Criminal Law and Cyber Crime Ch. 10

Crime

A wrong against society proclaimed in a statute and punishable by society through fines and / or imprisonment—or, in some cases, death.

Prosecuted by the State

crimes are offenses against society as a whole, they are prosecuted by a public official, such as a district attorney (D.A.) or an attorney general (A.G.), not by the victims

Preponderance of the evidence

• In a civil case

• means that the plaintiff must convince the court that based on the evidence presented by both parties, it is more likely than not that the plaintiff’s allegation is true.

Beyond a reasonable doubt

• The standard used to determine the guilt or innocence of a person criminally charged.

• To be guilty of a crime, one must be proved guilty “beyond and to the exclusion of every reasonable doubt.”

Criminal Sanctions

Designed to punish those who commit crimes and to deter others from committing similar acts in the future.

• Examples: Fines, incarceration in a jail or prison, the death penalty

Civil Liability for Criminal Acts

Some torts, such as assault and battery, provide a basis for a criminal prosecution as well as a civil action in tort

Felony

A crime—such as arson, murder, rape, or robbery—that carries the most severe sanctions, usually ranging from one year in a state or federal prison to the forfeiture of one’s life.

Misdemeanor

A lesser crime than a felony, punishable by a fine or imprisonment for up to one year in other than a state or federal penitentiary

Perry Offense

The least serious kind of criminal offense, such as a traffic or building-code violation.

The following two elements normally must exist simultaneously for a person to be convicted of a crime

1. The performance of a prohibited act (act us re us)

2. A specified state of mind, or intent, on the part of the actor (mens rea)

Most crimes require an act of commission

A person must do something in order to be accused of a crime

• For a crime to exist, the guilty act must cause some harm to a person or to property

• However, a person can be punished for attempting a crime, such as murder or robbery, but normally only if he or she has taken substantial steps toward the criminal objective

Mens rea

Criminal Intent

Ex; Murder involves the guilty act of killing another human being, and the guilty mental state is the desire, or intent, to take another’s life.

Recklessness

A defendant is criminally reckless if he or she consciously disregards a substantial and unjustifiable risk

Ex: NJ Girl posts saying she is going to launch a terrorist attack on her high school. She is arrested for the intent to commit an act of violence

Criminal Negligence

Involves the mental state in which the defendant takes an unjustified, substantial, and foreseeable risk that results in harm

• A defendant can be negligent even if she or he was not actually aware of the risk but should have been aware of it.

• Ex: MJ’s physician prescribed him drugs that led to Jackson’s death because he prescribed him strong drugs and knew MJ was on other drugs already

Strict Liability and Over Criminalization

An increasing number of laws and regulations impose criminal sanctions for strict liability crimes.

• Strict liability crimes are offenses that do not require a wrongful mental state to establish criminal liability.

Ex: A hunter shot an elk outside the area specified by the hunting permit has committed a crime. The hunter can be convicted of the crime regardless of her or his intent or knowledge of the law

Criminal convictions

Companies choose to reach settlement agreements with the government rather than fight criminal indictments.

Settlement agreements

• Non-prosecution agreements- between business firms and the government typically involve multimillion- or multibillion-dollar fines

• “Public enforcers often seek large monetary awards for self-interested reasons divorced from the public interest and deterrents. The incentives are strongest when enforcement agencies are permitted to retain all or some of the proceeds of enforcement.”

Liability of Corporate Officers and Directors

Corporate directors and officers are personally liable for the crimes they commit, regardless of whether the crimes were committed for their private benefit or on the corporation’s behalf.

Responsible corporate officer doctrine

A court may impose criminal liability on a corporate officer who participated in, directed, or merely knew about a given criminal violation

Types of Crimes

1. Violent crime

2. Property crime

3. Public order crime

4. White-collar crime

5. Organized crime

Violent crimes

• Crimes against persons

Property crime

• The most common type of criminal activity is property crime, in which the goal of the offender is some form of economic gain or the damaging of property

Burglary

The unlawful entry into a building with the intent to commit a felony.
• Some state statutes have expanded burglary to include the intent to commit any crime.

