Ch04 Criminal Law and Ethics.docx

CHAPTER 4 – CRIMINAL LAW AND ETHICS A. Chapter Introduction Chapter 4 introduces the student to the subjects of substantive and procedural criminal law, with emphasis on mens rea and actus reus, types of crimes, the key parts of a criminal prosecution, federal laws designed to combat organized crime, computer crimes, and terrorism, and a discussion of significant constitutional safeguards found in the Bill of Rights. After completion of this chapter, students should be able to: Define and list the essential elements of a crime. Describe criminal procedure and the criminal trial. Define major white-collar crimes. Explain the constitutional safeguards provided to defendants in criminal cases. Define and apply ethical principles to business. B. Instructional Ideas 1. Explain the concept of intent and how it relates to making an act a crime. Distinguish between different kinds of intent: purpose, knowing, and reckless intent. 2. Explain the concept of voluntary conduct as it relates to actus reus. Distinguish a voluntary act from an involuntary act (such as a reflex). Explain how doing nothing, such as failing to file one’s taxes, can be an act under the criminal law. 3. You might want to invite a member of the county prosecuting attorney’s office to discuss how prosecutions are carried out and how, if they are used, grand juries operate. 4. Ask the students about their understanding of what the Enron mess is all about. See if their answers are indicative of how difficult it is to get a handle on white collar crime. 5. Discuss the Martha Stewart prosecution. Get their opinions on whether the prosecution was a fair one, or was driven by the government’s attempt to get a celebrity. 6. Discuss the controversial subject of jury nullification, the idea that it is appropriate for juries to acquit those they believe are guilty if the jury believes they are accomplishing a higher social purpose or are making a political statement by doing so. 7. Go back to the O.J. Simpson criminal case to discuss exigent circumstances as an exception to the warrant requirement. In that case, the police entered O.J.’s house without a warrant because of the belief, at the time, that someone might have been in danger inside. 8. Discuss the constitutional safeguards mentioned in the text, such as the Fifth Amendment protection against self-incrimination. Ask the students if they think a jury should be allowed to consider the defendant’s silence at trial when considering the evidence. Ask the students what they think constitutes cruel and unusual punishment. You might want to get involved in a death penalty discussion. 9. Explain how the law is affected by morality and ethics, but that not all of what is unethical or immoral is labeled criminal. Ask for input on how much of the criminal law should be related to immoral conduct (e.g., vice crimes, such as prostitution and gambling). C. Video Recommendation(s) And Justice for All is recommended for Chapter 4. It is an over-the-top, thoroughly compelling look at the criminal justice system and legal ethics. Al Pacino plays a defense lawyer who is, in essence, forced to defend an evil judge against the charge of raping a prostitute. At the same time, he faces professional misconduct charges. The Baltimore legal system is shown as being pathetic and rotten from the inside. One might consider showing The Insider, the film about the nearly-spiked 60 Minutes piece on the Brown and Williamson tobacco company scientist who was fired for objecting to certain goings-on at the company. This movie would be a strong complement to the Joe Camel piece in the chapter. D. Chapter Outline I. Definition of a Crime: Definition: Any act done by a person in violation of those duties that he or she owes to society and for the breach of which the law provides a penalty. A. Penal Codes and Regulatory Schemes: State and federal statutes that define many crimes. Criminal conduct is also defined in many regulator statutes. B. Parties to a Criminal Action: 1. Plaintiff: the government, which is represented by the prosecuting attorney (prosecutor, or district attorney). 2. Defendant: the person or business accused of the crime, who is represented by a defense attorney. If the accused cannot afford a defense attorney, the government will provide one free of charge. II. Classification of Crimes: A. Felonies. The most serious kinds of crimes. Mala in se (inherently evil). Usually punishable by imprisonment. B. Misdemeanors. Less serious crimes. Mala prohibita (prohibited by society). Usually punishable by fine and/or imprisonment for less than one year. C. Violations. Not a felony nor a misdemeanor. Generally punishable by a fine. III. Essential Elements of a Crime. A. Criminal Act. The defendant must have actually performed the prohibited act. 1. Actus reus: guilty act. B. Criminal Intent C. The accused must be found to have possessed the requisite subjective state of mind when the act was performed. Mens rea: evil intent. Purposeful. Knowingly. Recklessly. With criminal negligence. D. Specific Intent. Is found where the accused purposefully, intentionally, or with knowledge commits a prohibited act. E. General Intent. Is found where there is a showing of recklessness or a lesser degree of mental culpability. F. Strict Liability or Absolute Liability. Some statutes impose criminal liability where a finding of mens rea is not required. IV. Criminal Acts as a Basis for Tort Actions. A. Civil Tort Action. An injured party may bring a civil tort action against a wrongdoer who has caused the party injury during the commission of a criminal act. V. Criminal Procedure A. Pretrial Criminal Procedure: 1. Arrest. Made pursuant to an arrest warrant based upon a showing of “probable cause,” or where permitted by a warrantless arrest. 