Criminal Law and Cyber Crime Notes

Criminal Law and Cyber Crime

Civil Law vs. Criminal Law

  • Crime: An act that is considered a harm against society.
  • Key Differences:
    • Burden of Proof:
      • Civil Law: Employs the "preponderance of evidence" standard, requiring it to be more likely than not (51%) that the allegation is true.
      • Criminal Law: Employs the "beyond a reasonable doubt" standard, a much higher threshold.
    • Sanctions: Generally higher in criminal cases compared to civil cases.
    • Overlap: Some actions can constitute both a tort (civil wrong) and a crime.

Criminal Liability

  • The Criminal Act:
    • Actus reus: The physical guilty act itself.
  • State of Mind:
    • Mens rea: The mental intent to commit the crime.
  • Concurrence: Both actus reus and mens rea must be present at the same time.
  • Strict Liability Crimes: Typically minor offenses that do not require mens rea.

Corporate Criminal Liability

  • Corporate Guilt: Corporations can be found guilty of crimes.
  • Employee Actions: Corporations are liable for crimes committed by their employees if the actions occur within the scope of their employment.
  • Officer Liability: Corporate officers are personally liable for their own crimes. They can also be held liable for crimes committed by their employees.

Types of Crimes

  • Violent Crime: Crimes against persons.
    • Examples: murder, rape, assault, battery.
    • Robbery: Taking property from another person through force.
  • Property Crime:
    • Burglary: Unlawful entry into a building with the intent to commit a felony.
    • Larceny: Taking and carrying away someone else's personal property with the intent to permanently deprive them of it.
    • Obtaining Property by False Pretenses: Acquiring property through deception or fraud.
    • Receiving Stolen Goods: Knowingly acquiring goods that have been stolen.
    • Arson: Willful and malicious burning of property, whether real or personal.
    • Forgery: Altering a writing to change its legal rights/status.
  • Public Order Crime:
    • Examples: public intoxication, gambling, drug use.
  • White-Collar Crime: Nonviolent crimes committed in a business setting to gain a business or personal advantage.
    • Examples: embezzlement, mail and wire fraud, bribery, theft of trade secrets, insider trading.
  • Organized Crime: Crimes that occur in the course of illegitimate businesses or crime syndicates.
    • Examples: money laundering, racketeering.
    • Racketeer Influenced and Corrupt Organizations Act (RICO): Legislation used to combat organized crime.
  • Classification of Crimes:
    • Petty Offenses: Least serious, typically punished with a fine.
    • Misdemeanor: Mid-range crime, punishable by up to one year of incarceration.
    • Felony: A more serious crime, punishable by more than one year of incarceration.

Defenses to Criminal Liability

  • Justifiable Use of Force (Self-Defense):
    • Non-deadly force: Permitted to protect oneself, others, and property from a crime.
    • Deadly force: Permitted if there is a reasonable belief of imminent serious bodily harm or death.
    • The defender must not have initiated the attack.
  • Necessity: Committing a crime is necessary to prevent a greater harm.
  • Insanity: A mental illness that prevents the person from formulating the intent to commit a crime.
    • Results in commitment to a mental facility rather than prison.
  • Mistake:
    • Mistake of fact: Negates an element of the crime.
  • Duress: Being forced into committing an offense through unlawful force; not a defense to murder.
  • Entrapment: Being lured into committing a crime that one would not otherwise have committed.
  • Statute of Limitations: Prosecution must be initiated within a specific period of time.
  • Immunity: Granting immunity from prosecution in exchange for cooperation.

Criminal Procedures

  • Constitutional Safeguards:
    • Fourth Amendment: Protects against unreasonable searches and seizures; requires probable cause for warrants.
    • Fifth Amendment:
      • Guarantees due process of law.
      • Protects against double jeopardy (being tried twice for the same crime).
      • Protects against self-incrimination.
    • Sixth Amendment: Guarantees a speedy trial, trial by jury, public trial, the right to confront witnesses, and the right to a lawyer.
    • Eighth Amendment: Prohibits excessive bail and fines, and cruel and unusual punishment.
  • The Exclusionary Rule: Evidence obtained in violation of the Constitution is inadmissible in court.
  • The Miranda Rule: A person undergoing custodial interrogation must be informed of their rights, including the right to remain silent and to an attorney.

Cyber Crime

  • Definition: Unlawful use of a computer or network to take or alter data, or to gain unauthorized access to computers or services.
  • Nature: Crime that occurs in the online environment.
  • Cyber Fraud: Misrepresentations over the Internet to deceive and obtain property.
    • Examples: Online auction fraud, online retail fraud.
  • Cyber Theft:
    • Identity Theft: Illegal use of someone else’s personal information to access financial resources.
    • Phishing: Email scams that appear to be from legitimate businesses, designed to trick individuals into revealing personal information.
    • Employment Fraud: Scams involving fake job offers or requests for personal information during the hiring process.
  • Hacking: Using a computer to break into another computer system.
  • Malware and Viruses: Used to attack computers and data.
  • Prosecuting Cyber Crime: Difficult due to jurisdictional and investigatory challenges.
  • Computer Fraud and Abuse Act (CFAA): Legislation addressing computer-related crimes. LO-5