Larceny

• he wrongful taking and carrying away of another person’s personal property with the intent to permanently deprive the owner of the property.

• Some states classify larceny as either grand or petit, depending on the property’s value.

• Larceny differs from robbery in that larceny does not involve force or fear.

Obtaining Goods by False Pretenses

• Obtaining goods by means of false pretenses is a form of theft that involves trickery or fraud

Theft

Classified as petty or grand

Receiving Stolen goods

It is a crime to receive goods that a person knows or should have known were stolen or illegally obtained.

Arson

The malicious burning of another’s dwelling

Forgery

• The fraudulent making or altering of any writing in a way that changes the legal rights and liabilities of another

White-collar crime

Nonviolent crime committed by individuals or corporations to obtain a personal or business advantage

Embezzlement

• The fraudulent appropriation of money or other property by a person to whom the money or property has been entrusted

• Embezzlement is not larceny, because the wrongdoer does not physically take the property from another’s possession, and it is not robbery, because no force or fear is used.

• Typically, embezzlement is carried out by an employee who steals funds a small amount at a time over a long period

Mail and Wire fraud

• It is a federal crime to devise any scheme that uses U.S. mail, commercial carriers (Fed Ex, U P S), or wire (telegraph, telephone, the Internet, e-mail) with the intent to defraud the public.

Bribery

• The crime of bribery involves offering to give something of value to a person in an attempt to influence that person in a way that serves a private interest

• • The crime of bribery occurs when the bribe is offered; accepting a bribe is a separate crime.

Three types of bribery are considered crimes:

1. Bribery of public officials

2. Commercial bribery

   • Commercial bribery involves corrupt dealings between private persons or businesses.
   • So-called kickbacks, or payoffs for special favors or services, are a form of commercial bribery in some situations.

3. Bribery of foreign officials

The Foreign Corrupt Practices Act

Prohibits U.S. businesspersons from bribing foreign officials to secure beneficial contracts.

• The F C P A does not prohibit payments made to minor officials whose duties are ministerial, or routine, such as the processing of paperwork, that involve little or no discretion

• These payments are often referred to as “grease” and are meant to accelerate the performance of administrative services that might otherwise be carried out at a slow pace

To assist in detecting bribes, the F C P A:

• Requires that all companies keep detailed records that “accurately and fairly” reflect their financial activities

• Requires the accounting systems of all companies to provide “reasonable assurance” that all transactions entered into the systems are accounted for and legal

• Prohibits any person from making false statements to accountants or false entries in any record or account

Bankruptcy Fraud

Ex: A creditor may file a false claim against the debtor; a debtor may fraudulently transfer assets to favored parties before or after the bankruptcy is filed.

Insider Trading

A person may not profit from the purchase or sale of securities based on inside information until the information is made available to the public.

Economic Espionage Act makes it a federal crime to:

• Steal trade secrets

• Buy or possess another person’s trade secrets, knowing that the trade secrets were stolen or otherwise acquired without the owner’s authorization

Ex: Former Coca-Cola executive assistant tried to sell trade secrets to Pepsi Co.

Money Laundering

• Falsely reporting income that has been obtained through criminal activity as income obtained through a legitimate business enterprise—in effect, “laundering” the “dirty money.”

Racketeering Influenced and Corrupt Organizations Act (RICO)

• Incorporates by reference thirty-five separate types of federal and state crimes

• If a person commits two of these offenses, he or she is guilty of “racketeering activity.”

• In the event of a RICO violation, the government can seek both criminal and civil penalties.

