Chapter 9: Criminal Law and Cyber Crimes Copyright © 2009 South-Western Legal Studies in Business,...

Chapter 9: Criminal Law Chapter 9: Criminal Law and Cyber Crimesand Cyber Crimes

Copyright © 2009 South-Western Legal Studies in Business,

a part of South-Western Cengage Learning.

Jentz Miller Cross

BUSINESS LAW BUSINESS LAW Alternate Edition 11Alternate Edition 11ththEd.Ed.



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§1: §1: Civil and Criminal LawCivil and Criminal Law

Major differences:Major differences:

Civil (Tort)Civil (Tort) CriminalCriminalPreponderancePreponderance Beyond Reasonable Beyond Reasonable

DoubtDoubtDamagesDamages Jail or PrisonJail or Prison

Private (parties hire their Private (parties hire their own attorneys)own attorneys)

Public (Prosecutor Public (Prosecutor represents community)represents community)

May be liable for civil May be liable for civil damagesdamages



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Civil vs. CriminalCivil vs. Criminal



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FeloniesFelonies MisdemeanorsMisdemeanors

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

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

§2: §2: Classification of Classification of CrimesCrimes

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



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§3: §3: Criminal LiabilityCriminal Liability

To be convicted of a crime, a person To be convicted of a crime, a person must:must:– Commit a guilty act (Commit a guilty act (actus reusactus reus).).

– Have the guilty mind (Have the guilty mind (mens reamens rea) during ) during commission of the guilty act.commission of the guilty act.



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Corporate Criminal Corporate Criminal LiabilityLiability

A corporation is creature of state statute. A corporation is creature of state statute. A corporate entity may be convicted of a A corporate entity may be convicted of a

crime.crime. Punishment would be fines and/or denial Punishment would be fines and/or denial

of certain legal privileges. of certain legal privileges.



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Liability of the Corporate Liability of the Corporate EntityEntity

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

employment;employment;– Corporation fails to perform a legally required Corporation fails to perform a legally required

duty; orduty; or– Crime authorized or requested by corporate Crime authorized or requested by corporate

principal/officer.principal/officer.



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Liability of Corporate Liability of Corporate Officers and DirectorsOfficers and Directors

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

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



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§4: §4: Types of CrimesTypes of Crimes

Violent Crime.Violent Crime.– Murder, sexual assault, rape, robbery.Murder, sexual assault, rape, robbery.

Property Crime.Property Crime.– Burglary, larceny, theft of trade secrets, theft Burglary, larceny, theft of trade secrets, theft

of services, arson, receipt of stolen goods, of services, arson, receipt of stolen goods, forgery.forgery.



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““White Collar” CrimeWhite Collar” Crime Crimes occurring in the business context Crimes occurring in the business context

using non-violent means to obtain using non-violent means to obtain personal or business advantage.personal or business advantage.– Embezzlement. Embezzlement. CASE 9.1 CASE 9.1 George v. George v.

Commonwealth of VirginiaCommonwealth of Virginia (2008). (2008).– Mail or Wire Fraud (federal). Mail or Wire Fraud (federal). CASE 9.2 CASE 9.2

United States v. LyonsUnited States v. Lyons (2007). (2007).



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““White Collar” CrimeWhite Collar” Crime Crimes occurring in the business context Crimes occurring in the business context

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



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Organized CrimeOrganized Crime

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



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§5: §5: Defenses to Criminal Defenses to Criminal LiabilityLiability

Infancy (juvenile).Infancy (juvenile). Involuntary Intoxication: is a defense if Involuntary Intoxication: is a defense if

person was incapable of understanding person was incapable of understanding act.act.

Insanity: defendant lacked substantial Insanity: defendant lacked substantial capacity to appreciate the wrongfulness of capacity to appreciate the wrongfulness of act or to conform act to law.act or to conform act to law.

Mistake.Mistake. Duress.Duress. Consent. Consent.



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DefensesDefenses

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

Necessity: criminal act necessary to Necessity: criminal act necessary to prevent greater harm.prevent greater harm.



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DefensesDefenses

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

Statute of Limitations.Statute of Limitations. Immunity.Immunity.



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§6: §6: Criminal ProceduresCriminal Procedures

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

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



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Fourth AmendmentFourth Amendment

The Fourth Amendment protects against The Fourth Amendment protects against unreasonable search and seizures.unreasonable search and seizures.

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



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Exclusionary RuleExclusionary Rule Evidence obtained in violation of Evidence obtained in violation of

Constitutional amendments is excluded Constitutional amendments is excluded from trial. from trial.

Purpose is to deter police from warrantless Purpose is to deter police from warrantless searches, seizures and misconduct.searches, seizures and misconduct.

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



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The “Miranda” RuleThe “Miranda” Rule

CASE 9.3 CASE 9.3 Miranda v. ArizonaMiranda v. Arizona (1966). (1966). required police to inform suspects of their required police to inform suspects of their constitutional rights.constitutional rights.

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

Exceptions to Miranda: public safety, Exceptions to Miranda: public safety, certain confessions, suspect must certain confessions, suspect must unequivocally assert right to counsel, unequivocally assert right to counsel,



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Criminal ProcessCriminal Process



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Is a defendant’s right to cross-examine a Is a defendant’s right to cross-examine a witness violated by two-way witness violated by two-way videoconferencing? videoconferencing?

Federal Sentencing Guidelines.Federal Sentencing Guidelines.– 1984: Sentencing Reform Act.1984: Sentencing Reform Act.– 2005: Supreme Court ruled some provisions 2005: Supreme Court ruled some provisions

of this Act were unconstitutional.of this Act were unconstitutional.



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§7: Cyber Crimes§7: Cyber Crimes

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

Computer Fraud and Abuse Act (1996).Computer Fraud and Abuse Act (1996).

Chapter 9: Criminal Law and Cyber Crimes Copyright © 2009 South-Western Legal Studies in Business,...

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Transcript of Chapter 9: Criminal Law and Cyber Crimes Copyright © 2009 South-Western Legal Studies in Business,...