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- Crime: A wrong against society, punishable by a fine, imprisonment, or – in rare cases – death.
- Requisites: A person may not be criminally liable unless she
- (1) performed some prohibited act (or failed to perform some legally required act)
- (2) with a specified state of mind or intent.
- The mental state required varies from crime to crime; however, absent the requisite mens rea, there can be no criminal liability, even for what may seem to be the most heinous acts.
- Burden of Proof: Because criminal liability carries harsher penalties than civil liability, and because the State has more resources at its disposal in prosecuting a crime than the typical criminal defendant has at her disposal, the State must prove the accused’s guilt beyond a reasonable doubt.
- By contrast, a civil plaintiff suing the same defendant need only prove the defendant’s civil liability by a preponderance of the evidence (meaning only that it is more likely than not that the defendant’s acts or omissions caused the civil wrong).
CORPORATE CRIMINAL LIABILITY
- A corporation may be criminally liable if:
- (1) an agent or employee of the corporation
- (a) commits a criminal act within the scope of her employment and
- (b) the criminal act violates a statute whose purpose is to impose liability on the corporation; or
- (2) the crime consists of a failure to perform a specific duty imposed on the corporation by law; or
- (3) the crime was authorized, requested, commanded, committed, or recklessly tolerated by a “high managerial agent.”
- A corporate officer or director may be criminally liable for
- (1) her own criminal acts, regardless of whether she committed them for her own benefit or the benefit of the corporation, as well as
- (2) crimes committed by those under her supervision.
- Under the responsible corporate officer doctrine, a corporate officer may be criminally liable even if she did not participate in, direct, or even know of the criminal violation.
CRIMES OF THEFT
- Robbery: Forcefully and unlawfully taking personal property of any value from another; force or threat of force is typically required for an act of theft to be treated as robbery.
- Aggravated Robbery – robbery with the use of a deadly weapon – is the most serious form of theft.
- Assault and Battery: Intentionally, and without excuse, causing another person bodily harm or creating in another person a reasonable apprehension or fear of immediate harm.
- Burglary: Unlawful entry into a building with the intent to commit a felony (or, in some states, the intent merely to commit any crime).
- Aggravated Burglary occurs when a deadly weapon is used or when the building entered is a dwelling.
- Larceny: Wrongfully taking and carrying away another person’s personal property with the intent to permanently deprive the owner of the property. Common law distinguished between grand and petit (or “petty”) larceny, depending on the value of property taken. In those states that retain the distinction, grand larceny is a felony, and petit larceny is a misdemeanor.
OTHER PROPERTY CRIMES
- Pretenses: Obtaining goods by deceiving the person from whom they are obtained (e.g., writing a check knowing there are insufficient funds to cover it, buying goods using someone else’s credit card number without authorization).
- Receiving Stolen Goods: Not only is theft a crime (e.g., robbery, burglary, larceny), it is also a crime to receive goods one knows or has reason to know are stolen.
- Arson: Willfully and maliciously burning a building (and, in some states, personal property) owned by another.
- Arson for Profit: Every state has a special statute that prohibits burning one’s own building or other property in order to collect insurance benefits on the property.
- Forgery: Fraudulently making or altering a writing (e.g., a check) in a way that changes the legal rights or obligations of another.
- Public Order Crimes: “Victimless” offenses, such as prostitution, illegal gambling, public intoxication, and consensual sex, which the state prohibits because of their perceived harm to society as a whole and concerns that they might lead to property or violent crime.
- Embezzlement: Fraudulently appropriating money or other property by a person to whom the handling of the money or property has been entrusted.
- Mail Fraud: Mailing or causing someone to mail something written, printed, or photocopied in furtherance of a scheme to defraud one or more recipient(s).
- Wire Fraud: Defrauding the public by means of a telephone, fax, radio, television, or the Internet.
- Bribery: Unlawfully offering, giving, receiving, or soliciting money or other thing of value in order to influence a public decision or action or to gain a personal or business advantage. Bribery can occur merely by offering or soliciting a bribe – no money or other property need actually change hands, nor must any service actually be performed.
- Bankruptcy Fraud: Knowingly attempting to evade the effect of rights and responsibilities arising under federal bankruptcy law.
- Theft of Trade Secrets: The Economic Espionage Act of1996 makes theft of trade secrets, as well as knowingly buying or possessing another’s trade secrets without the other’s authorization, a federal crime.
- Insider Trading: The purchase or sale of publicly-traded securities on the basis of information that has not been made available to the public (i.e., inside information) in violation of a duty owed to the company whose stock is being traded.
- Money Laundering: Falsely reporting income that has been obtained through criminal activity as income obtained through a legitimate business enterprise.
