1. Chapter 8 Criminal Law and Cyber Crimes

2. 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
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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
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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
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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
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6. Classification of Crimes
Felonies
Misdemeanors
Violations
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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
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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
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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
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Criminal Procedure
Indictment or information
Grand jury
Determines whether there is enough evidence to hold accused for trial
Serious crimes
Issues an indictment
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Criminal Procedure
Magistrate
Determines whether there is enough evidence
Lesser crimes
Issues an information
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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
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Plea Bargaining
Allows accused to plead to lesser crime
Saves money, time
Avoids risk of trial
Prevents further overcrowding of jails
Very common
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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
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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
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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
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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
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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
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19. 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
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20. 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
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21. 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
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22. 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
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23. 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
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24. 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
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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
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26. 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
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27. 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
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28. 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 (2011)
Supreme Court of the United States
Issue
Do exigent circumstances exist that support the police’s warrantless search of the apartment?
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29. 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 (2009)
Supreme Court of the United States
Issue
Is the warrantless search of Gant’s automobile justified as a search incident to an arrest?
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30. 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
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31. 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
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32. 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
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33. 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
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34. Protection Against Cruel and Unusual Punishment
Eighth Amendment protects criminal defendants from torture or other abusive punishment
Does not prohibit capital punishment
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