u.s. legal aspects sample questions. 1.in substance, a crime is: a.a violent act b.a violation of...

U.S. Legal AspectsU.S. Legal Aspects

Sample Questions

1. In substance, a crime is:

• a. A violent act

• b. A violation of one’s privacy

• c. An act or omission prohibited by law for which a penalty is provided

• d. A public wrong

1. In substance, a crime is:

• a. A violent act

• b. A violation of one’s privacy

• c. An act or omission prohibited by law for which a penalty is provided

• d. A public wrong

2. The Federal definition of a felony is any offense:

• a. Which calls for punishment

• b. Punishable by death

• c. For which the minimum penalty is $500

• d. Punishable by imprisonment for a term exceeding one year

2. The Federal definition of a felony is any offense:

• a. Which calls for punishment

• b. Punishable by death

• c. For which the minimum penalty is $500

3. In federal courts, the usual prosecutor is:

• a. The district attorney

• b. The state’s attorney

• c. The commonwealth attorney

• d. The U.S. Attorney

3. In federal courts, the usual prosecutor is:

• a. The district attorney

• b. The state’s attorney

• c. The commonwealth attorney

• d. The U.S. Attorney

4. The main purpose of a grand jury is to:

• a. Determine whether or not an individual has committed a crime

• b. Determine guilt

• c. Determine whether there is sufficient evidence that a crime has been committed and that the accused probably committed it

• d. Determine the nature of the punishment

4. The main purpose of a grand jury is to:

• a. Determine whether or not an individual has committed a crime

• b. Determine guilt

• c. Determine whether there is sufficient evidence that a crime has been committed and that the accused probably committed it

• d. Determine the nature of the punishment

5. The purpose of bail is to:

• a. Confine the accused pending trial

• b. To take dangerous offenders off the streets

• c. Make certain each accused is offered his constitutional right to put up security in order to gain his release

• d. To assure the appearance of the accused in court

5. The purpose of bail is to:

• a. Confine the accused pending trial

• b. To take dangerous offenders off the streets

• c. Make certain each accused is offered his constitutional right to put up security in order to gain his release

• d. To assure the appearance of the accused in court

6. In a criminal trial, the burden of proof required to find guilt is:

• a. Preponderance of evidence

• b. Beyond a reasonable doubt

• c. Reasonableness of presentation

• d. Amount necessary to convince a majority of jurors

6. In a criminal trial, the burden of proof required to find guilt is:

• a. Preponderance of evidence

• b. Beyond a reasonable doubt

• c. Reasonableness of presentation

• d. Amount necessary to convince a majority of jurors

7. The release of a convicted person under certain conditions without having to be imprisoned is known as:

• a. Probation

• b. Parole

• c. Corpus Juris

• d. Detainer

7. The release of a convicted person under certain conditions without having to be imprisoned is known as:

• a. Probation

• b. Parole

• c. Corpus Juris

• d. Detainer

8. The release from confinement of a person who has served part of a sentence is called:

• a. Probation

• b. Parole

• c. Reprieve

• d. Commutation

8. The release from confinement of a person who has served part of a sentence is called:

• a. Probation

• b. Parole

• c. Reprieve

• d. Commutation

9. The process in which a court abides by a previous court decision is known as:

• a. Corpus Delicti

• b. Habeas corpus

• c. Ex-post facto

• d. Stare decisis

9. The process in which a court abides by a previous court decision is known as:

• a. Corpus Delicti

• b. Habeas corpus

10. The crime of unlawful entry into or remaining within a building, with intent to commit some crime therein is:

• a. Robbery

• b. Trespass

• c. Burglary

• d. Embezzlement

10. The crime of unlawful entry into or remaining within a building, with intent to commit some crime therein is:

• a. Robbery

• b. Trespass

• c. Burglary

• d. Embezzlement

11. To make proof of intent easier in proving shoplifting, many stores have a policy which requires apprehension of a suspect to be made:

• a. After the accused leaves the premises

• b. As soon as the theft occurs

• c. As soon as the material is concealed

• d. Only on issuance of a warrant

11. To make proof of intent easier in proving shoplifting, many stores have a policy which requires apprehension of a suspect to be made:

• a. After the accused leaves the premises

• b. As soon as the theft occurs

• c. As soon as the material is concealed

• d. Only on issuance of a warrant

12. The private person generally may arrest without a warrant:

• a. For a felony

• b. For misdemeanors

• c. For a crime committed in his presence

• d. Where he had “reasonable cause” to believe the person arrested

committed the crime

12. The private person generally may arrest without a warrant:

• a. For a felony

• b. For misdemeanors

• c. For a crime committed in his presence

• d. Where he had “reasonable cause” to believe the person arrested

committed the crime

13. The Supreme Court decision which holds that no suspect, in a custodial environment, may be asked any questions until he has first been warned that he need not make any statement and advised of other rights is the:

• a. McNabb decision

• b. Mallory decision

• c. Ennis decision

• d. Miranda decision

13. The Supreme Court decision which holds that no suspect, in a custodial environment, may be asked any questions until he has first been warned that he need not make any statement and advised of other rights is the:

