Civil Law and Criminal Law (1 of 2) : Evidence. The Jury's Verdict Normally Must Be Unanimous

CIVIL LAW AND CRIMINAL LAW (1 of 2)
 Crime: A wrong against society, defined in a statute, and

punishable by fines, imprisonment, or—in rare cases—death.
Because crimes are offenses against society as a whole, they are
prosecuted by a public official, such as a district attorney (D.A.)
or an attorney general (A.G.), not by the victims.
 Key Differences between Civil Law and Criminal Law:

There are numerous safeguards in place to protect the rights of
defendants.
 Burden of Proof: In a criminal case, the government must

prove its case beyond a reasonable doubt. In contrast, the
plaintiff must prove his/her case by a preponderance of the
evidence. The jury’s verdict normally must be unanimous
in a criminal case. In a typical civil trial by jury, only three-
fourths of jurors need to agree.
 Criminal Sanctions: The sanctions that are imposed on a

criminal wrongdoer are typically harsher than those applied
in civil cases. Criminal sanctions include fines as well as
incarceration in a jail or prison.
 Civil Liability for Criminal Acts: Torts such as assault and

battery provide a basis for criminal prosecution and civil action
in tort.
Ch. 10: Criminal Law and Cyber Crime - No. 1

Miller’s Business Law: Text and Cases – The First Course (14E)
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
CIVIL LAW AND CRIMINAL LAW (2 of 2)
Classification of Crimes:
 Felony: A crime—such as murder, rape, or robbery—that

carries the most severe sanction, ranging from one or more years
in prison to forfeiture of one’s life.
 Misdemeanor: A less serious crime—such as disorderly

conduct, trespass, or petty theft—punishable by a fine or
imprisonment for up to one year.
 Petty Offense: A subset of misdemeanors comprised of the

least serious criminal offenses, such as traffic violations
and jaywalking.

CRIMINAL LIABILITY (1 of 3)
 The following two elements normally must exist simultaneously

for a person to be convicted of a crime:
(1) The performance of some prohibited act (actus reus).
(2) A specified state of mind, or intent, on the part of the

actor (mens rea).
 The Criminal Act: Most crimes require an act of commission (a

person must do something in order to be accused of a crime). In
some instances, an act of omission can be a crime but only if the
person has a legal duty to perform the omitted act (such as filing
a tax return).
 A person can be punished for attempting to commit a crime but

normally only if she/he has taken substantial steps toward the
criminal objective.
 State of Mind: Mens rea (wrongful mental state) is typically

used to establish criminal liability. The required mental state
(intent) is indicated in the applicable statute or law.

 Recklessness: The required mental state can be present

when a person’s acts are reckless or criminally negligent. A
defendant is criminally reckless if she/he consciously
disregards a substantial and unjustifiable risk.
 Criminal Negligence: A mental state in which the

defendant takes an unjustified, substantial, and foreseeable
risk that results in harm. A defendant can be negligent even
if she/he was not actually aware of the risk but should have
been aware of it.
 Strict Liability and Overcriminalization: An increasing

number of laws and regulations impose criminal sanctions
on strict liability cases, which do not require a wrongful
mental state to establish criminal liability. Proponents of
such laws say that they are necessary to protect the public
and environment, while opponents say that laws
criminalizing conduct without requiring intent have led to
overcriminalization.
 Federal and State Crimes: The federal crime code

lists more than four thousand criminal offenses, many
of which do not require a specific mental state and/or
intent. Many states have also enacted laws that
criminalize behavior without the need to show intent.

 Corporate Criminal Liability:
 Liability of the Corporate Entity: Corporations are

normally held liable for the crimes committed by their
agents or employees within the scope of their employment.
 In order for liability to be imposed, the prosecutor

generally must show that the corporation could have
prevented the act, or that a supervisor authorized or
had knowledge of the act.
 Corporations can also be criminally liable for failing to

perform specific duties imposed by law (such as those
under environmental or securities laws).
 Liability of Corporate Officers and Directors: Corporate

officers and directors are personally liable for their own
criminal acts, regardless of whether they committed them
for their own benefit or the benefit of the corporation. They
may also be held liable for crimes committed by those
under their supervision.
 Under the responsible corporate officer doctrine, a

corporate officer may be criminally liable even if she did
not participate in, direct, or even know of the criminal
violation.