- The Racketeer Influenced and Corrupt Organizations Act (RICO) makes it a federal crime to
- (1) use any income obtained from racketeering activity to purchase any interest in an enterprise,
- (2) acquire or maintain an interest in an enterprise through racketeering activity,
- (3) conduct or participate in the affairs of an enterprise through racketeering activity, or
- (4) conspire to do any of the foregoing.
- A person or entity engages in “a pattern of racketeering activity” by committing two or more predicate acts – offenses identified in the text of the RICO statute.
- Because of the broad reach of the RICO statute, any type of business fraud involving two or more persons may constitute “racketeering activity.”
- Civil Liability: The government may seek civil penalties –and, in some cases, private parties may seek money damages caused by a RICO violation
- Depending on their degree of seriousness, crimes are classified as felonies or misdemeanors.
- Felony: A crime – such as murder, rape, or robbery –that carries the most severe sanction, ranging from one or more years in prison to forfeiture of one’s life.
- Misdemeanor: A lesser crime – such as disorderly conduct, trespass, or petty theft – punishable by a fine or imprisonment for up to one year.
- Petty Offense: A subset of misdemeanors comprised of the least serious criminal offenses, such as traffic violations and jaywalking.
SITUATIONAL DEFENSES TOCRIMINAL LIABILITY
- Justifiable Use of Force/Self-Defense: The privilege to take reasonably necessary steps to protect one’s self, another person, or one’s property against injury by a third party.
- Necessity: The accused claims that the criminal act he committed was necessary in order to prevent or avoid a greater wrong.
- Insanity/Lack of Capacity: Because he lacked sufficient mental capacity, the accused was unable to form the requisite mental state.
- Mistake of Law: While it is true that “ignorance of the law is no excuse,” a mistake of law is an excuse if
- (1) the law at issue is not published or otherwise made reasonably known to the public, or
- (2) the accused relied upon an official statement of the law that was incorrect.
- Mistake of Fact: The accused may not be criminally liable if she made a mistake of fact such that she could not form the requisite mental state.
- Duress: Unlawful pressure brought to bear on the accused, causing her to act in a way that she would not have otherwise acted. A defendant must prove that
- (1) she or another was threatened with serious bodily harm or death,
- (2) the threatened harm was greater than any harm she caused,
- (3) the threat was immediate and inescapable, and
- (4) the threat arose through no fault of her own.
- Entrapment: The accused claims that she was induced by a public official – typically an undercover police officer – to commit a crime that she would not have otherwise. Entrapment generally requires the public official both suggesting the wrongful act and inducing the accused to commit it. It is not improper for police to set a trap for the unwary; but it is improper to push the accused into the trap if she was not predisposed to commit the crime absent the entrapment.
PROCEDURAL DEFENSES TO CRIMINAL LIABILITY
- Statute of Limitations: Most criminal prosecutions (murder is generally an exception) must be brought within a specified period of years after the crime.
- Immunity: In cases in which the state wishes to obtain information from a person accused of a crime, the state can grant immunity from prosecution or agree to prosecute only for a less serious offense in exchange for that information.
THE ACCUSED’S CONSTITUTIONAL RIGHTS
The U.S. Constitution provides protections for those accused of crimes, namely:
- (1) the Fourth Amendment’s protection from unreasonable searches and seizures and requirement that a search or arrest warrant shall issue only upon probable cause;
- (2) the Fifth Amendment’s requirement of due process of law, prohibition against double jeopardy (trying the same person twice for the same criminal offense), and prohibition against self-incrimination (requiring a person to act as a witness against herself);
- (3) the Sixth Amendment’s guarantees of the rights to speedy trial, trial by jury, public trial, the right to confront witnesses, and counsel (at various stages of criminal proceedings); and
- (4) the Eighth Amendment’s prohibitions against excessive bail and fines and cruel and unusual punishment.
- The Exclusionary Rule: Any evidence obtained in violation of the accused’s Fourth, Fifth, or Sixth Amendment rights, as well as any evidence derived from said illegally obtained evidence, is not admissible.
- Purpose: The exclusionary rule’s purpose is to deter police from conducting warrantless searches and following other improper procedure.
- Exceptions: In recent decades, the U.S. Supreme Court has diminished the scope of the exclusionary rule by creating exceptions for, e.g., evidence the police would have inevitably discovered and obtained, and evidence obtained in good faith.
- The Miranda Rule: Subject to certain exceptions, an individual who is arrested must be informed of certain constitutional rights, including her right to remain silent (i.e., not to incriminate herself) and her right to counsel, and any statements she makes to the police prior to being informed of her rights is inadmissible against her. Exception: If legally obtained evidence admitted at trial is sufficient to justify a defendant’s conviction, the fact that the police coerced her confession need not mandate that her conviction be overturned.
