COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. West’s Business Law 10 th Edition Kenneth W. Clarkson, University of Miami Roger LeRoy Miller, Institute for University Studies, Arlington, Texas Gaylord A. Jentz, University of Texas, Austin, Emeritus Frank B. Cross, University of Texas, Austin CHAPTER 9 Criminal Law and Cyber Crimes 1

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 2 §1: Civil and Criminal Law Major differences: Civil (Tort) Criminal Preponderance Preponderance Beyond Reasonable Doubt Beyond Reasonable Doubt Damages Damages Jail or Prison Jail or Prison Private (parties hire their own attorneys) Private (parties hire their own attorneys) Public (Prosecutor represents community) Public (Prosecutor represents community) May be liable for civil damages May be liable for civil damages

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 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. §2: Classification of Crimes An act can have both civil and criminal consequences. (O.J. Simpson trials) An act can have both civil and criminal consequences. (O.J. Simpson trials)

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 4 §3: The Essentials of Criminal Liability To be convicted of a crime, a person must: 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. To be convicted of a crime, a person must: 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.

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 5 §4: Corporate Criminal Liability A corporation is creature of state statute. A corporation is creature of state statute. A corporate entity may be convicted of a crime. A corporate entity may be convicted of a crime. Punishment would be fines and/or denial of certain legal privileges. Punishment would be fines and/or denial of certain legal privileges. A corporation is creature of state statute. A corporation is creature of state statute. A corporate entity may be convicted of a crime. A corporate entity may be convicted of a crime. Punishment would be fines and/or denial of certain legal privileges. Punishment would be fines and/or denial of certain legal privileges.

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 6 Liability of the Corporate Entity Corporations may be convicted of criminal activity if: Corporations may be convicted of criminal activity if:  Crime is within agent/employee’s scope of employment;  Corporation fails to perform a legally required duty; or  Crime authorized or requested by corporate principal/officer. Corporations may be convicted of criminal activity if: Corporations may be convicted of criminal activity if:  Crime is within agent/employee’s scope of employment;  Corporation fails to perform a legally required duty; or  Crime authorized or requested by corporate principal/officer.

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 7 Liability of Corporate Officers and Directors Corporate officers and directors are personally liable for crimes they commit. Corporate officers and directors are personally liable for crimes they commit. Also, they may be criminally liable for acts of their under the “Responsible Corporate Officer” doctrine. U.S. v. Park (1975). Also, they may be criminally liable for acts of their under the “Responsible Corporate Officer” doctrine. U.S. v. Park (1975). Corporate officers and directors are personally liable for crimes they commit. Corporate officers and directors are personally liable for crimes they commit. Also, they may be criminally liable for acts of their under the “Responsible Corporate Officer” doctrine. U.S. v. Park (1975). Also, they may be criminally liable for acts of their under the “Responsible Corporate Officer” doctrine. U.S. v. Park (1975).

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 8 §5: Types of Crimes Violent Crimes. Violent Crimes.  Murder, sexual assault, rape, robbery. Property Crimes. Property Crimes.  Burglary, larceny, theft of trade secrets, theft of services, arson, receipt of stolen goods, forgery. Violent Crimes. Violent Crimes.  Murder, sexual assault, rape, robbery. Property Crimes. Property Crimes.  Burglary, larceny, theft of trade secrets, theft of services, arson, receipt of stolen goods, forgery.

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 9 “White Collar” Crimes Crimes occurring in the business context using non-violent means to obtain personal or business advantage. Crimes occurring in the business context using non-violent means to obtain personal or business advantage.  Embezzlement.  Mail or Wire Fraud (federal).  Bribery.  Bankruptcy Fraud (federal).  Insider Trading (federal).  Theft of Trade Secrets (federal). Crimes occurring in the business context using non-violent means to obtain personal or business advantage. Crimes occurring in the business context using non-violent means to obtain personal or business advantage.  Embezzlement.  Mail or Wire Fraud (federal).  Bribery.  Bankruptcy Fraud (federal).  Insider Trading (federal).  Theft of Trade Secrets (federal).

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 10 Organized Crime Operates illegitimately by providing illegal goods and services: Operates illegitimately by providing illegal goods and services:  Money Laundering.  RICO(criminal and civil liability). Operates illegitimately by providing illegal goods and services: Operates illegitimately by providing illegal goods and services:  Money Laundering.  RICO(criminal and civil liability).

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 11 §6: 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. Duress. Duress. Consent. Consent. 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. Duress. Duress. Consent. Consent.

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 12 Defenses Self-Defense of People and Property: use deadly force if reasonable belief of imminent death or serious injury; cannot use deadly force to protect property alone. Self-Defense of People and Property: use deadly force if reasonable belief of imminent death or serious injury; cannot use deadly force to protect property alone. Necessity: criminal act necessary to prevent greater harm. Necessity: criminal act necessary to prevent greater harm. Self-Defense of People and Property: use deadly force if reasonable belief of imminent death or serious injury; cannot use deadly force to protect property alone. Self-Defense of People and Property: use deadly force if reasonable belief of imminent death or serious injury; cannot use deadly force to protect property alone. Necessity: criminal act necessary to prevent greater harm. Necessity: criminal act necessary to prevent greater harm.