2. Indictment or information. Grand juries issue indictments; magistrates (judges) issue informations. These formally charge the accused with specific crimes. 3. Arraignment. Accused is informed of the charges against him or her and enters a plea in court. The plea may be not guilty, guilty, or nolo contendere. 4. Plea bargaining. Government and accused may negotiate a settlement agreement wherein the accused agrees to admit to a lesser crime than charged. VI. Crimes Affecting Business A. Robbery: The taking of personal property from another by fear or force. B. Burglary: The unauthorized entering of a building to commit a felony. C. Larceny: The wrongful taking of another’s property other than from his or her person or building. D. Theft: The wrongful taking of another’s property, whether by robbery, burglary, or larceny. E. Receiving Stolen Property: A person knowingly receives stolen property with the intent to deprive the rightful owner of that property. F. Arson: The malicious and willful burning of another’s building. G. Forgery: Fraudulently making or altering a written document that affects the legal liability of another person. H. Extortion: Threat to expose something about another person unless that person gives up money or property. I. Credit-card crimes: The misappropriation or use of another person’s credit card. J. Bad check legislation: The making, drawing, or delivery of a check by a person when that person knows that there are insufficient funds in the account to cover the check. VII. White-Collar Crimes A. Definition: Crimes that are prone to be committed by businesspersons that involve cunning and trickery rather than physical force. B. Embezzlement: The fraudulent conversion of property by a person to whom the property was entrusted. C. Criminal Fraud: Obtaining title to another’s property through deception or trickery. Also called false pretenses or deceit. D. Mail Fraud: The use of mail to defraud another person. E. Wire Fraud: The use of wire (telephone or telegraph) to defraud another person. F. Bribery: the offer of payment of money or property or something else of value in return for an unwarranted favor. The payor of a bribe is also guilty of the crime of bribery. 1. Commercial bribery is the offer of a payment of a bribe to private persons and businesses. This is often referred to as a kickback or payoff. 2. Bribery of public officials for an “official act” is a crime. G. Racketeer Influenced and Corrupt Organizations Act (RICO): Makes it a federal crime to acquire or maintain an interest in, use income from, or conduct or participate in the affairs of an “enterprise” through a “pattern” or “racketeering activity.” Criminal penalties include the forfeiture of any property of business interests gained by a RICO violation. VIII. Inchoate Crimes A. Definition: Crimes that are incomplete or that are committed by nonparticipants. B. Criminal Conspiracy: When two or more persons enter into an agreement to commit a crime and take some overt act to further the crime. C. Attempt to Commit a Crime: The attempt to commit a crime is a crime even if the commission of the intended crime is unsuccessful. D. Aiding and Abetting the Commission of a Crime: Rendering support, assistance, or encouragement to the commission of a crime, or knowingly harboring a criminal after he or she has committed a crime. IX. Constitutional Safeguards A. Fourth Amendment Protection against Unreasonable Searches and Seizures: Protects persons and corporations from unreasonable searches and seizures. 1. Reasonable searches and seizures based on probable cause are lawful: a. Search warrant: stipulates the place and scope of the search. b. Warrantless search: permitted only: i. Incident to arrest. ii. Where evidence is in plain view. iii. Where it is likely that evidence will be destroyed. 2. Exclusionary rule: evidence obtained from an unreasonable search and seizure is tainted evidence that may not be introduced at a government proceeding against the person searched. 3. Business premises: protected by the Fourth Amendment, except that certain regulated industries may be subject to warrantless searches authorized by statute. B. Fifth Amendment Privilege Against Self-Incrimination: The privilege against self-incrimination provides that no person “shall be compelled in any criminal case to be a witness against himself.” A person asserting this privilege is said to have “taken the Fifth.” 1. Nontestimonial evidence: this evidence (e.g., fingerprints, body fluids, etc.) is not protected. 