• a. McNabb decision

• b. Mallory decision

• c. Ennis decision

• d. Miranda decision

14. The Amendment to the U.S. Constitution which deals with searches and seizures is:

• a. 1st Amendment

• b. 4th Amendment

• c. 5th Amendment

• d. 6th Amendment

14. The Amendment to the U.S. Constitution which deals with searches and seizures is:

• a. 1st Amendment

• b. 4th Amendment

• c. 5th Amendment

• d. 6th Amendment

15. As a general rule, searches may be made of employee lockers and desks located on the premises of the company:

• a. If consent is given by the employee

• b. Under no circumstances

• c. If done by local police

• d. If done by the security manager

15. As a general rule, searches may be made of employee lockers and desks located on the premises of the company:

• a. If consent is given by the employee

• b. Under no circumstances

• c. If done by local police

• d. If done by the security manager

16. When a law enforcement agent induces the commission of a offense not otherwise contemplated, the accused may use an affirmative defense known as:

• a. Hearsay

• b. Illegally induce crime

• d. Entrapment

16. When a law enforcement agent induces the commission of a offense not otherwise contemplated, the accused may use an affirmative defense known as:

• a. Hearsay

• b. Illegally induce crime

• d. Entrapment

17. The imputation of another’s negligence to the employer is described as:

• a. Gross liability

• b. Vicarious liability

• c. Agency liability

• d. Net liability

17. The imputation of another’s negligence to the employer is described as:

• a. Gross liability

• b. Vicarious liability

• c. Agency liability

• d. Net liability

18. A willful or negligent wrong done by one person to another is a :

• a. Crime

• b. Misdemeanor

• c. Felony

• d. Tort

18. A willful or negligent wrong done by one person to another is a :

• a. Crime

• b. Misdemeanor

• c. Felony

• d. Tort

19. The unlawful taking of property by force or threat of force constitutes the crime of:

• a. Burglary

• b. Robbery

• c. Assault and battery

• d. Larceny

19. The unlawful taking of property by force or threat of force constitutes the crime of:

• a. Burglary

• b. Robbery

• d. Larceny

20. The act of inducing a person to commit a crime for the purpose of having him arrested is known as:

• a. Solicitation

• b. Entrapment

• c. Nolo contendre

• d. Misprison

20. The act of inducing a person to commit a crime for the purpose of having him arrested is known as:

• a. Solicitation

• b. Entrapment

• c. Nolo contendre

• d. Misprison

21. Deadly force may be used to defend yourself if you:

• a. Reasonably believe deadly force is necessary to protect yourself or

another from unlawful use of deadly force of a third party

• b. Your home is broken into

• c. You are protecting your property

• d. You are attacked by a drug dealer

21. Deadly force may be used to defend yourself if you:

• a. Reasonably believe deadly force is necessary to protect yourself

or another from unlawful use of deadly force of a third party

• b. Your home is broken into

• c. You are protecting your property

• d. You are attacked by a drug dealer

22. The prohibition against being tried twice for the same crime is found in the:

• a. First Amendment

• b. Third Amendment

• c. Fifth Amendment

• d. Fourteenth Amendment

22. The prohibition against being tried twice for the same crime is found in the:

• b. Third Amendment

• d. Fourteenth Amendment

23. In a criminal prosecution the measure of evidence used to find the accused guilty is:

• a. Beyond a reasonable doubt

• b. Probable cause

• c. Suspicion

• d. Preponderance of evidences

23. In a criminal prosecution the measure of evidence used to find the accused guilty is:

• a. Beyond a reasonable doubt

• b. Probable cause

• c. Suspicion

• d. Preponderance of evidences

24. “Strict liability” in tort involves:

• a. Specific instructions given a security officer by a supervisor

• b. Comparative negligence by anyone in any occupation

• c. Intentional liability

• d. An ultra-hazardous or abnormally dangerous activity

24. “Strict liability” in tort involves:

• a. Specific instructions given a security officer by a supervisor

• b. Comparative negligence by anyone in any occupation

• c. Intentional liability

• d. An ultra-hazardous or abnormally dangerous activity

25. The theory of law which vicariously imposes liability on the principal for the acts of his or her agents is known as:

• a. Plain agency

• b. Master servant

• c. Strict liability

• d. Respondeat superior

25. The theory of law which vicariously imposes liability on the principal for the acts of his or her agents is known as:

• a. Plain agency

• b. Master servant

• c. Strict liability

• d. Respondeat superior

26. An employer is responsible for the acts of his or her employee committed within the:

• a. Employee’s scope of employment

• b. Area of the place of business

• c. Employer’s area of primary activity

• d. Employee’s area of primary activity

26. An employer is responsible for the acts of his or her employee committed within the:

• a. Employee’s scope of employment

• b. Area of the place of business

• c. Employer’s area of primary activity

• d. Employee’s area of primary activity

27. The relationship in which two parties agree that one will act as the representative of the other is known as:

• a. Contractual relationship

• b. Fiduciary relationship

• c. Partnership relationship

• d. Agency relationship

27. The relationship in which two parties agree that one will act as the representative of the other is known as:

• a. Contractual relationship

• b. Fiduciary relationship

• c. Partnership relationship

• d. Agency relationship

28. An agent can ordinarily act for the principal in such a way to make the principal legally responsible provided the agent:

• a. Is authorized by the principal to act that way

• b. Acts reasonably

• c. Notifies the principal within 24 hours

• d. Is eighteen years of age

28. An agent can ordinarily act for the principal in such a way to make the principal legally responsible provided the agent:

