Chapter 8 Criminal Law and Cyber Crimes. 2 §1: Civil vs. Criminal Law Major differences: Civil...

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Chapter 8Criminal Law and

Cyber Crimes

Chapter 8Criminal Law and

Cyber Crimes

§1: Civil vs. Criminal Law§1: Civil vs. Criminal Law

Major differences:

Civil (Tort) Criminal

Preponderance Beyond Reasonable Doubt

Damages Jail or Prison

Private (parties hire their own attorneys)

Public (Prosecutor represents community)

Felonies Misdemeanors

Serious crimes, punishable by Death or prison for more than one (1) year.

Non-serious (petty) crimes punishable by jail for less than one(1) year and/or by fines.

§2: Classification of Crimes§2: Classification of Crimes

An act can have both civil and criminal consequences. (O.J. Simpson trials)

§3: Essentials of Criminal Liability§3: Essentials of

Criminal Liability To be convicted of a crime, a person

must:Commit a guilty act (actus reus).Have the guilty mind (mens rea) during

commission of the guilty act.

§4: Corporate Criminal Liability§4: Corporate Criminal Liability

A corporation is creature of state statute.

A corporate entity may be convicted of a crime.

Punishment would be fines and/or denial of certain legal privileges.

Corporate Criminal Liability [2]Corporate Criminal Liability [2]

Corporations may be convicted of criminal activity if:Crime is within agent/employee’s scope of

employment;Corporation fails to perform a legally required

duty; orCrime authorized or requested by corporate

principal/officer.

Liability of Corporate OfficersLiability of Corporate Officers

Corporate officers and directors are personally liable for crimes they commit.

Also, they may be criminally liable for acts of their under the “Responsible Corporate Officer” doctrine.

U.S. v. Park (1975).

§5: Types of Crimes§5: Types of Crimes

Violent Crimes.Murder, sexual assault, rape, robbery.

Property Crimes.Burglary, larceny, theft of trade secrets, theft of

services, arson, receipt of stolen goods, forgery.

“White Collar” Crimes“White Collar” Crimes Crimes occurring in the business context

using non-violent means to obtain personal or business advantage.Embezzlement.Mail or Wire Fraud (federal).Bribery.Bankruptcy Fraud (federal).Insider Trading (federal).Theft of Trade Secrets (federal).

Organized CrimeOrganized Crime

Operates illegitimately by providing illegal goods and services:Money Laundering.RICO(criminal and civil liability).

§6: Defenses to Criminal Liability§6: Defenses to Criminal LiabilityInfancy (juvenile).

Involuntary Intoxication: is a defense if person was incapable of understanding act.

Insanity: defendant lacked substantial capacity to appreciate the wrongfulness of act or to conform act to law.

Mistake.

Duress.

Consent.

Defenses [2]Defenses [2]

Self-Defense of People and Property: use deadly force if reasonable belief of immanent death or serious injury; cannot use deadly force to protect property alone.

Necessity: criminal act necessary to prevent greater harm.

Defenses [3]Defenses [3]

Entrapment: prevents government from encouraging crimes. Key issue: was the defendant pre-disposed to commit the act?

Statute of Limitations.

Immunity.

§7: Criminal Procedures§7: Criminal Procedures

U.S. Constitution provides specific safeguards for those accused of crimes at federal and state level.

Criminal procedures are designed to protect against the arbitrary use of power by the government.

Criminal ProcessCriminal Process

ArrestInitial Appear

Booking

ChargesFiled

PrelimHearing

Arraign-ment

Plea Bargain

Guilty Plea

The “Miranda” RuleThe “Miranda” Rule

Miranda v. Arizona in 1966 required police to inform suspects of their constitutional rights.

The Supreme Court upheld Miranda in Dickerson v. U.S. (2000).

Fourth AmendmentFourth Amendment

The Fourth Amendment protects against unreasonable search and seizures.

No warrant for search or arrest can issue without probable cause.

