Transcript Chapter 006 - Business and Online Crimes

CRIMINAL LAW AND
CYBER CRIMES
© 2010 Pearson Education, Inc., publishing as Prentice-Hall
Purpose of Criminal Laws
• Allow people to coexist peacefully
• Allow commerce to flourish
• Protect people and property from injury
by others
Crime
Any act done by an individual in violation
of those duties that he or she owes to
society and for the breach of which the
law provides that the wrongdoer shall
make amends to the public.
Penalties Imposed for Crimes
• Fines
• Imprisonment
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Means of incapacitating wrongdoer
Rehabilitation
Deterrent for others
Prevent personal retribution
• Probation
Parties to a Criminal Action
• In a criminal lawsuit, the government
is the plaintiff.
• The government is represented by a
lawyer called the prosecutor.
• The accused is the defendant.
• The accused is represented by a
defense attorney.
Classification of Crimes
Felonies
Misdemeanors
Violations
Felonies
• The most serious kinds of crimes.
– May be mala in se – inherently evil.
• Most crimes against persons and certain
business-related crimes are felonies.
• Usually punishable by imprisonment.
• Mandatory sentencing for some crimes.
Misdemeanors
• Less serious than felonies.
– Mala prohibita – not inherently evil but
are prohibited by society.
• Many crimes against property are
misdemeanors.
• Usually punished by fines and
imprisonment up to one year.
Violations
• Crimes that are neither a felony nor
a misdemeanor.
• Punishable by fines and, occasionally,
a few days of incarceration.
Essential Elements of a Crime
Criminal Act
Criminal Intent
Criminal Act
• Actus reus (guilty act) – the actual
performance of the guilty act.
• Merely thinking about a crime is not a
crime, because no action has been
taken.
Criminal Intent—Mens Rea
• Level of intent required
– Specific intent – Accused purposefully,
intentionally, or with knowledge commits
a prohibited act
– General intent – Showing of
recklessness or lesser degree of mental
culpability
– Non-intent crime – Imposes criminal
liability without a finding of mens rea
Criminal Acts as the Basis for
Tort Action
• Injured party may bring tort action
against a wrongdoer who has caused
the party injury during the
commission of a criminal act.
• Civil lawsuits are separate from the
government’s criminal action against
the wrongdoer.
• Criminal is often judgment proof.
Criminal Procedure
Pretrial Criminal
Procedure
The Criminal Trial
Arrest
• Police must obtain arrest warrant based on
showing probable cause.
– Must show substantial likelihood that
they committed crime.
• Warrantless arrests allowed when police
arrive during commission of crime, “hot
pursuit” situations, or where likely
evidence will be destroyed.
Indictment or Information
• Grand jury
– Determines whether there is enough
evidence to hold accused for trial
– Serious crimes
– Issues an indictment
• Magistrate
– Determines whether there is enough
evidence
– Lesser crimes
– Issues an information
Arraignment
• Accused informed of all charges
• Asked to enter a plea
– Guilty
– Not guilty
– Nolo contendere
• Does not admit guilt, but agrees to penalty
• Cannot be used as evidence of liability in
civil trials
Plea Bargaining
• Allows accused to plead to lesser
crime
• Saves money, time
• Avoids risk of trial
• Prevents further overcrowding of
jails
• Very common
The Criminal Trial
• Verdict must be unanimous.
– If any juror has reasonable doubt
about the guilt of the accused, the
accused cannot be found guilty.
– If jurors cannot agree, jury
considered to be a hung jury.
Government may retry.
• Convicted defendant can appeal.
– If defendant found not guilty,
government cannot appeal.
Murder
• Unlawful killing of person with malice
aforethought.
– Different degrees of murder depending
upon level of intent.
– Felony murder rule – death during
commission of any felony may be
prosecuted as murder. Intent to commit
murder inferred from intent to commit
other crime.
Crimes Affecting Business
• Robbery
• Arson
• Burglary
• Forgery
• Larceny
• Embezzlement
• Theft
• Bribery
• Receiving stolen
property
• Extortion
• Criminal fraud
• Identity theft
Robbery
• The taking of personal property by
use of fear or force.
• If a weapon is used, it is considered
armed or aggravated robbery.
Burglary
• Breaking and entering a dwelling at
night.
• Has been extended to include
daytime entry of any structure.