• a. Is authorized by the principal to act that way

• b. Acts reasonably

• c. Notifies the principal within 24 hours

• d. Is eighteen years of age

29. If “S”, while acting within the scope of employment, injures “T” and “T” dies, the employer of “S” can be:

• a. Held liable in a civil suit for damages

• b. Subjected to criminal liability

• c. Held liable for both civil and criminal action

• d. Criminally liable if the act is malicious

29. If “S”, while acting within the scope of employment, injures “T” and “T” dies, the employer of “S” can be:

• a. Held liable in a civil suit for damages

• b. Subjected to criminal liability

• c. Held liable for both civil and criminal action

• d. Criminally liable if the act is malicious

30. The Constitutional Amendment which provides that no person shall be denied life, liberty, or property without due process of law is:

• b. Second Amendment

• d. Eighth Amendment

30. The Constitutional Amendment which provides that no person shall be denied life, liberty, or property without due process of law is:

• b. Second Amendment

31. The right to have the assistance of counsel for one’s defense is provided by the:

• a. Second Amendment

• b. Fifth Amendment

• c. Sixth Amendment

31. The right to have the assistance of counsel for one’s defense is provided by the:

• a. Second Amendment

• b. Fifth Amendment

• c. Sixth Amendment

32. The primary duty of a grand jury is:

• a. Ascertain if the accused is guilty

• b. Determine probable cause

• c. Determine if a conspiracy exists

• d. Determine if an investigation should be opened

32. The primary duty of a grand jury is:

• a. Ascertain if the accused is guilty

• b. Determine probable cause

• c. Determine if a conspiracy exists

• d. Determine if an investigation should be opened

33. According to the U.S. code, a felony is any offense:

• a. Punishable by death

• b. Punishable by imprisonment of three years or more

• c. Punishable by imprisonment exceeding one year

33. According to the U.S. code, a felony is any offense:

• a. Punishable by death

• b. Punishable by imprisonment of three years or more

• c. Punishable by imprisonment exceeding one year

34. The affirmative act of concealing the commission of a felony, cognizable by a court of the U.S., by someone having knowledge of the felony is a violation called

• a. Misprison of a felony

• b. Accessory

• c. Subornation of perjury

• d. Obstruction of justice

34. The affirmative act of concealing the commission of a felony, cognizable by a court of the U.S., by someone having knowledge of the felony is a violation called

• a. Misprison of a felony

• b. Accessory

• c. Subornation of perjury

• d. Obstruction of justice

35. When a law enforcement agent induces the commission of an offense, the process is called:

• a. Accessory before the act

• b. Misprison of a felony

• c. Entrapment

35. When a law enforcement agent induces the commission of an offense, the process is called:

• a. Accessory before the act

• b. Misprison of a felony

• c. Entrapment

36. Wrongful appropriation of the personal property of another to the use of the taker is a tort called:

• a. Conversion

• b. Larceny

• c. Trespass

• d. Embezzlement

36. Wrongful appropriation of the personal property of another to the use of the taker is a tort called:

• a. Conversion

• b. Larceny

• c. Trespass

• d. Embezzlement

37. A writ issued by a court directing the recipient to appear and testify is a:

• a. Warrant

• b. Subpoena

• c. Writ of Mandamus

• d. Writ of prohibition

37. A writ issued by a court directing the recipient to appear and testify is a:

• a. Warrant

• b. Subpoena

• c. Writ of Mandamus

• d. Writ of prohibition

38. The general rule as to the amount of force a security officer is permitted to use in order to accomplish a lawful arrest is:

• a. The amount needed to assure that the security officer is not injured

• b. Up to and including deadly force

• c. The maximum amount

• d. Only such force as is reasonably necessary

38. The general rule as to the amount of force a security officer is permitted to use in order to accomplish a lawful arrest is:

• a. The amount needed to assure that the security officer is not injured

• b. Up to and including deadly force

• c. The maximum amount

• d. Only such force as is reasonably necessary

39. If a grand jury finds that probable cause exists that the accused committed the crime alleged, the grand jury then:

• a. Issues an information

• b. Issues an indictment

• c. Issues a mittimus

• d. Enters a finding of guilty

39. If a grand jury finds that probable cause exists that the accused committed the crime alleged, the grand jury then:

• a. Issues an information

• b. Issues an indictment

• c. Issues a mittimus

• d. Enters a finding of guilty

40. The usual charge placed against someone who has made an erroneous arrest is:

• a. Kidnapping

• b. False imprisonment

• d. Malicious prosecution

40. The usual charge placed against someone who has made an erroneous arrest is:

• a. Kidnapping

• b. False imprisonment

• d. Malicious prosecution

41. The federal agency in charge of disaster planning is:

• a. Federal Emergency Management Agency

• b. Office of Civil Defense

• c. Department of the Army

• d. Department of the Interior

41. The federal agency in charge of disaster planning is:

• a. Federal Emergency Management Agency

• b. Office of Civil Defense

• c. Department of the Army

• d. Department of the Interior

42. One of the following is not prohibited by the Federal Civil Rights Act during an investigation:

• a. Asking questions as to religious affiliation

• b. Asking questions as to prior convictions

• c. Directing inquiry into areas of race or color for discriminating purposes

• d. Directing inquiry into areas of religion or sex for discriminating purposes

42. One of the following is not prohibited by the Federal Civil Rights Act during an investigation:

• a. Asking questions as to religious affiliation• b. Asking questions as to prior convictions• c. Directing inquiry into areas of race or

color for discriminating purposes• d. Directing inquiry into areas of religion or

sex for discriminating purposes

43. Questions on an application blank or field investigative inquiries dealing with union membership or affiliation should be avoided as they may lead to charges which constitute violations of:

