Download - © 2010 Pearson Education, Inc., publishing as Prentice-Hall 1 CRIMINAL LAW AND CYBER CRIMES © 2010 Pearson Education, Inc., publishing as Prentice-Hall.

© 2010 Pearson Education, Inc., publishing as Prentice-Hall© 2010 Pearson Education, Inc., publishing as Prentice-Hall 1

CRIMINAL LAW AND CYBER CRIMES

© 2010 Pearson Education, Inc., publishing as Prentice-Hall© 2010 Pearson Education, Inc., publishing as Prentice-Hall

CHAPTER 8 CHAPTER 8


Purpose of Criminal Laws

• Allow people to coexist peacefully

• Allow commerce to flourish

• Protect people and property from injury by others


U.S. Criminal Law System

• Person charged is presumed innocent until proven guilty.

• The burden of proof is on the government.• Accused must be found guilty beyond a

reasonable doubt.• In most other systems, person is presumed

guilty unless he can prove otherwise.


Crime

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 and Regulatory Statutes

• Statutes are the source of criminal law.

• State penal codes and federal regulatory statutes define in detail:– The activities considered to be crimes within

their jurisdiction; and– The penalties that will be imposed for their

commission.


Penalties Imposed for Crimes

• Fines• Imprisonment

– Means of incapacitating wrongdoer– Rehabilitation– Deterrent for others– Prevent personal retribution

• Probation


Parties to a Criminal Action

• In a criminal lawsuit, the government is the plaintiff.

• The government is represented by a lawyer called the prosecutor.

• The accused is the defendant.

• The accused is represented by a defense attorney.


Classification of Crimes

FeloniesFelonies

MisdemeanorsMisdemeanors

ViolationsViolations


Felonies

• The most serious kinds of crimes.

– May be mala in se – inherently evil.

• Most crimes against persons and certain business-related crimes are felonies.

• Usually punishable by imprisonment.

• Mandatory sentencing for some crimes.


Misdemeanors

• Less serious than felonies.

– Mala prohibita – not inherently evil but are prohibited by society.

• Many crimes against property are misdemeanors.

• Usually punished by fines and imprisonment up to one year.


Violations

• Crimes that are neither a felony nor a misdemeanor.

• Punishable by fines and, occasionally, a few days of incarceration.


Essential Elements of a Crime

Criminal ActCriminal Act Criminal IntentCriminal Intent


Criminal Act

• Actus reus (guilty act) – the actual performance of the guilty act.

• Merely thinking about a crime is not a crime, because no action has been taken.


Criminal Intent—Mens Rea

• Level of intent required– Specific intent – Accused purposefully,

intentionally, or with knowledge commits a prohibited act

– General intent – Showing of recklessness or lesser degree of mental culpability

– Non-intent crime – Imposes criminal liability without a finding of mens rea


Criminal Acts as the Basis for Tort Action

• Injured party may bring tort action against a wrongdoer who has caused the party injury during the commission of a criminal act.

• Civil lawsuits are separate from the government’s criminal action against the wrongdoer.

• Criminal is often judgment proof.


Civil and Criminal Law ComparedIssue Civil Law Criminal Law

Party who brings the action

The plaintiff The government

Trial by jury Yes, except actions for equity

Yes

Burden of proof Preponderance of the evidence

Beyond a reasonable doubt

Jury vote Judgment for plaintiff requires specific jury vote

Conviction requires unanimous jury vote

Sanctions and penalties

Monetary damages and equitable remedies

Imprisonment, fine, capital punishment, probation


Criminal Procedure

Pretrial Criminal Pretrial Criminal ProcedureProcedure

The Criminal TrialThe Criminal Trial


Arrest

• Police must obtain arrest warrant based on showing probable cause.– Must show substantial likelihood that they

committed crime.• Warrantless arrests allowed when police arrive

during commission of crime, “hot pursuit” situations, or where likely evidence will be destroyed.


Indictment or Information

• Grand jury– Determines whether there is enough evidence

to hold accused for trial– Serious crimes– Issues an indictment

• Magistrate– Determines whether there is enough evidence – Lesser crimes– Issues an information


Arraignment

• Accused informed of all charges

• Asked to enter a plea– Guilty– Not guilty– Nolo contendere

• Does not admit guilt, but agrees to penalty

• Cannot be used as evidence of liability in civil trials


Plea Bargaining

• Allows accused to plead to lesser crime

• Saves money, time

• Avoids risk of trial

• Prevents further overcrowding of jails

• Very common


The Criminal Trial

• Verdict must be unanimous.– If any juror has reasonable doubt about

the guilt of the accused, the accused cannot be found guilty.

– If jurors cannot agree, jury considered to be a hung jury. Government may retry.

• Convicted defendant can appeal.– If defendant found not guilty, government

cannot appeal.


Murder

• Unlawful killing of person with malice aforethought.– Different degrees of murder depending upon

level of intent.– Felony murder rule – death during

commission of any felony may be prosecuted as murder. Intent to commit murder inferred from intent to commit other crime.


Crimes Affecting Business

• Robbery

• Burglary

• Larceny

• Theft

• Receiving stolen property

• Robbery

• Burglary

• Larceny

• Theft

• Receiving stolen property

• Arson

• Forgery

• Embezzlement

• Bribery

• Extortion

• Criminal fraud

• Identity theft

• Arson

• Forgery

• Embezzlement

• Bribery

• Extortion

• Criminal fraud

• Identity theft


Robbery

• The taking of personal property by use of fear or force.

