Criminal Law and Cybercrime

What is the difference between civil law and criminal law?

civil law pertains to the duties that exist between persons or between persons and their government.

while criminal law, in contrast, has to do with crime. a crime is defined as a wrong against society proclaimed in a statute and, if committed, punishable by society through fines and/or imprisonment—and, in some cases, death.

How are crimes prosecuted?

because crimes are offenses against society as a 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 crime victims.

once a crime has been reported, the D.A.’s office decides whether to file criminal charges and to what extent to pursue the prosecution or carry out additional investigation.

Who is the party who brings suit in civil law and criminal law?

the Person who suffered harm in the civil case.

the State in the criminal case.

What is the wrongful act in civil law and criminal law?

causing harm to a person or to a person’s property.

violating a statute that prohibits some type of activity.

What is the burden of proof in civil cases?

the plantiff usually must meet the preponderance of the evidence standard. that is, 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.

What is the burden of proof in criminal cases?

the state must prove its case beyond a reasonable doubt.

if the jury views the evidence in the case as reasonably permitting either a guilty or a not guilty verdict, then the jury’s verdict must be not guilty.

the prosecutor must prove beyond a reasonable doubt that the defendant has committed every essential element of the alleged offense.

if the jurors are not convinced of the defendant’s guilt beyond a reasonable doubt, they must find the defendant not guilty.

What must the jury’s verdict be in civil cases?

typicially only ¾ of the jurors need to agree

What must the jury’s verdict be in criminal cases?

normally all the jurors have to agree to convict the defendant, the verdict must be unanimous.

What are the remedies in civil cases

damages to compensate for the harm or a decree to achieve an equitable result.

What are the remedies in criminal cases?

must harsher. they are designed to punish those who commit crimes and to deter others from committing similar acts in the future. remedies include fines, imprisonment, probation (sometimes restitution, community service, or an educational or treatment program). the harshest remedy is the death penalty.

Can the same act result in both a tort action (civil) and a criminal action against the wrongdoer?

Yes. Through some torts, such as an assault and battery, that provide a basis for a criminal prosecution as well as a tort action.

Felony

a serious crime punishable by death or by imprisonment for more than one year. many states also define several degrees of these offenses and vary the punishment according to the degree. (like burglary)

Misdemeanor

a less serious crime, punishable by a fine or by confinement in jail for up to a year.

Petty offense

a minor violation, such as jaywalking or violating a building code, considered to be a subset of misdemeanors. even for these minor violations, however, a guilty part can be put in jail for a few days, fined or both, depending on state or local law.

What two elements normally must exist before a person can be held liable for a crime?

1. the performance of a prohibited act (actus reus).

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

Actus reus

every criminal statute prohibits certain behavior. most crimes require an act of commission. that is, a person must do something in order to be accused of a crime. in criminal law, a prohibited act is referred to as the actus reus, or guilty act

in some instances, an act of omission can be a crime, but only when a person has a legal duty to perform the omitted act, such as filing a tax return.

What premise of criminal law is the guilty act requirement based on?

that a person is punished for harm done to society. for a crime to exist, the guilty act must cause some harm to a person or to property.

thinking about killing someone or about stealing a car may be wrong, but the thoughts do no harm until they are translated into action. of course, someone can be punished for attempting murder or robbery, but normally only if that person took substantial steps toward the criminal objective.

additionally, the person must have specifically intended to commit the crime to be convicted of an attempt.

Mens rea

a wrongful mental state is generally required to establish criminal liability. the required mental state, or intent, is indicated in the applicable statute or law.

theft, for example, involves the guilty act of taking another person’s property. the guilty mental state involves both the awareness that the property belongs to another and the intent to deprive the owner of it.

a court can also find that the required mental state is present when a defendant’s acts are reckless or criminally negligent. (like involuntary manslaughter)

When does a criminal conspiracy exist?

when two or more people agree to commit an unlawful act, and then take some action towards its completion. the required intent involves purposely agreeing with others and intending to commit the underlying crime.

When are defendants reckless?

defendants are criminally reckless if they consciously disregard a substantial and unjustifiable risk.

