Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning Chapter 7 Criminal Law and Cyber Crimes

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 2 Civil vs. Criminal Law Key differences: Civil (Tort) Criminal Preponderance Beyond Reasonable Doubt Damages Jail or Prison Private injury (parties hire their own attorneys) Public injury (Prosecutor represents society) Harm to a person or property Violation of statute

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 3 FeloniesMisdemeanors 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. Classification of Crimes A criminal act can also have civil liability. (Remember the O.J. Simpson trials?)

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 4 Criminal Liability To be convicted of a crime, the State must show beyond a reasonable doubt that the Defendant: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.

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 5 Corporate Criminal Liability A corporation is a legal “person.”A corporation is a legal “person.” A corporation can be fined or denied legal privileges (license) for criminal activity.A corporation can be fined or denied legal privileges (license) for criminal activity. Responsible Corporate Officer: officers and directors can be criminally liable.Responsible Corporate Officer: officers and directors can be criminally liable. –Case 7.1 United States v. Hanousek (1999).

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 6 Types of Crimes Violent Crimes:Violent Crimes: –Crimes against persons (murder, rape). –Robbery is a violent crime. Property Crimes - Most common, involves money or property.Property Crimes - Most common, involves money or property. –Burglary. –Larceny. –Receiving Stolen Goods. –Arson. –Forgery.

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 7 Types of Crimes White Collar Crimes: non-violent crimes involving a business transaction.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.Organized Crime – RICO and Money Laundering.

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 8 Defenses to Criminal Liability Infancy (juvenile).Infancy (juvenile). Involuntary Intoxication: is a defense if person was incapable of understanding act.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.Insanity: defendant lacked substantial capacity to appreciate the wrongfulness of act or to conform act to law. Mistake.Mistake. Consent.Consent.

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 9 Defenses to Criminal Liability Duress.Duress. Justifiable Use of Force: use deadly force if reasonable belief of immanent death or serious injury; cannot use deadly force to protect property alone.Justifiable Use of Force: use deadly force if reasonable belief of immanent death or serious injury; cannot use deadly force to protect property alone. Entrapment.Entrapment. Statute of Limitations.Statute of Limitations. Immunity.Immunity.

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 10 Constitutional Safeguards Fourth Amendment Protections.Fourth Amendment Protections. –Search Warrants and Probable Cause. –Officer must have “Probable Cause”: Trustworthy Evidence to Convince A Reasonable Person. –The warrant must be precise: no ‘general’ warrants (fishing expedition). –Exceptions to Warrant.

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 11 Search and Seizure in Businesses.Search and Seizure in Businesses. –Marshall v. Barlow’s Inc. (1978): Generally, government cannot enter business without a warrant. –No warrant required for contaminated food or highly regulated liquor or gun businesses. Constitutional Safeguards

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 12 Constitutional Safeguards Fifth Amendment Protections.Fifth Amendment Protections. –Due Process of Law. Opportunity to Object.Opportunity to Object. Hearing before a neutral Magistrate.Hearing before a neutral Magistrate. –Double Jeopardy. Person cannot be retried for the same offense in the same court.Person cannot be retried for the same offense in the same court. Civil action, however, is permitted.Civil action, however, is permitted. –Self-Incrimination. “Right to Remain Silent” or not testify against yourself.“Right to Remain Silent” or not testify against yourself.

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 13 Constitutional Safeguards Sixth & Eight Amendment Protections.Sixth & Eight Amendment Protections. –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.

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 14 Constitutional Safeguards Exclusionary Rule.Exclusionary Rule. –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 7.2 People v. McFarlan (2002). ‘Miranda’ Rule.‘Miranda’ Rule. –Inform suspect of his rights.

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 15 Criminal Process Arrest Initial Appear Booking Charges Filed Prelim Hearing Arraign- ment Plea Bargain Trial Guilty Plea

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 16 Criminal Process Indictment or Information.Indictment or Information. –Indictment issued by a grand jury in secret, usually for very serious crimes. –Information is a criminal complaint issued by prosecutor’s office and served on accused. Trial: unanimous verdict.Trial: unanimous verdict. Sentencing Guidelines.Sentencing Guidelines. –Case 7.3 United States v. Scott (2003).

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 17 Cyber Crime Cyber crimes involve the use of computers in cyberspace to injure a person or property.Cyber crimes involve the use of computers in cyberspace to injure a person or property. Cyber Theft:Cyber Theft: –Financial Crimes. –Identity Theft. Cyber Stalking.Cyber Stalking.

Miller Cross 4 th Ed. © 2005 by West Legal Studies in Business / A Division of Thomson Learning 18 Cyber Crime Hacking.Hacking. Cyber Terrorism.Cyber Terrorism. Prosecuting Cyber Crimes:Prosecuting Cyber Crimes: –Location of the crime raises jurisdictional issues. –Identification of offenders is difficult. –Federal Statues: Computer Fraud and Abuse Act, Economic Espionage Act and RICO. –Case 7.4 United States v. Middleton (2000).