BUSINESS LAW 1NMCC BUS 117INSTRUCTOR – R. CYR3/23/2009

CRIMINAL LAWCYBER CRIMES

Criminal Law – Learning Objectives

What two elements must exist before a person can be held liable for a crime? Can a corporation commit crimes?

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

What defenses might be raised by criminal defendants to avoid liability for criminal acts?

What constitutional safeguards exist to protect persons accused of crimes? What are the basic steps in the criminal process?

What is a cyber crime? What laws apply to crimes committed in cyberspace?

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Civil Law vs. Criminal Law

Civil Law Criminal Law

Preponderance of the evidence

Beyond a reasonable doubt

Remedy is damages

Punishment is incarceration

Injured party represents herself

State represents the victim

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Classification of Crimes

A person’s wrongful act may hold him liable (or guilty) in civil actions (tort) and criminal actions.

Classification of Crimes: Felony: serious crimes punished by death or

imprisonment for at least 1 year. Misdemeanor: punished by fine or

confinement for less than 1 year.

Criminal Law

Classification of Crimes Crimes are classified as felonies or misde meanors.

Felonies are punishable by death or by imprisonment in a federal or state penitentiary for more than a year. Felonies can be sub divided by type of punishment—capital offenses (punishable by death)

First degree felonies (punishable by life impris onment), and so on.

Misdemeanors are crimes punishable by a fine or by confinement for up to a year in a local jail.

Some states classify misdemeanors according to lengths of confinement.

Petty offenses are a subset of misdemeanors. A party guilty of a petty offense may be put in jail for a few days or fined, or both.

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Criminal Liability

To be convicted of a crime, the State must show beyond a reasonable doubt that the Defendant: Performed an illegal act (actus reus) AND While performing the act, had the required

intent or specific state of mind (mens rea). Without the required intent there can be

no conviction. Crime requires (1) performance of a proh.

act and (2) a specified state of mind. All criminal statutes prohibit certain behavior.

Criminal Liability

A. CRIMINAL ACT

Most crimes require an act of commis sion—an actus reus, or guilty act. Some acts of omission are crimes. Attempting certain acts (murder, for example, or robbery) may also be crimes, if substantial steps toward a criminal objective are taken.

  B. CRIMINAL INTENT

What constitutes a wrongful mental state—mens rea—varies according to the act. For murder, the act is the taking of a life, and the mental state is the intent to take life. For theft, the act is the taking of another person’s property, and the mental state involves both the knowledge that the property is another’s and the intent to deprive the owner of it.

Corporate Criminal Liability

A corporation may be held liable for crimes committed by its agents or employees within the course and scope of their employment. Obviously, corporations cannot be imprisoned, but they can be fined or denied certain legal privileges. Corporate directors and officers are personally liable for the crimes they commit, and may be liable for the actions of employees under their supervision under the “responsible corporate officer” doctrine.

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Corporate Criminal Liability

A corporation is a legal “person.” A corporation can be fined or denied legal

privileges (license) for criminal activity. “Responsible Corporate Officer” Doctrine:

officers and directors can be criminally liable.

Tangiers Corporation

Assume that Ace committed a crime by giving politicians comps. Can the casino, Tangiers Corporation, be held liable for that crime? Why or why not? How could a court punish the corporation?

The Tangiers Corporation could probably be held liable for Ace’s crimes. Corporations normally are liable for the crimes committed by their agents and employees within the course and scope of their employment. The corporation obviously cannot be imprisoned, but it could be fined or denied certain legal privileges.

Learning Objective #1

What two elements must exist before a person can be held liable for a crime? Can a cor poration commit crimes?

Two elements must exist simultaneously for a person to be convicted of a crime:

(1) the performance of a prohibited act and (2) a specified state of mind or intent on the

part of the actor. A corporation may be held liable for crimes that

their agents and employees commit within the course and scope of their employment.

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Types of Crimes Violent Crimes.

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

Property Crimes - Most common, involves money or property: Burglary. Larceny. Receiving Stolen Goods. Arson. Forgery.

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Types of Crimes

White Collar Crimes: non-violent crimes involving a business transaction: Embezzlement. Mail and Wire Fraud. Bribery. Theft of Trade Secrets. Insider Trading.

Organized Crime – RICO and Money Laundering.

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Defenses to Criminal Liability

Statute of Limitations.

Consent.

Immunity.Mistake.

Entrapment.Insanity.

Justifiable Use of Force.

Intoxication.

Duress. Infancy (juvenile).

Learning Objective #2 What are five broad categories of crimes?

What is white-collar crime?

Violent crime (crimes against persons) Property crime Public order crime White-collar crime Organized crime.

White-collar crime is an illegal act or series of acts committed by an individual or business entity using some nonviolent means, usually in the course of a legitimate occupation.

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Constitutional Safeguards

Fourth Amendment. Search Warrants:

Officer must have Probable Cause. Exceptions to Warrant.