Criminal negligence

occurs when the defendant takes an unjustified, substantial, and foreseeable risk that results in harm. a defendant can be negligent even if the defendant was not actually aware of the risk but should have been aware of it.

a homicide is classified as involuntary manslaughter when it results from an act of criminal negligence and there is no intent to kill.

What are strict liability crimes?

an increasing number of laws and regulations have imposed criminal sanctions for strict liability crimes—that is, offenses that do not require a wrongful mental state, or malice, to establish criminal liability.

critics say that such laws lead to overcriminalization.

Are there strict liability crimes federally?

the federal criminal code now lists more than four thousand criminal offenses, many of which do not require a specific mental state. in addition, several hundred thousand federal rules can be enforced through criminal sanctions, and many of these rules do not require intent.

Are there strict liability crimes on the state level?

many states have also enacted laws that punish behavior as criminal without the need to show criminal intent.

How has corporate criminal liability changed?

acorporation is a legal entity created under the laws of a state. At one time, it was thought that a corporation could not incur criminal liability because, although a corporation is a legal person, it can act only through its agents (corporate directors, officers, and employees). therefore, the corporate entity itself could not "intend" to commit a crime.

over time, this view has changed. obviously, corporations cannot be imprisoned, but they can be fined or denied certain legal privileges (such as necessary licenses).

How are corporate officers and directors held liable for crimes?

corporate directors and officers are personally liable for the crimes they commit, regardless of whether the crimes were committed for their personal benefit or on the corporation's behalf. additionally, corporate directors and officers may be held liable for the actions of employees under their supervision.

under the responsible corporate officer doctrine, a court may impose criminal liability on corporate officers regardless of whether they participated in, directed, or even knew about a given criminal violation.

What categories of crimes are there?

traditionally crimes have been grouped into five broad categories: violent crime (crimes against persons), property crime, public order crime, white-collar crime, and organized crime.

in addition, when crimes are committed in cyberspace rather than the physical world, we often refer to them as cyber crimes.

Violent crimes

also called crimes against persons, because they cause others to suffer harm or death. examples include murder, SA, robbery.

robbery is defined as the taking of cash, personal property, or any other article of value from a person by means of force or fear—is another violent crime. typically, states have more severe penalties for aggravated robbery—robbery with the use of a deadly weapon.

assault and battery, which are discussed in the context of tort law, are also classified as violent crimes.

each of these violent crimes if ruther classified by degree, depending on the circumstances surrounding the criminal act.

these circumstances include: the intent of the person commiting the crime and whether a weapon was used. for crimes other than murder, the level of pain and suffering experienced by the victim is also a factor.

Property crimes

the most common type of criminal activity—crimes in which the goal of the offender is some form of economic gain or damaging of property. robbery is a form of property crime, as well as violent crime, because the offender seeks to gain the property of another.

other examples include burglary, larceny, obtaining goods by false pretenses, receiving stolen goods, arson, and forgery.

Burglary

traditionally, defined under the common law as breaking and entering the dwelling of another at night with the intent to commit a felony.

originally, the definition was aimed at protecting an individual’s home and its occupants. but most state statutes have eliminated some of the requirements found in the common law definition. the time of day at which the breaking and entering occurs, for example, is usually immaterial. state statutes frequently omit the element of breaking, and some states do not require that the building be a dwelling.

when a deadly weapon is used in a burglary, the person can be charged with aggravated burglary and punished more severely.

Larceny

under the common law, the crime of larceny involves the unlawful taking and carrying away of someone else's personal property with the intent to permanently deprive the owner of possession. put simply, larceny is stealing, or theft.

whereas robbery involves force or fear, larceny does not. therefore, picking pockets is larceny, not robbery. similarly, an employee who takes company products and supplies home for personal use without authorization commits larceny.

most states have expanded the definition of property that is subject to larceny statutes. stealing computer programs may constitute larceny even though the "property" is not physical.

theft of natural gas, internet access, and television cable services are examples.

Obtaining goods by false pretenses

a form of theft that involves trickey or fraud, such as using someone else’s credit card number without permission.

statutes dealing with such illegal activities vary widely from state to state. they often apply not only to property, but also to services and cash.

