Chapter 1: Legal Ethics 1

© 2013 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. Learning Objectives 1.What two elements must exist before a person can be held liable for a crime? Can a corporation commit crimes? 2.What are five broad categories of crimes? What is white-collar crime?  2

© 2013 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. Learning Objectives 3.What defenses might be raised by criminal defendants to avoid liability for criminal acts? 4.What constitutional safeguards exist to protect persons accused of crimes? 5.How has the internet expanded opportunities for identity theft? 3

© 2013 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. Civil Law and Criminal Law  Key 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. 4

© 2013 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. Ex. 6-1 Key Differences 5

© 2013 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. Civil Law and Criminal Law  Civil Liability for Criminal Acts. – Assault and Battery, can provide basis for both civil and criminal prosecution.  6

© 2013 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. Ex. 6-2 Tort Lawsuit and Criminal Prosecution for Same Act 7

© 2013 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. Criminal Liability 8  To be convicted of a crime, a person must have: – Criminal Act (actus reus). – State of Mind: the guilty mind (mens rea) during commission of the guilty act. 

© 2013 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. Criminal Liability 9  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). 

© 2013 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. Criminal Liability 10  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.

© 2013 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. Criminal Liability 11  Corporate Criminal Liability. – A corporation itself cannot be imprisoned but can be convicted of crime through acts of its officers. – Liability of the Corporate Entity. If crime is within agent/employee’s scope of employment; 

© 2013 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.  Corporate Criminal Liability. – Liability of the Corporate Entity. Corporation fails to perform a legally required duty; or Crime authorized or requested by corporate principal/officer. Criminal Liability 12

© 2013 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. Criminal Liability 13  Corporate Criminal Liability. – 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.

© 2013 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. Types of Crime 14  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.

© 2013 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. Types of Crime 15  White-Collar Crime. – Occur in a business context using non- violent means to obtain personal or business advantage. – Embezzlement. CASE 6.1 P EOPLE V. S ISUPHAN (2010). CASE 6.1 P EOPLE V. S ISUPHAN (2010). Is the intent to return stolen property a defense?

© 2013 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. Types of Crime 16  White-Collar Crime. – Mail and Wire Fraud (federal). – Bribery. – Bankruptcy Fraud (federal). – Theft of Trade Secrets and Intellectual Property. – Insider Trading (federal).

© 2013 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. Types of Crime 17  Organized Crime. – 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.

© 2013 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. Types of Crime 18  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.

© 2013 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. Defenses to Criminal Liability 19  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.

© 2013 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. Defenses to Criminal Liability 20  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. 

© 2013 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. Defenses to Criminal Liability 21  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? 

© 2013 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. Defenses to Criminal Liability  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. 22

© 2013 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. Constitutional Safeguards and Criminal Procedures 23  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. 

© 2013 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. Constitutional Safeguards and Criminal Procedures 24  Fourth Amendment Protections. – Protection from unreasonable searches and seizures. – Requirement that no warrant for a search or an arrest be issued without probable cause. 

© 2013 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. Constitutional Safeguards and Criminal Procedures  Fifth Amendment. – Due Process of Law. Opportunity to Object. Hearing before a neutral Magistrate. – Double Jeopardy. Person cannot be retried for the same offense in the same court. Civil action, however, is permitted.  25

© 2013 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. Constitutional Safeguards and Criminal Procedures  Fifth Amendment. – Self-Incrimination. “Right to Remain Silent” or not testify against yourself. 26

© 2013 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. Constitutional Safeguards and Criminal Procedures  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. 27

© 2013 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. Constitutional Safeguards and Criminal Procedures 28  The Exclusionary Rule. – Evidence obtained in violation of the Fourth Amendment is excluded from trial, including “Fruit of the Poisonous Tree.” – CASE 6.2 H ERRING V. U NITED S TATES (2009 ). – CASE 6.2 H ERRING V. U NITED S TATES (2009 ). Is evidence inadmissible when seized based on mistaken belief of police.

© 2013 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. Constitutional Safeguards and Criminal Procedures 29  The Miranda Rule. – 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.

© 2013 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. Criminal Process Arrest Booking Initial Appearance Grand JuryPreliminary Hearing IndictmentInformation Arraignment Plea Bargain Guilty PleaTrial 30

© 2013 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. Criminal Process  Sentencing Guidelines. – Passed by Congress in – Shift Away from Mandatory Sentencing. – Increased Penalties for Certain Crimes. 31

© 2013 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. Cyber Crime 32  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. – Online Retail Fraud.

© 2013 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. Cyber Crime 33  Cyber Theft. – Identity Theft. CASE 6.3 U NITED S TATES V. O LIVER (2011). CASE 6.3 U NITED S TATES V. O LIVER (2011). Why were the searches at the girlfriend’s home legal? – Phishing. – Vishing.

© 2013 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. Cyber Crime 34  Cyber Theft. – Vishing. – Employment Fraud. – Credit-Card Theft.

© 2013 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. Cyber Crime 35  Hacking. – Malware and Worms. – New Service-Based Hacking Available at Low Cost. – Cyber Terrorism.

© 2013 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. Cyber Crime 36  Spam. – State Regulation. – The CAN-SPAM Act: applies to “any commercial electronic mail messages.” – U.S. Safe Web Act: allows FTC to cooperate and share information with foreign agencies in prosecutions.

© 2013 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. Cyber Crime 37  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.