Chapter 6 Criminal Law and Cyber Crime
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Transcript of Chapter 6 Criminal Law and Cyber Crime
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CHAPTER 6 CRIMINAL LAWAND CYBER CRIME
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LEARNING OBJECTIVES
What two elements normally must exist before a person can be held liable for a crime?
What are five broad categories of crimes? What is white collar crime?
What defenses can be raised to avoid liability for criminal acts?
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LEARNING OBJECTIVESWhat constitutional safeguards
exist to protect persons accused of crimes?
Has the internet expanded opportunities for identity theft?
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CIVIL LAW AND CRIMINAL LAW
Key Differences Between Civil Law and Criminal Law.• Burden of Proof.
• Civil: preponderance of the evidence. Verdict is by a majority.
• Criminal: proof beyond a reasonable doubt. Verdict must be unanimous.
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KEY DIFFERENCES BETWEEN CIVIL LAW AND CRIMINAL LAW
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CIVIL LAW AND CRIMINAL LAW
Key Differences Between Civil Law and Criminal Law.• Criminal Sanctions.
• Designed to punish guilty with fines and imprisonment, or even death.
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CIVIL AND CRIMINAL LIABILITY FOR SAME ACT
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CRIMINAL LIABILITY
For a person to be convicted of a criminal act, two elements must exist simultaneously:• A criminal act (actus reus) AND• A wrongful mental state (mens rea).
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CRIMINAL LIABILITY
The Criminal Act.• Most are acts of commission, but in
some situations, failure to do something can be a criminal act (e.g., file a tax return).
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CRIMINAL LIABILITY
State of Mind.• A “wrongful” mental state is required.• What is wrongful depends on the crime.
• Recklessness and Criminal Negligence or Recklessness: defendant consciously disregards a substantial and unjustifiable risk.
• Strict Liability and Overcriminalization.
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CRIMINAL LIABILITY
Corporate Criminal Liability.• Liability of the Corporate Entity.
• Crimes must occur within scope of employment.
• Corporations can be held criminally liable when they FAIL to fulfill certain statutory duties.
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CRIMINAL LIABILITY
Corporate Criminal Liability.• Corporate officers and directors can be
criminally liable under the “Responsible Officer” doctrine.
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TYPES OF CRIMES
Violent Crime.• Crimes against persons (murder, rape).• Robbery is a violent crime.
Property Crime: most common, involves money or property:• Burglary.• Larceny.
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TYPES OF CRIMES
Property Crime:• Obtaining Goods by False Pretenses.• Receiving Stolen Goods.• Arson.• Forgery.
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TYPES OF CRIMES
Public Order Crime.White Collar Crime.
• Embezzlement.• CASE 6.1 People v. Sisuphan (2010). Why
wasn’t the defendant’s intent to return the money a valid defense?
• Mail and Wire Fraud.
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TYPES OF CRIMES
White Collar Crime.• Mail and Wire Fraud.• Bribery.• Bankruptcy Fraud.• Theft of Trade Secrets.• Insider Trading.
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TYPES OF CRIMES
Organized Crime.• Money Laundering.• RICO.
• Criminal Provisions (includes 26 different types of felonies with fines up to $25,000 and 20 years in prison for each offense).
• Civil Penalties include forfeiture, and treble damages.
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TYPES OF CRIMES
Classification of Crimes.• Felonies: serious crimes punishable by
death or by imprisonment over one (1) year.
• Misdemeanors: less serious crimes punishable by fine or by confinement up to one (1) year.
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DEFENSES TO CRIMINAL LIABILITY
Immunity.Mistake.
Statute of Limitations.Insanity.
Entrapment.Necessity.
Duress.Justifiable Use of Force.
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CONSTITUTIONAL SAFEGUARDS
AND CRIMINAL PROCEDURESFourth Amendment Protections.
• Search Warrants and Probable Cause.• Probable Cause requires officers to convince
a reasonable person that the proposed search/seizure is more likely than not justified.
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CONSTITUTIONAL SAFEGUARDS
AND CRIMINAL PROCEDURESFourth Amendment Protections.
• CASE 6.2 Messerschmidt v. Millender (2012). Why were the police officers immune from personal liability?
• Search and Seizures in Businesses.• Warrant required in some cases.• No warrant required for contaminated food or
highly regulated liquor or gun businesses.21
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CONSTITUTIONAL SAFEGUARDS
AND CRIMINAL PROCEDURESFifth Amendment Protections.
• Due Process of Law.• Opportunity to Object.• Hearing before a neutral Magistrate.
• Double Jeopardy.• Person cannot be retried for the same
offense in the same court.• Civil action, however, is permitted.
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CONSTITUTIONAL SAFEGUARDS
AND CRIMINAL PROCEDURESFifth Amendment Protections.
• Self-Incrimination.• “Right to Remain Silent” or not testify
against yourself.
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CONSTITUTIONAL SAFEGUARDS
AND CRIMINAL PROCEDURESProtections under the Sixth and
Eighth Amendments.• Right to Speedy Trial.• Right to Jury and Public Trial.• Right to Confront Witnesses.• Right to Counsel. • Prohibition on cruel and unusual
punishment.24
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CONSTITUTIONAL SAFEGUARDS
AND CRIMINAL PROCEDURESThe Exclusionary Rule and the
Miranda Rule.• Exclusionary Rule.
• Evidence obtained in violation of constitutional procedures must be excluded.
• Evidence derived from illegal evidence is “fruit of the poisonous tree.”
• Deters police from misconduct.
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CONSTITUTIONAL SAFEGUARDS
AND CRIMINAL PROCEDURESThe Exclusionary Rule and the
Miranda Rule.• Miranda rule based on Miranda v.
Arizona (1966).• Exceptions:
• Public Safety• Coercion.• Illegally obtained evidence.
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CRIMINAL PROCESS
Arrest Initial AppearBooking
ChargesFiled
(Indictment or Information)
Grand Jury/Prelim.Hearing
Plea Bargain
Trial
Guilty Plea
Arraign-ment
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CYBER CRIME
Any act directed against computers or that uses computers as an instrumentality of a crime.
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CYBER CRIME
Cyber Fraud: fraud committed over the internet (e.g., Nigerian letter scam).• Online Auction Fraud.• Online Retail Fraud.
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CYBER CRIME
Cyber Theft.• Identify Theft.
•CASE 6.3 United States v. Oliver (2011). What do you think was Oliver’s main mistake?
• Phishing.• Employment Fraud.• Credit-Card Theft.
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CYBER CRIME
Hacking.• Malware and Worms.• Service-Based Hacking: available at low
cost. • Cyber Terrorism.
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CYBER CRIME
Prosecution of Cyber Crime. • Jurisdiction and Identification
Challenges.• “Location” crime is an issue.• Jurisdiction of courts is an issue.
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CYBER CRIME
Computer Fraud and Abuse Act.• Person is liable if he accesses a
computer online, without authority, to obtain classified, private, or protected information. Penalties include fines and imprisonment.
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