Receiving Stolen Goods

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

to be convicted, the recipient of such goods need not know the true identity of the owner or the thief, and need not have paid for the goods.

all that is necessary is that the recipient knows or should have known that the goods were stolen, which implies an intent to deprive the true owner of those goods.

Arson

the willful and malicious burning of a building (and, in some states, vehicles and other items of personal property) is the crime of arson. at common law, arson traditionally applied only to burning down another person's house. the law was designed to protect human life.

today, arson statutes have been extended to cover the destruction of any building, regardless of ownership, by fire or explosion.

every state has a special statute that covers the act of burning a building for the purpose of collecting insurance.

Of course, the insurer need not pay the claim when insurance fraud is proved.

Forgery

the fraudulent making or altering of any writing (including electronic records) in a way that changes the legal rights and liabilities of another.

forgery also includes changing trademarks, falsifying public records, counterfeiting, and altering a legal document.

Public Order Crimes

historically, societies have always outlawed activities considered to be contrary to public values and morals.

today, the most common public order crimes include public drunkenness, prostitution, gambling, and illegal drug use.

these crimes are sometimes referred to as victimless crimes because they normally harm only the offender. from a broader perspective, however, they are detrimental to society as a whole because they may create an environment that gives rise to property and violent crimes.

White-Collar Crimes

crimes occurring in the business context are popularly referred to as white-collar crimes, although this is not an official legal term.

ordinarily, it involves an illegal act or series of acts committed by an individual or business entity using some nonviolent means to obtain a personal or business advantage.

usually, this kind of crime is committed in the course of a legitimate occupation.

corporate crimes fall into this category. in addition, certain property crimes, such as larceny and forgery, may also be white-collar crimes if they occur within the business context.

includes embezzlement, mail and wire fraud, bribery, corruption, bankruptcy fraud, theft of trade secrets, and insider trading

Embezzlement

when a person who is entrusted with another person's funds or property fraudulently appropriates it, embezzlement occurs. it is not larceny, because the wrongdoer does not physically take the property from another's possession, and it is not robbery, because force or fear is not used.

typically, embezzlement is carried out by an employee who steals funds. banks are particularly prone to this problem, but embezzlement can occur in any firm. in a number of businesses, corporate officers or accountants have fraudulently converted funds for their own benefit and then "fixed" the books to cover up their crime.

embezzlement occurs whether the embezzler takes the funds directly from the victim or from a third person. if the financial officer of a corporation pockets checks from third parties that were given to her to deposit into the corporate account, she is embezzling.

frequently, an embezzler takes relatively small amounts repeatedly over a long period. this might be done by underreporting income or deposits and embezzling the remaining amount, or by creating fictitious persons or accounts and writing checks to them from the corporate account. an employer's failure to remit state withholding taxes that were collected from employee wages can also constitute embezzlement.

Mail and Wire Fraud

laws that make it a federal crime to devise any scheme that uses the U.S. mail, commercial carriers (such as FedEx or UPS), or wire (including telegraph, telephone, television, e-mail, and online social media) with the intent to defraud the public.

these laws are often applied when persons send untrue or misleading information via e-mail with the intent of obtaining a financial benefit under false pretenses.

the maximum penalty under these statutes is substantial. persons convicted of mail or wire fraud may be imprisoned for up to twenty years and/or fined.

if the violation affects a financial institution or involves fraud in connection with emergency disaster-relief funds, the violator may be fined up to $1 million, imprisoned for up to thirty years, or both.

Bribery

involves offering something of value to someone in an attempt to influence that person—who is usually, but not always, a public official—to act in a way that serves a private interest.

three types of bribery are considered crimes: bribery of public officials, commercial bribery, and bribery of foreign officials.

as an element of the crime of bribery, intent must be present and proved. the bribe itself can be anything the recipient considers to be valuable, but the defendant must have intended it as a bribe.

realize that the crime of bribery occurs when the bribe is offered—it is not required that the bribe be accepted. accepting a bribe is a separate crime.

Commercial bribery

involves corrupt dealings between private persons or businesses.

typically, people make commercial bribes to obtain proprietary information, cover up an inferior product, or secure new business. industrial espionage sometimes involves commercial bribes.

so-called kickbacks, or payoffs for special favors or services, are a form of commercial bribery in some situations.

