Sample case brief using irac

CHAPTER 7 Criminal Law and Cybercrime

New York Police Department, Times Square, New York City

Criminal cases make up a large portion of cases tried in U.S. courts. Criminal cases are bought against persons for violating federal, state, and local laws. Suspected criminals are given many rights by the U.S. Constitution and state constitutions. Parties in the United States are free from unreasonable searches and seizures of evidence, and any evidence obtained illegally is considered tainted evidence and cannot be used in court. People who are suspected of a criminal act may assert their right of privilege against self-incrimination and may choose not to testify at any pretrial proceedings or at trial. Parties have a right to a public trial by a jury of their peers. In addition, if convicted of a crime, the criminal is free from cruel and unusual punishment.

Learning Objectives

After studying this chapter, you should be able to:

1. List and describe the essential elements of a crime.

2. Describe criminal procedure, including arrest, indictment, arraignment, and the criminal trial.

3. Identify and define business and white-collar crimes.

4. List and describe cybercrimes.

5. Explain the constitutional safeguards provided by the Fourth, Fifth, Sixth, and Eighth Amendments to the U.S. Constitution.

Chapter Outline

1. Introduction to Criminal Law and Cybercrime

2. Definition of a Crime

1. CONTEMPORARY ENVIRONMENT • Criminal Acts as the Basis for Tort Actions

3. Criminal Procedure

4. Common Crimes

1. ETHICS • Murder Conviction Upheld on Appeal

5. Business and White-Collar Crimes

1. BUSINESS ENVIRONMENT • Corporate Criminal Liability

6. Cybercrimes

1. DIGITAL LAW • The Internet and Identity Theft

2. Case 7.1 • United States v. Barrington

7. Fourth Amendment Protection From Unreasonable Search and Seizure

1. Case 7.2 • U.S. SUPREME COURT CASE • Navarette v. California

2. Case 7.3 • U.S. SUPREME COURT CASE • Maryland v. King

3. Case 7.4 • U.S. SUPREME COURT CASE • Riley v. California and United States v. Wurie

8. Fifth Amendment Privilege Against Self-Incrimination

1. Case 7.5 • Ragland v. Commonwealth of Kentucky

9. Other Constitutional Protections

1. GLOBAL LAW • France Does Not Impose the Death Penalty

“It is better that ten guilty persons escape than that one innocent suffer.”

—Sir William Blackstone Commentaries on the Laws of England (1765)

Introduction to Criminal Law and Cybercrime

For members of society to coexist peacefully and for commerce to flourish, people and their property must be protected from injury by other members of society. Federal, state, and local governments’ criminal laws are intended to afford this protection by providing an incentive for persons to act reasonably in society and imposing penalties on persons who violate the laws.

There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.

Justice Black

Griffin v. Illinois 351 U.S. 12, 76 S.Ct. 585, 1956 U.S. Lexis 1059 (1956)

The United States has one of the most advanced and humane criminal law systems in the world. It differs from other criminal law systems in several respects. Under many other countries’ legal systems, a person accused of a crime is presumed guilty unless the person can prove he or she is not. A person charged with a crime in the United States is presumed innocent until proven guilty . The burden of proof in a criminal trial is on the government to prove that the accused is guilty of the crime charged. Further, the accused must be found guilty beyond a reasonable doubt . Conviction requires unanimous jury vote. A person charged with a crime in the United States is also provided with substantial constitutional safeguards during the criminal justice process.

The jury, passing on the prisoner’s life, May, in the sworn twelve, have a thief or two Guiltier than him they try.

William Shakespeare

Measure for Measure

Many crimes are referred to as white-collar crimes because they are most often committed by business managers and employees. These crimes include fraud, bribery, and other such crimes. In addition, in the information age, many cybercrimes are committed using computers and the Internet.

This chapter discusses criminal procedure, crimes, business and white-collar crimes, cybercrimes, and constitutional safeguards afforded criminal defendants.

Definition of a Crime

A crime is defined as 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. Many activities have been considered crimes through the ages, whereas other crimes are of recent origin.

crime

A violation of a statute for which the government imposes a punishment.

Penal Codes and Regulatory Statutes

Statutes are the primary source of criminal law. Most states have adopted comprehensive penal codes that define in detail the activities considered to be crimes within their jurisdictions and the penalties that will be imposed for their commission. A comprehensive federal criminal code defines federal crimes. 1

penal code

A collection of criminal statutes.

Examples

Each state has a criminal penal code that lists and defines the activities that are illegal in that state. These crimes include first-degree murder, burglary, robbery, arson, rape, and other crimes.

In addition, state and federal regulatory statutes often provide for criminal violations and penalties. The state and federal legislatures are continually adding to the list of crimes.

regulatory statutes

Statutes such as environmental laws, securities laws, and antitrust laws that provide for criminal violations and penalties.

Examples

Federal securities statutes are regulatory statutes that establish rules for disclosure of information before securities can be sold to the public. These federal statutes also make it a crime for an issuer of securities to defraud investors.

The penalty for committing a crime may consist of the imposition of a fine, imprisonment, both, or some other form of punishment (e.g., probation). Generally, imprisonment is imposed to (1) incapacitate the criminal so he or she will not harm others in society, (2) provide a means to rehabilitate the criminal, (3) deter others from similar conduct, and (4) inhibit personal retribution by the victim.

