CHAPTER THREE Criminal Law: Traditional and Cyber Crimes

Copyright © Houghton Mifflin Company. All rights reserved. Criminal Law Criminal law establishes rules to protect society: –Criminal law defines what is criminal action (such as robbing a bank) or inaction (such as failure to file a tax return). –A person convicted of a crime is subject to punishment at the hands of the government. The government pursues criminal cases on behalf of society –To be convicted of a crime the government must prove guilt beyond a reasonable doubt.

Copyright © Houghton Mifflin Company. All rights reserved. Classification of Crimes Criminal law is divided into three major categories based upon the seriousness of the crime: –Felony: the most serious form of a crime – punished by death or a sentence of more than a year in prison. –Misdemeanor: a crime where the punishment is up to one year in jail. (Usually local or county jail) –Violation: some states classify minor infractions (such as a traffic ticket) as a violation. The punishment can include jail time. Punishment usually consists of a fine or community service.

Copyright © Houghton Mifflin Company. All rights reserved. State and Federal Crimes Congress has enacted criminal statutes defining federal crimes. –Federal crimes are usually areas of particular federal interest such as counterfeiting, smuggling, threatening the president, etc. Each state has enacted their own criminal statutes. –Criminal statutes vary from state to state. What is a serious felony in one state may be a misdemeanor in another state.

Copyright © Houghton Mifflin Company. All rights reserved. Selected Crimes Assault: unlawfully causing injury to another through the use of physical force of some type. –The injury does not need to be serious only result from the application of physical force upon the victim. –Seriousness of assault depends on seriousness of injury or amount of force applied.

Copyright © Houghton Mifflin Company. All rights reserved. Selected Crimes (continued) Robbery: larceny by force or the threat of force. Arson: knowingly and willingly burning any dwelling, other buildings, or motor vehicle. Burglary: Unlawful entry with intent to commit a crime. Theft: Taking property without the use of force

Copyright © Houghton Mifflin Company. All rights reserved. Elements of Theft Larceny (i.e. shoplifting) Embezzlement: fraudulent conversion of money for personal gain. –False pretenses considered criminal fraud. Forgery: materially altering documents that change a person’s legal responsibility. Blackmail: gaining property of money through the use of threats Receiving Stolen Property (knowingly) Insider Trading: using internal information for profit Bribery: paying someone to gain a favor or influence

Copyright © Houghton Mifflin Company. All rights reserved. Continuation of Selected Crimes Driving While Intoxicated –Operating a motor vehicle with a blood alcohol content of.08% or higher is the national standard. –To determine the prohibited level of intoxication police can test with a breathalyzer, blood test, etc. –Penalties can be harsh for this crime, particularly when a person has been injured or killed as result of automobile accident caused by driving while intoxicated. Dram Shop Act: imposes civil liability on bar and restaurant owners who continue to sell alcohol to an obviously intoxicated person. –Liability can be substantial for the bar or restaurant.

Copyright © Houghton Mifflin Company. All rights reserved. Continuation of Selected Crimes Cybercrime: crimes committed by using the computer or computer technology. Criminals can and do use the computer to aid them in committing traditional crimes. Cybercrimes can include but are not limited to: –Selling fake ID over the Internet. –Hacking computer programs to steal data, music, movies, or money. –Accessing files to change the information (hacking into a college’s computer to change your grades). –Accessing protected government data bases to extract information to be sold to foreign governments.

Copyright © Houghton Mifflin Company. All rights reserved. Legislation Affecting Cybercrimes The Computer Fraud and Abuse Act Prevents unauthorized access to federal government computers The Electronic Communications Privacy Act Prevents the unauthorized interception and disclosure of electronic communications of another person Each statute gives prosecutors more tools in the war against cyber criminal activity. Individual states have also enacted statutes to protect against cybercrime.

Copyright © Houghton Mifflin Company. All rights reserved. RICO RICO – Racketeer Influenced Corrupt Organizations Act RICO was enacted to give prosecutors an additional weapon to fight organized crime when it infiltrates legitimate businesses. RICO has expanded beyond its original uses. –If a person commits two or more crimes as defined under RICO, the act now allows harsher punishments to be employed because of a pattern of criminal behavior. –Additionally, RICO provides for civil remedies for the injured parties.

Copyright © Houghton Mifflin Company. All rights reserved. Common Defenses To Crimes Infancy –Generally, most states will say a person from 0 to 7 years old cannot commit a crime. –Children under the age 18 (or younger, depending upon the state) are generally sent to juvenile court where the records are sealed and the child is given another chance. –If the crime is serious or violent a juvenile above a certain age will tried as an adult.

