Ch 8: Criminal Law & Cybercrime

Penal Codes:

• Collection of criminal statutes that serve as primary source of criminal law.

  • States have adopted comprehensive penal codes that define activities considered to be crimes and penalties

Civil Lawsuits:

• Injured victims or relatives of a deceased victim can bring separate civil actions against a wrongdoer to recover monetary damages for injuries or death caused during a crime.

Judgment Proof:

• Many victims do not file civil suits because the accused/convicted individual lacks the money to pay a civil judgment.

Purposes of Imprisonment:

1. Incapacitate the offender to protect society

2. Provide rehabilitation to offender

3. Deter others from committing similar acts

4. Inhibit personal retribution by victims

Mandatory Minimum Sentences

• Set by federal and state laws for serious, violent, repeat, drug, gun trafficking

  1. Mandatory sentences may be reduced through cooperation with the government, plea agreements, or statutory judicial discretion.

Criminal Act (actus reus):

1. person charged must have performed the prohibited act. The actual performance of a prohibited physical act is called actus reus (guilty act). 

   • Can also be an omission to act when under a legal obligation (e.g., failing to file tax returns).

Criminal Intent (Mens Rea):

1. the person accused of committing the crime must be found to have possessed the requisite state of mind when the act was performed (evil act) 

   • Juries may infer a defendant’s intent from the facts and circumstances of the case

Specific Intent Crime:

person accused of the crime intended to achieve a specific result from the illegal act (e.g., premeditated murder, arson, forgery, fraud).

General Intent Crime:

Person either knew or should have known their actions would result in harm

(e.g., assault, battery).

Nonintent Crimes:

• imposed for reckless or grossly negligent conduct that causes injury to another person.

  • ex.) Involuntary manslaughter caused by a speeding driver who hits a pedestrian

Strict Liability Crimes

• A crime that imposes criminal liability for the

  commission of a prohibited act without requiring proof of

  intent, recklessness, or grossly negligent conduct

Arrest Warrant:

• A court order required before making an arrest, based on a showing of probable cause.

  • Procedure: Police present evidence to a judge; if probable cause exists, the warrant is issued.

Warrantless Arrests:

• Permitted if obtaining a warrant is not feasible or there is no time, provided the arrest is still grounded in probable cause.

  • ex.) police arrive during a crime's commission, a suspect flees the scene, or evidence is likely to be destroyed.

Booking

1. Recording details of the alleged crime and arrest.

2. Gathering personal info, taking fingerprints, and photographing ("mug shot").

3. Confiscating personal property carried by the individual (wallet, keys, phone).

4. Performing background criminal record checks.

5. Collecting DNA samples (frequently required for serious offenses).

Bail

• An amount of money set by the court (typically at the initial court appearance) that the defendant must pay to be released from custody pending trial.

No Bail:

• For extremely serious charges, bail may be denied, holding the suspect in custody through trial.

Bail Bond Agents:

if defendants cannot afford full bail, they can hire a bail bond agent who posts a bond guaranteeing full payment to the court if the defendant fails to appear.

Indictment

A formal charge issued by a grand jury (a panel of 6 to 24 citizens who evaluate evidence) when there is probable cause to hold a defendant for trial on serious felony charges.

Information Statement:

Charge of having committed a crime basedon the judgment of a magistrate and probable cause

Grand jury:

Determines whether there is enough evidence to hold the accused while awaiting trial and issues an indictment

Arraignment

• accused is brought before the court, formally informed of the charges, and required to enter a plea:

No Contest (Nolo Contendere):

• Defendant accepts the penalty without admitting criminal guilt. Requires government approval.

• cannot be used as evidence of liability in a subsequent civil lawsuit (frequently utilized by corporate defendants in regulatory or environmental matters).

Plea Bargain Agreements

An agreement in which the accused admits to a lesser crime than charged.

• ~95% of criminal cases are resolved via plea bargains without going to trial.

Plea bargain:

Negotiations prior to trial with the intent of avoiding a trial

Deadlocked (hung) Jury:

A jury that cannot come to a unanimous decision about the defendant’s guilt

• Convicted defendant can appeal

• But, if the defendant is found not guilty, the government cannot appeal

Robbery

• The taking of personal property from another person by use of fear or force

• If a weapon is used, it is considered armed robbery

Burglary

taking of personal property from another’s home, office, or commercial or other type of building

Larceny

• Wrongful and fraudulent taking of another person’s personal property that does not require force or entry into a structure

• Some distinguish between grand and petit larceny, based on the value of property taken

Felony Murder Rule

 if murder is committed during commission of another crime even though it was not originally intended, the perpetrator is liable for the crime of murder.