• a. National Labor Relations Act

• b. The Civil Rights Act of 1964

• c. The Civil Rights Act of 1976

• d. The Fair Credit Reporting Act

43. Questions on an application blank or field investigative inquiries dealing with union membership or affiliation should be avoided as they may lead to charges which constitute violations of:

• a. National Labor Relations Act

• c. The Civil Rights Act of 1976

• d. The Fair Credit Reporting Act

44. A question on the application form inquiring about prior arrests is on its face illegal as a violation of:

• a. The National Labor Relations Act

• b. The Federal Tort Claim Act

• c. The Omnibus Crime Control Act

• d. The Civil Rights Act of 1964

44. A question on the application form inquiring about prior arrests is on its face illegal as a violation of:

• a. The National Labor Relations Act

• b. The Federal Tort Claim Act

• c. The Omnibus Crime Control Act

• d. The Civil Rights Act of 1964

45. Identify the act which basically prohibits discrimination, discharge, failure or refusal to hire, on any of the grounds of race, color, religion, sex or national origin:

• a. Fair Credit Reporting Act

• c. First Amendment

• d. Omnibus Crime Control Act

45. Identify the act which basically prohibits discrimination, discharge, failure or refusal to hire, on any of the grounds of race, color, religion, sex or national origin:

• a. Fair Credit Reporting Act

• c. First Amendment

• d. Omnibus Crime Control Act

Significant NotesSignificant Notes

U.S. Legal Aspects

The Bill of Rights is the

first ten amendments to the

Constitution of the U.S.

First amendment provides

for freedom of speech, religion, press, assembly and to petition

the government

Second amendment provides

the right to keep arms (weapons)

Forth amendment prohibits

unreasonable searches and seizures and also sets out the

requirement that a warrant be supported by probable cause

Fifth amendment prohibits

double jeopardy, compulsory self incrimination, and

deprivation of life, liberty or property without due process

Sixth amendment provides that the accused have a speedy public trial, know the charges against him, confront witnesses against him, have compulsory process to obtain his witnesses, and have assistance of a counsel for his defense

Seventh amendment provides

the right to trial by jury

Eighth amendment prohibits

excessive bail, excessive fines and

cruel and unusual punishment

“Miranda warning” must be given before “custodial” interrogation. The suspect is advised:a. You have the right to remain silentb. Anything you say may be used

against youc. You have the right to contact an

attorneyd. If you cannot afford an attorney,

one will be provided free of charge

Generally, Miranda warnings need not be given by security

officers

The crime of “robbery” is the unlawful taking of property

from the immediate possession of another by force or the threat of

“Larceny” is the unlawful taking of property from the possession

of another with the intent of depriving the owner of it

permanently

“Vicarious liability” is the legal concept which holds the employer, as well as the employee, liable if the “wrong” was committed while the employee was acting within the scope of employment

Vicarious Liability

• An employer may avoid liability for the tortious acts of another if the hiring contract is such that the relationship of “independent contractor” on the part of the tort feasor has been established.

Vicarious Liability• But, the employer may be held liable for the

acts of an independent contractor when:– The work contracted for is wrongful per se– The work contracted for is a public nuisance– The work contracted for is inherently dangerous– The act of the independent contractor violates a

duty imposed on the employer by contract.– The wrongful act by the independent contractor

violates a statutory duty.

“Respondeat superior” is the legal rule that an employer is responsible for the action or lack of action of an employee taken within the course of employment.

Respondeat Superior (Let the master respond)

Basic Aspects

• Respondeat Superior:–The right of control and not

necessarily the exercise of that right is the test of the relation of the master to the servant.

Note the difference between a “crime” and a “tort”.

A crime is a violation of the government’s penal laws;

whereas a tort is a legal wrong done to another person

(a civil wrong) No agreement between parties is

required.

A crime can also be a tort

examples:batterytrespassassault

Most crimes are of two primary types;a. The federal definition of a

“felony” is: a crime punishable by imprisonment for a term exceeding one year

b. A “misdemeanor” is any crime which is not a felony

“Corpus delicti” is a legal term for the “body of the crime” or the elements of the crime which must

be proved. It does not mean a dead body

Treason is the only crime specifically mentioned in the U.S.

Constitution

The criminal code of the United States is found in Title 18

There are no Federal common law crimes

Essential elements of the crime of negligence:a. A duty owed by the defendant to the

injured partyb. A violation of that duty by failure to

follow a required standard of conductc. A causal connection between the

negligent conduct and the harmd. Actual loss or damage to the plaintiff

A fidelity bond is insurance on a person covering that person’s

dishonesty

“Strict liability” refers to the legal concept that one may be held responsible for some acts without the necessity to prove criminal intent (mens rea). Strict liability statutes are usually in the areas of public health, safety and welfare and they are generally classified as “mala prohibitum”

“Compensatory damages” are

actual damages directly

related to the amount of the loss

“Punitive damages” are designed to punish the defendant

and to deter him, and others, from a repetition of the wrongful

Generally, searches by security officers

are not subject to constitutional regulation under the 4th

Amendment

In judging whether certain conduct is negligent, the law uses the standard of reasonableness. The “reasonable person” is one of ordinary prudence who exercises due care in a situation

such as that under litigation

“Deadly force”, as a general rule, should be used by law enforcement officers as a last resort and then only when

the life of the officer or another person is in jeopardy

An “express contract” is one which is clear, definite, direct,

and spelled out by explicit words

An “implied contract” is one which is not spelled out clearly

by explicit words, but is interpreted by analyzing

surrounding circumstances or the actions of the persons

involved

“Entrapment” is a defense in which the defendant alleges that he was induced by government officers or agents to commit a crime which he would not have

committed without the inducement

Statements made by subjects being interrogated must be

“voluntary”

The concept of the grand jury originated in England

An “indemnity bond” is an insurance contract designed to

reimburse an individual or organization for possible losses

of a particular type

A “citizen’s arrest” is an arrest by a private person, rather than by a public law enforcement officer.