Parties to a Criminal Action

In a criminal lawsuit, the government (not a private party) is the plaintiff . The government is represented by a lawyer called the prosecutor or prosecuting attorney . The accused, which is usually an individual or a business, is the defendant . The accused is represented by a defense attorney . Sometimes the accused will hire a private attorney to represent him or her if he or she can afford to do so. If the accused cannot afford a private defense lawyer, the government will provide one free of charge. This government defense attorney is often called a public defender .

Law cannot persuade where it cannot punish.

Thomas Fuller

Gnomologia (1732)

Classification of Crimes

Crimes are classified from serious to minor. A crime is usually classified as one of the following:

felony

The most serious type of crime; an inherently evil crime. Most crimes against persons and some business-related crimes are felonies.

misdemeanor

A crime that is less serious than a felony; a crime that is not inherently evil but prohibited by society. Many crimes against property are misdemeanors.

violation

A crime that is neither a felony nor a misdemeanor that is usually punishable by a fine.

· Felony. Felonies are the most serious kinds of crimes. Felonies include crimes that are mala in se —that is, inherently evil. Felonies are usually punishable by imprisonment. In some jurisdictions, certain felonies (e.g., first-degree murder) are punishable by death. Federal law 2 and some state laws require mandatory sentencing for specified crimes. Many statutes define different degrees of crimes (e.g., first-, second-, and third-degree murder). Each degree earns different penalties. Serious violations of regulatory statutes are also felonies.

Examples

Most crimes against persons (e.g., murder, rape) and certain business-related crimes (e.g., embezzlement, bribery) are felonies in most jurisdictions.

· Misdemeanor. Misdemeanors are less serious than felonies. They are crimes mala prohibita ; that is, they are not inherently evil but are prohibited by society. Misdemeanors carry lesser penalties than felonies. They are usually punishable by fines and/or imprisonment for one year or less.

Examples

Many crimes committed against property, such as robbery, burglary, and less serious violations of regulatory statutes, are classified as misdemeanors in most jurisdictions.

· Violation. Violations are the least serious of crimes. These crimes are generally punishable by fines. Occasionally, one day or a few days of imprisonment is imposed.

Examples

Crimes such as traffic violations and jaywalking are usually classified as violations.

CONCEPT SUMMARY Classification of Crimes

Classification

Description

Felony

The most serious kinds of crimes. They are mala in se (inherently evil) and are usually punishable by imprisonment.

Misdemeanor

Crimes that are less serious than felonies. They are mala prohibita (prohibited by society) and are usually punishable by fine and/or imprisonment for less than one year.

Violation

Crimes that are neither felonies nor misdemeanors. Violations are generally punishable by a fine.

Intent Crimes

Most crimes require criminal intent to be proven before the accused can be found guilty of the defined crime. Two elements must be proven for a person to be found guilty of an intent crime : (1) criminal act (actus reus) and (2) criminal intent (mens rea).

intent crime

A crime that requires the defendant to be found guilty of committing a criminal act (actus reus) with criminal intent (mens rea).

actus reus

“Guilty act”—the actual performance of a criminal act.

mens rea

“Evil intent”—the possession of the requisite state of mind to commit a prohibited act.

specific intent crime

A crime that requires that the perpetrator intended to achieve a specific result from his or her illegal act.

general intent crime

A crime that requires that the perpetrator either knew or should have known that his or her actions would lead to harmful results.

1. Criminal act (actus reus). The defendant must have actually performed the prohibited act. The actual performance of the criminal act is called the actus reus (guilty act). Sometimes, the omission of an act can constitute the requisite actus reus.

Examples

Killing someone without legal justification constitutes a criminal act (actus reus) because the law forbids persons from killing one another. If a taxpayer who is under a legal duty to file income tax returns and to pay income taxes that are due the government fails to do so, there is the requisite criminal act (actus reus). A person who commits auto theft has engaged in a criminal act.

2. Criminal intent (mens rea). To be found guilty of an intent crime, the accused must be found to have possessed the requisite state of mind when the act was performed. This is called mens rea (evil intent). Juries may infer a defendant’s intent from the facts and circumstances of the case. Many jurisdictions have defined intent crimes as either general intent crimes or specific intent crimes:

a. Specific intent crime. Specific intent crimes require that the perpetrator intended to achieve a specific result from his or her illegal act.

Examples

Premeditated murder is a specific intent crime because the perpetrator intends a specific result, the death of the victim. Arson, forgery, and fraud are other examples of specific intent crimes.

b. General intent crime. General intent crimes require that the perpetrator either knew or should have known that his or her actions would lead to harmful results. The government does not have to prove that the accused intended the precise harm that resulted from his or her actions.

Examples

Assault and battery are usually considered general intent crimes because the perpetrator intends to commit the crime but does not know the actual result of the crime in advance.

Individual criminal statutes state whether the crime requires a showing of specific or general intent. Some jurisdictions have eliminated the distinction between specific and general crimes.

Merely thinking about committing a crime is not a crime because no action has been taken. Thus, merely thinking about killing someone or evading taxes and not actually doing so is not a crime.

CONCEPT SUMMARY Elements of an Intent Crime

Element

Description

Actus reus

Guilty act

Mens rea

Evil intent

Nonintent Crimes

Most states have enacted laws that define certain unintended conduct as a crime. These are called nonintent crimes . Nonintent crimes are often imposed for reckless or grossly negligent conduct that causes injury to another person.

nonintent crime

A crime that imposes criminal liability without a finding of mens rea (intent).