CRIMINAL PROCESS: PRETRIAL AND TRIAL
- Arrest: A suspect’s arrest must be made based upon probable cause – a substantial likelihood that the person has committed or is about to commit a crime. Generally, arrest is pursuant to a warrant, but may be made without a warrant as long as probable cause exists.
- Indictment/Information: Before they may be brought to trial, individuals must be formally charged with one or more specific crimes.
- Grand Jury Indictment: A grand jury is a group of citizens called to decide, after hearing the state’s evidence, whether probable cause exists for believing that a crime has been committed and whether a trial ought to be held. An indictment is the formal charge issued by the grand jury against one or more persons.
- Information: A formal accusation or criminal complaint issued by a magistrate or other law officer, without indictment, typically in cases involving lesser crimes.
- Trial: Once a criminal prosecution reaches trial, the state bears the burden of proving beyond a reasonable doubt that the accused is guilty of the crimes charged. The accused is not required to testify or to put on any evidence in her defense, although the accused is permitted to do so.
CRIMINAL PROCESS: SENTENCING
- If the prosecution satisfies its proof burden and secures a conviction, the trial judge will then, as a rule, impose sentence. The judge’s sentencing discretion may be constitutionally or statutorily constrained.
- Federal Sentencing Guidelines: From 1987 to 2005, federal judges were bound by guidelines that determined the range of permissible sentences for a given crime, as well as the weight to give aggravating factors (e.g., using a firearm while committing a crime) and mitigating factors (e.g., cooperating with the police).
- In United States v. Booker (2005), the U.S. Supreme Court held that the federal sentencing guidelines were unconstitutional because they allowed the trial judge to sentence the defendant based on facts not in evidence. In the wake of Booker, the federal sentencing guidelines are just that – guidelines. A court must refer to the guidelines, but may depart from the recommended sentencing range if a guidelines sentence is unreasonable under the circumstances of the case. In Nelson v. United States (2009), the U.S. Supreme Court held that a sentence within the guidelines is not necessarily reasonable. COMPUTER CRIME
- Computer Crime: Any criminal act requiring knowledge of computer technology to commit, investigate, or prosecute it, in which a computer is the
- object of the crime, such as when a perpetrator steals someone’s computer or software;
- subject of the crime, such as when a perpetrator steals personal information or proprietary software from someone’s computer; or
- instrument of the crime, such as when a perpetrator uses a computer to commit fraud or to steal, alter, or destroy someone’s personal information.
- Cyber Crime: A crime that occurs on, or is committed using, the Internet – including social networks and online dating sites.
- Cyber Fraud: Any material misrepresentation made knowingly over the Internet with the intent of deceiving another person who actually and reasonably relies on the misrepresentation to her detriment. Examples of cyber fraud include:
- offering an item for sale on a legitimate or fake auction or retail web site, then refusing to send the item after receiving payment, sending an item worth substantially less than the one offered, or diverting the buyer’s payment from the intended seller to an account belonging to the fraudster; and
- soliciting monetary gifts for a bogus charity or diverting a donor’s payment from a legitimate charity to an account belonging to the fraudster; and
- soliciting money to facilitate a large, bogus financial transaction of which the fraudster promises to pay the recipient of the solicitation a hefty percentage.
- Identity Theft: Stealing another person’s identifying information (e.g., Social Security number, name, date of birth) in order to access the victim’s financial resources. Many identity thieves do not use the information they steal, preferring to sell it (repeatedly, if possible) via the Internet.
- Trojan Horse: Software that appears to perform a legitimate function but allows the provider unauthorized access to information stored on the user’s computer.
- Phishing: Attempting to acquire financial data, passwords, or other personal information by sending an e-mail message purporting to be from, or by creating a web site purporting to belong to, a legitimate business, such as a bank or credit card company, in hopes that someone will enter valuable information the phisher can use for fraudulent purposes.
- Vishing: A form of phishing that also includes a phone call from, or requires the recipient to respond by phone to, the phisher.
- Employment Fraud: Sending bogus e-mails to jobseekers or professionals asking for information that the phisher can use to steal the recipient’s identity.
- Stalking: Harassing or following a person while making a “credible threat” that causes the victim to be in reasonable fear of her safety or the safety of her immediate family.
- The stalking laws many states first enacted in the early 1990s required physical proximity to the victim; and, therefore, did not address using the Internet to stalk victims.
- Since 1998, forty-five states and the federal government have criminalized cyber stalking – using the Internet, e-mail, social-network sites, or some other form of electronic communication to harass someone.
HACKING AND CYBER TERRORISM
- Hacking: Gaining unauthorized access to someone else’s computer or computerized information.