The Foreign Corrupt Practices Act

in many foreign countries, government officials make the decisions on most major construction and manufacturing contracts. side payments to government officials in exchange for favorable business contracts are not unusual in such countries.

The Foreign Corrupt Practices Act (FCPA) prohibits U.S. businesspersons from bribing foreign officials to secure beneficial contracts. firms that violate the FCPA can be fined up to $2 million. individuals can be fined up to $100,000 and imprisoned for up to five years.

Prohibition against the Bribery of Foreign Officials

the first part of the FCPA applies to all U.S. companies and their directors, officers, shareholders, employees, and agents. this part of the act prohibits the bribery of most officials of foreign governments if the purpose of the payment is to motivate the official to act in an official capacity to provide business opportunities.

the FCPA does not prohibit payments to minor officials whose duties are ministerial.

a ministerial action is a routine activity, such as the processing of paperwork, with little or no discretion involved in the action. these payments, often referred to as "grease," are meant to expedite the performance of administrative services. thus, a firm that makes a payment to a minor official to speed up an import licensing process has not violated the FCPA.

generally, the act also permits payments to foreign officials if such payments are lawful within the foreign country. payments to private foreign companies or other third parties are permissible unless the U.S. firm knows that the payments will be passed on to a foreign government in violation of the FCPA.

What are the accounting requirements directed by the FCPA towards accountants?

in the past, bribes were often concealed in corporate financial records. thus, the second part of the FCPA is directed toward accountants.

all companies must keep detailed accounting records that provide "reasonable assurance" that their transactions are accounted for and legal. the FCPA prohibits any person from making false statements to accountants or false entries in any record or account.

Bankruptcy Fraud

federal bankruptcy law allows individuals and businesses to be relieved of oppressive debt through bankruptcy proceedings.

numerous white-collar crimes may be committed during the many phases of a bankruptcy proceeding.

a creditor may file a false claim against the debtor.

also, a debtor may attempt to protect assets from creditors by fraudulently concealing property or by fraudulently transferring property to favored parties.

for instance, a company-owned automobile may be "sold" at a bargain price to a trusted friend or relative.

Theft of Trade Secrets

trade secrets constitute a form of intellectual property that can be extremely valuable for many businesses.

The Economic Espionage Act made the theft of trade secrets a federal crime. the act also made it a federal crime to buy or possess the trade secrets of another person, knowing that the trade secrets were stolen or otherwise acquired without the owner's authorization.

violations of the act can result in steep penalties. an individual who violates the act can be imprisoned for up to ten years and fined up to $500,000. a corporation or other organization can be fined up to $5 million.

additionally, any property acquired as a result of the violation, such as airplanes and automobiles, is subject to criminal forfeiture, or seizure by the government.

similarly, any property used in the commission of the violation, such as servers and other electronic devices, is subject to forfeiture. a theft of trade secrets conducted via the Internet, for instance, could result in the forfeiture of every computer or other device used to commit or facilitate the crime.

Insider Trading

an individual who obtains "inside information" about the plans of a publicly listed corporation can often make stock-trading profits by purchasing or selling corporate securities based on the information. insider trading is a violation of securities law.

generally, the rule is that a person who possesses inside information and has a duty not to disclose it to outsiders may not profit from the purchase or sale of securities based on that information until the information is made available to the public.

Organized Crime

operates illegitmately by, among other things, providing illegal goods and services, such as illegal drugs, gambling, and prostitution. today, it’s heavily involved in cyber crime.

Money Laundering

engaging in financial transactions to conceal the identity, source, or destination of illegally gained funds.

organized crime and other illegal activities generate many billions of dollars in profits each year. under federal law, banks and other financial institutions are required to report currency transactions involving more than $10,000. consequently, those who engage in illegal activities face difficulties when they try to deposit their cash profits from illegal transactions.

as an alternative to simply storing cash from illegal transactions somewhere outside of the banking system, wrongdoers and racketeers often launder their "dirty" money through a legitimate business to make it "clean."