The following feature discusses how criminal acts may also be the basis for civil tort actions by an injured victim or a deceased victim’s relatives.

Contemporary Environment Criminal Acts as the Basis for Tort Actions

An injured victim of a crime or the relatives of a deceased victim of a crime may bring a civil action against a wrongdoer who has caused injury or death during the commission of a criminal act. Civil lawsuits are separate from the government’s criminal action against the wrongdoer. In a civil lawsuit, the plaintiff usually wants to recover monetary damages from the wrongdoer.

Example

A person commits the crime of battery and physically injures the victim. In this case, the government can prosecute the perpetrator for the crime of battery. In addition, the victim may sue the perpetrator in a civil lawsuit to recover monetary damages for the injuries the victim suffers because of the attack.

In many cases, a person injured by a criminal act does not sue the criminal to recover civil damages because the criminal is often judgment proof—that is, the criminal does not have the money to pay a civil judgment.

Criminal and civil law differ in the following ways:

Issue

Civil Law

Criminal Law

Party who brings the action

The plaintiff

The government

Trial by jury

Yes, except actions for equity

Yes

Burden of proof

Preponderance of the evidence

Beyond a reasonable doubt

Jury vote

Judgment for plaintiff requires specific jury vote (e.g., 9 of 12 jurors)

Conviction requires unanimous jury vote

Sanctions and penalties

Monetary damages and equitable remedies (e.g., injunction, specific performance)

Imprisonment, capital punishment, fine, probation

Criminal Procedure

The procedure for initiating and maintaining a criminal action is quite detailed. It includes both pretrial procedures and the actual trial.

Critical Legal Thinking

1. Compare a criminal case with a civil case. Why is there such a difference in the burden of proof? Why is there a difference in the required jury vote?

Arrest

Before the police can arrest a person for the commission of a crime, they usually must obtain an arrest warrant based on a showing of probable cause. The police go before a judge and present the evidence they have for arresting the suspect. If the judge finds that there is probable cause to issue the warrant, he or she will do so. The police will then use the arrest warrant to arrest the suspect. Probable cause is defined as the substantial likelihood that a person either committed or is about to commit a crime.

arrest warrant

A document for a person’s detainment, based on a showing of probable cause that the person committed a crime.

Example

The police have obtained information from a reliable informant about the criminal activity of an individual; they further investigate the situation and arrive at the conclusion that the individual who is the target of their investigation is involved in the illegal selling of drugs. The police can take this evidence, place it before a judge, and request that the judge issue an arrest warrant. If the judge believes there is probable cause, the judge will issue an arrest warrant. The police can then arrest the suspect pursuant to the arrest warrant.

probable cause

Evidence of the substantial likelihood that a person either committed or is about to commit a crime.

An arrest can be made without obtaining an arrest warrant if there is no time to obtain one or it is otherwise not feasible to obtain a warrant prior to the arrest. Warrantless arrests must be based on probable cause.

warrantless arrest

An arrest that is made without obtaining an arrest warrant. The arrest must be based on probable cause and a showing that it was not feasible to obtain an arrest warrant.

WEB EXERCISE

Go to www.fbi.gov and click on “Most Wanted” and then “Ten Most Wanted Fugitives.” Who is the number-one fugitive listed, and what crime is he or she wanted for?

Example

The police can make a warrantless arrest if they arrive during the commission of a crime, when a person is fleeing from the scene of a crime, or when it is likely that evidence will be destroyed.

Example

In Atwater v. Lago Vista, Texas, 3 the U.S. Supreme Court held that a police officer may make a warrantless arrest pursuant to a minor criminal offense. Gail Atwater was driving her pickup truck in Lago Vista, Texas, with her 3-year-old son and 5-year-old daughter in the front seat. None of them were wearing seat belts. Bart Turek, a Lago Vista police officer, observed the seat belt violation and pulled Atwater over. A friend of Atwater’s arrived at the scene and took charge of the children. Turek handcuffed Atwater, placed her in his squad car, and drove her to the police station. Atwater was booked, her mug shot was taken, and she was placed in a jail cell for about one hour, until she was released on $310 bond. Atwater ultimately pleaded no contest to the misdemeanor seat belt offenses and paid a $50 fine. Atwater sued the City of Lago Vista and the police officer for compensatory and punitive damages for allegedly violating her Fourth Amendment right to be free from unreasonable seizure. The U.S. Supreme Court ruled against Atwater, finding that the Fourth Amendment permits police officers to make a warrantless arrest pursuant to a minor criminal offense.

After a person is arrested, he or she is taken to the police station to be booked. Booking is the administrative procedure for recording an arrest, fingerprinting the suspect, taking a photograph of the suspect (often called a mug shot), and so on.

Indictment or Information

An accused person must be formally charged with a crime before he or she can be brought to trial. This is usually done through an indictment issued by a grand jury or an information statement issued by a magistrate.

indictment

The charge of having committed a crime (usually a felony), based on the judgment of a grand jury.

information

The charge of having committed a crime (usually a misdemeanor), based on the judgment of a judge (magistrate).

arraignment

A hearing during which the accused is brought before a court and is (1) informed of the charges against him or her and (2) asked to enter a plea.