• In some cases, private individuals can sue violators and potentially recover three times their actual damages (treble damages), plus attorneys’ fees, for business injuries caused by a RICO violation

Defenses to Criminal Liability

• Persons charged with crimes may be relieved of criminal liability if they can show that their criminal actions were justified under the circumstances

• In certain situations, the law may also allow a person to be excused from criminal liability because she or he lacks the required mental state.

Self-defense

• The legally recognized privilege to protect one’s self or property against injury by another.

• The privilege of self-defense protects only acts that are reasonably necessary to protect one’s self or property.

• Other situations that justify the use of force include:

  • The defense of one’s dwelling
  • The defense of other property
  • The prevention of a crime

Non deadly force

Is force that reasonably appears necessary to prevent the imminent use of criminal force

• People can use the amount of non-deadly force that seems necessary to protect themselves, their dwellings, or other property, or to prevent the commission of a crime.

Deadly force

Can be used in self-defense only when the defender reasonably believes that imminent death or grievous bodily harm will otherwise result.

• Many states are expanding the situations in which the use of deadly force can be justified.

Necessity

Sometimes, criminal defendants can be relieved of liability by showing necessity—that a criminal act was necessary to prevent an even greater harm.

Insanity

A person who suffers from a mental illness may be incapable of the state of mind required to commit a crime.

• However, an insanity defense does not enable a person to avoid imprisonment; it simply means that if the defendant successfully proves insanity, she or he will be placed in a mental institution

Mistake

A mistake of fact can normally excuse criminal responsibility if it negates the mental state necessary to commit a crime.

• However, a mistake of law—ignorance of the law or a mistaken idea of what the law requires—is not a valid defense.

Duress

Unlawful pressure brought to bear on a person, causing the person to perform an act that he or she would not otherwise perform (or refrain from doing something that he or she would otherwise do)

• In such a situation ____ is said to negate the mental state necessary to commit a crime because the defendant was forced or compelled to commit the act.

Entrapment

A defense in which the defendant claims that he or she was induced by a public official—usually an undercover agent or police officer—to commit a crime that he or she would otherwise not have committed

Ex; DeLorean case

Statue of Limitations

The government must initiate criminal prosecution within a certain number of years

• If a criminal action is brought after the statutory time period has expired, the accused person can raise the statute of limitations as a defense

• The running of the time period in a statute of limitations may be tolled—that is, suspended or stopped temporarily—if the defendant is a minor or is not in the jurisdiction.

Immunity

• When the state wishes to obtain information from a person accused of a crime, the state can grant immunity from prosecution.

  • Often, a grant of immunity from prosecution is part of plea bargaining

Plea bargaining

The process by which a criminal defendant and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case, subject to court approval.

• Usually involves the defendant’s pleading guilty to a lesser offense and receiving a lighter sentence.

Criminal Procedures are designed to:

• Protect the constitutional rights of individuals
• Prevent the arbitrary use of power on the part of the government

The fourth amendment

• Protects from unreasonable searches and seizures

• Requires that no warrant for a search or an arrest be issued without probable cause

• Protects the “right of the people to be secure in their persons, houses, papers, and effects.”

• Before searching or seizing private property, normally law enforcement officers must obtain a search warrant.

The fifth amendment

• Requires that no one be deprived of “life, liberty, or property without due process of law”

• Prohibits against double jeopardy

Double jeopardy

A situation occurring when a person is tried twice for the same criminal offense

• Requires that no person be required to be a witness against himself or herself

Sixth Amendment guarantees:

• A speedy trial, a trial by jury, and a public trial

• The right to confront witnesses

• The right to a lawyer at various stages in some proceedings

Eighth Amendment prohibits:

• Excessive bail and fines

• Cruel and unusual punishment

Search warrant

An order granted by a public authority, such as a judge, that authorizes law enforcement personnel to search particular premises or property.

Probable cause

Reasonable grounds for believing that a search should be conducted or that a person should be arrested.

Scope of warrant

The Fourth Amendment requires a specific description of what is to be searched or seized that is not to extend beyond what is described in the warrant.

