Chapter 8 Criminal Law and Cyber Crimes

Introduction to Criminal Law and Cyber Crimes 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 Accused is provided with constitutional safeguards 8-2 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Definition of a Crime 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 8-3 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Definition of a Crime 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 The penalties that will be imposed for their commission Fines Imprisonment 8-4 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Definition of a Crime Parties to a criminal action Plaintiff – the government Defendant – the accused The government is represented by a prosecutor The accused is represented by a defense attorney 8-5 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Classification of Crimes Felonies Misdemeanors Violations 8-6 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Definition of a Crime Intent crimes Criminal act (actus reus) Criminal intent (mens rea) Specific intent crime General intent crime Merely thinking about a crime is not a crime, because no action has been taken 8-7 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Definition of a Crime Nonintent crimes Imposes criminal liability without a finding of intent Often imposed for reckless or grossly negligent conduct that causes injury to another person Involuntary manslaughter is a nonintent crime 8-8 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Criminal Procedure Arrest Police must obtain arrest warrant based on showing probable cause Warrantless arrests allowed when police arrive during: Commission of crime A person is fleeing from the scene of crime A situation where evidence is likely to be destroyed 8-9 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Criminal Procedure Indictment or information Grand jury Determines whether there is enough evidence to hold accused for trial Serious crimes Issues an indictment 8-10 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Criminal Procedure Magistrate Determines whether there is enough evidence Lesser crimes Issues an information 8-11 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 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 8-12 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Plea Bargaining Allows accused to plead to lesser crime Saves money, time Avoids risk of trial Prevents further overcrowding of jails Very common 8-13 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Criminal Trial Verdict must be unanimous If any juror doubts the guilt of the accused, the accused cannot be found guilty If jurors cannot agree, jury considered to be a hung jury Convicted defendant can appeal If defendant found not guilty, government cannot appeal 8-14 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Common Crimes 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 8-15 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Common Crimes 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 The taking of personal property from another’s home, office, or commercial or other type of building 8-16 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Common Crimes 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 8-17 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Common Crimes Receiving stolen property Knowingly receiving stolen property with the intention of depriving rightful owner of that property Property must be tangible property Arson Malicious or willful burning of another’s dwelling Now extended to all structures Includes willful burning by structure’s owner 8-18 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Business and White-Collar Crimes Forgery Written documents fraudulently made or altered Change affects legal liability of another person Signing another person’s signature without intent to defraud is not forgery Embezzlement Fraudulent conversion of property by person to whom property is entrusted 8-19 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Business and White-Collar Crimes Bribery Offeror commits crime when bribe is offered Offeree commits crime when bribe is accepted Bribe can be of anything of value Extortion Threat to expose something about another person unless that other person gives money or property Also known as blackmail 8-20 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Business and White-Collar Crimes Criminal fraud Obtaining title to property through deception or trickery Includes: Mail fraud Wire fraud Also called false pretenses or deceit 8-21 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Business and White-Collar Crimes 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 8-22 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Business and White-Collar Crimes Racketeer Influenced and Corrupt Organizations Act (RICO) Criminal 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 Civil RICO - Persons injured by a RICO violation can bring a private civil RICO action against the violator to recover for injury to business or property 8-23 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Business and White-Collar Crimes 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 8-24 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Cyber Crimes Counterfeit Access Device and Computer Fraud and Abuse Act (CFAA) Federal crime to use a computer knowingly to obtain: Restricted federal government information Financial records of financial institutions Consumer reports of consumer reporting agencies 8-25 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Protection Against Unreasonable Search and Seizure 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 a probable cause are necessary in most cases Government may not search businesses without a search warrant 8-26 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Protection Against Unreasonable Search and Seizure 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 8-27 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Case 8.1: U.S. Supreme Court Exigent Circumstances Kentucky v. King 131 S.Ct. 1849, 179 L.Ed2d 865, Web 2011 U.S. Lexis 3541 (2011) Supreme Court of the United States Issue Do exigent circumstances exist that support the police’s warrantless search of the apartment? 8-28 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Case 8.2: U.S. Supreme Court Search and Seizure Arizona v. Gant 129 S.Ct. 1710, 173 L.Ed.2d 485, Web 2009 U.S. Lexis 3120 (2009) Supreme Court of the United States Issue Is the warrantless search of Gant’s automobile justified as a search incident to an arrest? 8-29 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

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 Protects natural persons only Attorney-client 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 8-30 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Privilege Against Self-Incrimination Other privileges Psychiatrist/psychologist-patient privilege Priest/minister/rabbi/imam-penitent privilege Spousal privileges Parent-child privilege No accountant-client privilege under federal law 8-31 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Privilege Against Self-Incrimination Immunity from prosecution Government may offer person immunity from prosecution in exchange for testimony Person loses right to assert Fifth Amendment privilege Protection against double jeopardy Fifth Amendment provides that persons cannot be tried twice for same crime 8-32 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Other Constitutional Protections Right to a public trial Sixth Amendment guarantees the 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 8-33 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Protection Against Cruel and Unusual Punishment Eighth Amendment protects criminal defendants from torture or other abusive punishment Does not prohibit capital punishment 8-34 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 8-35 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.