Larceny
• Wrongful and fraudulent taking of another
person’s personal property.
– Includes trade secrets, computer
programs, other business property.
• Force or entry into a structure not
required.
• May distinguish between grand and petit
larceny, based on value of property taken.
Receiving Stolen Property
• Knowingly receiving stolen property with
the intention of depriving rightful owner
of that property.
• Property must be tangible property.
– E.g., personal property, money, stock
certificates.
Arson
• Malicious or willful burning of
another’s dwelling.
• Now extended to all structures.
• Includes willful burning by
structure’s owner.
Forgery
• Written documents fraudulently
made or altered.
• Change affects legal liability of
another.
• E.g., counterfeiting, falsifying public
records, altering legal documents.
Embezzlement
• Fraudulent conversion of property by
person to whom property is
entrusted.
– E.g., bank teller takes deposits, lawyer
who steals from trust account.
Bribery
– Offeror commits crime when bribe
is offered.
– Offeree commits crime when bribe
is accepted.
– Commercial bribery often referred
to as kickback or payoff.
– Bribe can be of anything of value.
Foreign Corrupt Practices Act
• Illegal for U.S. company or its agents to
bribe a foreign official to influence the
awarding of new business or retention of
existing business.
– Firms must keep accurate books to
prove that any payments were in fact
lawful.
• Violations punishable by fines of up to $2
million and 5 years imprisonment.
Extortion
• Obtaining property from another,
with consent, by use of actual or
threatened force, violence, or fear.
• Commonly called blackmail.
• Extortion of public officials is
extortion under color of official
right.
Criminal Fraud
• Obtaining title to property through
deception or trickery
• Includes mail fraud and wire fraud
• Also called false pretenses or deceit
Identity Theft
• Thieves obtain personal information
– E.g., by Dumpster diving, skimming,
phishing, “pretexting”
• Then may engage in credit card fraud
– New accounts in name
– New billing address on existing account
Money Laundering
• Under Money Laundering Control Act,
a crime to:
– Knowingly engage in monetary
transaction through financial institution
involving property worth more than
$10,000.
– Knowingly engage in a financial
transaction involving proceeds of an
illegal activity.
– If convicted, fines of up to $500,000 or
twice the value of the property and up
to 20 years in prison.
Criminal Conspiracy
• Two or more persons enter into an
agreement to commit a crime.
• Requires an overt act.
• Crime does not have to be committed.
Corporate Criminal Liability
• Corporations may be held criminally liable
for actions of their officers, employees,
or agents.
• Corporate directors, officers, and
employees are personally liable for the
crimes they commit while acting on behalf
of the corporation.
– May also be criminally liable for the
criminal activities of subordinates.
RICO
(continued)
• Fines of up to $25,000 and up to 20
years imprisonment.
• May forfeit property and business
interests gained by RICO violations.
• Also may owe treble damages to civil
plaintiff.
Unreasonable Searches and
Seizures
• Fourth Amendment protects persons and
corporations from overzealous
investigative activities by the government.
• Reasonable search and seizure by the
government is lawful.
• Search warrants based on probable cause
are necessary in most cases.
Exclusionary Rule
• Evidence obtained from an
unreasonable search and seizure
generally may not be used at trial.
• Good faith exception
– Evidence may be introduced if law
enforcement reasonably believed
that they were acting pursuant to
valid search warrant.
Search of Business Premises
• Government may not search businesses
without a search warrant.
• Certain hazardous and regulated business
are exceptions.
– Subject to warrantless searches
provided statutory procedures met.
Privilege Against SelfIncrimination
• Fifth Amendment states that no person
shall be compelled in any criminal case to
be a witness against himself or herself.
– Can “take the Fifth.”
• Applies in both state and federal cases.
• Protects natural persons, not
corporations or partnerships.
Privileges
• Client can tell his or her attorney anything
about the case without fear that the
attorney will be called as a witness against
the client.
• Other privileges
– Psychiatrist/psychologist-patient
privilege
– Priest/minister/rabbi/imam-penitent
privilege
– Spousal privileges
– Parent-child privilege
Immunity from Prosecution
• Government may offer person immunity
from prosecution in exchange for
testimony
• Government cannot pursue charges for
that crime against the person
• Person loses right to assert Fifth
Amendment privilege
• Partial grants of immunity may be offered