Major Differences Between Major Differences Between Civil and Criminal Law.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

© 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. 3

Civil Liability for Criminal Civil Liability for Criminal Acts.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

© 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. 5

Classification of Crimes.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 To be convicted of a crime, a person must: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.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 State of Mind: Strict Liability and Overcriminalization. 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 A corporation itself cannot be imprisoned but can be imprisoned but can be convicted of crime through convicted of crime through acts of its officers. acts of its officers.

Liability of the Corporate Liability of the Corporate Entity.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 Liability of the Corporate Entity (continued).Entity (continued).Corporation fails to perform a

legally required duty; orCrime 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 Liability of Corporate Officers and Directors. 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.Violent Crime.Murder, sexual assault, rape,

robbery. Property Crime.Property Crime.

Burglary, larceny, theft of trade secrets, theft of services, arson, receipt of stolen goods, forgery.

Public Order Crime.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 Occur in a business context using non-violent means to using non-violent means to obtain personal or business obtain personal or business advantage.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 Crimes occurring in the business context business context (continued):(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 Operates illegitimately by providing illegal goods and providing illegal goods and services: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: Justifiable Use of Force: Self-Self-Defense of People and Property Defense of People and Property can use deadly force if can use deadly force if reasonable belief of imminent reasonable belief of imminent death or serious injury; cannot death or serious injury; cannot use deadly force to protect use deadly force to protect property alone. 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

NecessityNecessity: criminal act : criminal act necessary to prevent greater necessary to prevent greater harm.harm.

Insanity. Insanity. Person who suffers Person who suffers from mental illness may be from mental illness may be incapable of the state of mind incapable of the state of mind required for the crime. 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: Mistake: of of factfact may excuse may excuse crime.crime.

Duress: Duress: wrongful threat wrongful threat induces another to perform a induces another to perform a criminal act.criminal act.

Entrapment. Entrapment. Key issue: was Key issue: was the defendant pre-disposed to the defendant pre-disposed to commit the act? 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: stateStatute of Limitations: state must initiate criminal must initiate criminal proceedings within statutory proceedings within statutory period of time (except for period of time (except for murder).murder).

Immunity: Immunity: government grants government grants immunity from prosecution in immunity from prosecution in exchange for assistance.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 U.S. Constitution provides specific safeguards for those specific safeguards for those accused of crimes at federal accused of crimes at federal and state level.and state level.

Criminal procedures are Criminal procedures are designed to protect against designed to protect against the arbitrary use of power by the arbitrary use of power by the government. 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.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.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.Fifth Amendment.Requires that no person be

required to be a witness against (incriminate) himself.

Sixth Amendment.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.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 Evidence obtained in violation of the Fourth Amendment is of the Fourth Amendment is excluded from trial, including excluded from trial, including “Fruit of the Poisonous Tree.”“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 CASE 7.3 Miranda v. Miranda v. ArizonaArizona (1966) (1966) required required police to inform suspects of their police to inform suspects of their constitutional rights.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 Jury Preliminary Hearing

Indictment Information

Arraignment

Plea Bargain

Guilty Plea Trial

© 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 Federal Sentencing Guidelines.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 Any act directed against computers or that uses computers or that uses computers as an computers as an instrumentality of a crime.instrumentality of a crime.

Cyber Fraud: Cyber Fraud: fraud committed fraud committed over the internet (e.g., Nigerian over the internet (e.g., Nigerian letter scam).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).Cyber Fraud (continued).Online Retail Fraud.

Cyber Theft.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.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. Prosecution of Cyber Crime. “Location” of crime is an issue.Jurisdiction of courts is an issue.

Computer Fraud and Abuse Computer Fraud and Abuse Act.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