TYPES OF CRIMES (1 of 6)
 Criminal acts generally fall into five broad categories: violent

crime (crimes against persons), property crime, public order
crime, white-collar crime, and organized crime. When crimes
are committed in cyberspace, they are referred to as cyber
crimes.
 Violent Crime: Crimes against persons that cause them to

suffer harm or death.
 Robbery: Forcefully and unlawfully taking personal

property of any value from another; force or threat of force
is typically required for an act of theft to be treated as
robbery. Aggravated robbery is robbery with the use of a
deadly weapon—the most serious form of theft.
 Assault and battery are also considered violent crimes.
 Property Crime: The most common type of criminal activity is

property crime. The goal of the offender in these crimes is
economic gain or property damage.
 Burglary: Unlawful entry into a building with the intent to

commit a felony (or, in some states, the intent merely to
commit any crime). Aggravated burglary occurs when a
deadly weapon is used or when the building entered is a
dwelling.

 Larceny: Wrongfully taking and carrying away another

person’s personal property with the intent to permanently
deprive the owner of the property.
 Obtaining Goods by False Pretenses: A form of theft that

involves trickery or fraud in order to receive property,
services, or cash (e.g., writing a check knowing there are
insufficient funds to cover it, buying goods using someone
else’s credit card number without authorization).
 Theft: Some state statutes consolidate the crime of

obtaining goods by false pretenses with other property
offenses (such as larceny and embezzlement) into a single
crime called simply “theft.”
 Petty theft is the theft of a small quantity of cash or

low-value goods. Grand theft is the theft of a larger
amount of cash or higher-value property.
 Receiving Stolen Goods: It is a crime to receive goods that

a person knows (or should have known) were stolen or
illegally obtained. Receipt of such goods implies an intent
to deprive the true owner of those goods and the recipient
of the goods can be convicted even if she/he does not know
the true identity of the owner or the thief and/or did not pay
for the goods.

 Arson: Willfully and maliciously burning a building (and,

in some states, personal property) owned by another. Every
state has a special statute that prohibits burning one’s own
building or other property in order to collect insurance
benefits on the property.
 Forgery: Fraudulently making or altering a writing

(including an electronic record) in a way that changes the
legal rights or liabilities of another.
 False Pretenses: Obtaining goods by deceiving the person

from whom they are obtained (e.g., writing a check
knowing there are insufficient funds to cover it, buying
goods using someone else’s credit card number without
authorization).
 Public Order Crime: Activity considered contrary to public

values and morals, such as public drunkenness, prostitution,
illegal gambling, and illegal drug use. Sometimes referred to as
victimless crimes, states and municipalities outlaw these types
of activities because they deem them to “victimize” society as a
whole.

 White-Collar Crime: An illegal act or series of acts committed

by an individual or business entity using some nonviolent means
to obtain a personal or business advantage. This kind of crime
usually takes place in the course of a legitimate business
occupation.
 Embezzlement: Fraudulently appropriating money or other

property one has been entrusted to handle. It is typically
carried out by an employee who steals a small amount at a
time over a long period. The intent to return embezzled
property—or its actual return—is not a defense to the crime
of embezzlement,
 Mail and Wire Fraud: Any scheme that uses U.S. mail,
commercial carriers (FedEx, UPS), or wire (telegraph,
telephone, television, the Internet, e-mail) with the intent to
defraud the public.
 Bribery: The act of offering to give something of value to

a person in an attempt to influence that person in a way that
serves a private interest. Three types of bribery are
considered crimes: bribery of public officials, commercial
bribery, and bribery of foreign officials.
 The crime of bribery occurs when the bribe is offered