This authority originated at common law and is the authority of most arrests by proprietary and

contract security officers

A law enforcement officer may arrest for a felony based solely on

“probable cause”.

A private security officer may arrest for a felony based in

“probable cause”, but there is no margin for error; otherwise, a suit

for false arrest may be litigated

The “plain view” doctrine holds that if police, in the course of

lawful duty, recognize a plainly visible item as evidence of a

crime, the item may be seized and admitted in a criminal trial

Probable Cause is that combination of facts and circumstances which would warrant a person of reasonable caution and prudence to believe that a crime has been committed and that the person to be arrested is the one who committed the crime.

The Supreme Court of Terry v. Ohio authorized “stop and frisk” technique without probable cause where an experienced officer had good reason to suspect criminal activity which was dangerous to the officer or others

The undercover agent must know the law regarding “entrapment.” “Entrapment” is defined as the acts of officers of the government in inducing a person to commit a crime not contemplated by him/her in order to initiate a criminal investigation

Under no circumstances will an undercover agent be permitted to engage in “malum in se” crime such as murder, burglary, rape,

arson, robbery, etc.

The Fair Credit Reporting Act, among other things, requires

written notice to the applicant prior to an investigation by a

third party (Consumer Reporting Agency)

As a general rule, it is permissible to ask about possible “convictions” but not “arrests” on

the employment questionnaire

Basic Aspects

• Civil law is the statutory and common law in which private rights and remedies are found. Of the 50 titles of the United States Code, 49 deal primarily with civil matters.

Basic Aspects

• Express Contract is an actual agreement of the parties, the terms of which are openly uttered or declared at the time the contract is made.

• Implied Contract is one not created or evidenced by the explicit agreement of the parties, but is inferred by law.

Basic Aspects

• Price is the dollar value stated in the contract.

• Reasonable value is the dollar value of goods and/or services determined by a court or arbitrator.

Basic Aspects

• In the transportation of goods, recovery of damages may be estopped by a “time bar” clause in the shipping documents (contracts).

Basic Aspects• The concept of tort liability operates to:

–Compensate a victim for his loss

–Act as a deterrent for future conduct of the same kind

–Serve as evidence of society’s disapproval of the wrong

Basic Aspects

• The basic elements of intentional tort liability are:– An act or omission

– Which brought about the intended result

Basic Aspects

• Examples of intentional torts:– Battery– Assault– False imprisonment– Trespass to land or to chattels (Conversion)– Fraud / Misrepresentation– Defamation– Invasion of privacy

Basic Aspects

• Generally, proprietary security officers are servants, whereas contract security personnel are employees of the supplying agency and therefor may not be considered servants of the employing organization.

“Stare Decisis”

• The Law of PrecedenceThe Law of Precedence

FelonyFelony

• Federal statutes provide for five classes of felonies ranging is punishment from imprisonment for a term exceeding one year to death or life imprisonment.

MisdemeanorMisdemeanor

• Three classes of misdemeanors:• Class A - One year or less but more than 6

months

• Class B - Six months or less, but more than 30 days

• Class C - Thirty days or less, but more than 5 days

InfractionInfraction

• Federal statutes provide for one class of infraction for which the penalty ranges from 5 days or less imprisonment to no authorized penalty.

“Mala in seMala in se”

• Those crimes which are bad in themselves, ie...

–Murder

–Rape–All Common Law crimes were

mala in se.

“Mala prohibitaMala prohibita”

• Those acts which are considered “offenses” by the passage of statutes. Generally no criminal intent is required; the mere accomplishment of the act is sufficient for criminal liability.

Corpus delicti

• The body of the crime. The combination of the elements which provide proof of the crime is the corpus delicti.

• Consists of:– Mens Rea (criminal intent)– Actus Rea (the forbidden act)– Coming together of the above two

Law of CausationLaw of Causation

• There must be a cause and effect relationship between the act of the accused and the resulting harm. The Law of Causation - a person is presumed to intend the natural and probable consequences of his act. But, the accused takes his victims as he finds him.

“MotiveMotive”

• Motive is not an essential part of a crime; it is not part of the corpus delicti.

• Most crimes require the combination of an act and an intent, which must be simultaneous.

• “Negligence” differs from “recklessness,” in that in recklessness, conduct is governed by the actual state of mind of the accused.

“AlibiAlibi”

• The alibi defense is one of physical impossibility. The testimony of an alibi witness must cover the entire time of the crime.

“Mistake of FactMistake of Fact”

• The “Mistake of Fact” defense is used when one commits a violation of the law in good faith with a reasonable belief that certain facts existed, which would make the act innocent if indeed they did exist.

Laws of ArrestLaws of Arrest• The basic elements which constitute an

arrest are:– A purpose or intention to effect the arrest– An actual or constructive seizure or detention

of the person to be arrested– A communication by the arresting officer to the

arrestee of his intention to place him under arrest.

– An understanding by the person to be arrested that he is being arrested.

Laws of ArrestLaws of Arrest

• The mere words “you are under arrest:” will not satisfy the seizure or detention element of arrest.

• A warrant is an order for the arrest of a person.

