators critical of the Patriot Act have argued that despite the importance of safeguarding the public against acts of terrorism, the statute tips the balance too heavily in favor of law enforcement.

The Foreign Intelligence Surveillance Act (FISA) was enacted long before the U.S.A. PATRIOT Act, and has been amended various times both before and since. It has also been extensively used by the federal government to conduct surveillance activities. In 2008, a further amendment to FISA expanded the government’s ability to monitor the phone calls of suspected terrorists, established FISA’s requirement of warrants from the FISA Court as the exclusive way of exercising this surveillance power, and provided immunity from legal liability for telephone companies that had assisted the government in the phone call monitoring activities for which FISA Court warrants had not been obtained.

The Fifth Amendment protects against compelled testimonial self-incrimination by establishing that “[n]o person … shall be compelled in any criminal case to be a witness against himself.”

If the suspect knowingly and voluntarily waives her right to silence after having been given the Miranda warnings, her statements will be admissible.

The Sixth Amendment entitles criminal defendants to a speedy trial by an impartial jury and guarantees them the right to confront and cross-examine the witnesses against them.

Various decisions allow the government to require business proprietors to keep certain records relevant to transactions that are appropriate subjects for government regulation. These “required records” are not entitled to private papers protection. They may be subpoenaed and used against the record keeper in prosecutions for regulatory violations.

The Double Jeopardy Clause prevents a second criminal prosecution for the same offense after the defendant has been acquitted or convicted of that offense.

White-collar crime is the term used to describe a wide variety of nonviolent criminal offenses committed by businesspersons and business organizations. This term includes offenses committed by employees against their employers, as well as corporate officers’ offenses that harm the corporation and its shareholders.

Under the doctrine of respondeat superior, the criminal intent of the employee is imputed to the corporation. This makes corporations more accountable for actions by their employees.

Under the modern rule, a corporation may be held liable for criminal offenses committed by employees who acted within the scope of their employment and for the benefit of the corporation.

Strict liability offenses dispense with the requirement of proof of criminal intent but ordinarily require proof that the defendant committed some wrongful act.

Under deferred prosecution agreements (DPAs), corporations avoid formal criminal charges and trials in return for their agreement to pay monetary penalties and submit to outside monitoring of their activities. They are seen as a means to encourage more responsible behavior from corporations.

Under the Sarbanes-Oxley Act of 2002, the knowing alteration or destruction of documents with the intent to hamper government investigations leads to substantial fines and/or a maximum of 20 years of imprisonment.

Congress enacted the Sarbanes-Oxley Act in 2002. Among other things, it provides legal protections for corporate employees who act as whistle-blowers regarding instances of fraud on the part of their employers.

The Racketeer Influenced and Corrupt Organizations Act’s (RICO’s) most controversial sections allow private individuals to recover treble damages and attorney’s fees for injuries caused by a statutory violation. To qualify for recovery under RICO, a plaintiff must prove that the defendant violated RICO’s provisions and that the plaintiff was “injured in his/her business or property by reason of” the RICO violation. A direct causation link must exist between the RICO violation and the harm experienced by the plaintiff.

The Computer Fraud and Abuse Act (CFAA) provides that criminal and civil liability may attach to one who transmits a program, information, code, or command knowingly, intentionally, and without authorization, if the act results in damage to a computer system used by the government or a financial institution or otherwise in interstate commerce.

The evidence obtained by Judd in her search of the office should be suppressed because the search violated the Fourth Amendment. The warrantless search was unreasonable and unconsented. Beats, Inc., had a reasonable expectation of privacy with regard to the office, in view of its location (away from the “public” part of the store) and the sign on the door. Store management’s consent to customers’ entry of the open-to-the-public portion of the business premises does not translate into consent to a law enforcement officer’s search of a private office controlled by store management.

During the last 30 years, the Supreme Court has responded to the criticism by rendering decisions that restrict the operation of the exclusionary rule. The Court has held that illegally obtained evidence may be introduced at trial if the prosecution convinces the trial judge that the evidence would inevitably have been obtained anyway by lawful means. The Court has also created a “good faith” exception to the exclusionary rule. This exception allows the use of evidence seized by police officers who acted pursuant to a search warrant later held invalid if the officers reasonably believed that the warrant was valid.

Nigel must comply with the subpoena. In United States v. Doe, the Supreme Court held that the privilege against self-incrimination does not protect the contents of a sole proprietor’s business records, which can be subpoenaed and used against him so long as they were voluntarily prepared. The Court also recognized in Doe that Fifth Amendment rights may be implicated if the act of producing such records would involve incriminating testimonial admissions. In this case, however, the act of producing the records would not appear to be sufficiently testimonial to be protected by the Fifth Amendment. The government had long known of the existence of the records. Therefore, Nigel’s being forced to provide them to the government would not be a testimonial act, unlike a situation in which the act of production would reveal the existence of records previously unknown to the government and thus would seem to demonstrate the record possessor’s access to the records and possible knowledge of their incriminating contents.

Conelli should not succeed with this argument. Salco, Inc. is a corporation. It therefore does not have a Fifth Amendment privilege against self-incrimination. Conelli has no Fifth Amendment privilege to assert on these facts either. Because Salco has no privilege to prevent disclosure of the records, Conelli, as custodian of Salco records, cannot assert any personal privilege to prevent their disclosure even if the contents of the records would incriminate him personally.

NBS should not succeed with these arguments. Despite the reference to “Racketeer Influenced” in RICO’s title, the Supreme Court has concluded that the broad language of the statute is not restricted in application to settings involving mobsters and organized crime in the usual sense. As for NBS’s second argument, it too fails because the Supreme Court has held that the plaintiff in a civil RICO case is not required to prove that the defendant had been criminally convicted of a predicate offense. In 1995, Congress created an exception to this general rule by enacting a statute that required proof of a criminal conviction if the predicate offense was conduct that would have been actionable as securities fraud. Nothing in the facts of the question indicates that the conduct complained about in Leviathan’s lawsuit would have been securities fraud.