White-collar crime:

Crimes that are often committed by businesspeople

Forgery

• The crime that occurs if a written or digital document is fraudulently made or altered in a way that affects the legal liability of another person. Requires fraudulent intent

Embezzlement

• The fraudulent conversion of property by a person to whom that property was entrusted.

Bribery

• The act of offering, giving, soliciting, or receiving money, property, favors, or anything of value to influence an action.

Commercial Bribery:

• Bribes or kickbacks (payoffs) paid to private individuals or business representatives.

Public Bribery:

•  Bribing public officials (e.g., inspectors) to influence official decisions or overlook violations.

Extortion

• Obtaining property from another person through the wrongful use of actual or threatened force, violence, or fear.

• Blackmail: Extortion committed against private individuals (e.g., threats of exposure or ransomware).

Criminal fraud

Obtaining title to property through deception, trickery, or deceit (ex: Ponzi schemes

Wire fraud

Use of wires (e.g., telephone, radio, television) to defraud

Electronic communications fraud:

• Use of electronic communication devices and systems (e.g., computer, email, internet, cell phones, text, social media, instant messaging, blogs, web pages, and others) to defraud

Money Laundering

The illegal process of filtering money derived from unlawful activities through legitimate businesses to make it appear legally earned.

Criminal conspiracy:

• two or more persons enter into an agreement to commit a crime. The underlying crime does not need to actually be carried out or completed.

• One of the persons intending it must commit an overt act to

  further the crime

• Regulatory crimes

• Criminal offenses resulting from violations of statutory laws enacted by federal or state governments

• ex.) violations of securities, antitrust, environmental, consumer, employment, credit, bankruptcy, intellectual property, and other statutes

Racketeer Influenced and Corrupt Organizations Act (R I C O)

• A federal statute enacted under the Organized Crime Control Act to prohibit acquiring, maintaining, or operating an enterprise through a pattern of racketeering activity.

Criminal R I C O:

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 activit

Civil R I C O:

Persons injured by a R I C O violation can bring a private civil RICO action to recover for injury to business or property

Wiretap Act

Crime to use an electronic, mechanical, or other device to intentionally intercept, disclose, or use the contents of any oral, wire, or electronic of another party at the point of transmission, while in transit, and after receipt by the intended recipient

• ex.) unauthorized recording of another’s telephone conversation or reading another’s email or text messages would violate the act

Fourth Amendment

protects persons and corporations from overzealous investigative activities by the government and provides protection against unreasonable search and seizure

Exclusionary rule

Search is unreasonable if a search warrant is issued without probable cause or if an unjustified warrantless search

• Evidence obtained is considered tainted evidence (“fruit of a poisonous tree”)

Search of Business Premises

The government does not have the right to search business premises without a search warrant

• Exception: hazardous and highly-regulated industries are subject to warrantless searches if proper statutory procedures are met

Fifth Amendment

no person “shall be compelled in any criminal case to be a witness against himself”

• Corporations, L L C s, etc. cannot raise this protection

Miranda Rights

• You have the right to remain silent

• Anything you say can and will be used against you

• You have the right to consult a lawyer and to have a lawyer present

• If you cannot afford a lawyer, a lawyer will be appointed free of charge

Immunity from prosecution

• government may offer immunity from prosecution in exchange for testimony

• Once granted, a person loses the right to assert the Fifth Amendment privilege

Fifth Amendment

• Fifth Amendment provides that persons cannot be tried twice for the same crime in the same jurisdiction (double jeopardy)

Sixth Amendment

• Person accused of a crime has the right to a public jury trial which includes right to:

  • be tried by an impartial jury of the state or district in which the alleged crime was committed

  • confront (cross-examine) the witnesses against the accused person

  • have the assistance of a lawyer for defense

  • have a speedy trial.

Eighth Amendment

protects criminal defendants from cruel and unusual punishment

• For example, it prohibits the torture of convicted persons

• Does not prohibit capital punishment (by lethal injection)