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 13 Defenses Entrapment: prevents government from encouraging crimes. Key issue: was the defendant pre-disposed to commit the act? Entrapment: prevents government from encouraging crimes. Key issue: was the defendant pre-disposed to commit the act? Statute of Limitations. Statute of Limitations. Immunity. Immunity. Entrapment: prevents government from encouraging crimes. Key issue: was the defendant pre-disposed to commit the act? Entrapment: prevents government from encouraging crimes. Key issue: was the defendant pre-disposed to commit the act? Statute of Limitations. Statute of Limitations. Immunity. Immunity.

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 14 §7: Criminal Procedures U.S. Constitution provides specific safeguards for those accused of crimes at federal and state level. 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. Criminal procedures are designed to protect against the arbitrary use of power by the government. U.S. Constitution provides specific safeguards for those accused of crimes at federal and state level. 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. Criminal procedures are designed to protect against the arbitrary use of power by the government.

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 15 Fourth Amendment The Fourth Amendment protects against unreasonable search and seizures. The Fourth Amendment protects against unreasonable search and seizures. No warrant for search or arrest can issue without probable cause. No warrant for search or arrest can issue without probable cause. The Fourth Amendment protects against unreasonable search and seizures. The Fourth Amendment protects against unreasonable search and seizures. No warrant for search or arrest can issue without probable cause. No warrant for search or arrest can issue without probable cause.

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 16 Exclusionary Rule Evidence obtained in violation of Constitutional amendments is excluded from trial. Evidence obtained in violation of Constitutional amendments is excluded from trial.  Case 9.1: Fellers v. United States (2004). Purpose is to deter police from warrantless searches, seizures and misconduct. Purpose is to deter police from warrantless searches, seizures and misconduct. “Inevitability” and “good faith” are exceptions to the rule. “Inevitability” and “good faith” are exceptions to the rule. Evidence obtained in violation of Constitutional amendments is excluded from trial. Evidence obtained in violation of Constitutional amendments is excluded from trial.  Case 9.1: Fellers v. United States (2004). Purpose is to deter police from warrantless searches, seizures and misconduct. Purpose is to deter police from warrantless searches, seizures and misconduct. “Inevitability” and “good faith” are exceptions to the rule. “Inevitability” and “good faith” are exceptions to the rule.

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 17 The “Miranda” Rule Case 9.2: Miranda v. Arizona (1966) required police to inform suspects of their constitutional rights. Case 9.2: Miranda v. Arizona (1966) required police to inform suspects of their constitutional rights. The Supreme Court upheld Miranda in Dickerson v. U.S. (2000). The Supreme Court upheld Miranda in Dickerson v. U.S. (2000). Case 9.2: Miranda v. Arizona (1966) required police to inform suspects of their constitutional rights. Case 9.2: Miranda v. Arizona (1966) required police to inform suspects of their constitutional rights. The Supreme Court upheld Miranda in Dickerson v. U.S. (2000). The Supreme Court upheld Miranda in Dickerson v. U.S. (2000).

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 18 Criminal Process Grand JuryD.A's Office Plea Bargain Change of Plea to Guilty Trial Prosecutor must prove guilt beyond reasonable doubt Sentencing Arraignment Preliminary Hearing (Determines Probable Cause) Initial Appearance (Before Judge) Arrest (Requires Probable Cause)

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 19 Criminal Process Is a defendant’s right to cross-examine a witness violated by two-way videoconferencing? Is a defendant’s right to cross-examine a witness violated by two-way videoconferencing?  Case 9.3: United States v. Yates (2004). Federal Sentencing Guidelines. Federal Sentencing Guidelines.  1984: Sentencing Reform Act.  2005: Supreme Court ruled some provisions of this Act were unconstitutional. Is a defendant’s right to cross-examine a witness violated by two-way videoconferencing? Is a defendant’s right to cross-examine a witness violated by two-way videoconferencing?  Case 9.3: United States v. Yates (2004). Federal Sentencing Guidelines. Federal Sentencing Guidelines.  1984: Sentencing Reform Act.  2005: Supreme Court ruled some provisions of this Act were unconstitutional.

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 20 §8: Cyber Crimes Computer crime: any act directed against computers or that uses computers as an instrumentality of a crime. Computer crime: any act directed against computers or that uses computers as an instrumentality of a crime.  Cyber Theft.  Financial Crimes.  Identity Theft.  Cyber Stalking.  Hacking and Cyber Terrorism. Computer Fraud and Abuse Act (1996). Computer Fraud and Abuse Act (1996). Computer crime: any act directed against computers or that uses computers as an instrumentality of a crime. Computer crime: any act directed against computers or that uses computers as an instrumentality of a crime.  Cyber Theft.  Financial Crimes.  Identity Theft.  Cyber Stalking.  Hacking and Cyber Terrorism. Computer Fraud and Abuse Act (1996). Computer Fraud and Abuse Act (1996).