Racketeering

to curb the entry of organized crime into the legitimate business world, Congress enacted the Racketeer Influenced and Corrupt Organizations Act (RICO). the statute makes it a federal crime to:

1. use income obtained from racketeering activity to purchase any interest in an enterprise.

2. acquire or maintain an interest in an enterprise through racketeering activity.

3. conduct or participate in the affairs of an enterprise through racketeering
   activity.

4. conspire to do any of the preceding activities.

the definition of racketeering is so inclusive-basically covering any attempt to earn illegal income involving more than one person—that it can be used against a broad range of criminal activity that has little to do with organized crime.

RICO incorporates by reference twenty-six separate types of federal crimes and nine types of state felonies. a person who commits two of these offenses is guilty of "racketeering activity."

under the criminal provisions of RICO, any individual found guilty is subject to a fine of up to $25,000 per violation, imprisonment for up to twenty years, or both.

additionally, any assets (property or cash) that were acquired as a result of the illegal activity or that were "involved in" or an "instrumentality of" the activity are subject to government forfeiture.

Civil penalties of a RICO

in the event of a RICO violation, the government can seek not only criminal penalties but also civil penalties, such as the divestiture of a defendant's interest in a business or the dissolution of the business. (divestiture refers to the forfeiture and subsequent sale of the defendant's interest.)

moreover, in some cases, the statute allows private individuals to sue violators and potentially to recover three times their actual losses (treble damages), plus attorneys' fees, for business injuries caused by a RICO violation.

this is perhaps the most controversial aspect of RICO and one that continues to cause debate in the nation's federal courts. the prospect of receiving treble damages in civil RICO lawsuits has given plaintiffs a financial incentive to pursue businesses and employers for violations.

What defenses are raised to avoid liability for criminal acts?

Justifiable Use of Force (self-defense), Necessity, Insanity, Mistake (of fact), Duress, Entrapment, Statute of Limitations, and Immunity.

Justifiable Use of Force (self-defense)

probably the best-known defense to criminal liability is self-defense. other situations, however, also justify the use of force: the defense of one's dwelling, the defense of other property, and the prevention of a crime.

in all of these situations, it is important to distinguish between deadly and nondeadly force. deadly force is likely to result in death or serious bodily harm. nondeadly force is force that appears reasonably necessary to prevent the imminent use of criminal force.

generally speaking, people can use the amount of nondeadly 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 if the defender reasonably believes that imminent death or grievous bodily harm will otherwise result. in addition, normally the attacker must be using unlawful force, and the defender must not have initiated or provoked the attack.

many states are expanding the situations in which the use of deadly force can be justified. Florida, for instance, allows the use of deadly force to prevent the commission of a "forcible felony," including robbery, carjacking, and seggusal battery.

Necessity

sometimes, criminal defendants are relieved of liability if they can show 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. thus, insanity can be a defense to a criminal charge.

note that an insanity defense does not allow a person to avoid imprisonment. it simply means that a defendant who successfully proves insanity will be placed in a mental institution.

Duress

exists when the wrongful threat of one person induces another person to perform an act that would not otherwise have been performed. in such a situation, duress is said to negate the mental state necessary to commit a crime because the defendant was forced or compelled to commit the act.

duress can be used as a defense to most crimes except murder. the states vary in how duress is defined and what types of crimes it can excuse, however.

generally, to successfully assert duress as a defense, the defendant must reasonably believe that an immediate danger exists, and the jury (or judge) must conclude that the defendant's belief was reasonable.

Entrapment

is a defense designed to prevent police officers or other government agents from enticing persons to commit crimes so that they can later be prosecuted for criminal acts. in the typical entrapment case, an undercover agent suggests that a crime be committed and pressures or induces an individual to commit it. the agent then arrests the individual for the crime.

for entrapment to succeed as a defense, both the suggestion and the inducement must take place. the defense is not intended to prevent law enforcement agents from setting a trap for an unwary criminal. rather, its purpose is to prevent them from pushing the individual into a criminal act. the crucial issue is whether the person who committed a crime was predisposed to commit the illegal act or did so only because the agent induced it.