2. Businesses: the privilege applies only to natural persons; businesses cannot assert the privilege. 3. Miranda rights: a criminal suspect must be informed of his or Fifth Amendment rights before the suspect can be interrogated by the police or government officials. 4. Immunity from prosecution: granted by the government to obtain otherwise privileged evidence. The government agrees not to use the evidence given against the person who gave it. 5. Attorney-client privilege: an accused’s lawyer cannot be called as a witness against the accused. 6. Other privileges: the following privileges have been recognized, with some limitations: a. Psychiatrist/psychologist-patient b. Priest/minister/rabbi/penitent c. Spouse-spouse d. Parent-child 7. Accountant-client privilege: none recognized at the federal level. Some states recognized this privilege in state law actions. C. Fifth Amendment Protection Against Double Jeopardy: Protects persons from being tried twice by the same jurisdiction for the same crime. If the act violates the laws of two or more jurisdictions, each jurisdiction may try the accused. D. Sixth Amendment Right to a Public Jury Trial: Guarantees criminal defendants the following rights: 1. To be tried by an impartial jury. 2. To confront the witness. 3. To have the assistance of a lawyer. 4. To have a speedy trial. E. Eighth Amendment Protection against Cruel and Unusual Punishment: Protects criminal defendants from cruel and unusual punishment. Capital punishment is permitted. X. Law and Ethics A. Comparison: The law sometimes reflects ethics. Oftentimes ethics is broader than the law. E. Critical Legal Thinking Questions 1. Define a crime. What are penal codes? A crime is any act done by an individual in violation of those duties that he or she owes to society and for the breach of which the law provides that the wrongdoer shall make amends to the public. Penal codes are comprehensive statutory codes that define in detail the activities considered to be crimes within their jurisdiction, as well as the corresponding penalties. 2. Define the following elements of a crime: actus reus and mens rea. The elements of a crime are a criminal act (actus reus) and a criminal intent (mens rea). The criminal act is the prohibited conduct, and it must be considered in the law “voluntary.” The criminal intent is the mental state that corresponds to the criminal act, is that which makes the criminal conduct “willful,” and can range from purposeful to knowingly to recklessly to negligently. 3. Describe the differences between a civil lawsuit and a criminal lawsuit. Are these differences warranted? In a civil lawsuit the party who brings the action is the plaintiff, while in a criminal lawsuit it is the government. In a civil lawsuit the burden of proof is a preponderance of the evidence, while in a criminal lawsuit it is beyond a reasonable doubt. In a civil lawsuit the verdict can be a super majority vote, while in a criminal lawsuit it must be unanimous. In a civil suit the only thing at stake for the defendant is money (in the form of damages), while in a criminal suit the defendant’s money, liberty, and even life can be at stake. 4. What is an indictment? What is an arraignment? An indictment is the charge or set of charges brought by a grand jury after the prosecution presents its evidence of criminality. An arraignment is the reading of the formal charges in court against the defendant, followed by the defendant entering a plea. 5. Define extortion. What are the elements of this crime? Define bribery. What are the elements of this crime? Extortion is the crime of obtaining property from another, with his or her consent, induced by wrongful use of actual or threatened force, violence, or fear. Bribery is the offer of payment of money or property or something else of value in return for an unwarranted favor. The payee of a bribe is also guilty of the crime of bribery. Both crimes require the act of threatening or offering someone with the intent of unlawfully influencing the other person’s actions. 6. Define money laundering. Why did Congress make this a crime? Money laundering is the process by which criminals cover tainted proceeds into apparently legitimate funds or property. Congress made this activity a crime to attempt to prevent (or punish) the gains of criminal activities from being “washed” so the criminals and their conduct can be hidden. 7. Describe the crime prohibited by the Foreign Corrupt Practices Act. What public policy underlies this act? The Foreign Corrupt Practices Act prohibits American companies from paying bribes to foreign government officials in order to obtain lucrative contracts. Because American law prohibits the paying of bribes, this law attempts to hold American businesses to the same standard of conduct when conducting foreign business. There are, however, some exceptions and defenses under the law, including allowing such bribes when the payment was lawful under the written laws of that country. 