Evidence of serious crimes, such as murder, is usually presented to a grand jury . Most grand juries are comprised of between 6 and 24 citizens who are charged with evaluating the evidence presented by the government. Grand jurors sit for a fixed period of time, such as one year. If the grand jury determines that there is sufficient evidence to hold the accused for trial, it issues an indictment. Note that the grand jury does not determine guilt. If an indictment is issued, the accused will be held for later trial.

For lesser crimes (e.g., burglary, shoplifting), the accused is brought before a magistrate (judge). A magistrate who finds that there is enough evidence to hold the accused for trial issues an information statement.

The case against the accused is dismissed if neither an indictment nor an information statement is issued.

Arraignment

If an indictment or information is issued, the accused is brought before a court for an arraignment proceeding during which the accused is (1) informed of the charges against him or her and (2) asked to enter a plea . The accused may plead guilty or not guilty .

Bail Bond

When a person is arrested, a bail amount is usually set by the court. If the court sets a bail amount and the arrested person posts bail (pays the bail amount), he or she can be released from prison. If he or she does not post bail, the arrestee may be kept in jail for some period of time and, in serious crimes, until the date of trial. The arrested person can post the bail him- or herself by paying the court the set bail amount, which will be returned to him or her if he or she shows up for trial. More often, the arrestee (or a relative or friend) pays a bail bonds professional who operates a bail bonds business to post a bail bond with the court. Bail bonds professionals usually require payment of 10 percent of the bail in order to post bond. For example, if the bail is set at $100,000, then the arrestee pays the bail bonds professional $10,000 to post bail. The bail bonds professional keeps this $10,000 payment. The bail bonds professional guarantees the court that he or she will pay the court $100,000 if the arrestee does not show up for trial. If this happens, the bail bonds professional attempts to obtain the amount of the bond—here, $100,000—from the arrestee. Bail bonds professionals often require collateral (e.g., title to an automobile, second mortgage on a house) before they issue a bail bond.

Example

Peter has been arrested for the crime of automobile theft. At the arraignment, Peter is asked how he pleads. Peter replies, “Not guilty.” Peter has pleaded not guilty rather than guilty. The majority of accused persons plead not guilty at their arraignment.

Nolo Contendere

A party may enter a plea of nolo contendere , whereby the accused agrees to the imposition of a penalty but does not admit guilt. The government has the option of accepting a nolo contendere plea or requiring the defendant to plead guilty or not guilty. If the government agrees to accept the nolo contendere plea, the accused and the government usually enter into a plea bargain in which the accused agrees to the imposition of a penalty but does not admit guilt. A nolo contendere plea cannot be used as evidence of liability against the accused at a subsequent civil trial. Corporate defendants often enter this plea.

Example

The government brings charges against a corporation for criminally violating environmental pollution laws. The government and the corporation enter into an agreement whereby the corporation pleas nolo contendere and agrees to pay a fine of $5 million but does not plead guilty to the violation.

Plea Bargain

Sometimes the accused and the government enter into plea bargain negotiations prior to trial with the intent of avoiding a trial. If an agreement is reached, the government and the accused execute a plea bargaining agreement that sets forth the terms of their agreement.

plea bargain agreement

An agreement in which the accused admits to a lesser crime than charged. In return, the government agrees to impose a lesser sentence than might have been obtained had the case gone to trial.

Example

An accused is charged with first-degree murder, which if proven carries a penalty of life imprisonment. The government and the accused engage in plea bargaining, and an agreement is reached whereby the accused agrees to plead guilty to the crime of second-degree murder, which carries a maximum penalty of 20 years in jail. Therefore, a trial is avoided.

The government engages in plea bargaining to save costs, avoid the risks of a trial, and prevent further overcrowding of the prisons. In return, the government agrees to impose a lesser penalty or sentence on the accused than might have been obtained had the case gone to trial and the accused found guilty. The accused often agrees to a plea bargain to avoid the risks of trial, where, if he or she were found guilty, he or she would be subject to a greater penalty than the penalty imposed by the plea bargain he or she has agreed to with the government. Approximately 95 percent of criminal cases are plea bargained and do not go to trial. Of those that go to trial, the government wins a conviction in approximately 75 percent of these cases.

Critical Legal Thinking

1. Why does the government offer plea bargains rather than go to trial? Is there any reason why an innocent person may agree to a plea bargain of criminal charges?

Criminal Trial

At a criminal trial, all jurors must unanimously agree before the accused is found guilty of the crime charged. If even one juror disagrees (i.e., has reasonable doubt) about the guilt of the accused, the accused cannot be found guilty of the crime charged. If all the jurors agree that the accused did not commit the crime, the accused is found not guilty of the crime charged. After trial, the following rules apply:

hung jury

A jury that cannot come to a unanimous decision about the defendant’s guilt. In the case of a hung jury, the government may choose to retry the case.

· If the defendant is found guilty, he or she may appeal.

· If the defendant is found not guilty, the government cannot appeal.

· If the jury cannot come to a unanimous decision about the defendant’s guilt one way or the other, the jury is considered a hung jury . In this situation, the government may choose to retry the case before a new judge and jury.

Example

A defendant is tried for the crime of murder. A 12-person jury hears the case. If 10 jurors find the defendant guilty but 2 jurors find the defendant not guilty, then there is a hung jury. The government may retry the defendant and often does so with such a vote. However, if the vote had been four jurors voting guilty and eight jurors voting not guilty, it is highly unlikely the government would retry the case.