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

highly regulated liquor or gun businesses.

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Constitutional Safeguards

Sixth and Eighth Amendments. Right to Speedy Trial. Right to Jury Trial. Right to Public Trial. Right to Confront Witnesses. Right to Counsel. Prohibition on cruel and unusual punishment. CASE 6.1 Fellers v. United States (2004).

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Exclusionary and Miranda Rules

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. CASE 6.2 People v. McFarlan (2002).

Miranda Rule. Inform suspect of his rights. Exceptions: coercion, illegally obtained

evidence.

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Criminal Process

ArrestInitial Appear

Booking

ChargesFiled

PrelimHearing

Plea Bargain

TrialCase 6.3

US v. Yates

Guilty Plea

Arraign-ment

Learning Objective #3

What defenses might be raised by criminal defendants to avoid liability for criminal acts?

Among the most defenses to criminal liability are infancy, intoxication, insanity, mistake, con sent, duress, justifiable use of force, entrapment, the statute of limitations, and immunity.

Plea Bargaining

In most criminal cases, defendants plead guilty. Usually, this is after the prosecutor promises that concessions will be granted (or at least sought). Sometimes a defendant agrees to plead guilty to a charge less serious than the evidence supports because the consequences are not as undesirable. A lesser penalty will result, for example.

In other cases, a defendant pleads guilty to the original charge in exchange for the prosecutor’s promise to seek leniency, or at least not to oppose the defendant’s request for leniency, or to drop other charges.

Downfall - undeserved leniency and innocent persons plead guilty due to cost of litigation/State/Federal Pressures

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Cyber Crimes Cyber crimes involve the use of computers in

cyberspace to injure a person or property. Most cyber crimes are based on existing

common law crimes, with exceptions: Identity Theft. Cyber Stalking. Hacking. Cyber Terrorism.

Computer Fraud and Abuse Act helps prosecute computer crime.

Cyber Crime

A. CYBER THEFT Cyber theft is accessing a computer online,

without authority, to obtain classified, restricted, or protected data, or attempting to do so. This includes financial crimes, such as transferring funds via computer without authorization, and identity theft, which occurs when a form of identification is stolen and used illegitimately.

  B. CYBERSTALKING Cyberstalking—harassing a person in cyberspace

(via e-mail, for example)—is prohibited by all states. Some states require a physical act.

CYBER CRIMES C. HACKING AND CYBERTERRORISM Hacking consists of using one computer to break into another.

Cyberterrorism is exploiting com puters for serious impacts, such as the exploding of an internal data “bomb” to shut down a central computer or spreading a virus to cripple a computer network.

  D. PROSECUTING CYBER CRIMES Jurisdictional issues and the anonymous nature of technology

can hamper investigation and prosecution of cyber crimes. Cyber theft is prohibited by the federal National Information Infrastructure Protection Act of 1996 (an amendment to the Counterfeit Access Device and Computer Fraud and Abuse Act of 1984). The crime consists of (1) accessing a computer without authority and (2) taking data. Penalties include fines and imprisonment for up to twenty years (and civil suits). The text also notes other federal statutes that may apply.

Learning Objective #5 What is cyber crime? What laws apply to crimes

committed in cyberspace? Cyber crime consists of crimes committed in

cyberspace with the use of computers. This category does not represent new crimes but new ways to commit crimes. Traditional (existing) laws apply to crimes committed in cyberspace.

Newer laws include the Counterfeit Access Device and Computer Fraud and Abuse Act of 1984 (also known as the Computer Fraud and Abuse Act, or CFAA), as amended by the National Information Infrastructure Protection Act of 1996; the Electronic Fund Transfer Act of 1978; the Anti-counterfeiting Consumer Protection Act of 1996; and the National Stolen Property Act of 1988.

Conclusions Criminal liability is not imposed for merely thinking

about a crime (if it was, we might all be guilty of something)

An accused’s mental state is determined by examining what happens after it happens—in other words, the law uses hindsight to discern intent, which may be evident from an individual’s stated purpose, his or her knowledge, or his or her acting in spite of certain knowledge or in spite of something that he or she should have known

There are some crimes for which an individual will be held strictly liable (selling liquor to a minor, for example).

Conclusions

The objectives of criminal law are:

(1) to protect persons and property

(2) to deter criminal behavior

(3) to punish criminal conduct and

(4) to rehabilitate criminals.

Conclusions

Is punishment is more important than rehabilitation

What are appropriate punishments? What is an appropriate standard for determining that a criminal has been rehabilitated? How should that standard be met—that is, how should a criminal be rehabilitated (if education is the means, for example, should prisons become trade schools and colleges)?

Conclusions

Law is not so frozen that there is no room for disagreement. Attorneys, and even judges, often disagree with each other over the interpretation and application of the law

Does the Fourth Amendment prevent the seizure, without cause, of email messages? Does the propagator of a virus violate traditional criminal laws?