• If a weapon is used, it is considered armed or aggravated robbery.


Burglary

• Breaking and entering a dwelling at night.

• Has been extended to include daytime entry of any structure.


Larceny

• Wrongful and fraudulent taking of another person’s personal property.– Includes trade secrets, computer programs,

other business property.• Force or entry into a structure not required.• May distinguish between grand and petit larceny,

based on value of property taken.


Receiving Stolen Property

• Knowingly receiving stolen property with the intention of depriving rightful owner of that property.

• Property must be tangible property.– E.g., personal property, money, stock

certificates.


Arson

• Malicious or willful burning of another’s dwelling.

• Now extended to all structures.

• Includes willful burning by structure’s owner.


Forgery

• Written documents fraudulently made or altered.

• Change affects legal liability of another.

• E.g., counterfeiting, falsifying public records, altering legal documents.


Embezzlement

• Fraudulent conversion of property by person to whom property is entrusted.– E.g., bank teller takes deposits, lawyer who

steals from trust account.


Bribery

– Offeror commits crime when bribe is offered.

– Offeree commits crime when bribe is accepted.

– Commercial bribery often referred to as kickback or payoff.

– Bribe can be of anything of value.


Foreign Corrupt Practices Act

• Illegal for U.S. company or its agents to bribe a foreign official to influence the awarding of new business or retention of existing business.– Firms must keep accurate books to prove that

any payments were in fact lawful.• Violations punishable by fines of up to $2 million

and 5 years imprisonment.


Extortion

• Obtaining property from another, with consent, by use of actual or threatened force, violence, or fear.

• Commonly called blackmail.

• Extortion of public officials is extortion under color of official right.


Criminal Fraud

• Obtaining title to property through deception or trickery

• Includes mail fraud and wire fraud

• Also called false pretenses or deceit


Identity Theft

• Thieves obtain personal information– E.g., by Dumpster diving, skimming, phishing,

“pretexting”

• Then may engage in credit card fraud– New accounts in name– New billing address on existing account


Money Laundering

• Under Money Laundering Control Act, a crime to:– Knowingly engage in monetary transaction

through financial institution involving property worth more than $10,000.

– Knowingly engage in a financial transaction involving proceeds of an illegal activity.

– If convicted, fines of up to $500,000 or twice the value of the property and up to 20 years in prison.


Criminal Conspiracy

• Two or more persons enter into an agreement to commit a crime.

• Requires an overt act.

• Crime does not have to be committed.


Corporate Criminal Liability

• Corporations may be held criminally liable for actions of their officers, employees, or agents.

• Corporate directors, officers, and employees are personally liable for the crimes they commit while acting on behalf of the corporation.– May also be criminally liable for the criminal

activities of subordinates.


Racketeer Influenced and Corrupt Organizations Act (RICO)

• 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 of racketeering activity.


RICO (continued)

• Fines of up to $25,000 and up to 20 years imprisonment.

• May forfeit property and business interests gained by RICO violations.

• Also may owe treble damages to civil plaintiff.


Unreasonable Searches and Seizures

• Fourth Amendment protects persons and corporations from overzealous investigative activities by the government.

• Reasonable search and seizure by the government is lawful.

• Search warrants based on probable cause are necessary in most cases.


Exclusionary Rule

• Evidence obtained from an unreasonable search and seizure generally may not be used at trial.

• Good faith exception– Evidence may be introduced if law

enforcement reasonably believed that they were acting pursuant to valid search warrant.


Search of Business Premises

• Government may not search businesses without a search warrant.

• Certain hazardous and regulated business are exceptions.– Subject to warrantless searches provided

statutory procedures met.


Privilege Against Self-Incrimination

• Fifth Amendment states that no person shall be compelled in any criminal case to be a witness against himself or herself.– Can “take the Fifth.”

• Applies in both state and federal cases.• Protects natural persons, not corporations

or partnerships.


Miranda Rights

• Rights must be read before interrogation– “You have the right to remain silent. Anything

you say can and will be used against you in a court of law. You have the right to speak to an attorney and to have an attorney present. If you cannot afford a lawyer, one will be provided to you at government expense.”

• Any statements or confessions obtained before the rights are read can be excluded


Privileges

• Client can tell his or her attorney anything about the case without fear that the attorney will be called as a witness against the client.

• Other privileges– Psychiatrist/psychologist-patient privilege– Priest/minister/rabbi/imam-penitent privilege– Spousal privileges– Parent-child privilege

– No accountant-client privilege under federal law.


Immunity from Prosecution

• Government may offer person immunity from prosecution in exchange for testimony

• Government cannot pursue charges for that crime against the person

• Person loses right to assert Fifth Amendment privilege

• Partial grants of immunity may be offered


Double Jeopardy

• Fifth Amendment provides that persons cannot be tried twice for same crime.

– Accused can be tried separately for different crimes arising from same criminal act.

– Accused can be tried separately in different jurisdictions.


Right to a Public Trial

• Sixth Amendment guarantees right:• To be tried by an impartial jury of the state

or district in which the accused crime was committed.

• To confront (cross-examine) the witnesses against the accused.

• To have the assistance of a lawyer.

• To have a speedy trial.


Protection Against Cruel and Unusual Punishment

• Eighth Amendment protects criminal defendants from torture or other abusive punishment.– Does not prohibit capital punishment.