Reasonable Expectation of Privacy

The Fourth Amendment protects only against searches that violate a person’s reasonable expectation of privacy.

A reasonable expectation of privacy exists if:

1. The individual actually expects privacy.

2. The person’s expectation is one that society as a whole would consider legitimate.

Exclusionary rule

• A rule under which any evidence that is obtained in violation of the accused’s constitutional rights guaranteed by the Fourth, Fifth, and Sixth Amendments, as well as any evidence derived from illegally obtained evidence, will not be admissible in court.

• The purpose of rule is to deter police from conducting warrantless searches and engaging in other misconduct.

The Miranda Rule

In Miranda v. Arizona, the United States Supreme Court established the rule that individuals who are arrested must be informed of their Fifth Amendment right to remain silent and their Sixth Amendment right to counsel.

• If the arresting officers fail to inform a criminal suspect of these constitutional rights, any statements the suspect makes normally will not be admissible in court.

• However, the Court has recognized a “public safety” exception that allows certain statements to be admitted even if the defendant was not given Miranda warnings

• A suspect must unequivocally and assertively ask to exercise

  his or her right to counsel in order to stop police questioning.

There are several major steps in processing a criminal case

1. Before a warrant for arrest can be issued, there must be probable cause to believe that the individual in question has committed a crime.

2. Individuals must be formally charged with having committed specific crimes before they can be brought to trial.

3. At a criminal trial, the prosecution must show that, based on all the evidence, the defendant’s guilt is established beyond a reasonable doubt.

Indictment

• A charge by a grand jury that a reasonable basis (probable cause) exists for believing that a crime has been committed and that a trial should be held.

Grand Jury

A group of citizens called to decide, after hearing the state’s evidence, whether a reasonable basis (probable cause) exists for believing that a crime has been committed and whether a trial ought to be held

Information

• For less serious crimes

• A formal accusation or complaint (without an indictment) issued in certain types of actions (usually criminal actions involving lesser crimes) by a law officer, such as a magistrate

“Not Guilty”

• This verdict is not the same as stating that the defendant is innocent; rather, it means that not enough evidence was properly presented to the court to prove guilt beyond a reasonable doubt.

“Guilty”

• If the defendant’s guilt is established beyond a reasonable doubt

• Will be sentenced by the court

Cyber crime

A crime that occurs online, in the virtual community of the Internet, as

opposed to the physical world.

Cyber fraud

Fraud that involves the online theft of credit-card information, banking

details, and other information for criminal use.

Advanced fee fraud

Consumers order and pay for items that are never delivered

Consumer Protections

The larger online auction sites try to protect consumers against cyber fraud by providing warnings about deceptive sellers or offering various forms of insurance

Identity theft

• The act of stealing another’s identifying information—such as a name, date of birth, or Social Security number—and using that information to access the victim’s financial resources.

• More than half of identity thefts involve the misappropriation of existing credit-card accounts

Password theft

• Once a cyber criminal obtains a victim’s online user name at a particular website, it is easier to steal the victim’s password, which is often the last line of defense to financial information

Phishing

Online fraud in which criminals pretend to be legitimate companies by using e-mails or malicious websites that trick individuals and companies into providing useful information, such as bank account numbers, Social Security numbers, and credit-card numbers.

The goals of a hacking operation might include:

• A wholesale theft of data

• The monitoring of a computer

• The insertion of false codes or data

Malware

• Malicious software programs designed to disrupt or harm a

  computer, network, smartphone, or other device.

“Location” of a cyber crime

• Determining ____ and identifying a criminal in cyberspace presents significant challenges for law enforcement.

• Cyber criminals do not leave physical traces, such as fingerprints or DNA samples, as evidence of their crimes

Computer Fraud and Abuse Act

• Provides that a person who accesses a computer online, without authority, to obtain classified, restricted, or protected data (such as financial and credit records, medical records, and military and national security files) is subject to criminal prosecution.