• A summons directs the defendant to appear before a court at a stated time and place.

• When a private citizen acts in aid of a known law enforcement officer, the citizen has the same rights and privileges as the officer and is protected from liability even if the officer was acting illegally.

• Generally, private citizens may arrest any person who has committed an offense in their presence or for a felony not committed in their presence. BUT, the arrest can be justified only by further showing that the felony was actually committed by the person arrested.

Search and SeizureSearch and Seizure

• The “Exclusionary Rule” excludes evidence, otherwise admissible, obtained by methods which violate Constitutional guarantees of the Forth Amendment which protects an individual in his person and property.

The “Tainted Fruit of the Poisonous Tree” doctrine is that any and all evidence obtained as a result of an unreasonable search cannot be used against the accused. Any other evidence obtained as a result of the original unlawful invasion is dubbed the “tainted fruit of the poisonous tree” and may not be used against the person whose privacy was violated.

4th Amendment4th Amendment

• The 4th Amendment does not specifically authorize a search without a warrant. We have legal searches without a warrant because of court decisions.

SearchesSearches

• A private security officer has only the search authority of a private citizen.

• The Fourth Amendment does not apply to searches by private persons.

• Evidence discovered by private search is admissible in a criminal trial and is not subject to the Exclusionary Rule.

Confession / AdmissionConfession / Admission• A confession is a statement in which a

person acknowledges guilt of a crime.

• An admission is a statement in which a person admits a fact or facts which would tend to prove him guilty of a crime, but which does not constitute a full acknowledgement of guilt of a crime.

Confession / AdmissionConfession / Admission

• The fundamental test regarding the use of confessions and admissions is the “free and voluntary” test.

Federal Bureau of Federal Bureau of Investigation (DOJ)Investigation (DOJ)

• Investigative Jurisdiction over Federal criminal violations and concurrent jurisdiction with the DEA on Narcotics and Dangerous Drugs. Includes the:

– National Depository of Fingerprints;

– National Crime Information Center (NCIC);

– National Center for the Analysis of Violent Crime;

Federal Bureau of Federal Bureau of Investigation (DOJ)Investigation (DOJ)

– National Center for the Analysis of Violent Crime;

– Violent Criminal Apprehension Program;

– Forensic Science Training and Research Center;

– National Bomb Data Center

U.S. Marshall’s Service U.S. Marshall’s Service (DOJ)(DOJ)

• Operational priorities include:– Physical security for Federal courts– Custodian of Federal evidence– Service of Federal Criminal and civil process– Witness-protection program– Federal Assets Forfeiture and Seizure– Transportation of Federal prisoners– Conduct fugitive investigations

Immigration and Immigration and Naturalization Service (DOJ)Naturalization Service (DOJ)

• Responsible for administering U.S. Immigration and Naturalization laws.

– Regulates non-resident aliens

– Determines admissibility of aliens into this country.

– Handles deportation proceedings

U.S. Secret Service U.S. Secret Service (Treasury Department)(Treasury Department)

• Responsible for the protection of the President, Vice-President and their families as well as other designated persons.

• Investigative responsibilities include counterfeiting, credit card fraud and bank failures

Customs Service Customs Service (Treasury Department)(Treasury Department)

• Enforces customs-related laws and regulations

• Collect import duties.

Internal Revenue ServiceInternal Revenue Service(Treasury Department)(Treasury Department)

• Administers and enforces Federal tax laws.

• Special intelligence division investigates organized crime, gambling, and tax stamp violations.

B.A.T. F.(Treasury Department)

• Bureau of Alcohol, Tobacco and Firearm

• Administration and enforcement of U.S. gun and explosive laws.

• Training and investigative assistance in arson and bomb investigations.

• Trace of weapons for law enforcement agencies

Defense Investigative ServiceDefense Investigative Service(Department of Defense)(Department of Defense)

• Administers the Defense Industrial Security Program.

F.E.M.A.F.E.M.A.

• Federal Emergency Management Agency

• An independent agency• Primary responsibility of dealing

with disaster planning.

F.E.M.A.F.E.M.A.

• The Director of FEMA reports to the President and works closely with the National Security Council, Cabinet, and White House staff

Coast GuardCoast Guard(Department of Transportation)(Department of Transportation)

• Security and safety of ports.

• Investigations of marine-related accidents, casualties and violations.

• Safety standards for commercial vessels.

Federal Aviation AdministrationFederal Aviation Administration(Department of Transportation)(Department of Transportation)

• Issue and enforcement of rules and regulations for air commerce and air safety.

• Certification of airports and inspection of air-navigation facilities.

Federal Highway AdministrationFederal Highway Administration (Department of Transportation)(Department of Transportation)

• Regulatory jurisdiction over safety and performance of commercial motor carriers engaged in interstate commerce. Authorized to investigate violations of:

Federal Highway AdministrationFederal Highway Administration (Department of Transportation)(Department of Transportation)

–Highway Safety Act

–Interstate Commerce Act

–Explosive and Dangerous Articles Act

U.S. Army Corp of EngineersU.S. Army Corp of Engineers

• Flood control planning should be coordinated with the U.S. Corp of Engineers.

“NOAANOAA”

• Progressive situation reports of floods are available from the National Oceanic and Atmosphere Administration (NOAA).

National Weather ServiceNational Weather Service• The NWS begins issuing hurricane

advisories as soon as there are indications a hurricane is forming and it is given a name. The purpose of an advisory is to:

– Tell where the storm is located

– Intensity of winds

– Speed and direction of movement

Bureau of Vital StatisticsBureau of Vital Statistics

• Records of births, marriages and deaths

The Age Discrimination in The Age Discrimination in Employment Act of 1967Employment Act of 1967

• Prohibits discrimination against applicants or employees over 40 years of age.