Statute of Limitations

with some exceptions, such as for the crime of murder, statutes of limitations apply to crimes just as they do to civil wrongs. in other words, the state 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. when the defendant reaches the age of majority or returns to the jurisdiction, the statutory time period begins to run again.

Immunity

accused persons are understandably reluctant to give information if it will be used to prosecute them, and they cannot be forced to do so. the privilege against self-incrimination is granted by the Fifth Amendment to the U.S. Constitution. the clause reads "nor shall [any person] be compelled in any criminal case to be a witness against himself."

when the state wishes to obtain information from a person accused of a crime, the state can grant immunity from prosecution or agree to prosecute for a less serious offense in exchange for the information. persons who are granted immunity can no longer refuse to testify on Fifth Amendment grounds because they now have an absolute privilege against self-incrimination.

often, a grant of immunity from prosecution for a serious crime is part of the plea bargaining between the defendant and the prosecuting attorney. the defendant may be convicted of a lesser offense, while the state uses the defendant's testimony to prosecute accomplices for serious crimes carrying heavy penalties.

Where are safeguards existing for people accused of crimes found?

The U.S Constitution. most of these safeguards protect individuals not only against federal government actions but also, by virtue the due process clause of the Fourteenth Amendment, against state government actions. these protections are set forth in the 4th, 5th, 6th, and 8th amendments.

What are the protections provided by the fourth amendment?

“the right of the people to be secure in their persons, houses, papers, and effects.” before searching or seizing private property, law enforcement officers must obtain a search warrant.

Search Warrant

an order from a judge or other public official authorizing the search or seizure.

How have advances in technology influenced 4th amendment protections?

they have allowed authorities to track phone calls and vehicle movements with greater ease and precision. the use of such technology can constitute a search within the meaning of the 4th amendment.

How do you obtain a search warrant?

law enforcement officers must convince a judge that they have reasonable ground or probable cause, to believe a search will reveal a specific illegality.

What is needed for probable cause?

requires the officers to have trustworthy evidence that would convince a reasonable person that the proposed search or seizure is more likely justified than not.

What does the fourth amendment prohibit?

general warrants. it requires a particular description of what is to be searched or seized. general searches through a person’s belongings are not permissible. the search cannot extend beyond what is described in the warrant. although search warrants require specificity, if a search warrant is issued for a person’s residence, items in that residence may be searched even if they do not belong to that individuals

How does public interest effect getting a search warrant?

because of strong governmental interest in protecting the public, a warrant normally is not required for seizures of spoiled or contaminated food. nor are warrants required for searches of businesses in such highly regulated industries as liquor, guns, and strip mining

How does the fourth amendment protect person’s privacy?

The 4th amendment protects only against searches that violate a person’s reasonable expectation of privacy.

When does a reasonable expectation of privacy exist?

1. the individual actually expects privacy, and

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

What are the protections provided by the fifth amendment?

it guarantees that no one can be deprived of “life, liberty, or property without due process of law.” two other important fifth amendment provisions protect persons against double jeopardy and self-incrimination.

How does the fifth amendment protect against self-incrimination?

the fifth Amendment grants a privilege against self incrimination.

thus, in criminal proceedings, accused persons cannot be compelled to give testimony that might subject them to criminal prosecution.

the fifth amendment's guarantee against self-incrimination extends only to natural persons. because a corporation is a legal entity and not a natural person, the privilege against self-incrimination does not apply to it. similarly, the business records of a partnership do not receive fifth amendment protection.

when a partnership is required to produce these records, it must do so even if the information incriminates the persons who constitute the business entity.

How does the fifth amendment provide due process of law?

remember that due process of law has both procedural and substantive aspects.

procedural due process requirements underlie criminal procedures. the law must be carried out in a fair and orderly way. In criminal cases, due process means that defendants should have an opportunity to object to the charges against them before a fair, neutral decision maker, such as a judge. defendants must also be given the opportunity to confront and cross-examine witnesses and accusers, and to present their own witnesses.

