CHAPTER 8

1. CHAPTER 8 CRIMINAL LAW AND CYBER CRIMES © 2010 Pearson Education, Inc., publishing as Prentice-Hall

2. Purpose of Criminal Laws Allow people to coexist peacefully Allow commerce to flourish Protect people and property from injury by others

3. U.S. Criminal Law System Person charged is presumed innocent until proven guilty. Theburden of proofis 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.

4. 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.

5. 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.

6. Penalties Imposed for Crimes Fines Imprisonment Means of incapacitating wrongdoer Rehabilitation Deterrent for others Prevent personal retribution Probation

7. 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.

8. Classification of Crimes Felonies Misdemeanors Violations

9. 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.

10. 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.

11. Violations Crimes that are neither a felony nor a misdemeanor. Punishable by fines and, occasionally, a few days of incarceration.

12. Essential Elements of a Crime Criminal Act Criminal Intent

13. 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.

14. 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

15. 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.

16. Civil and Criminal Law Compared

17. Criminal Procedure Pretrial Criminal Procedure The Criminal Trial

18. 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.

19. 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

20. 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

21. Plea Bargaining Allows accused to plead to lesser crime Saves money, time Avoids risk of trial Prevents further overcrowding of jails Very common

22. 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.

23. 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.

24. Crimes Affecting Business Robbery Burglary Larceny Theft Receiving stolen property Arson Forgery Embezzlement Bribery Extortion Criminal fraud Identity theft

25. Robbery The taking of personal property by use of fear or force. If a weapon is used, it is considered armed or aggravated robbery.

26. Burglary Breaking and entering a dwelling at night. Has been extended to include daytime entry of any structure.

27. 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.

28. 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.

29. Arson Malicious or willful burning of another’s dwelling. Now extended to all structures. Includes willful burning by structure’s owner.

30. Forgery Written documents fraudulently made or altered. Change affects legal liability of another. E.g., counterfeiting, falsifying public records, altering legal documents.

31. Embezzlement Fraudulent conversion of property by person to whom property is entrusted. E.g., bank teller takes deposits, lawyer who steals from trust account.

32. 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.

33. 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.

34. 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.

35. Criminal Fraud Obtaining title to property through deception or trickery Includes mail fraud and wire fraud Also called false pretenses or deceit

36. 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

37. 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.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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.

43. 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.

44. 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.

45. 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.

46. 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

47. 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.

48. 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

49. 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.

50. 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.