Common Crimes

Many common crimes are committed against persons and property. Some of the most important common crimes against persons and property are discussed in the following paragraphs.

Murder

Murder is defined as the unlawful killing of a human being by another person without justification. In most states, there are several degrees of murder—usually defined as first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter:

murder

The unlawful killing of a human being by another person without justification.

first-degree murder

The intentional unlawful killing of a human being by another person with premeditation, malice aforethought, and willful act.

1. First-degree murder. First-degree murder is the intentional unlawful killing of a human being by another person with premeditation, malice aforethought, and willful act. When a person can be executed for committing the murder, it is referred to as capital murder .

Example

A person purchases a weapon for the purpose of killing someone, lies in wait to kill that person, and then carries out the murder.

2. Second-degree murder. Second-degree murder is the intentional unlawful killing of a human being by another person that is not premeditated or planned in advance. Second-degree murder involves some deliberation but not long-term planning.

Example

Two persons who are at a bar get into an unplanned fight and one of the combatants kills the other.

3. Voluntary manslaughter. Voluntary manslaughter is the intentional unlawful killing of a human being by another person that is not premeditated or planned in advance and that is committed under circumstances that would cause a person to become emotionally upset. Some states refer to this crime as third - degree murder.

Example

A spouse comes home unexpectedly; finds his or her spouse committing an act of infidelity; and in the heat of passion “snaps” and kills the spouse, the lover, or both.

4. Involuntary manslaughter. Involuntary manslaughter is the unintentional unlawful killing of a human being by another person that is caused from a reckless or negligent act. Some states refer to this crime as negligent homicide.

Example

A drunk driver unintentionally causes another person’s death.

The first three crimes are intent crimes. The fourth is a nonintent crime. The penalties assessed against persons found to have committed these crimes differ by state.

second-degree murder

The intentional unlawful killing of a human being by another person that is not premeditated or planned in advance.

voluntary manslaughter

The intentional unlawful killing of a human being by another person that is not premeditated or planned in advance and that is committed under circumstances that would cause a reasonable person to become emotionally disturbed.

involuntary manslaughter

The unintentional unlawful killing of a human being by another person that is caused from a reckless or negligent act.

Felony Murder Rule

Sometimes a murder is committed during the commission of another crime even though the perpetrator did not originally intend to commit murder. Most states hold the perpetrator liable for the crime of murder in addition to the other crime. This is called the felony murder rule . The intent to commit the murder is inferred from the intent to commit the other crime. Many states also hold accomplices liable under this doctrine.

The following case involves the crime of murder.

Ethics Murder Conviction Upheld on Appeal

“In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a ‘thirteenth juror.’”

—Sadler, Judge

Gregory O. Wilson, who had been arguing earlier in the day with his girlfriend, Melissa Spear, approached a parked car within which Ms. Spear was seated and poured gasoline from a beer bottle over her head. When Ms. Spear exited the car, Wilson ignited her with his cigarette lighter, setting her body on fire. As Ms. Spear became engulfed in flames, Wilson walked away.

Ms. Spear was transported to a hospital. When she arrived, she had third-degree burns over most of her body. She remained in a coma for 45 days, during which time she underwent 10 surgeries. She was subsequently transferred to a rehabilitation facility, and then home. Nine months after the incident and five days before her 30th birthday, Ms. Spear’s 7-year-old son found her lying dead in her bed.

The state of Ohio brought murder charges against Wilson. Wilson argued that he was not liable for murder because there was not sufficient causation between Wilson’s act of setting Ms. Spear on fire and Ms. Spear’s death nine months later to warrant a conviction for murder. The jury disagreed and convicted Wilson of aggravated murder, and he was sentenced to prison for 30 years to life. The court of appeals upheld the conviction and sentence. The court stated, “In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a ‘thirteenth juror.’ A defendant is not relieved of culpability for the natural consequences of inflicting serious wounds on another merely because the victim later died of complications brought on by the injury.” State of Ohio v. Wilson, 2004 Ohio 2838, 2004 Ohio App. Lexis 2503 (Court of Appeals of Ohio, 2004)

Ethics Questions 

1. Do you think Wilson’s legal argument on appeal was justified? If you were a juror in this case, what sentence would you have imposed on Wilson?

Robbery

In common law, robbery is defined as the taking of personal property from another person or business by the use of fear or force. Robbery with a deadly weapon is generally considered aggravated robbery (or armed robbery) and carries a harsher penalty.

robbery

The taking of personal property from another person by the use of fear or force.

Examples

If a person threatens to shoot another person with a gun unless the victim gives her purse to that person, this constitutes the crime of robbery. If a person picks a wallet from someone’s pocket, it is not robbery because there has been no use of force or fear. This is a theft.

Burglary

In common law, burglary is defined as “breaking and entering a dwelling at night” with the intent to commit a felony. Modern penal codes have broadened this definition to include daytime thefts from homes, offices, commercial buildings, and other buildings. In addition, the “breaking-in” element has been abandoned by most modern definitions of burglary. Thus, unauthorized entering of a building through an unlocked door is sufficient. Aggravated burglary (or armed burglary) carries stiffer penalties.

burglary

The taking of personal property from another’s home, office, or commercial or other type of building.

