Cengage Advantage Books Business Law Text and Exercises 7th Edition Miller Solutions Manual

Cengage Advantage Books Business
Law Text and Exercises 7th Edition

Miller Solutions Manual
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Chapter 7
Criminal Law and Cyber Crime

INTRODUCTION
This chapter may be the first, and will probably be the last, study of criminal law for most of your students.
Nevertheless, it may also be one of the most interesting chapters for them.
Sanctions used to maintain a peaceful and ordered society, in which businesses can compete and flourish, include
damages for tortious conduct and breaches of contract. Courts of equity may restrain certain unlawful conduct or require that
things done unlawfully or having certain unlawful effects be undone by tailoring other relief to fit the circumstances.
Punitive sanctions have developed for other, particularly undesirable acts. These acts are crimes. A crime is a wrong
defined by and perpetrated against society. Just as the sanctions are different from those in the civil law, criminal law
prerequisites of fault or guilt are different. Also, unlike torts, courts cannot create new crimes. Only legislative bodies can
create or abolish crimes as public knowledge, experience, and technology change.
ADDITIONAL RESOURCES—
 VIDEO SUPPLEMENTS 

113
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or in part.
114 UNIT ONE: THE LAW AND OUR LEGAL SYSTEM
The following audio and video supplements relate to topics discussed in this chapter—
PowerPoint Slides
To highlight some of this chapter’s key points, you might use the Lecture Review PowerPoint slides compiled for
Chapter 7.
Business Law Digital Video Library

The Business Law Digital Video Library at www.cengage.com/blaw/dvl offers a variety of videos for group or
individual review. Clips on topics covered in this chapter include the following.
• LawFlix
Twelve Angry Men—Court system; role of juries.
 VIDEO QUESTIONS & ANSWERS 

LawFlix—
Twelve Angry Men
1. The jurors are deliberating on whether to convict the defendant. One juror says that at the beginning of
the trial he felt that the defendant was guilty and that “nobody proved otherwise.” Does a criminal defendant have to
offer evidence of his or her innocence? What must the prosecution show to establish that a defendant is guilty? How
does the burden of proof differ in criminal and civil cases? In a criminal case, a defendant does not have to offer any
evidence at trial. The prosecution has the burden of proving the defendant’s guilt beyond a reasonable doubt. If the
jury views the evidence in the case as reasonably permitting either a guilty or a not guilty verdict, then the jury’s
verdict must be not guilty. In other words, the government (prosecutor) must prove beyond a reasonable doubt that
the defendant has committed every essential element of the offense with which she or he is charged. If the jurors are
not convinced of the defendant’s guilt beyond a reasonable doubt, they must find the defendant not guilty. In a civil
case, the plaintiff usually must prove his or her case by a preponderance of the evidence. Under this standard, the
plaintiff must convince the court that based on the evidence presented by both parties, it is more likely than not that
the plaintiff’s allegation is true.
2. It is clear that all of the jurors except one (Henry Fonda) believe that the defendant is guilty. How many
jurors does it usually take to render a verdict in a criminal case? Usually, criminal cases require a unanimous verdict by
the jury.
3. When the holdout juror says that under the U.S. Constitution, “the defendant does not even have to
open his mouth,” to which provision is he referring? The juror is referring to the Fifth Amendment, which guarantees
the privilege against self-incrimination.
or in part.
CHAPTER 7: CRIMINAL LAW AND CYBER CRIME 115
4. Is it wrong for a group of jurors to bully or persuade another juror of the defendant’s guilt or innocence?
Explain. While it may be morally wrong (unethical), it obviously does happen in real juries, and it is not necessarily
illegal unless other juror misconduct was involved.
LECTURE OUTLINE FOR THIS CHAPTER
I. Civil Law and Criminal Law
II. Classification of Crimes
III. What Constitutes Criminal Liability?
A. The Criminal Act
B. Intent to Commit a Crime
IV. Corporate Criminal Liability
V. Constitutional Safeguards
A. Searches and Seizures
B. The Exclusionary Rule
C. Informing Suspects of Their Rights
VI. Crimes Affecting Business
A. Forgery
B. Robbery
C. Larceny
D. Embezzlement
E. Mail and Wire Fraud
F. Cyber Crime
1. Financial Crimes
2. Identity Theft
or in part.
3. Cyber-Stalking
4. Hacking and Cyber Terrorism
5. Prosecuting Cyber Crime
G. Bribery
1. Bribery of Public Officials
2. Commercial Bribery
3. Bribery of Foreign Officials
H. Racketeer Influenced and Corrupt Organizations Act (RICO)
VII. Defenses to Criminal Liability
A. Infancy
B. Insanity
C. Entrapment
D. Immunity
DETAILED CHAPTER OUTLINE
I. Civil Law and Criminal Law