Equal Pay Act of 1963Equal Pay Act of 1963

• Requires that employees receive equal pay for equal work, requiring equal skill, effort and responsibility regardless of sex; however, the employer may pay different rates at different establishments.

The National Labor Relations The National Labor Relations ActAct

• Known as the “Wagner Act”

• The basic test of an unfair labor practice is whether it results in coercion or discrimination prohibited by the labor act.

• Management representatives may not attend a union meeting.

• Undercover operations are neither conducted nor authorized where and when labor organizing efforts or labor problems are occurring.

• Advise security personnel that their actions will be considered “employer actions”.

• When an employee reasonably believes that an interview may lead to or result in disciplinary action and requests that a union representative be present, union representation must be allowed (The Weingarten Rule).

• Management is not required to advise an employee of this right of representation or to “bargain” with the union representative.

• The NLRA specifically provides that guards and non-guard employees cannot be members of the same bargaining unit.

The Labor Management The Labor Management Relations ActRelations Act

• Known as the Taft-Hartley Act

• Forbids unions from:–Coercing an employer to pay for work

not performed (Featherbedding)

Labor Management Reporting Labor Management Reporting and Disclosure Actand Disclosure Act

• Known as the Landrum-Griffin Act

• Established safeguards and restrictions on union officers and management conduct regarding their members, also prohibits either union or employer from “Hot Cargo” agreements.

Labor Management Reporting Labor Management Reporting and Disclosure Actand Disclosure Act

• A “Hot Cargo” agreement is defined as one where the employer agrees to cease doing business with any person or to cease dealing in any products of another employer.

StrikesStrikes

• Economic Strike - The most frequent type

• takes place where there is a vote to stop work because a satisfactory employment agreement has not been negotiated.

• Economic strikes must be preceded by at least a 60-day notice that the union desires to modify the existing collective bargaining agreement.

StrikesStrikes

• The Unfair Labor Practice Strike• When strikers strike to force discontinuance of an

alleged violation by an employer of the labor law.

• This type of strike permits no time for effective planning by security.

• All striking employees who request to return to their jobs must be allowed to do so by their employer.

StrikesStrikes

• Three phases of security involvement during strikes:–Pre-strike planning stage

–Strike operation plan phase

–Post-strike intelligence phase

StrikesStrikes• The main goals of the security

force during labor disturbances should be: – To lessen potential for violence– To adequately deal with violence when it occurs– To prevent death, injury, and damage to property– To maintain order– To preserve the integrity of the work site.

StrikesStrikes

• The security strike operations plan is a comprehensive statement of all policies, procedures and activities to be done during the strike period.

StrikesStrikes• The security strike operations plan

– The plan should be made available to each security supervisor and higher manager.

– It should not contain sensitive information– Effective planning of access control indicates uses

the fewest entries possible and those used should be located where easily policed.

– Management should develop a prior policy, which is understood and adhered to by all parties, regarding arrests during a strike. A sound policy would be not to agree to amnesty for serious offenses (felonies).

StrikesStrikes

• The chief weapon of the strikers is the ability to discourage people from entering plant premises and to prevent movement of goods and materials to and from the plant.

StrikesStrikes• “Lockout” - is the refusal of

management to allow members of the bargaining unit on the premises. A “lockout” may be used legally in the face of an imminent violent strike; however, notice of a “lockout” must be given to the bargaining unit or a charge of unfair labor practice could result.

Occupational Safety and Occupational Safety and Health Act (OSHA)Health Act (OSHA)

• The Williams-Steiger Occupational Safety and Health Act (29 USC 651-678) was signed into law in December 1970 and became effective on April 28, 1971. The primary responsibility for administration of this act falls upon the Department of Labor.

• The statute states that every employee “affecting commerce” is subject to the provisions of OSHA. This means just about all employees in every industry are covered. One exception is the mining industry.

• The general purpose of OSHA is to provide safe and healthful working conditions for employees.

• All businesses are required under OSHA to have a person or persons trained in first aid available.

• OSHA Form #200 - a log and summary of occupational injuries and illness.

• OSHA Form #101 - a supplemental record of occupational injuries and illness.

• An “injury” results from a single incident. A one time chemical exposure is an injury.

• An “illness” is an abnormal condition or disorder caused by exposure to environmental factors in employment.

• Records on all work-related deaths, injuries, and illnesses must be current and must be available to Labor Department inspectors upon request. All records concerning injury/illness must be maintained for at least 5 years.

• If an on-the-job accident results in the death of an employee or the hospitalization of 3 or more employees, the nearest OSHA office must be contacted within 8 hours.

• In Marshall vs. Barlow, the Supreme Court held that officials of OSHA cannot inspect businesses without first obtaining warrants. This ruling does not apply to a few specialized industries such as firearms and liquor industries.

• It is not necessary for OSHA inspectors to show “probable cause” to obtain a warrant. The inspectors only must show that the inspection is part of a general administrative plan to enforce the safety laws.

• When they find conditions of “imminent danger”, compliance officers may REQUEST, not demand shutdown.

• Most citations allege violations of specific safety and health standards or of the posting and record keeping requirements.

• Citations based on the “general duty” clause are increasing in frequency and will further increase if OSHA tries to regulate conditions such as workplace violence. There is no “free first bite” !!

