ESSENTIALS OF THE LEGAL ENVIRONMENT today, 5e

ROGER LEROY MILLER

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Chapter 7

CRIMINAL LAW AND CYBER CRIME

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LEARNING OBJECTIVES

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

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

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

4. What constitutional safeguards exist to protect persons accused of crimes?

5. How 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 case: Plaintiff must prove case by a

preponderance of the evidence• Criminal case: Prosecution must prove case beyond a

reasonable doubt• Criminal sanctions• Sanctions imposed in criminal cases are harsher than

civil cases.• Civil Liability for Criminal Acts

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Exhibit 7.1

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Criminal Liability

• For a person to be convicted of a criminal act, two elements must exist simultaneously:1. The performance of a prohibited act2. A specified state of mind or intent on

the part of the actor

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LO-1

Criminal Liability

• The Criminal Act• Actus reus – prohibited act• Most are acts of commission, but in some

situations, failure to do something can be a criminal act, e.g., not filing a tax return.

• State of Mind• Mens rea – wrongful mental state• Recklessness and criminal negligence• 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.• Liability of corporate officers and

directors

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Types of crimes

1. Violent crime2. Property crime3. Public order crime4. White-collar crime5. Organized crime

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LO-2

Types of Crimes• Violent Crime• Crimes against persons further classified by

degree depending on the circumstances• Robbery • Murder• Rape• Assault and battery

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Types of Crimes

• Property Crime• Most common, involves money or property• Burglary• Larceny• Obtaining goods by false pretenses• Receiving stolen goods• Arson• Forgery

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Types of Crimes

• Public Order Crime• Public drunkenness• Prostitution• Gambling• Illegal drug use

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Types of crimes

•White-Collar Crime• Embezzlement• Mail and wire fraud• Bribery• Theft of trade secrets• Insider trading

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Types of Crimes

•Organized Crime• Money Laundering• Racketeer Influenced and Corrupt

Organizations Act (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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Defenses to criminal liability

• Justifiable Use of Force•Necessity• Insanity•Mistake•Duress• Entrapment• Statute of Limitations• Immunity

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LO-3

Criminal procedures

Constitutional Safeguards1.Fourth Amendment – unreasonable searches and seizures2.Fourth Amendment – no warrant without probable cause3.Fifth Amendment – due process of law4.Fifth Amendment – double jeopardy5.Fifth Amendment – self-incrimination6.Sixth Amendment – speedy trial, trial by jury, public trial, right to confront witnesses, right to counsel7.Eighth Amendment – excessive bail and fines, cruel and unusual punishment

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LO-4

Criminal Procedures

• Fourth Amendment Protections• Probable cause• Reasonable grounds for believing that a search should

be conducted or an arrest made• Reasonable expectation of privacy• The Exclusionary Rule• Prevents evidence obtained illegally or

without a proper search warrant from being admissible in court

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Criminal procedures

• The Miranda Rule• 1966 Miranda v. Arizona• Criminal Process• Arrest• Indictment or information• Trial• Federal Sentencing Guidelines• Sentencing Reform Act

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Cyber Crime

•Computer crime: The unlawful use of a computer or network to take or alter data, or to gain the use of computers or services without authorization•Cyber crime: A crime that occurs in the online environment rather than in the physical world

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Cyber Crime

• Cyber Fraud• Fraud committed over the Internet with

the intention to deceive for the purpose of obtaining property or funds• Online auction fraud• Online retail fraud

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Cyber Crime

• Cyber Theft• Identify theft• Internet provides easier access to private data

• Phishing• E-mail fraud scam

• Employment fraud• Asks job seekers to reveal information for identity theft

by posing as employment officer• Credit-card numbers• Companies take risks storing online customers’ credit-

card numbers for repeat purchases

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LO-5

Cyber Crime

•Hacking • Hacker: uses one computer to break

into another• Malware • Worm• Virus

• Cyberterrorism

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Cyber Crime

• Prosecuting Cyber Crime• Determining the “location” of a cyber

crime and identifying criminals are significant challenges for law enforcement• Jurisdiction and identification challenges• The Computer Fraud and Abuse Act (CFAA)• Counterfeit Access Device and Computer Fraud and Abuse

Act• Provides criminal prosecution for cyber crimes

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