Attorney Ray Richards Criminal law Breakdown Presenttaion

1© 2004 West Legal Studies in Business

A Division of Thomson Learning

Chapter 8Criminal Law and

Cyber Crimes



§1: Civil and Criminal Law

Major differences:

Civil (Tort) Criminal

Preponderance Beyond Reasonable Doubt

Damages Jail or Prison

Private (parties hire their own attorneys)

Public (Prosecutor represents community)



Felonies Misdemeanors

Serious crimes, punishable by Death or prison for more than one (1) year.

Non-serious (petty) crimes punishable by jail for less than one(1) year and/or by fines.

§2: Classification of Crimes

An act can have both civil and criminal consequences. (O.J. Simpson trials)



§3: Essentials of Criminal Liability

To be convicted of a crime, a person must: Commit a guilty act (actus reus). Have the guilty mind (mens rea) during

commission of the guilty act.



§4: Corporate Criminal Liability

A corporation is creature of state statute.

A corporate entity may be convicted of a crime.

Punishment would be fines and/or denial of certain legal privileges.



Liability of Corporate Entity

Corporations may be convicted of criminal activity if: Crime is within agent/employee’s scope of

employment; Corporation fails to perform a legally required duty;

or Crime authorized or requested by corporate

principal/officer.



Liability of Corporate Officers

Corporate officers and directors are personally liable for crimes they commit.

Also, they may be criminally liable for acts of their under the “Responsible Corporate Officer” doctrine. U.S. v. Park (1975).

Case 8.1: U.S. v. Hanousek (1999).



§5: Types of Crimes

Violent Crimes. Murder, sexual assault, rape, robbery.

Property Crimes. Burglary, larceny, theft of trade secrets, theft of

services, arson, receipt of stolen goods, forgery.



“White Collar” Crimes Crimes occurring in the business context

using non-violent means to obtain personal or business advantage. Embezzlement. Mail or Wire Fraud (federal). Bribery. Bankruptcy Fraud (federal). Insider Trading (federal). Theft of Trade Secrets (federal).

http://www4.law.cornell.edu/uscode/18/1341.html

http://www4.law.cornell.edu/uscode/18/1343.html

http://www.usdoj.gov/criminal/cybercrime/intell_prop_rts/SectV.htm



Organized Crime

Operates illegitimately by providing illegal goods and services: Money Laundering. RICO(criminal and civil liability).



§6: Defenses to Criminal LiabilityInfancy (juvenile).Involuntary Intoxication: is a defense if

person was incapable of understanding act.Insanity: defendant lacked substantial

capacity to appreciate the wrongfulness of act or to conform act to law.

Mistake.Duress.Consent.



Defenses [2]

Self-Defense of People and Property: use deadly force if reasonable belief of imminent death or serious injury; cannot use deadly force to protect property alone.

Necessity: criminal act necessary to prevent greater harm.



Defenses [3]

Entrapment: prevents government from encouraging crimes. Key issue: was the defendant pre-disposed to commit the act?

Statute of Limitations.

Immunity.



§7: Criminal Procedures

U.S. Constitution provides specific safeguards for those accused of crimes at federal and state level.

Criminal procedures are designed to protect against the arbitrary use of power by the government.

Case 8.2: People v. McFarlan (2002).



Fourth Amendment

The Fourth Amendment protects against unreasonable search and seizures.

No warrant for search or arrest can issue without probable cause.



Exclusionary Rule

Evidence obtained in violation of Constitutional amendments is excluded from trial.

Deter police from warrantless searches, seizures and misconduct.

“Inevitability” and “good faith” are exceptions to the rule.



The “Miranda” Rule

Case 8.3: Miranda v. Arizona (1966) required police to inform suspects of their constitutional rights.

The Supreme Court upheld Miranda in Dickerson v. U.S. (2000).



Criminal Process

G r a n d J u r y D . A ' s O f f i c e

P l e a B a r g a i nC h a n g e o f P l e a t o G u i l t y

T r i a lP r o s e c u t o r m u s t p r o v e

g u i l t b e y o n d r e a s o n a b l e d o u b t

S e n t e n c i n g

A r r a i g n m e n t

P r e l i m i n a r y H e a r i n g( D e t e r m i n e s P r o b a b l e C a u s e )

I n i t i a l A p p e a r a n c e( B e f o r e J u d g e )

A r r e s t( R e q u i r e s P r o b a b l e C a u s e )



§8: Cyber Crime

Computer crime: any act directed against computers or that uses computers as an instrumentality of a crime. Cyber Theft Financial Crimes. Identity Theft. Cyber Stalking. Hacking and Cyber Terrorism.

Computer Fraud and Abuse Act (1996.



Law on the Web

Department of Justice statistics.

CourtTV.com

“Anatomy of a Murder.”

Findlaw.com

U.S. DOJ CyberCrimes site.

Legal Research Exercises on the Web.