Example

Harold breaks into Sibyl’s home and steals jewelry and other items. Harold is guilty of the crime of burglary because he entered a dwelling and committed theft.

Larceny

In common law, larceny is defined as the wrongful and fraudulent taking of another person’s personal property that is not robbery or burglary. Most personal property—including tangible property, trade secrets, computer programs, and other business property—is subject to larceny. Neither the use of force nor the entry of a building is required. Some states distinguish between grand larceny and petit larceny. This distinction depends on the value of the property taken.

larceny

The taking of another’s personal property other than from his or her person or building.

Examples

Stealing automobiles and stealing satellite radios from automobiles are considered larcenies.

Theft

Some states have dropped the distinction among the crimes of robbery, burglary, and larceny. Instead, these states group these crimes under the general crime of theft . Most of these states distinguish between grand theft and petit theft. The distinction depends on the value of the property taken, a dollar amount that varies from one state to the next.

Receiving Stolen Property

A person commits the crime of receiving stolen property if he or she (1) knowingly receives stolen property and (2) intends to deprive the rightful owner of that property. Knowledge and intent can be inferred from the circumstances. The stolen property can be any tangible property (e.g., personal property, money, negotiable instruments, stock certificates).

receiving stolen property

A crime that involves (1) knowingly receiving stolen property and (2) intending to deprive the rightful owner of that property.

Example

David is walking down the street and is approached by a man who offers to sell David a Rolex watch “at a bargain price.” David looks at the 20 Rolex watches that the man displays, chooses one that would normally sell in a retail store for $1,000, and pays $200 for it. It is an authentic Rolex watch. David is guilty of the crime of receiving stolen property because it could easily be proven by circumstantial evidence that he had knowledge that the watch was stolen property.

Arson

In common law, arson is defined as the malicious or willful burning of the dwelling of another person. Modern penal codes have expanded this definition to include the burning of all types of private, commercial, and public buildings.

arson

The willful or malicious burning of a building.

Examples

An owner of a motel burns down the motel to collect fire insurance proceeds. The owner is guilty of the crime of arson. In this case, the insurance company does not have to pay the proceeds of any insurance policy on the burned property to the arsonist-owner. On the other hand, if a third-party arsonist burned down the motel without the knowledge or assistance of the owner, the third party is the arsonist, and the owner is entitled to recover the proceeds of any fire insurance he had on the property.

Business and White-Collar Crimes

Certain types of crimes are prone to being committed by businesspeople. These crimes are often referred to as white-collar crimes . Such crimes usually involve cunning and deceit rather than physical force. Many of the most important white-collar crimes are discussed in the paragraphs that follow.

white-collar crime

Crimes that are often committed by businesspeople.

Forgery

The crime of forgery occurs if a written document is fraudulently made or altered and that change affects the legal liability of another person. Counterfeiting, falsifying public records, and materially altering legal documents are examples of forgery.

forgery

The fraudulent making or alteration of a written document that affects the legal liability of another person.

Example

Signing another person’s signature to a check or changing the amount of a check without the owner’s permission is forgery.

Note that signing another person’s signature without intent to defraud is not forgery.

Example

Forgery has not been committed if one spouse signs the other spouse’s payroll check for deposit in a joint checking or savings account at the bank.

Embezzlement

The crime of embezzlement is the fraudulent conversion of property by a person to whom that property was entrusted. Typically, embezzlement is committed by an employer’s employees, agents, or representatives (e.g., accountants, lawyers, trust officers, treasurers). Embezzlers often try to cover their tracks by preparing false books, records, or entries.

embezzlement

The fraudulent conversion of property by a person to whom that property was entrusted.

The key element here is that the stolen property was entrusted to the embezzler. This differs from robbery, burglary, and larceny, where property is taken by someone not entrusted with the property.

Examples

A bank entrusts a teller to take deposits from its customers and deposit them into the customers’ accounts at the bank. Instead, the bank teller absconds with the money. This is embezzlement. A lawyer who steals money from a trust fund that has been entrusted to him or her to administer commits the crime of embezzlement.

Bribery

Bribery is one of the most prevalent forms of white-collar crime. A bribe can be money, property, favors, or anything else of value. The crime of commercial bribery entails the payment of bribes to private persons and businesses. This type of bribe is often referred to as a kickback , or payoff. Intent is a necessary element of this crime. The offeror of a bribe commits the crime of bribery when the bribe is tendered. The offeree is guilty of the crime of bribery when he or she accepts the bribe. The offeror can be found liable for the crime of bribery even if the person to whom the bribe is offered rejects the bribe.

bribery

A crime in which one person gives another person money, property, favors, or anything else of value for a favor in return. A bribe is often referred to as a payoff or kickback.

Example

Harriet Landers is the purchasing agent for the ABC Corporation and is in charge of purchasing equipment to be used by the corporation. Neal Brown, the sales representative of a company that makes equipment that can be used by the ABC Corporation, offers to pay her a 10 percent kickback if she buys equipment from him. She accepts the bribe and orders the equipment. Both parties are guilty of bribery.

Modern penal codes also make it a crime to bribe public officials.

Example

If a real estate developer who is constructing an apartment building offers to pay the building inspector to overlook a building code violation, this is bribery.