Civil law relates to duties between persons or between citizens and their governments, except for the duty not to
commit crimes. Contract law and tort law are areas of civil law. Criminal law concerns crime—wrongs against society
declared in statutes and punishable through fines, imprisonment, or death. Crimes are offenses against society as a
whole and are prosecuted by public officials, not by victims. Proof that a certain person committed a crime must be
beyond a reasonable doubt.
II. Classification of Crimes

Crimes are classified as felonies or misdemeanors. Felonies are punishable by death or by imprisonment in a federal or
state penitentiary for more than a year. Felonies can be subdivided by type of punishment—capital offenses
(punishable by death), first degree felonies (punishable by life imprisonment), and so on. Misdemeanors (such as
disorderly conduct and trespass) are crimes punishable by a fine or by confinement for up to a year in a local jail. Some
states classify misdemeanors according to lengths of confinement. Petty offenses (for example, traffic violations) are a
subset of misdemeanors. A party guilty of a petty offense may be put in jail for a few days, or fined, or both.
or in part.
III. What Constitutes Criminal Liability?

Crime requires (1) the performance of a prohibited act and (2) a specified state of mind. All criminal statutes prohibit
certain behavior.
A. THE CRIMINAL ACT

Most crimes require an act of commission—an actus reus, or guilty act. Some acts of omission are crimes.
Attempting certain acts (murder, for example, or robbery) may also be crimes, if substantial steps toward a
criminal objective are taken.
B. INTENT TO COMMIT A CRIME

What constitutes a wrongful mental state—mens rea—varies according to the act. For murder, the act is the
taking of a life, and the mental state is the intent to take life. For theft, the act is the taking of another person’s
property, and the mental state involves both the knowledge that the property is another’s and the intent to
deprive the owner of it.
IV. Corporate Criminal Liability

A corporation may be held liable for crimes committed by its agents or employees within the course and scope of their
employment. The prosecution must show that the corporation authorized or could have prevented the crime.
Corporate directors and officers are personally liable for crimes they commit, and may be liable for the actions of
employees they supervise under the “responsible corporate officer” doctrine.
V. Constitutional Safeguards
These safeguards apply in all federal courts. The United States Supreme Court has ruled that most of them also apply
in state courts (by virtue of the due process clause of the Fourteenth Amendment). They include—
• The Fourth Amendment protection from unreasonable searches and seizures.

• The Fourth Amendment requirement that no warrants for a search or an arrest can be issued without probable
cause.
• The Fifth Amendment requirement that no one can be deprived of “life, liberty, or property without due process
of law.”
• The Fifth Amendment prohibition against double jeopardy,
• The Sixth Amendment guarantees of a speedy trial, trial by jury, a public trial, the right to confront witnesses, and
the right to legal counsel.
• The Eighth Amendment prohibitions against excessive bail and fines and cruel and unusual punishment.
CITATION—
REAL-WORLD CASE EXAMPLE