8. Describe the crime prohibited by the Information Infrastructure Protections Act. What is the purpose of this act? The IIP Act prohibits computer-related crimes as distinct offenses. It applies to all “protected computers,” not only federal computers. A protected computer includes any computer that is used in interstate or foreign commerce. The act makes it a crime to intentionally access and obtain information from a protected computer without authorization or access of his or her authorization. The IIP Act gives the federal government a much-needed weapon for directly prosecuting cyber-crooks and hackers. 9. Describe the protections afforded by the Fourth Amendment to the U.S. Constitution discussed in this chapter. Is the protection necessary? The Fourth Amendment protects persons and corporations from overzealous investigative activities by the government. It protects the rights of the people from unreasonable search and seizure by the government and permits people to be secure in their persons, houses, papers, and effects. The protection is absolutely necessary and is one of the most revered aspects of American jurisprudence and constitutional history. 10. Describe the protection afforded by the Fifth Amendment to the U.S. Constitution discussed in this chapter. Is the protection necessary? The Fifth Amendment protects criminal defendants against forcible self-incrimination; and also protects criminal defendants against double jeopardy—being tried twice in the same jurisdiction for the same crime. Because of the Fifth Amendment, criminal defendants do not have to give any testimony and cannot be legally disadvantaged for taking the Fifth. It also protects defendants from being constantly prosecuted by prosecutors until prosecutors get it right. These protections are necessary and were thought so by the founders who drafted and passed the Fifth Amendment. F. Cases for Discussion Atwater v. Lago Vista, Texas, 121 S. Ct. 1536 (2001), concerns a woman who was arrested and taken to jail after being pulled over in her truck with her two small children, in violation of Texas law, which requires all persons in the front seat to wear a seat belt. She sued the city of Lago Vista, arguing that the Fourth Amendment does not permit the warrantless arrest of one subsequent to a minor criminal arrest. The U.S. Supreme Court held that the Fourth Amendment permits police officers to make a warrantless arrest pursuant to a minor criminal offense, finding that both the legislative tradition of granting warrantless misdemeanor arrest authority and the judicial tradition of sustaining such statutes are supported by a lengthy legal history approving of warrantless arrests in misdemeanors. If the police have probable cause to believe an individual committed even a minor criminal offense in their presence, they may arrest the individual. QUESTIONS 1. Do you agree with the U.S. Supreme Court’s decision in this case? Why or why not? This is purely an opinion question, designed to stimulate class discussion. Likely, students with a personal connection to law enforcement personnel will think the decision was correct. 2. Did the police officer act ethically in this case? Should he have used more discretion? If, as the Court concluded, his actions were legally correct, then it would be hard to argue that he acted unethically. However, since it was his discretion to choose to arrest Ms. Atwater, one could say that his actions were extreme and unnecessary, which could make them unethical. 3. What would be the consequences if the Supreme Court had held in favor of Atwater? If the Court had held in favor of Ms. Atwater, the authority of the police to make on-site arrests attendant to criminal violations would have been curtailed. Some might argue that this would make life more difficult for police officers. Others could claim that had the Court ruled the other way that a victory would have been struck for civil liberties and personal freedom. Kyllo v. United States, 533 U.S. 27 (2001), concerns government agents that were suspicious that marijuana was being grown at Danny Kyllo’s home, which was part of a triplex in Florence Oregon. The agents used a thermal imaging device to scan the triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth. The scan, taken from an automobile on the street, showed that Kyllo’s garage roof and a side wall were “hot.” Based in part on the thermal imaging evidence, the agents obtained a warrant to search Kyllo’s home, where the agents found marijuana growing. After Kyllo was indicted, he unsuccessfully moved to suppress the evidence seized from his home, arguing that it was an unreasonable search that violated the Fourth Amendment. Kyllo then entered a conditional guilty plea and appealed the trial court’s failure to suppress the challenged evidence. The Ninth Circuit affirmed the trial court, upholding the thermal imaging on the ground that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home. In addition, even if he had taken such steps, there was no objectively reasonable expectation of privacy because the thermal imager did not expose any intimate details of Kyllo’s life. The Supreme Court, though, did not agree. It held that where, as here, the government uses a device that is not in general public use to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment “search” and is presumptively unreasonable without a warrant. Therefore, since the imaging was an unlawful search, the case was reversed and remanded to the trial court to determine whether, without the evidence it provided, the search warrant was supported by probable cause–and, if not, whether there was any other basis for supporting admission of that evidence. QUESTIONS 1. Is the Fourth Amendment’s prohibition against unreasonable search and seizure an easy standard to apply? Explain. No. The Supreme Court has also approved warrantless visual surveillance of a home, see California v. Ciraolo, 476 U.S. 207, 213, ruling that visual observation is no search at all. See also Dow Chemical Co. v. United States, 476 U.S. 227, aerial photography of an ongoing business operation in enforcement of environmental laws is okay. In assessing when a search is not a search, the Supreme Court has adapted the principle first enunciated in Katz v. United States, 389 U.S. 347, 361: A “search” does not occur–even when its object is a house explicitly protected by the Fourth Amendment–unless the individual manifested a subjective expectation of privacy in the searched object, and society is willing to recognize that expectation as reasonable. 2. Did the police act ethically in obtaining the evidence in this case? Did Kyllo act ethically in trying to suppress the evidence? As the use of the new technology-thermal imaging device involved an untested area in the law, its use was not necessarily unethical. Every defendant has a constitutional right to assert that the Bill of Rights and its case law progeny have been violated against him or her. In that respect, it is not necessarily unethical. 3. How can the government catch entrepreneurs such as Kyllo? Explain. This is an opinion question designed to promote class discussion. Wal-Mart Stores v. Samara Brothers, 123 S. Ct. 1339 (2000), concerns the act of Wal-Mart contracting with a supplier to manufacture outfits based on photographs of Samara garments. After discovering that Wal-Mart and other retailers were selling the so-called knockoffs, Samara brought this action for infringement of unregistered trade dress under §43(a) of the Trademark Act of 1946 (Lanham Act). The jury found for Samara. Wal-Mart then renewed a motion for judgment as a matter of law, claiming that there was insufficient evidence to support a conclusion that Samara’s clothing designs could be legally protected as distinctive trade dress for purposes of §43(a). The trial court denied the motion and awarded Samara relief. The Second Circuit affirmed the denial of the motion. The Supreme Court held that in a §43(a) action for infringement of unregistered trade dress, a product’s design is distinctive, and therefore protectible, only upon a showing of secondary meaning. QUESTIONS 1. What is trade dress? What is secondary meaning? “Trade dress” is a category that originally included only the packaging, or “dressing,” of a product, but in recent years has been expanded by many courts of appeals to encompass the product’s design. The courts have assumed that trade dress constitutes a “symbol” or “device” for Lanham Act purposes. In evaluating distinctiveness, courts have differentiated between marks that are inherently distinctive and marks that have acquired distinctiveness through secondary meaning; that is, marks whose primary significance, in the minds of the public, is to identify the product’s source rather than the product itself. 2. Was it ethical for Wal-Mart to copy Samara Brothers’ design for children’s clothing? What was Wal-Mart’s motive? This is an opinion question designed to promote class discussion. 3. What were the economic consequences of the U.S. Supreme Court’s decision? Who are the winners? Who are the losers? This is an opinion question designed to promote class discussion. However, the Wal-Mart Court held that product designs could never be inherently distinctive, making it more difficult for product designers to protect their unique designs under trade dress law. In this way the Court promoted competition by limiting trade dress production for product designs. 4.1 People v. Paulson, 216 Cal.App. 3d 1480 (Cal.App. 1990), concerned the owner of a California bar who was the subject of a warrantless search by an agent of the Alcoholic Beverage Control Department that turned up bundles of cocaine in the bar’s safe. Upon being prosecuted, the owner argued that the search was unlawful. ISSUE: Was the warrantless search of the safe a lawful search? The court concluded that the search was constitutionally reasonable. The search advanced a substantial government interest in that drug sales on licensed premises must be dealt with more vigorously than other illegal acts taking place on licensed premises. Also, the prerequisite of a warrant in such instances could easily frustrate inspection. Furthermore, the statutes under which the search was authorized collectively provide a constitutionally adequate warrant substitute. 