Extortion

The crime of extortion involves the obtaining of property from another, with his or her consent, induced by wrongful use of actual or threatened force, violence, or fear. Extortion occurs when a person threatens to expose something about another person unless that other person gives money or property. The truth or falsity of the information is immaterial. Extortion of private persons is commonly referred to as blackmail . Extortion of public officials is called extortion under color of official right .

extortion

A threat to expose something about another person unless that other person gives money or property. Often referred to as blackmail.

Example

A person knows that an executive who works for a company has been engaged in a physical altercation with another person. The person who knows this information threatens the executive that he will disclose this fact to the company unless the executive pays him money. The person who makes the threat of exposure has committed the crime of extortion even though the fact he or she threatens to divulge is true.

Criminal Fraud

Obtaining title to property through deception or trickery constitutes the crime of false pretenses. This crime is commonly referred to as criminal fraud or deceit.

criminal fraud (false pretenses or deceit)

A crime that involves obtaining title to property through deception or trickery.

There are some frauds so well conducted that it would be stupidity not to be deceived by them.

C. C. Colton

Lacon, Volume 1 (1820)

Example

Bob, a stockbroker, promises Mary, a prospective investor, that he will use any money she invests with him to purchase interests in oil wells. Based on this promise, Mary decides to make the investment. Bob never intended to invest the money. Instead, he uses the money for his personal needs. This is criminal fraud.

Mail Fraud and Wire Fraud

Federal law prohibits the use of mail or wires (e.g., telephone, television, radio, computer) to defraud another person. These crimes are called mail fraud 4 and wire fraud , 5 respectively. The government often includes these crimes in a criminal charge against a defendant who is charged with committing another crime but who also used the mail or wires to further her crime. Sometimes the government prosecutes a suspect under these statutes if there is insufficient evidence to prove the real crime that the criminal was attempting to commit or did commit. Persons convicted of mail or wire fraud are subject to imprisonment and the imposition of monetary fines.

Money Laundering

When criminals make money from illegal activities, they are often faced with the problem of having large sums of money and no record of how this money was earned. This could easily tip off the government to their illegal activities. To “wash” the money and make it look as though it was earned legitimately, many criminals purchase legitimate businesses and run the money through those businesses to “clean” it before they “receive” the money from the so-called legitimate business. The legitimate business has “cooked” books, which show faked expenditures and receipts, and is the repository for the “buried” illegal money. Restaurants, motels, and other cash businesses make excellent money laundries.

To address the problem of money laundering , the federal government enacted the Money Laundering Control Act . 6 This act makes it a crime to:

Money Laundering Control Act

A federal statute that makes it a crime to (1) engage knowingly in a money transaction through a financial institution involving property from an unlawful activity worth more than $10,000 and (2) engage knowingly in a financial transaction involving the proceeds of an unlawful activity.

· Engage knowingly in a monetary transaction through a financial institution involving property from an unlawful activity worth more than $10,000.

Examples

Monetary transactions through a financial institution include making deposits; making withdrawals; conducting transactions between accounts; or obtaining monetary instruments such as cashiers’ checks, money orders, and travelers’ checks from a bank or another financial institution for more than $10,000.

· Engage knowingly in a financial transaction involving the proceeds of an unlawful activity.

Examples

Financial transactions involving the proceeds of an illegal activity include buying real estate, automobiles, personal property, intangible assets, or anything else of value with money obtained from illegal activities.

Thus, money laundering itself is now a federal crime. The money that is washed could have been made from illegal gambling operations, drug dealing, fraud, or other crimes, including white-collar crimes. Persons convicted of money laundering can be fined up to $500,000 or twice the value of the property involved, whichever is greater, and sentenced to up to 20 years in federal prison. In addition, violation of the act subjects any property involved in or traceable to the offense to forfeiture to the government.

Racketeer Influenced and Corrupt Organizations Act

Organized crime has a pervasive influence on many parts of the U.S. economy. To combat this activity, Congress enacted the Organized Crime Control Act. The Racketeer Influenced and Corrupt Organizations Act (RICO) is part of this act. 7 Originally RICO was intended to apply only to organized crime. However, the broad language of the RICO statute has been used against non–organized crime defendants as well. RICO, which provides for both criminal and civil penalties, is one of the most important laws affecting business today.

Racketeer Influenced and Corrupt Organizations Act (RICO)

A federal act that provides for both criminal and civil penalties for racketeering.

Criminal RICO

RICO makes it a federal crime to acquire or maintain an interest in, use income from, or conduct or participate in the affairs of an enterprise through a pattern of racketeering activity. An enterprise is defined as a corporation, a partnership, a sole proprietorship, another business or organization, or the government.

Racketeering activity consists of a number of specifically enumerated federal and state crimes, including activities such as gambling, arson, robbery, counterfeiting, and dealing in narcotics. Business-related crimes, such as bribery, embezzlement, mail fraud, and wire fraud, are also considered racketeering. To prove a pattern of racketeering, at least two of these acts must be committed by the defendant within a 10-year period. Commission of the same crime twice within this 10-year period also constitutes criminal RICO .

Individual defendants found criminally liable for RICO violations can be fined, imprisoned for up to 20 years, or both. In addition, RICO provides for the forfeiture of any property or business interests (even interests in a legitimate business) that were gained because of RICO violations. This provision allows the government to recover investments made with monies derived from racketeering activities. The government may also seek civil penalties for RICO violations, which include injunctions, orders of dissolution, reorganization of business, and divestiture of the defendant’s interest in an enterprise.