Copyright © Houghton Mifflin Company. All rights reserved. Common Defenses To Crimes (continued) Insanity: generally, the defense is trying to establish that at the time the person committed the crime the person did not know his or her actions were wrong. –This is a very difficult defense to prove and in practice it is seldom successful. Involuntary Intoxication: occurs when a person involuntarily ingests alcohol or another drug. The person may not be subject to criminal penalty because it can be argued the person did not voluntarily act with criminal intent.

Copyright © Houghton Mifflin Company. All rights reserved. Common Defenses To Crimes (continued) Duress: occurs when a person is forced to act against their will and commit a crime. Justification: also known as self-defense. –A person can use sufficient force to prevent harm. You cannot continue to use force once the threat has passed. You can meet force with like force. For example, shooting someone who shoved you would be excessive force.

Copyright © Houghton Mifflin Company. All rights reserved. Common Defenses To Crimes (continued) Entrapment: generally used to prevent law enforcement from encouraging people to commit crimes so they can then be arrested. Generally: –Law enforcement officer suggests the crime. –The law enforcement officer applies pressure to commit the crime. –The person claiming entrapment cannot have already decided to commit the crime and do so with assistance from the law enforcement officer.

Copyright © Houghton Mifflin Company. All rights reserved. Mistake Based Upon Wrong DNA Evidence DNA evidence has become a powerful law enforcement tool. DNA provides very high probability of identification of the person involved in the crime. DNA evidence is generally easier to obtain than fingerprint evidence.

Copyright © Houghton Mifflin Company. All rights reserved. Criminal Justice System Police –When the police arrest someone it is with the purpose that the person will be charged with a crime. –If the crime was not committed in the presence of the police then the arrest must be made on probable cause. Probable Cause: a reasonable belief that the person detained is the person who committed a crime.

Copyright © Houghton Mifflin Company. All rights reserved. Criminal Justice System (continued) Police (continued) –After the police arrest someone they do have the power to search the individual and the immediate area around the individual for evidence and/or hidden weapons. When a person is arrested while driving a car, the entire car is subject to search. –After arrest the person is booked or the arrest is officially recorded in police department records. –After arrest a person is usually read their Miranda Rights. Miranda Rights must be given to a defendant or any evidence obtained during questioning can be suppressed (not used at trial).

Copyright © Houghton Mifflin Company. All rights reserved. Criminal Justice System (continued) Bail: security given to the courts to ensure that the defendant will return to complete proceedings in the case. –The amount of bail depends upon the seriousness of the crime. –Bail is often denied where the defendant is being accused of a violent crime.

Copyright © Houghton Mifflin Company. All rights reserved. Criminal Justice System (continued) Courts –The initial court proceeding is to bring a defendant before judge to: Tell the defendant what crime he/she is charged with. Reaffirm that the defendant has been given his/her Miranda warnings. Determine if bail is appropriate in the case and set the amount.

Copyright © Houghton Mifflin Company. All rights reserved. Criminal Justice System (continued) The next step in a criminal case can vary depending upon the state. –Some states will have a preliminary hearing to determine whether there is sufficient evidence to bind the case over for trial. Both the prosecution and defense counsel are present for a preliminary hearing. –Some states will empanel a grand jury, 23 jurors who vote (by a majority) to formally charge the defendant with a crime (also referred to as an indictment). Only the prosecutor presents evidence to the grand jury.

Copyright © Houghton Mifflin Company. All rights reserved. Criminal Justice System (continued) At a criminal trial the following are true: –Defendant is presumed innocent until proven guilty. –Guilt of the defendant must be proved beyond a reasonable doubt. (Many judges will say this means 90% certain the person committed the crime.) –Evidence obtained illegally by the police or prosecution will be excluded from the trial. –The defendant does not have to testify and the jury should not draw conclusions from the fact the defendant did not testify. –The defendant has the right to confront his/her accuser. –Generally the jury must vote unanimously to convict.

Copyright © Houghton Mifflin Company. All rights reserved. Criminal Justice System (continued) If the verdict is not guilty the defendant is released immediately. If the defendant is convicted or pleads guilty then the defendant is sentenced. –Sentencing is the judge telling the defendant his/her punishment. Generally the defendant can appeal a conviction. –Ask a higher court to review the case for legal errors that changed the outcome of the trial.