—it is not required that the bribe be accepted.
(Accepting a bribe is a separate crime.)
 Bankruptcy Fraud: A knowing attempt to evade the effect

of federal bankruptcy law.
 Insider Trading: Buying or selling publicly traded

securities on the basis of information that has not been
made available to the public (i.e., inside information) in
violation of a duty owed to the company whose stock is
being traded.
 Theft of Trade Secrets: The Economic Espionage Act of

1996 makes stealing trade secrets, as well as knowingly
buying or possessing another’s trade secrets without the
other’s authorization, a federal crime.
 Organized crime operates illegitimately by providing illegal

goods and services. Traditional organized crime has been
involved with gambling, prostitution, illegal narcotics,
counterfeiting, and loan sharking, while more recent ventures
include credit-card scams and cyber crime.
 Money Laundering: Engaging in financial transactions

that conceal the identity, source, or destination of illegally
gained funds through a legitimate business enterprise.

 Racketeering: Under the Racketeer Influenced and

Corrupt Organizations Act (RICO), it is a federal crime
to:
(1) Use income obtained from racketeering activity to

purchase any interest in an enterprise.
(2) Acquire or maintain an interest in an enterprise

through racketeering activity.
(3) Conduct or participate in the affairs of an enterprise

through racketeering activity.
(4) Conspire to do any of the preceding activities.
 Broad Application of RICO and Civil Liability: RICO

incorporates by reference twenty-six separate types of
federal crimes and nine types of state felonies and it has
been applied in cases that have little or nothing to do with
organized crime. If a person commits two or more RICO
offenses, then that person is guilty of “racketeering
activity.” The government can seek not only criminal
penalties but also civil penalties in the event of a RICO
violation.

DEFENSES TO CRIMINAL LIABILITY (1 of 4)
 Justifiable Use of Force: Self-defense is the legally recognized

privilege to protect one’s self or property against injury by
another. The privilege of self-defense protects only acts that are
reasonably necessary to protect one’s self or property.
 Deadly force is likely to result in death or serious bodily

harm. Deadly force can be used in self-defense only when
the defender reasonably believes that imminent death or
grievous bodily harm will otherwise result.
 Nondeadly force is force that reasonably appears necessary

to prevent the imminent use of criminal force. Generally
speaking, people can use the amount of nondeadly force
that seems necessary to protect themselves, their dwellings,
or other property, or to prevent the commission of a crime.
 Necessity: Criminal defendants can sometimes be relieved of

liability if they show that a criminal act was necessary to prevent
an even greater harm.
 Insanity: A person who suffers from a mental illness may be

incapable of the state of mind required to commit a crime. An
insanity defense does not prevent a person from being
imprisoned but it means that if the defendant successfully proves
insanity, she/he will be placed in a mental institution.

 Insanity: A person who suffers from a mental illness may be

incapable of the state of mind required to commit a crime. An
insanity defense does not prevent a person from being
imprisoned but if the defendant successfully proves insanity,
she/he will be placed in a mental institution instead of a jail or
prison.
 Model Penal Code: Some courts use the substantial-

capacity test from the Model Penal Code:
A person is not responsible for criminal conduct if at

the time of such conduct as a result of mental disease
or defect he or she lacks substantial capacity either to
appreciate the wrongfulness of his [or her] conduct or
to conform his [or her] conduct to the requirements of
the law.
 M’Naghten and Other Tests: Some states use the

M’Naghten test which states that a person is not
responsible if, at the time of the offense, he or she did not
know the nature and quality of the act or did not know that
the act was wrong. Other states use the irresistible-impulse
test which states that a person operating under an
irresistible impulse may know an act is wrong but cannot
refrain from doing it.
 Because proving insanity is extremely difficult, this defense is

rarely used and usually is not successful.
 Mistake: Ordinarily, ignorance of the law or a mistaken idea

about what the law requires is not a valid defense. A mistake of
fact (as opposed to a mistake of law) can normally excuse
criminal responsibility if it negates the mental state necessary to
commit a crime.
 Example: Person A mistakenly walks off with person B’s

briefcase. If person A genuinely thought that the case was
his, a theft has not occurred since theft requires knowledge
that the property belongs to another.
 Duress exists when the wrongful threat of one person induces

another person to perform an act that she/he would not otherwise
have performed. In such a situation, duress negates the mental
state necessary to commit a crime because the defendant was
forced or compelled to commit the act.
 Entrapment: A defense in which the defendant claims that

she/he was induced by a public official—usually an undercover
agent or police officer—to commit a crime that he or she would
otherwise not have committed. For entrapment to be considered
a defense, both the suggestion and the inducement must take
place.

