Chapter 10

These flashcards cover key concepts from the lecture notes on criminal law and procedures, aiming to aid students in understanding the main ideas and legal terms.

What is the Consensus View of criminal law?

It is a view that emphasizes social control to manage certain behaviors, protect people from harm, and reflect the values and morals of the majority.

Define the Conflict view of criminal law.

This view asserts that laws are created and enforced by those who hold political and economic power, with the ruling class exerting control over society.

Victimization Paradox

the gap between fear of crime and reality of one's victimization. People put themselves in position to make themselves a victim

What is the Fraud Triangle?

A model for understanding white collar crime that consists of three elements:

• Pressure - motivation or incentive to commit fraud

• Opportunity - he knowledge and ability to carry out fraud

• Rationalization - justification of dishonest actions

What is the difference in burden of proof between civil and criminal cases?

In criminal cases, the burden of proof is 'beyond a reasonable doubt'. In civil cases, the burden is lower, with a 51% chance of winning needed to prevail.

What are the key differences between civil law and criminal law?

• Criminal law is prosecuted by the state, while civil law is typically between private parties.

• In criminal cases, the burden of proof is higher (beyond a reasonable doubt) compared to civil cases (preponderance of the evidence, or 51% chance of winning).

• Criminal sanctions may include jail time, while civil remedies usually involve monetary compensation.

What is the definition of Intent in a criminal context?

Intent refers to the mental state and awareness of committing a crime, as determined by statute.

What are the key elements of a crime, particularly regarding intent and state of mind?

• Intent/State of Mind: Determined by words and acts, mental state defined by statute (e.g., awareness, intent to defraud, knowingly). Intent to defraud

• Recklessness: Consciously disregards a substantial or unjustifiable risk.

• Criminal Negligence: Fails to be aware of a substantial risk, but should have been aware.

• Strict Liability: Liability without fault, not requiring a wrongful mental state (some argue this leads to overcriminalization).

• Causation: link between act and intent

• Act

Explain the difference between recklessness and criminal negligence.

Recklessness involves consciously disregarding an unjustifiable risk.

Criminal negligence involves the mental state in which the defendant takes an unjustified, substantial, and foreseeable risk that results in harm.

What are the different categories of violent crimes?

Violent crimes cause harm to others and include:

• Murder

  • First Degree: Premeditation and planning

  • Second Degree: Malice aforethought, general evil state of mind

  • Voluntary Manslaughter: Killing in the heat of passion or with mitigating circumstances

  • Involuntary Manslaughter: Death due to negligence, like a car accident

  • Felony Murder: Death occurring during the commission of a felony

What are some property crimes and their definitions?

Property crimes are committed for economic gain and include:

• Larceny (Theft): Taking another’s personal property

• Receiving Stolen Property: Buying or receiving stolen goods knowingly

• Extortion (Blackmail): Using threats or coercion to steal from someone

• Embezzlement: Converting property to one's own with intent to defraud

• Forgery and Uttering: Falsifying documents or using fake documents

• Arson: Deliberately setting fire to property

• Burglary: Breaking into a building to commit a crime

What are some economic crimes and white-collar crimes?

Economic crimes include:

• Shoplifting

• Tax Fraud/Evasion

• White Collar Crimes: Non-violent crimes typically committed for financial gain

  • Employee Pilferage: Stealing small items from work

  • Money Laundering: Concealing illegal financial activities

  • Bribery: Offering, receiving, or agreeing to receive bribes

  • Fraud: Deceptive practices for financial gain

  • Anti-Trust Violations: Manipulating the market to control prices

What is organized crime and its impact on businesses?

Organized crime refers to criminal enterprises involved in illegal activities such as drug trafficking, money laundering, and extortion. For businesses, it can significantly impact risk and decision-making, as it often involves illegal influence over markets or operations.

What characterizes a felony?

A felony is a serious crime such as murder or robbery that usually carries severe penalties, including imprisonment for more than one year.

What are the key protections provided by the Fifth Amendment?

Requires that no one be deprived of “life, liberty, or property without due process of law”, and prohibits against double jeopardy (when a person is tried twice for the same criminal offense), and self-incrimination.

What does the Sixth Amendment guarantee?

1. A speedy trial, a trial by jury, and a public trail

2. The right to confront witnesses

3. The right to a lawyer at various stages in some proceedings

What does the Eighth Amendment prohibit?

1. Excessive bail and fines

2. Cruel and unusual punishment

What does the Fourth Amendment protect, and when can law enforcement search private property?