4.2 Center Art Galleries-Hawaii, Inc. v. United States, 875 F.3d 747 (9th Cir. 1989), concerned an art gallery that was suspected of selling forged Salvador Dali artwork. The federal government obtained a search warrant to seize items that were “evidence of violations of federal criminal law.” There was no evidence of any criminal activity unrelated to that artist. ISSUE: Is the search warrant valid? No. The court concluded the search warrant was invalid because it was overly broad. The warrant’s provision for the almost unrestricted seizure of items that are “evidence of violations of federal criminal law” without describing the specific crimes suspected is constitutionally inadequate. Furthermore, the warrant wasn’t even limited to the sale of Dali artwork. 4.3 United States v. John Doe, 465 U.S. 605 (1984), concerned the owner of several businesses who was served federal grand jury subpoenas demanding the production of business documents and tax records. The owner moved to quash the subpoenas, arguing that being forced to produce those business records would violate his right against self-incrimination. ISSUE: Do the records have to be disclosed? The U.S. Supreme Court held that the contents of the business records were not privileged, but the act of producing the records was privileged and could not be compelled without a statutory grant of use immunity. Although the documents of a sole proprietorship are the owner’s documents, if the documents were prepared voluntarily then they don’t qualify as privileged for self-incrimination purposes since they weren’t prepared involuntarily, but the act of producing them under a subpoena is protected against forced self-incrimination, unless there is a formal grant of use immunity, which was not the case here. 4.4 People v. Shaw, 10 Cal.App. 4th 969 (Cal. App. 1992), concerned an attorney who entered into a partnership agreement with three other persons to buld and operate an office building. It was the attorney’s (Shaw’s) responsibility to manage the building. Ten years into the partnership, the other partners discovered that the building was about to be foreclosed upon and that Shaw had taken $80,000 from the partnership’s checking account. Shaw was prosecuted for embezzlement and eventually returned the money, but he argued that the repayment of the money was a defense to the charge. ISSUE: Did Shaw act ethically in this case? Would your answer be different if he had really only “borrowed” the money and had intended to return it? Clearly not. Returning embezzled funds is only a legal defense in California if the funds are returned before the criminal charges are filed. Here Shaw returned the money after the charges were filed. And, as for his ethics, they were lacking long before his untimely return of the embezzled funds. If he only “borrowed” the money, he has no right to borrow partnership assets without the consent of the partners. G. Case for Briefing 1. Case Name Schalk v. Texas, 823 S. W.2d 633 (1991) 2. Key Facts A. Schalk and Leonard left Texas Instruments (TI) to work for Voice Control Systems (VCI), a TI competitor. Schalk’s and Leonard’s specialty was in speech research. B. Another former employee of TI came to work at VCI and noticed information he thought was the property of TI, contacted TI about this, and agreed to be an informant. C. The informant discovered information—computer programs—that TI claimed to be its trade secrets. These programs had been copied by Schalk and Leonard from their computers before they left TI. D. The government searched VCI’s premises and seized computer tapes containing the alleged trade secret programs. Schalk and Leonard were then arrested and charged with stealing TI’s trade secrets. E. Texas’s trade secret statute defined a trade secret as scientific technology or information “that has value and that the owner has taken measure to prevent from becoming available to persons other than those selected by the owner to have access for limited purposes.” F. The defendants argued that the computer programs on speech research lab activities weren’t trade secrets because TI hadn’t taken measures to prevent the information from becoming available to others, and that computer programs at issue weren’t listed in the TI register of trade secrets. 3. Issue Were the measures taken by TI, as a whole, sufficient to support trade secret status of the computer programs? 4. Holding Yes. The Court of Criminal Appeals concluded that subject computer programs are trade secrets. 5. Court’s Reasoning A. The statute protecting trade secrets doesn’t state what measures need to be taken to sufficiently show that the information to be protected were prevented from becoming available to persons other than those selected by the owner. B. The Court reasoned that absolute secrecy is not required to show that “measures” were taken. So, the fact that TI disclosed certain information, with its permission or encouragement, was disclosed isn’t dispositive. C. TI’s disclosure of its speech research lab activities was limited in scope and merely described the application and configuration of certain elements of the software, not the actual composition of the programs. D. The actions TI took to prevent unauthorized personnel from admission to or exposure to its proprietary research data were reasonable under the circumstance.