This feature is based on the actual case of United States. v. Oliver, 630 F.3d 397 (5th Cir. 2011). In discussing this
example, you might like to consider the following points:
If the police had been reckless in gaining the evidence or had intentionally made false claims to obtain the search
or in part.
warrant, should the evidence in this case have been excluded? Most likely, yes. The exclusion of the evidence could be
justified because the misconduct would probably constitute a violation of the Fourth Amendment. Its application could
have a deterrent effect to simialr conduct.
If Armstrong had not looked through the cardboard box before the police searched it, would the contents of the
box have been admissible? Why or why not? Probably not. According to the court, the police search of the box was
legitimate because the defendant’s girlfriend had previously conducted a private search of the box. Without this
private search, the government would not have been able to assert the private search doctrine. Therefore, the
officers’ searching the box without a warrant would have been considered unreasonable under the Fourth
Amendment, and the contents of the box would have been excluded as “fruit of the poisonous tree.”
Why was the evidence in the box crucial to the government’s prosecution of Oliver? Because Oliver was charged
with identity theft, the evidence of the victims’ names, Social Security numbers, and credit and debit cards was an
essential element of the crime. To establish identity theft, the government had to prove that Oliver (1) knowingly used
(2) the means of identification of another person (3) without lawful authority (4) during and in relation to a mail fraud
offense. Without the evidence in the box, the government might not have been able to establish that Oliver had
committed identity theft (although it still could have proven mail fraud).
A. SEARCHES AND SEIZURES

Before searching or seizing private property, law enforcement officers must obtain a search warrant from a judge
or other public official. To obtain a warrant, an officer must be convinced that there is probable cause to believe
that a search will reveal a specific illegality based on evidence that would convince a reasonable person the
search is more likely justified than not. General warrants and general searches are prohibited.
A government inspector must have a warrant to enter business premises, but a general and neutral enforcement
plan will justify its issuance. Inspecting business records also requires a warrant. No warrant is required for
seizures of spoiled food, or for businesses in highly regulated industries.
B. THE EXCLUSIONARY RULE

Under the exclusionary rule, all evidence obtained in violation of the rights spelled out in the Fourth, Fifth, and
Sixth Amendments must be excluded, as well as all evidence derived from the illegally obtained evidence. The
courts exercise some discretion in determining whether evidence has been obtained improperly.
ADDITIONAL CASES ADDRESSING THIS ISSUE —
Recent cases considering whether evidence is admissible under the exclusionary rule include the following.
• United States v. Hinson, __ F.3d __ (10th Cir. 2009) (even if the defendant’s arrest was not supported by probable
cause, the exclusionary rule did not bar the court from considering at sentencing cash found in the defendant’s car at
the time of arrest, absent evidence that police officers intended to wrongfully obtain that evidence to increase
defendant’s sentence).
• Commonwealth v. Webster, 75 Mass.App.Ct. 247, 913 N.E.2d 890 (2009) (officers’ illegal entry into an apartment
or in part.
to arrest the defendant, who was not home, and their misconduct in remaining there for seven hours before the
issuance of a search warrant and restraining the occupants from moving and answering the phone, did not require
suppression of a pistol found in a mattress, where no fruits of the misconduct were used in the application for the
search warrant, there was probable cause for the warrant’s issuance, the pistol was not obtained in violation of the
defendant’s constitutional rights, and the pistol’s use as evidence had no adverse impact on the law’s integrity).
• Delker v. State, __ So.3d __ (Miss.App. 2009) (even if the arrest of the defendant by a police chief acting outside
his jurisdiction was unlawful, evidence of the defendant’s driving under the influence was not subject to suppression in
prosecution for felony driving under the influence of alcohol (DUI), because the police chief believed he was within his
jurisdiction).
• State v. Sasine, __ S.W.3d __ (Tenn. 2009) (suppression of evidence was not required because an officer stopped
the defendant for speeding as a pretext to afford an opportunity to search the defendant’s vehicle for narcotics—the
officer had probable cause to believe that a traffic violation had occurred, and the stop was constitutionally reasonable
irrespective of the subjective motivations of the officer).
• State v. Robinson, 770 N.W.2d 721 (Wis.App. 2009) (the good faith exception to the exclusionary rule applied to
allow admission of evidence found in an apartment, even though the officer erroneously believed he had a warrant for
the defendant’s arrest when in fact he had a commitment order, not a warrant, because the officer had a good faith
belief that he had a warrant).
C. INFORMING SUSPECTS OF THEIR RIGHTS