The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects. Law enforcement officers must generally obtain a search warrant before searching or seizing private property.

What is a search warrant?

A search warrant is an order granted by a public authority, such as a judge, that authorizes law enforcement personnel to search specific premises or property.

Probable Cause

Reasonable grounds for believing that a search

should be conducted or that a person should be arrested

What does the Fourth Amendment require regarding the scope of a search warrant?

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

What is a reasonable expectation of privacy under the Fourth Amendment?

A reasonable expectation of privacy exists if:

• The individual actually expects privacy.

• Society would consider the person’s expectation legitimate. The Fourth Amendment protects against searches that violate such expectations of privacy.

What is the exclusionary rule in criminal procedure?

The exclusionary rule states that any evidence obtained in violation of the accused’s constitutional rights (Fourth, Fifth, and Sixth Amendments), or any evidence derived from illegally obtained evidence, will not be admissible in court.

What is the purpose of the Exclusionary Rule?

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

What is identity theft?

The act of stealing another’s identifying information to access their financial resources.

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

What are the two essential elements that must exist for a person to be convicted of 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)

5 broad categories of criminal acts

1. Violent crime

2. Property crime

3. Public order crime

4. White-collar crime

5. Organized crime

What is the Miranda Rule, and what rights must be informed to a suspect upon arrest?

The Miranda Rule, established in Miranda v. Arizona, requires that individuals who are arrested must be informed of their Fifth Amendment right to remain silent and their Sixth Amendment right to counsel.

What happens if law enforcement fails to inform a suspect of their Miranda rights?

If the arresting officers fail to inform a criminal suspect of their Miranda rights, any statements made by the suspect are generally not admissible in court.

What is the "public safety" exception to the Miranda Rule?

The "public safety" exception allows certain statements, like revealing the location of a weapon, to be admitted in court even if the defendant was not given Miranda warnings.

What must a suspect do to stop police questioning under the Miranda Rule?

A suspect must unequivocally and assertively request to exercise their right to counsel in order to stop police questioning.

What is cyber fraud and what does it involve?

Cyber fraud involves the online theft of credit card information, banking details, and other personal information for criminal use.

What is advance fee fraud in the context of cyber crime?

In advance fee fraud, consumers order and pay for items that are never delivered, often through online transactions.

What is online auction fraud?

In online auction fraud, a person lists an expensive item for auction (on a legitimate or fake site) and then refuses to send the product after receiving payment.

How do online auction sites protect consumers against cyber fraud?

Larger online auction sites try to protect consumers by providing warnings about deceptive sellers and offering various forms of insurance. However, it is difficult to pinpoint fraudulent sellers because users can assume multiple identities.

What is identity theft and how does it work?

Identity theft involves stealing another person's identifying information, such as their name, date of birth, or Social Security number, and using that information to access the victim's financial resources. Over half of identity thefts involve misappropriating existing credit-card accounts.

How does password theft occur in cyber theft?

Cyber criminals can steal a victim’s password after obtaining their online username. Password theft is a critical step since passwords are often the last line of defense for protecting financial information. Software programs assist identity thieves in illegally obtaining passwords.

What is phishing in the context of cyber theft?

Phishing is an online fraud tactic in which criminals impersonate legitimate companies through emails or malicious websites to trick individuals or companies into providing sensitive information, such as bank account numbers, Social Security numbers, and credit-card details.

What is a hacker and how do they operate?

A hacker is a person who uses one computer to break into another, typically to access unauthorized data or systems.

What is service-based hacking, and how do cyber criminals exploit it?

Service-based hacking involves "software as a service" where users access web-based software for tasks. Cyber criminals exploit this model by offering "crimeware as a service," renting online criminal services to others for a small fee.

What are the goals of a hacking operation, including cyberterrorism?

The goals of hacking operations, including cyberterrorism, can include:

• Wholesale theft of data

• Monitoring a computer

• Inserting false codes or data into systems

What is malware and what does it do?

Malware is malicious software designed to disrupt or harm a computer, network, smartphone, or other device. Forms of malware include botnets, worms, and viruses.

What is a botnet and how does it operate?

A botnet is a group of computers running an application controlled and manipulated by a software source. These computers are typically infected by malicious robot software.

What is a worm in terms of malware?

A worm is a type of malware designed to copy itself from one computer to another without human interaction. It replicates automatically and spreads quickly, often in large volumes.

What is a virus in the context of malware?

A virus is a type of malware transmitted between computers that attempts to deliberately damage systems and data.