How does the fifth amendment protect against double jeopardy?

double jeopardy (being tried twice for the same criminal offense) is protected by the 5th amendment. the prohibition against double jeopardy means that once a criminal defendant is acquitted (found "not guilty") of a particular crime, the government may not retry that defendant for the same crime.

the prohibition against double jeopardy does not preclude the crime victim from bringing a civil suit against that same defendant to recover damages, however. un other words, a person found "not guilty" of assault and battery in a state criminal case can be sued for damages by the victim in a civil tort case. additionally, a state's prosecution of a crime will not prevent a separate federal prosecution relating to the same activity (and vice versa), provided the activity can be classified as a different crime.

The exclusionary rule

any evidence obtained in violation of the constitutional rights spelled out in the Fourth, Fifth, and Sixth Amendments generally is not admissible at trial. all evidence derived from the illegally obtained evidence is known as the "fruit of the poisonous tree," and normally must also be excluded from the trial proceedings. for instance, if a confession is obtained after an illegal arrest, the arrest is the "poisonous tree," and the confession, if "tainted" by the arrest, is the "fruit."

the purpose of the exclusionary rule is to deter police from conducting warrantless searches and engaging in other misconduct. The rule can sometimes lead to injustice, however.

if evidence of a defendant's guilt was obtained improperly (without a valid search warrant, for instance), it normally cannot be used against the defendant in court.

Where is the Miranda Rule from?

Miranda v. Arizona, a case decided in 1966 by the United States Supreme Court

What is the Miranda Rule?

the rule that individuals who are arrested must be informed of certain constitutional rights. suspects 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.

additionally, a suspect must unequivocally and assertively ask to exercise the right to counsel in order to stop police questioning.

What are the expections of Miranda?

Over time, however, the Supreme Court has made a number of exceptions to the Miranda ruling. For instance, 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 defendant's statements that reveal the location of a weapon would be admissible under this exception.

Cyber Crime

mostly, they are simply existing crimes, such as fraud and theft of intellectual property, in which the Internet is the instrument of wrongdoing.

the U.S. Department of Justice broadly defines computer crime as any violation of criminal law that involves knowledge of computer technology for its perpetration, investigation, or prosecution. many computer crimes fall under the broad label of cyber crime, which describes any criminal activity curring in the virtual community of the Internet.

Cyber fraud

fraud committed over the Internet. scams that were once conducted solely by mail or phone can now be found online, and new technology has led to increasingly creative ways to commit fraud.

two widely reported forms of cyber crime are advance fee fraud and online auction fraud.

Advance fee fraud

in the simplest form, consumers order and pay for items, such as automobiles or antiques, that are never delivered.

Online auction fraud

a person lists an expensive item for auction, on either a legitimate or a fake auction site, and then refuses to send the product after receiving payment. or, as a variation, the wrongdoer may send the purchaser an item that is worth less than the one offered in the auction.

How do online auction sites try to protect consumers from online auction fraud?

the larger online auction sites, such as eBay, try to protect consumers against such schemes by providing warnings or offering various forms of insurance. nonetheless, it is nearly impossible to completely eliminate online fraud potential because users can assume multiple identities.

Cyber Identity Theft

occurs when the wrongdoer steals a form of identification—such as a name, date of birth, or Social Security number—and uses the information to access and steal the victim's financial resources. forms of this include: stolen credit card numbers, password theft, and phishing.

How has the Internet expanded opportunities for identity theft?

widespread use of the Internet has caused a marked increase in identity theft, and many millions of Americans have been victimized.

the Internet has provided relatively easy access to private data. frequent Web surfers and social media users surrender a wealth of personal information. websites use so-called "cookies" to collect data on their customers and visitors. often, sites store information such as names, e-mail addresses, and credit card numbers.

identity thieves may be able to steal this information by fooling a website into thinking that they are the true account holders. identity thieves may also be able to use personal information that people disclose on social media sites (such as birthdays, children's names, hometowns, employers) to gain access to financial information.

Stolen credit card numbers

more than half of identity thefts involve the misappropriation of credit card accounts.

in most situations, the legitimate holders of credit cards are not held responsible for the costs of purchases made with a stolen number. the loss is borne by the businesses and banks.