 Statute of Limitations: Most criminal prosecutions (except for

murder) must be brought within a specified period of years after
the crime. The running of the time period in a statute of
limitations may be tolled (suspended or stopped temporarily) if
the defendant is a minor or is not in the jurisdiction.
 Immunity: The privilege against self-incrimination is

guaranteed by a clause in the Fifth Amendment to the U.S.
Constitution. Accused persons cannot be forced to give
information that will be used to prosecute them. When the state
wishes to obtain information from a person accused of a crime,
it can either grant immunity from prosecution or agree to
prosecute the accused for a less serious offense in exchange for
the information.
 A grant of immunity from prosecution for a serious crime is

often part of the plea bargaining between the defending
and prosecuting attorneys.

CRIMINAL PROCEDURES (1 of 5)
 The U.S. Constitution provides protections for those accused of

crimes including:
(1) The Fourth Amendment protection from unreasonable

searches and seizures.
(2) The Fourth Amendment requirement that no warrant for a

search or an arrest be issued without probable cause.
(3) The Fifth Amendment requirement that no one be deprived

of “life, liberty, or property without due process of law.”
(4) The Fifth Amendment prohibition against double jeopardy

(trying someone twice for the same criminal offense).
(5) The Fifth Amendment requirement that no person be

required to be a witness against (incriminate) himself or
herself.
(6) The Sixth Amendment guarantees of a speedy trial, a trial

by jury, a public trial, the right to confront witnesses, and
the right to a lawyer at various stages in some proceedings.
(7) The Eighth Amendment prohibitions against excessive bail

and fines and against cruel and unusual punishment.

 Fourth Amendment Protections:
 Before searching or seizing private property, normally law

enforcement officers must obtain a search warrant (an
order from a judge or other public official authorizing the
search or seizure).
 Probable Cause: Enforcement officers must convince a

judge that they have reasonable grounds (probable cause)
to believe a search will reveal a specific illegality.
 Scope of Warrant: The Fourth Amendment prohibits

general warrants and requires a specific description of what
is to be searched or seized. General searches through a
person’s belongings are impermissible, and the search
cannot extend beyond what is described in the warrant.
 Reasonable Expectation of Privacy: The Fourth

Amendment protects only against searches that violate a
person’s reasonable expectation of privacy. A reasonable
expectation of privacy exists if (1) the individual actually
expects privacy and (2) the person’s expectation is one that
society as a whole would consider legitimate.

 The Exclusionary Rule: Any evidence obtained in violation of

the accused’s Fourth, Fifth, or Sixth Amendment rights—as well
as any evidence derived from illegally obtained evidence—is not
admissible at trial.
 Purpose: The exclusionary rule’s purpose is to deter police

from conducting warrantless searches and following other
improper procedures.
 The Miranda Rule: With few exceptions, an individual who is

arrested must be informed of certain constitutional rights,
including his/her right to remain silent (i.e., not to incriminate
herself) and his/her right to counsel, and any statements he/she
makes to the police prior to being informed of his/her rights is
inadmissible against him/her.
 Exception: The Supreme Court has recognized a “public

safety” exception that allows certain statements to be
admitted even if the defendant was not given Miranda
warnings. (A defendant’s statements that reveal the location
of a weapon would be admissible under this exception.)