Individuals who are arrested must be informed that they have a right to remain silent and a right to legal counsel.
These rights may be waived if the waiver is knowing and voluntary. In federal cases, a voluntary confession can
used in evidence even if the accused is not informed of his or her rights. Juries can accept confessions without
being convinced of their voluntariness.
ADDITIONAL BACKGROUND—
The Miranda Rights
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held
that the police must inform suspects, before interrogation, of certain constitutional rights. These rights have become
popularly known as the Miranda rights.
Before the United States Supreme Court decided the Miranda case, the admissibility at trial of a confession was
governed by the voluntariness test—voluntary confessions were admissible; involuntary confessions were not.
Because the voluntariness test was uncertain, however, each case had to be evaluated on its own facts, and trial and
appellate courts had considerable leeway to go either way on the voluntariness question. Over a period of more than
thirty years, the Supreme Court decided more than sixty cases under the voluntariness test, but the test never became
any more certain or objective. For example, a confession was not automatically ruled involuntary if the police denied a
suspect’s request to consult with an attorney before interrogation, but the denial was a factor for a court to consider,
along with all the other circumstances, in determining whether a suspect’s statement was voluntary.
or in part.
During the 1960s, disillusionment with the voluntariness test converged with other events to create pressure for a
more concrete approach to confession law. This period witnessed renewed interest in a suspect’s right to be
represented by counsel and a heightened sensitivity to the plight of the poor in the criminal justice system. In 1963, for
example, the United States Supreme Court held for the first time that the states had to provide lawyers for indigents in
felony trials. Before this decision, many defendants who could not afford lawyers had to defend themselves. In
Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), the Supreme Court held that the police violated
a defendant’s right to counsel when they prevented him from seeing his attorney, who was at the police station, until
the interrogation was over. The 1960s also saw the Supreme Court apply to the states most of the provisions of the Bill
of Rights—protections in the Constitution that originally applied only against the federal government. In 1964, the
Supreme Court held for the first time, in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), that the Fifth
Amendment protection against compulsory self-incrimination applied to the states as well as the federal government.b
In Miranda, the United States Supreme Court relied on the Fifth Amendment prohibition against compulsory self-
incrimination, which it had applied to the states just two years earlier. Reviewing the practices of police interrogation,
the Supreme Court concluded that certain inherent pressures undermine a suspect’s ability to exercise free choice in
deciding whether to make a statement. For example, the Supreme Court observed that a suspect is taken from familiar
surroundings to the isolated setting of a police interrogation room, where, cut off from family and friends, the suspect
is thrust into a police-dominated atmosphere. The Supreme Court viewed the requirement that suspects in custody be
informed of their rights before interrogation as necessary to alleviate the pressures. Notice of the right to remain
silent “will show the individual that his interrogators are prepared to recognize his privilege should he choose to
exercise it.” Because the “circumstances surrounding in-custody interrogation can operate very quickly to overbear the
will of one merely made aware of his privilege,” the Supreme Court concluded that a right to the presence of counsel
was also necessary. Finally, because the “need for counsel in order to protect the privilege exists for the indigent as
well as the affluent,” the Supreme Court required the police to advise suspects that a lawyer would be appointed to
represent them if they were indigent. Failure of the police to abide by the requisite procedure results in the
inadmissibility of the defendant’s statement at trial, even though the statement may be considered voluntary under
the old voluntariness test.
Although more certain than the old voluntariness test, the Miranda rule has created problems of its own. A person
must be advised of his or her rights only if the person is in custody. When is a person in custody? The United States
Supreme Court has held that a person in a friend’s home and not under arrest is not in custody and thus the person
does not have to be informed of his or her rights before being interrogated. The person’s statements are admissible if
they satisfy the old voluntariness test. Defining interrogation has also been a difficult issue. Is it interrogation if no
questions are asked—for example, is it interrogation if the police simply tell a suspect that her fingerprints were found
at the scene of the crime? Suspects can waive their rights, but when is a waiver valid, and for how long? Can a suspect
change his or her mind? Can the police keep trying to get a suspect to talk until he or she agrees to do so without a
lawyer?
Various studies have indicated that defendants informed of their rights seldom request counsel and that about as
many confessions are obtained by giving the Miranda rights as were gotten before the Miranda decision. It also
appears that Miranda has had little effect on conviction rates. This is apparently because most suspects do not grasp
the significance of the rights and seem unable to understand that the object of a police officer’s questions is to gather
evidence that could put the suspect in jail.
As for Ernesto Miranda, he was retried, with the confession excluded, and reconvicted. In 1976, he was stabbed to
or in part.
death during an argument over a card game in a bar in Phoenix, Arizona. In his pockets were two Miranda cards—that
is, cards printed with the Miranda rights. Supposedly, Ernesto Miranda had been printing and selling the cards. One of
the police officers took one of the cards from Miranda’s pocket and read one of Miranda’s suspected murderers his
rights.
VI. Crimes Affecting Business