Civil RICO

Persons injured by a RICO violation can bring a private civil RICO action against the violator to recover damages for injury to business or property. A successful plaintiff may recover treble damages (three times the actual loss) plus attorney’s fees.

Criminal Conspiracy

A criminal conspiracy occurs when two or more persons enter into an agreement to commit a crime. To be liable for a criminal conspiracy, a person must commit an overt act to further the crime. The crime itself does not have to be committed, however. The government usually brings criminal conspiracy charges if (1) the defendants have been thwarted in their efforts to commit the substantive crime or (2) there is insufficient evidence to prove the substantive crime.

criminal conspiracy

A crime in which two or more persons enter into an agreement to commit a crime and an overt act is taken to further the crime.

Example

Two securities brokers agree over the telephone to commit a securities fraud. They obtain a list of potential victims and prepare false financial statements necessary for the fraud. Because they entered into an agreement to commit a crime and took an overt act, the brokers are guilty of the crime of criminal conspiracy, even if they never carry out the securities fraud.

The following feature discusses the criminal liability of corporations for the acts of its officers, directors, and employees.

Business Environment Corporate Criminal Liability

A corporation is a fictitious legal person that is granted legal existence by the state when certain requirements are met. A corporation cannot act on its own behalf. Instead, it must act through agents, such as a board of directors, officers, and employees.

Originally, under the common law, it was generally held that corporations lacked the criminal mind (mens rea) to be held criminally liable. Modern courts, however, impose corporate criminal liability . These courts have held that corporations are criminally liable for the acts of their directors, officers, and employees. Because corporations cannot be put in prison, they are usually sanctioned with fines, loss of a license or franchise, and the like.

Corporate directors, officers, and employees are individually liable for crimes that they commit on behalf of or to further the interests of the corporation. In addition, under certain circumstances, a corporate manager can be held criminally liable for the criminal activities of his or her subordinates. To be held criminally liable, the manager must have failed to supervise the subordinates appropriately. This is an evolving area of the law.

Critical Legal Thinking Questions

1. Why is criminal liability imposed on a corporation? Do you think that the penalties (e.g., jail time) that are imposed on corporate executives for white-collar crimes are sufficient?

Cybercrimes

The development of computers, e-mail, and the Internet has made it easier for criminals to perpetrate many existing crimes and has created the ability for them to commit crimes that did not exist before the digital age. These are commonly referred to as cybercrimes . The government has had to apply existing laws to these new media and develop new laws to attack digital crimes.

cybercrime

A crime that is committed using computers, e-mail, the Internet, or other electronic means.

One of the most pervasive monetary crimes today is Internet fraud. The following feature discusses the crime of cyber identity theft.

Digital Law The Internet and Identity Theft

The advent of the computer, the Internet, and digital devices has made one type of crime—identity theft—easier to commit. Identity theft was around long before the computer was invented, but computers and the Internet have made it much easier for criminals to obtain the information they need to commit identity theft. In identity theft —or ID theft—one person steals information about another person to pose as that person and take the innocent person’s money or property or to purchase goods and services using the victim’s credit information.

To commit ID theft, thieves must first obtain certain information about the victim. This could be the victim’s name, Social Security number, credit card numbers, bank account information, and other personal information. With the use of computers, criminals can obtain the information they need to commit ID theft more easily. Credit card fraud is one of the crimes most commonly committed by ID thieves. An ID thief may use a victim’s existing credit card or open new credit card accounts in the victim’s name and purchase goods and services with these credit cards, often using the Internet.

To address the growing problem of ID theft, Congress enacted the Identity Theft and Assumption Deterrence Act . 8 This statute makes it a federal crime to transfer or use, without authority, the identity of another person knowingly and with the intent to commit any unlawful activity as defined by federal law and state and local felony laws. Violators can be sentenced to prison for up to 15 years and have any property used in the commission of ID theft forfeited to the government.

Identity Theft and Assumption Deterrence Act

A federal act that makes it a crime to transfer or use, without authority, the identity of another person knowingly and with the intent to commit any unlawful activity as defined by federal law and state and local felony laws.

Information Infrastructure Protection Act

The Internet and the information age ushered in a whole new world for education, business, and consumer transactions. It also made cybercrimes possible. Prosecutors and courts have wrestled with questions about how to apply existing laws written before the digital age to new Internet-related abuses.

Congress responded by enacting the Information Infrastructure Protection (IIP) Act . 9 The act addresses computer-related crimes as distinct offenses. The IIP Act provides protection for any computer attached to the Internet.

Information Infrastructure Protection (IIP) Act

A federal act that makes it a crime for anyone to access and acquire information intentionally from a protected computer without authorization.

The IIP Act makes it a federal crime for anyone to access and acquire information intentionally from a protected computer without authorization. The IIP Act does not require that the defendant accessed a protected computer for commercial benefit. Thus, persons who transmit a computer virus over the Internet or hackers who trespass into Internet-connected computers may be criminally prosecuted under the IIP Act. Even merely observing data on a protected computer without authorization is sufficient to meet the requirement that the defendant has accessed a protected computer. Criminal penalties for violating the IIP Act include imprisonment and fines.

The IIP Act gives the federal government a much-needed weapon for directly prosecuting cybercrooks, hackers, and others who enter, steal, destroy, or look at others’ computer data without authorization.

Counterfeit Access Device and Computer Fraud and Abuse Act