 Criminal Process: The procedures in a criminal prosecution

differ significantly from those in a civil case in order to
safeguard the rights of the individual against the state.
 Arrest: A suspect’s arrest must be made based upon

probable cause—a substantial likelihood that the person
has committed or is about to commit a crime. An arrest can
be made without a warrant, but the judgement of the
arresting officer would stll be judged by the standard of
probable cause.
 Indictment or Information: Before they may be brought to

trial, individuals must be formally charged with one or more
specific crimes.
 Grand Jury Indictment: A grand jury is a group of

citizens called to decide, after hearing the state’s evidence,
whether a reasonable basis (probable cause) exists for
believing that a crime has been committed and whether a
trial ought to be held. An indictment is the formal charge
issued by the grand jury.
 Information: A criminal complaint issued by a

government prosecutor, typically in cases involving lesser
crimes.

 Trial: Once a criminal prosecution reaches trial, the state bears

the burden of proving beyond a reasonable doubt that the
accused is guilty of the crimes charged.
 The accused is not required to testify or to put on any

evidence in his/her defense, although the accused is
permitted to do so.
 If there is reasonable doubt as to whether a criminal

defendant committed the crime, then the verdict must be
“not guilty.”
 A “not guilty” verdict is not the same as stating that the

defendant is innocent. It means that not enough evidence
was properly presented to the court to prove guilt beyond a
reasonable doubt.
 At the conclusion of the trial, a convicted defendant will be

sentenced by the court. The U.S. Sentencing Commission
performs the task of standardizing sentences for federal
crimes. The judge’s sentencing discretion may be
constitutionally or statutorily constrained.

CYBER CRIME (1 of 4)
 Computer Crime: Any violation of criminal law that involves

knowledge of computer technology for its perpetration,
investigation, or prosecution.
 Many computer crimes fall under the broad label of cyber

crime (any criminal activity occurring via a computer in
the virtual community of the Internet). Most cyber crimes
are existing crimes in which the Internet is the instrument
of wrongdoing.
 Cyber Fraud: Any material misrepresentation made knowingly

over the Internet with the intent of deceiving another person who
actually and reasonably relies on the misrepresentation to his/her
detriment.
 Advance Fee and Online Auction Fraud: Examples

include the following scenarios:
 Consumers order and pay for items that are never

delivered.
 A person lists an expensive item for auction (on either

a legitimate or a fake auction site) and then refuses to
send the product after receiving payment. Or, the
wrongdoer may send the purchaser an item that is
worth less than the one offered in the auction.

 Cyber Theft: Thieves can steal data stored in a networked

computer with Internet access from anywhere on the globe. The
amount of data that they steal is only limited by their Internet
speed connection and their computer equipment.
 Identity Theft: Stealing another person’s identifying

information (e.g., name, Social Security number, date of
birth) in order to access the victim’s financial resources.
 Password Theft: Numerous software programs aid identity

thieves in illegally obtaining passwords. A technique called
keystroke logging, for instance, relies on software that
embeds itself in a victim’s computer and records every
keystroke made on that computer. User names and
passwords are then recorded and sold to the highest bidder.
 Phishing: Online fraud in which criminals pretend to be

legitimate companies by using e-mails or malicious Web
sites that trick individuals and companies into providing
useful information (such as bank account numbers, Social
Security numbers, and credit-card numbers).

 Hacking: A hacker is someone who uses one computer to break

into another. The danger posed by hackers has increased
significantly because of botnets, or networks of computers that
have been appropriated by hackers without the knowledge of
their owners.
 Malware: A program—often in the form of a worm (or a

virus)—that harms a computer or information stored on a
computer.
 Both worms and viruses are self-replicating but a

worm is a free-standing software program while a
virus must be attached to an “infected” host file to
spread.
 Service-Based Hacking: Instead of buying software to

install on a computer, many users now connect to Web-
based software (like Microsoft Office 365) that allows them
to do a variety of tasks via their browser. Cyber criminals
have adapted this “software as a service” distribution
method by renting the online services of cyber criminals to
do the work for a small price. Fake security software (also
known as scareware) is a common example.
 Cyberterrorism: Using a computer to damage, alter,

disrupt, or shut down—or to threaten to damage, alter,
disrupt, or shut down—a critical network system, such as
the FAA air traffic control system or the Federal Reserve
check clearing system.

