 Major Differences Between Civil and Criminal Law.  Burden of Proof. Civil is preponderance of the evidence. Criminal is proof beyond a reasonable doubt.  Criminal Sanctions. Harsher than those applied in civil cases. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2

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 Civil Liability for Criminal Acts.  Assault and Battery, can provide basis for both civil and criminal prosecution.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 4

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 Classification of Crimes.  Felonies: punishable by death or imprisonment over 1 year.  Misdemeanors: punishable by fine or jail for less than 1 year. Petty offenses are minor violations such as jaywalking or violations of building codes. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 6

 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.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 7

 State of Mind.  Required intent (or mental state) is indicated in the applicable statute or law.  Criminal Negligence or Recklessness (unjustified, substantial and foreseeable risk that results in harm).  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 8

 State of Mind: Strict Liability and Overcriminalization.  Federal code lists over 4,000 criminal offenses, many do not list a “mental state” for conviction.  Strict liability crimes are found in environmental, drug laws that affect public health, safety, and welfare. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 9

 A corporation itself cannot be imprisoned but can be convicted of crime through acts of its officers.  Liability of the Corporate Entity.  Crime is within agent/employee’s scope of employment;  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 10

 Liability of the Corporate Entity (continued).  Corporation fails to perform a legally required duty; or  Crime authorized or requested by corporate principal/officer. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 11

 Liability of Corporate Officers and Directors.  Corporate officers and directors are personally liable for crimes they commit.  They may be criminally liable for acts under the “Responsible Corporate Officer” doctrine. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 12

 Violent Crime.  Murder, sexual assault, rape, robbery.  Property Crime.  Burglary, larceny, theft of trade secrets, theft of services, arson, receipt of stolen goods, forgery.  Public Order Crime. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 13

 Occur in a business context using non-violent means to obtain personal or business advantage.  Embezzlement.  CASE 7.1 People v. Sisuphan (2010). Is the intent to return stolen property a defense? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 14

 Crimes occurring in the business context (continued):  Mail and Wire Fraud (federal).  Bribery.  Bankruptcy Fraud (federal).  Insider Trading (federal).  Theft of Intellectual Property. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 15

 Operates illegitimately by providing illegal goods and services:  Money Laundering.  RICO: Government must prove a “pattern of racketeering activity” and defendant committed at least two offenses. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 16

 Justifiable Use of Force: Self- Defense of People and Property can use deadly force if reasonable belief of imminent death or serious injury; cannot use deadly force to protect property alone. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 17

 Necessity : criminal act necessary to prevent greater harm.  Insanity. Person who suffers from mental illness may be incapable of the state of mind required for the crime.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 18

 Mistake: of fact may excuse crime.  Duress: wrongful threat induces another to perform a criminal act.  Entrapment. Key issue: was the defendant pre-disposed to commit the act?  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 19

 Statute of Limitations: state must initiate criminal proceedings within statutory period of time (except for murder).  Immunity: government grants immunity from prosecution in exchange for assistance. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20

 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.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 21

 Fourth Amendment.  Protection from unreasonable searches and seizures.  Requirement that no warrant for a search or an arrest be issued without probable cause. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 22

 Fifth Amendment.  Requires that no one be deprived of “life, liberty, or property without due process of law.”  Prohibits double jeopardy (trying someone twice for the same criminal offense).  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 23

 Fifth Amendment.  Requires that no person be required to be a witness against (incriminate) himself.  Sixth Amendment.  Guarantees of a speedy trial, public trial by jury, right to confront witnesses, and the right to a lawyer. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 24

 Eighth Amendment.  Prohibits excessive bail and fines and against cruel and unusual punishment. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 25

 Evidence obtained in violation of the Fourth Amendment is excluded from trial, including “Fruit of the Poisonous Tree.”  Case 7.2 Herring v. United States (2009 ). Is evidence inadmissible when seized based on mistaken belief of police? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 26

 CASE 7.3 Miranda v. Arizona (1966) required police to inform suspects of their constitutional rights.  Exceptions to Miranda: public safety, certain confessions, suspect must unequivocally assert right to counsel. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 27

Arrest Booking Initial Appearance Grand JuryPreliminary Hearing IndictmentInformation Arraignment Plea Bargain Guilty PleaTrial © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 28

 Federal Sentencing Guidelines.  Shift Away from Mandatory Sentencing.  Increased Penalties for Certain Crimes. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 29

 Any act directed against computers or that uses computers as an instrumentality of a crime.  Cyber Fraud: fraud committed over the internet (e.g., Nigerian letter scam).  Online Auction Fraud.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 30

 Cyber Fraud (continued).  Online Retail Fraud.  Cyber Theft.  Identity Theft.  Phishing.  Vishing.  Employment Fraud.  Credit-Card Crime on the Web.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 31

 Hacking.  Malware and Worms.  New Service-Based Hacking Available at Low Cost.  Cyber Terrorism. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 32

 Prosecution of Cyber Crime.  “Location” of crime is an issue.  Jurisdiction of courts is an issue.  Computer Fraud and Abuse Act.  Person is liable if he accesses a computer online, without authority, to obtain classified, private, or protected information. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 33