Exclusionary RuleExclusionary Rule

Evidence obtained in violation of Constitutional amendments is excluded from trial.

Deter police from warrantless searches, seizures and misconduct.

“Inevitability” and “good faith” are exceptions to the rule.

Fifth AmendmentFifth Amendment

The Fifth Amendment requires that no one can be denied life, liberty or property with “due process.”

Prohibits “double jeopardy” (tried twice for same crime).

Prohibits self-incrimination.

Sixth AmendmentSixth Amendment

The Sixth Amendment guarantees the accused the rights to:A speedy trial.A trial by jury for criminal cases.Confront his witnesses (cross-examination).Counsel paid by state.

§8: Cyber Crime§8: Cyber Crime

Cyber crimes involve the use of computers in cyberspace to injure a person or property.Most cyber crimes are based on existing common law crimes, with exceptions: Identity TheftCyber StalkingHackingCyber Terrorism

Computer Fraud and Abuse Act helps prosecute computer crime.

Case 8.1: US v. Hanousek(Liability of Corporate Officers & Directors)

FACTS:Hanousek was responsible for an Alaskan

railroad. One of his employees using a backhoe punctured the pipeline discharging 1,000 to 5,000 gallons of oil into a river.

Hanousek was convicted of criminal provisions of the Clean Water Act. Hanousek appealed, arguing that the statute under which he was convicted violated his right to due process.

HELD: CONVICTION AFFIRMED.The Clean Water Act is public welfare

legislation, which “is designed to protect the public from potentially harmful or injurious items and may render criminal a type of conduct that a reasonable person should know is subject to stringent public regulation.”

Hanousek knew about the pipe line and the danger that a puncture would pose. “Therefore, Hanousek should have been alerted to the probability of strict regulation.”

Case 8.1: US v. Hanousek(Liability of Corporate Officers & Directors)

Case 8.2: Miranda v. Arizona(Criminal Procedure)

FACTS:Miranda was arrested for kidnapping and raping

an eighteen-year-old girl near Phoenix, Arizona. During the police interrogation Miranda, who

was not informed of his right to remain silent or his right to counsel, confessed to the crime.

The confession was introduced at trial, and Miranda was convicted. Miranda appealed, claiming that he had not been informed of his constitutional rights.

HELD: CONVICTED REVERSED.The US Supreme Court ruled the confession was inadmissible

as evidence. As a prerequisite to the admissibility of any statement made

by a defendant, the defendant must be informed, before a police interrogation, of certain constitutional rights.

These are: (1) that he or she has a right to remain silent, (2) that anything said can and will be used against the individual in court, (3) that he or she has the right to have an attorney present during questioning, and (4) that if the individual cannot afford an attorney, one will be appointed. If the accused waives his or her rights to remain silent and to have counsel present, the government must be able to demonstrate that the waiver was done knowingly and intelligently.

Case 8.2: Miranda v. Arizona(Criminal Procedure)

Case 8.3: U.S. v. Middleton(Computer Crime)

FACTS:Middleton, a disgruntled former employee of

Slip.net, changed all the passwords, altered the computer’s registry, and deleted the entire billing system and two internal databases.

Slip.net spent more than 150 man-hours, and bought new software

Middleton was convicted under the Computer Fraud and Abuse Act (CFAA). He appealed, arguing that the term individual, as used in the statute’s definition of damage, did not include a corporation.

HELD: CONVICTION AFFIRMED.The Ninth Circuit held the term individual in the

CFAA included a corporation and affirmed Middleton’s conviction.

Iif Congress intended to limit the definition of the crime to conduct causing financial damage to a natural person only, its report would not use the example of a ‘system administrator’ * * * as illustrative of the ‘damage’ to be prevented and criminalized.” The report also noted the widespread business use of computers.

Case 8.3: U.S. v. Middleton(Computer Crime)

Chapter 8 Criminal Law and Cyber Crimes. 2 §1: Civil vs. Criminal Law Major differences: Civil...

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