• Citations are not issued to employees. A citation is issued to the employer if employees fail to comply with safety and health standards.

• Types of citations include;

• Imminent Danger

• Serious Violation

• Non-serious Violation

• De Minimis Violation

• Willful Violation

• Repeated Violation

• Imminent Danger– any condition or practice such that a danger

exists which could reasonably be expected to cause death or serious physical harm immediately, or before the imminence of such danger can be eliminated through the enforcement procedures provided by this act.

• Serious Violation

– a substantial probability that death or serious physical harm could result and the employer knew, or with the exercise of reasonable diligence, should have known of the hazard. A fine not exceeding $7,000 must be assessed.

• Non-serious Violation

– The condition is likely to cause injury, but not death or serious physical harm, or the employer did not know of the hazard. (A tripping hazard on a level surface). A fine of $7,000 or less may be imposed.

• De Minimis Violation

–No immediate or direct relationship to safety or health.

• Willful Violation– The employer intentionally or

knowingly violated the act, or was aware of a hazard and made no attempt to correct it. The minimum penalty is $5,000 - max. of $70,000

• Repeated Violation–a second or subsequent citation for

violation of the same standard or general duty clause. The minimum penalty is $5,000 - max. of $70,000.

The American With Disabilities The American With Disabilities Act of 1990 (ADA)Act of 1990 (ADA)

• Regulations to implement Title 1 (Employment) are issued by the Equal Opportunity Employment Commission (EEOC). The regulations cover all employers with 15 or more employees in industries affecting commerce.

• Those not protected under the Act:– Transvestites (Section 508)

– Current illegal drug users (Section 510)

– Homosexuals, bisexuals, persons with sexual behavior or compulsive gambling disorders, kleptomaniacs, and pyromaniacs (Section 511)

• Any medical examination or inquiry into the disability of an applicant or employee is prohibited unless the employer can show a job relationship and a consistent business necessity. Medical examinations after an offer of employment has been made must be given to all prospective employees.

• Readily achievable means easily accomplished without much difficulty or expense.

• Accessibility means free of barriers that could prevent a person with impaired mobility from getting to a desired location in the facility, or to use lavatories, lounges, lunchrooms, public telephones, drinking fountains or other amenities.

• The World Health Organization (WHO) definition of “impairment” is a permanent or transitory psychological, physiological, or anatomical loss or abnormality of structure or function (an amputated limb, paralysis after polio, diabetes, mental retardation, impaired hearing or sight).

• The WHO definition of “disability” includes restrictions on, or the prevention of, carrying out an activity because of an impairment, in the manner or within the range considered normal for a human.

• Under the ADA, a “disability” is a physical or mental impairment that substantially limits one or more of the major life activities of an individual.

• The WHO defines “handicap” as a disability which interferes with what is expected at a particular time in one’s life (inability to care for oneself, communicating thoughts and concerns, developing a capacity for independent economic activity).

Federal Sentencing GuidelinesFederal Sentencing Guidelines

• The 1987 Individual Sentencing Guidelines tended to narrow the range of punishment for a certain crime and to standardize sentencing.

• The 1991 Organizational Sentencing Guidelines cover anti-trust, money laundering, fraud, ERISA, securities, and environmental law violations.

• A $20 million gain to a company from an anti-trust violation could result in a criminal fine ranging from $1 million to $80 million depending on the guidelines applied.

• The deterrence and detection objectives are reached by requiring every company:– To make restitution to any party injured

by the criminal conduct; and

– To pay a fine which is not tax deductible

• The fine consists of a “base fine” which is multiplied by a “culpability score” to determine a minimum and a maximum range within which the court impose a fine.

• The “base fine” is the greater of:

–The pre-tax gain to the company from the crime, or

–The loss to any party intentionally injured by the crime, or

–From $5,000 to $72,500, determined from a “level of seriousness” table.

• In determining the “culpability score”, every business starts with a rating of 5 and aggravating or mitigating factors move the score within the range of 0 to 10.

• Aggravating factors, include;– Participation, tolerance, or disregard of criminal

conduct by high level personnel or substantial authority personnel in a large organization. (Add 5 points).

– A history of similar conduct within the last 5 years. (Add 2 points)

– Obstruction of justice in the course of the investigation, prosecution or sentencing. (Add 3 points)

• Mitigating factors, include;– Self-reporting, cooperation with an

investigation, and accepting responsibility for the conduct of the organization. (Subtract 5 points)

– An effective compliance program(s) to prevent and detect criminal conduct. (Subtract 3 points)

•An effective compliance program has seven mandatory components:

• 1. Establishment of compliance standards which are reasonably capable of preventing criminal conduct.

• 2. Specific responsibility for high level management to oversee the standards.

• 3. Communication of standards and offering training in compliance issues to employees.

• 4. Tests of the compliance system with auditing, monitoring, and other tests designed to detect criminal conduct.

Federal Sentencing GuidelinesFederal Sentencing Guidelines• 5. Due care to insure that discretionary

authority is not delegated to individuals with a propensity to engage in illegal conduct.

• 6. Enforcement using disciplinary procedures which include provisions for discipline of individuals who fail to detect or report an offense.

• 7. All reasonable steps, after an offense has been detected, to prevent a future similar occurrence.

• A determination, after the fact, that an effective compliance program did not exist will probably result in a probation status which may require that the company:

• 1. Publicize its criminal acts at its own expense as directed by the court.

• 2. File periodic financial reports with the court

• 3. Submit to periodic examination by court appointed experts.

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