chapter three criminal law: traditional and cyber crimes

CHAPTERTHREECriminal Law: Traditional and Cyber Crimes

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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.


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.


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.


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.


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


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


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.


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.


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.


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.


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.


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.



• 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.



• 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.


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.


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.


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).



• 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.



• 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.



• 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.



• 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.



• 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.

chapter three criminal law: traditional and cyber crimes

Documents

criminal statutes

criminal fraud

criminal cases

criminal action

criminal lawcriminal

use of physical force

threat of force

traditional crimes