- Malware: A program, often in the form of a worm or a virus, that harms a computer or information stored on a computer. Both worms and viruses are self-replicating; but, while a worm is a free-standing program, a virus must attach to another program to spread.
- Botnet: A network of computers a hacker has misappropriated without their owners’ knowledge to spread malware via the Internet.
- As Web-based software (as opposed to software you buy and install on your computer) becomes more prevalent, so does Web-based crimeware.
- Cyber Terrorism: Using a computer to damage, alter, disrupt, or shut down – or to threaten to damage, alter, disrupt, or shut down – a critical computer system, such as the FAA air traffic control system, a regional power grid, the Federal Reserve check clearing system, or to commit industrial or military espionage going beyond “mere” theft or sabotage going beyond “mere” vandalism.
- Spam: Unsolicited bulk e-mails advertising the spammer’s product or service or including one or more hyperlinks to a Web site advertising a product or service. Thirty-six states regulate or prohibit spam, giving recipients of unwanted spam and, in some cases, Internet service providers (ISPs), legal grounds for blocking spam or opting out of the mailing list the spammer used and for recovering monetary damages or penalties from spammers.
- In 2003, Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act, which prohibits certain types of spamming activities, such as using a false return e-address and transmitting false, misleading, or deceptive information via e-mail.
- The 2006 U.S. Safe Web Act expands the reach of CAN-SPAM to spammers and servers located outside the U.S. but directing their spam to users within the U.S.
- Gambling: A game of chance that (re-)distributes money or other property among persons who paid valuable consideration for the chance to win it.
- State Regulation: Some states prohibit gambling; most states allow, subject to regulation, one or more forms, such as casino gaming, pari-mutuel betting on horse or dog races, state-run lotteries, and games of chance run by or for the benefit of a charity.
- Internet Gambling: Because state laws vary widely, and because the Internet allows the residents of a state to access out-of-state and offshore gambling sites, the question arises:
- Can a resident of a state that prohibits or regulates gambling legally engage in games of chance over the Internet in which she could not legally engage offline?
- Concerned about underage gambling, addiction, and the use of Internet gambling sites for money laundering, Congress passed the Unlawful Internet Gambling Enforcement Act of 2006, which bars Internet gambling sites from using credit cards and other forms of electronic payment to reflect a player’s wins and losses.
COMBATING CYBER CRIME
- Because committing cyber crime in a jurisdiction does not require the criminal to be physically present there, and because of the high degree of anonymity that goes along with activity over the Internet, police and prosecutors have difficulty applying existing property-based criminal law to crimes committed over the Internet.
- The Computer Fraud and Abuse Act of 1984 (as amended by the National Information Infrastructure Protection Act of 1996) subjects a person to criminal prosecution for accessing or attempting to access a computer online, without authority, to obtain classified, restricted, or protected data – including financial and credit records, medical records, legal files, and other confidential or sensitive data.
- The federal wire fraud statute, the Economic Espionage Act, RICO, the Electronic Funds Transfer Act, the Anticounterfeiting Consumer Protection Act, and the National Stolen Property Act also apply to crimes committed in cyberspace. Computer users can help combat cyber crime by using encryption and other security safeguards to protect their emails, their computers, and the information stored on them.
Corporations, unlike persons, cannot be liable for crimes.
Stealing software is not a crime.TF
A bribe must consist of money to be a crime.Question options:TrueFalse
Unlike a "natural person," a corporation cannot be compelled to give self-incriminating testimony.
Crimes occurring in a business context are popularly referred to as white-collar crime.
Biff wrongfully takes an unopened carton from a Cold Storage Warehouse loading dock, puts the carton in his car, and drives away. This is
Bruno is a businessperson with investments in legal and illegal operations. Bruno may be subject to penalties under RICO
for making an unprofitable, but legal, investment.
for the commission of any business fraud.
only in a case involving a "racket.
"only in a case involving organized crime.
for the commission of any business fraud.
A mistake of fact can be a defense to criminal liability.Question options:TrueFalse
Riley, a State Bank employee, deposits into his account checks that are given to him by bank customers to deposit into their accounts. This
??? Not embezzlement
Jeri is indicted. Before she is arrested, she confesses to the crime in a conversation with Kelly, the arresting officer. Kelly then arrests Jeri and advises her of the right to counsel. Later, Jeri claims that her statement should be excluded as evidence from her trial. The statement will most likely
admitted because Jeri knew she did the crime and confessed.
admitted because Jeri made it before being advised of her rights.
excluded because a confession is not admissible in a criminal trial.
excluded because it was elicited before Jeri was advised of her rights.
excluded because it was elicited before Jeri was advised of her rights.