BCOR 320 1nd Edition Exam 2 Study Guide Chapter 6 Negligence and strict liability Tort injuries caused by neglect Defamation Irresponsible speech to harm another s reputation False imprisonment is the restraint of someone against their will and without reasonable cause Battery is touching of person in unwanted way Assault an action that causes the victim to fear an imminent battery Compensatory damages a jury may award compensatory damages payment for injury The single recovery principle court must decide all damages past present future Punitive damages are intended to punish the guilty party Intrusion prying into someone s private life ex Stalking peeping wiretapping Commercial exploitation a person s image or voice is used for commercial purpose without that persons permission Breach of Duty A defendant breaches his duty of due care by failing to behave the way a reasonable person would under similar circumstances Factual Cause if the defendant s breach ultimately led to the injury he is liable Does not have to be the immediate cause of injury but must be the first in the direct line Proximate Cause to be liable this type of harm must have been foreseeable The defendant does not have to know exactly what would happen just the type of event Res Ipsa Loquitur the thing speaks for itself in a few cases the defendant must prove he was NOT negligent or the facts imply that his negligence caused the injury Landmark Case Palsgraff v Long Island Railroad Company Facts Ms Palsgraff was waiting on a railroad platform As a train began to leave the station a man carrying a package ran to catch it He jumped aboard but looked unsteady so a guard on the car reached out to help him as another guard on the platform pushed from behind The man dropped the package which struck the tracks and exploded since it was packed with fireworks The shock knocked over some heavy scales at the far end of the platform and one of them struck Palsgraff She sued the railroad The jury found that the guards had acted negligently and held the railroad liable The company appealed Issue Assuming the guards did a bad job assisting the passenger was the railroad liable for the injuries to Ms Palsgraff 248 NY 339 162 NE 99 1928 Chapter 7 Civil law concerns the rights and liabilities between private parties criminal law concerns those activities that society has outlawed Prosecution Only the government can prosecute a crime and punish someone by sending him her to prison Burden of proof Because the penalties for conviction in a criminal case are so serious the government has to prove its case beyond a reasonable doubt Felony Misdemeanor A felony is a serious crime for which a defendant can be sentenced to one year or more in prison A misdemeanor is a less serious crime often punishable by a year or less in a county jail Intent crime A crime that requires the defendant to be found guilty of committing a criminal act Actus reus Guilty act Mens rea Evil intent The criminal process 1 Gathering evidence The Fourth Amendment prohibits the government from making illegal searches and seizures of individuals corporations partnerships and other organizations As a general rule the police must obtain a warrant before conducting a search Warrant Fifth Amendment if a search is needed police take an affidavit sworn written statement from an informant to a judge who issues a warrant giving permission to search a particular place looking for particular evidence Probable Cause based on the information given it is likely that the specified evidence will be found The Exclusionary Rule Under the exclusionary rule evidence obtained illegally may not be used at trial Arrest Warrant based on information found in the search the judge may issue an arrest warrant Arrest when a suspect is arrested he is informed of his rights and booked name photograph and fingerprints are recorded along with the charges Self incrimination the Fifth Amendment provides that the prosecution may not use coercion to force a confession from a suspect The suspect may refuse to answer any questions that could be used to convict him Indictment if a grand jury ordinary citizens determines that there is probable cause to proceed to trial the suspect is indicted charged with the crime Arraignment the indictment is read to the suspect who then pleads guilty or not guilty to the charges Nolo contendre The accused agrees to the imposition of a penalty but does not admit guilt Plea Bargaining in many cases the prosecution will offer to end the case with reduced charges if the defendant will plead guilty Trial and Appeal if no plea bargain is reached the case goes to trial The prosecution must convince the jury beyond a reasonable doubt in order to convict Convicted defendants may appeal Double jeopardy The prohibition against double jeopardy means that a defendant may be prosecuted only once for a particular criminal offense Punishment The Eighth Amendment prohibits cruel and unusual punishment The Patriot Act of 2001 passed in response to the terrorist acts of September 11 2001 designed to give law enforcement officials greater power to investigate and prevent potential terrorist assaults This act has been controversial because it violates individual privacy liberties It has been revised but is still contested by many people Larceny The trespasser taking personal property with the intent to steal it Fraud Deception for the purpose of taking money or property from someone Includes bank fraud wire and mail fraud insurance fraud Medicare fraud Arson malicious use of fire or explosives to destroy property Embezzlement Fraudulent conversion of someone else s property already in the defendant s possession Wire Fraud and Mail Fraud Wire and mail fraud are additional federal crimes involving the use of interstate mail telegram telephone radio or television to obtain property by deceit Theft of Honest Services The theft of honest services statute prohibits public and private employees from taking bribes or kickback Crimes committed by businesses 1 If someone commits a crime within the scope of his employment and to benefit the corporation the company is liable 2 Punishment Fines are most common punishments appropriate since this hurts the profit 3 Compliance programs if a company has a valid functioning plan to prevent and detect criminal behavior the judge must reduce the penalty of a crime of an employee Racketeer Influenced and Corrupt Organization Act Creates both civil and criminal