chapter 6 criminal law and cyber crime

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CHAPTER 6 CRIMINAL LAWAND CYBER CRIME

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LEARNING OBJECTIVES

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

What are five broad categories of crimes? What is white collar crime?

What defenses can be raised to avoid liability for criminal acts?

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LEARNING OBJECTIVESWhat constitutional safeguards

exist to protect persons accused of crimes?

Has the internet expanded opportunities for identity theft?

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CIVIL LAW AND CRIMINAL LAW

Key Differences Between Civil Law and Criminal Law.• Burden of Proof.

• Civil: preponderance of the evidence. Verdict is by a majority.

• Criminal: proof beyond a reasonable doubt. Verdict must be unanimous.

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KEY DIFFERENCES BETWEEN CIVIL LAW AND CRIMINAL LAW

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CIVIL LAW AND CRIMINAL LAW

Key Differences Between Civil Law and Criminal Law.• Criminal Sanctions.

• Designed to punish guilty with fines and imprisonment, or even death.

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CIVIL AND CRIMINAL LIABILITY FOR SAME ACT

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CRIMINAL LIABILITY

For a person to be convicted of a criminal act, two elements must exist simultaneously:• A criminal act (actus reus) AND• A wrongful mental state (mens rea).

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CRIMINAL LIABILITY

The Criminal Act.• Most are acts of commission, but in

some situations, failure to do something can be a criminal act (e.g., file a tax return).

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CRIMINAL LIABILITY

State of Mind.• A “wrongful” mental state is required.• What is wrongful depends on the crime.

• Recklessness and Criminal Negligence or Recklessness: defendant consciously disregards a substantial and unjustifiable risk.

• Strict Liability and Overcriminalization.

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CRIMINAL LIABILITY

Corporate Criminal Liability.• Liability of the Corporate Entity.

• Crimes must occur within scope of employment.

• Corporations can be held criminally liable when they FAIL to fulfill certain statutory duties.

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CRIMINAL LIABILITY

Corporate Criminal Liability.• Corporate officers and directors can be

criminally liable under the “Responsible Officer” doctrine.

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TYPES OF CRIMES

Violent Crime.• Crimes against persons (murder, rape).• Robbery is a violent crime.

Property Crime: most common, involves money or property:• Burglary.• Larceny.

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TYPES OF CRIMES

Property Crime:• Obtaining Goods by False Pretenses.• Receiving Stolen Goods.• Arson.• Forgery.

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TYPES OF CRIMES

Public Order Crime.White Collar Crime.

• Embezzlement.• CASE 6.1 People v. Sisuphan (2010). Why

wasn’t the defendant’s intent to return the money a valid defense?

• Mail and Wire Fraud.

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TYPES OF CRIMES

White Collar Crime.• Mail and Wire Fraud.• Bribery.• Bankruptcy Fraud.• Theft of Trade Secrets.• Insider Trading.

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TYPES OF CRIMES

Organized Crime.• Money Laundering.• RICO.

• Criminal Provisions (includes 26 different types of felonies with fines up to $25,000 and 20 years in prison for each offense).

• Civil Penalties include forfeiture, and treble damages.

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TYPES OF CRIMES

Classification of Crimes.• Felonies: serious crimes punishable by

death or by imprisonment over one (1) year.

• Misdemeanors: less serious crimes punishable by fine or by confinement up to one (1) year.

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DEFENSES TO CRIMINAL LIABILITY

Immunity.Mistake.

Statute of Limitations.Insanity.

Entrapment.Necessity.

Duress.Justifiable Use of Force.

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CONSTITUTIONAL SAFEGUARDS

AND CRIMINAL PROCEDURESFourth Amendment Protections.

• Search Warrants and Probable Cause.• Probable Cause requires officers to convince

a reasonable person that the proposed search/seizure is more likely than not justified.

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CONSTITUTIONAL SAFEGUARDS

AND CRIMINAL PROCEDURESFourth Amendment Protections.

• CASE 6.2 Messerschmidt v. Millender (2012). Why were the police officers immune from personal liability?

• Search and Seizures in Businesses.• Warrant required in some cases.• No warrant required for contaminated food or

highly regulated liquor or gun businesses.21

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CONSTITUTIONAL SAFEGUARDS

AND CRIMINAL PROCEDURESFifth Amendment Protections.

• Due Process of Law.• Opportunity to Object.• Hearing before a neutral Magistrate.

• Double Jeopardy.• Person cannot be retried for the same

offense in the same court.• Civil action, however, is permitted.

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CONSTITUTIONAL SAFEGUARDS

AND CRIMINAL PROCEDURESFifth Amendment Protections.

• Self-Incrimination.• “Right to Remain Silent” or not testify

against yourself.

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CONSTITUTIONAL SAFEGUARDS

AND CRIMINAL PROCEDURESProtections under the Sixth and

Eighth Amendments.• Right to Speedy Trial.• Right to Jury and Public Trial.• Right to Confront Witnesses.• Right to Counsel. • Prohibition on cruel and unusual

punishment.24

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CONSTITUTIONAL SAFEGUARDS

AND CRIMINAL PROCEDURESThe Exclusionary Rule and the

Miranda Rule.• Exclusionary Rule.

• Evidence obtained in violation of constitutional procedures must be excluded.

• Evidence derived from illegal evidence is “fruit of the poisonous tree.”

• Deters police from misconduct.

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CONSTITUTIONAL SAFEGUARDS

AND CRIMINAL PROCEDURESThe Exclusionary Rule and the

Miranda Rule.• Miranda rule based on Miranda v.

Arizona (1966).• Exceptions:

• Public Safety• Coercion.• Illegally obtained evidence.

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CRIMINAL PROCESS

Arrest Initial AppearBooking

ChargesFiled

(Indictment or Information)

Grand Jury/Prelim.Hearing

Plea Bargain

Trial

Guilty Plea

Arraign-ment

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CYBER CRIME

Any act directed against computers or that uses computers as an instrumentality of a crime.

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CYBER CRIME

Cyber Fraud: fraud committed over the internet (e.g., Nigerian letter scam).• Online Auction Fraud.• Online Retail Fraud.

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CYBER CRIME

Cyber Theft.• Identify Theft.

•CASE 6.3 United States v. Oliver (2011). What do you think was Oliver’s main mistake?

• Phishing.• Employment Fraud.• Credit-Card Theft.

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CYBER CRIME

Hacking.• Malware and Worms.• Service-Based Hacking: available at low

cost. • Cyber Terrorism.

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CYBER CRIME

Prosecution of Cyber Crime. • Jurisdiction and Identification

Challenges.• “Location” crime is an issue.• Jurisdiction of courts is an issue.

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CYBER CRIME

Computer Fraud and Abuse Act.• Person is liable if he accesses a

computer online, without authority, to obtain classified, private, or protected information. Penalties include fines and imprisonment.

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