 Prosecuting Cyber Crime: Determining the “location” of a

cyber crime and identifying a criminal in cyberspace present
significant challenges for law enforcement.
 Jurisdiction and Identification Challenges:

Geographic boundaries do not apply in cyberspace, and
cyber criminals do not leave physical traces as evidence of
their crimes. For these reasons, laws written to protect
physical property are often difficult to apply in cyberspace.
 The Computer Fraud and Abuse Act subjects a person to

criminal prosecution for accessing or attempting to access a
computer online, without authority, to obtain classified,
restricted, or protected data—including financial and credit
records, medical records, legal files, and other confidential
or sensitive data. The crime has two elements: accessing a
computer without authority and taking data.


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CIVIL LAW AND CRIMINAL LAW (1 of 2)

 Crime: A wrong against society, defined in a statute, and

 Key Differences between Civil Law and Criminal Law:

 Burden of Proof: In a criminal case, the government must

 Criminal Sanctions: The sanctions that are imposed on a

 Civil Liability for Criminal Acts: Torts such as assault and

Ch. 10: Criminal Law and Cyber Crime - No. 1

 Felony: A crime—such as murder, rape, or robbery—that

 Misdemeanor: A less serious crime—such as disorderly

 Petty Offense: A subset of misdemeanors comprised of the

Ch. 10: Criminal Law and Cyber Crime - No. 2

 The following two elements normally must exist simultaneously

(1) The performance of some prohibited act (actus reus).

(2) A specified state of mind, or intent, on the part of the

 The Criminal Act: Most crimes require an act of commission (a

 A person can be punished for attempting to commit a crime but

 State of Mind: Mens rea (wrongful mental state) is typically

Ch. 10: Criminal Law and Cyber Crime - No. 3

 Recklessness: The required mental state can be present

 Criminal Negligence: A mental state in which the

 Strict Liability and Overcriminalization: An increasing

 Federal and State Crimes: The federal crime code

Ch. 10: Criminal Law and Cyber Crime - No. 4

 Corporate Criminal Liability:

 Liability of the Corporate Entity: Corporations are

 In order for liability to be imposed, the prosecutor

 Corporations can also be criminally liable for failing to

 Liability of Corporate Officers and Directors: Corporate

 Under the responsible corporate officer doctrine, a

Ch. 10: Criminal Law and Cyber Crime - No. 5

 Criminal acts generally fall into five broad categories: violent

 Violent Crime: Crimes against persons that cause them to

 Robbery: Forcefully and unlawfully taking personal

 Assault and battery are also considered violent crimes.

 Property Crime: The most common type of criminal activity is

 Burglary: Unlawful entry into a building with the intent to

Ch. 10: Criminal Law and Cyber Crime - No. 6

 Larceny: Wrongfully taking and carrying away another

 Obtaining Goods by False Pretenses: A form of theft that

 Theft: Some state statutes consolidate the crime of

 Petty theft is the theft of a small quantity of cash or

 Receiving Stolen Goods: It is a crime to receive goods that

Ch. 10: Criminal Law and Cyber Crime - No. 7

 Arson: Willfully and maliciously burning a building (and,

 Forgery: Fraudulently making or altering a writing

 False Pretenses: Obtaining goods by deceiving the person

 Public Order Crime: Activity considered contrary to public

Ch. 10: Criminal Law and Cyber Crime - No. 8

 White-Collar Crime: An illegal act or series of acts committed

 Embezzlement: Fraudulently appropriating money or other

 Bribery: The act of offering to give something of value to

 The crime of bribery occurs when the bribe is offered

 Bankruptcy Fraud: A knowing attempt to evade the effect

 Insider Trading: Buying or selling publicly traded

 Theft of Trade Secrets: The Economic Espionage Act of

 Organized crime operates illegitimately by providing illegal

 Money Laundering: Engaging in financial transactions

Ch. 10: Criminal Law and Cyber Crime - No. 11

 Racketeering: Under the Racketeer Influenced and

(1) Use income obtained from racketeering activity to

(2) Acquire or maintain an interest in an enterprise

(3) Conduct or participate in the affairs of an enterprise