Card testing

online markets are particularly attractive for credit card thieves because the thieves can engage in a practice called "card testing."

this scheme involves using a stolen credit card number, or thousands of stolen credit card numbers, to make very small online purchases, perhaps no larger than two dollars.

if the fraudulent transaction is successful, the criminal will raise the amount of the purchases until the issuing financial institution or the real owner notices.

Password Theft

the more personal information a cyber criminal obtains, the easier it is to find a victim's online user name at a particular website. once the online user name has been compromised, it is easier to steal the victim's password, which is often the last line of defense in protecting financial information.

numerous software programs aid identity thieves in illegally obtaining passwords. a technique called keystroke logging, for instance, relies on software that embeds itself in a victim's computer and records every keystroke made on that computer. user names and passwords are then recorded and sold to the highest bidder. internet users should also be wary of any links contained within e-mails sent from unknown sources. these links can sometimes be used to illegally obtain personal information.

Phishing

the perpetrator "fishes" for financial data and passwords from consumers by posing as a legitimate business such as a bank or credit card company. The "phisher" may send an e-mail asking the recipient to "update" or "confirm" vital information.

often, the e-mail includes a threat that an account or some other service will be discontinued if the information is not provided.

once the unsuspecting individual enters the information, the phisher can sell it or use it to masquerade as that person or to drain that person's bank or credit account.

phishing scams have also spread to social networking sites and text messages.

(Phishing via text messages is known as "smishing," because text messages use the Short Message Service, or SMS, format.)

Cyberterrorism

a cyberterrorist uses technology and the Internet to cause fear, violence, or extreme financial harm. cyberterrorists, as well as hackers, may target businesses.

the goals of a hacking operation might include a wholesale theft of data, such as a merchant's customer files, or the monitoring of a computer to discover a business firm's plans and transactions. a cyberterrorist might also insert false codes or data into a computer. for instance, the processing control system of a food manufacturer could be changed to alter the levels of ingredients so that consumers of the food would become ill.

How does cyberterrorism effect everyone

a cyberterrorist attack on a major financial institution, such as the New York Stock Exchange or a large bank, could leave securities or money markets in flux.

such an attack could seriously affect the daily lives of U.S. citizens, business operations, and national security.

Why is it difficult to prosecute cyber crime?

determining the “location” (jurisdiction) of a cyber crime and identifying a criminal in cyberspace are two significant challenges for law enforcement.

Issue of determining jurisdiction when prosecuting cyber crime

a threshold issue is, of course, jurisdiction. jurisdiction is normally based on physical geography, and each state and nation has jurisdiction over crimes committed within its boundaries.

but geographic boundaries simply do not apply in cyberspace. a person who commits an act against a business in California, where the act is a cyber crime, might never have set foot in California but might instead reside in, say, Canada, where the act may not be a crime.

Identification challenges when prosecuting cyber crime

identifying the wrongdoer can also be difficult. cyber criminals do not leave physical traces, such as fingerprints or DNA samples, as evidence of their crimes. even electronic "footprints" (digital evidence) can be hard to find and follow.

for instance, cyber criminals may employ software, such as Tor, to mask their IP addresses—codes that identify individual computers on the Internet—and the IP addresses of those with whom they communicate.

law enforcement must hire computer forensic experts to bypass the software and track down the criminals. for these reasons, laws written to protect physical property are often difficult to apply in cyberspace.

What is the most signficant federal statute specifically addressing cyber crime?

the Counterfeit Access Device and Computer Fraud and Abuse Act. this act is commonly known as the Computer Fraud and Abuse Act, or CFAA.

What is the Counterfeit Access Device and Computer Fraud and Abuse Act (CFAA)?

the CFAA provides that a person who accesses a computer online, without authority, to obtain classified, restricted, or protected data (or attempts to do so) is subject to criminal prosecution.

such data could include financial and credit records, medical records, legal files, military and national security files, and other confidential information.

the data can be located in government or private computers. the crime has two elements: accessing a computer without authority and taking the data.

this theft is a felony if it is committed for a commercial purpose or for private financial gain, or if the value of the stolen information exceeds $5,000. penalties include fines and imprisonment for up to twenty years. a victim of computer theft can also bring a civil suit against the violator to obtain damages, an injunction, and other relief.