Crimes related to business include those popularly designated as white-collar crimes. White-collar crime is usually
committed in the course of a legitimate occupation and often difficult to detect.
A. FORGERY
Among important crimes that affect business are forgery (the fraudulent making or alteration of any writing that
changes the legal liability of another).
B. ROBBERY
Robbery is the taking of another’s personal property, from his or her person or immediate presence, by force or
intimidation.
C. LARCENY
Larceny is the wrongful or fraudulent taking and carrying away by any person of the personal property of another.
D. EMBEZZLEMENT
Embezzlement is the fraudulent conversion of property or money owned by one person but entrusted to another.
The Creation of Embezzlement

In 1799, in England, a bank clerk received from a depositor money for deposit in the bank. The bank clerk put the
money in his pocket instead of the cash drawer, intending to misappropriate it. He was caught and charged with
larceny.
Larceny was a common law crime (that is, it had been invented by judges rather than Parliament). Larceny was
committed when one person misappropriated the property of another by taking the property from the owner’s
possession without his or her consent. Requiring that the property be taken from the owner’s possession proved to be
a difficult element. For example, if a master gave property to his servant to keep for him, the servant’s subsequent
misappropriation could not qualify as larceny. Thus, the courts invented the doctrine of constructive possession, under
which, when an employer handed property to an employee, the employee was considered to have mere custody of the
property and the employer impliedly remained in possession.
In the bank clerk’s case, the clerk had not taken the money from the possession of the bank. The clerk had put the
money in his pocket before it came into the bank’s possession. It might have been argued that the bank had
constructive possession of the money—in other words, when the depositor handed the money to the bank clerk,
possession immediately lodged in the bank with the clerk merely acquiring custody. Under this argument, the clerk’s
or in part.
misappropriation would amount to common law larceny.
The court held, however, that the constructive possession idea did not apply to property coming to an employee
for an employer from a third person until the employee handed the property to the employer or put it in a receptacle,
such as a cash drawer, provided by the employer for safe-keeping. The result was that the bank clerk was not held
guilty of larceny—and there was then no other crime that covered his conduct. a
Of course, it was the turn of the eighteenth century, and the times were changing. Shops and banks were growing
into something more than one-person and one-family operations. It was necessary to make conduct such as the bank
clerk’s criminal. Accordingly, in the same year as the court’s decision in the bank clerk’s case, Parliament enacted the
first of a long line of embezzlement statutes.
Earlier, English judges had not hesitated in the face of the need to create the common law crimes of murder,
manslaughter, burglary, arson, robbery, larceny, and others. Why did the judges hesitate in the late 1700s to expand
larceny to include embezzlement? At the end of the eighteenth century, Parliament was advancing in power and
prestige. Also, increasingly, the courts were coming to be seen as interpreters of custom rather than as framers of
policy. Perhaps a more direct influence was a contemporary revulsion for capital punishment, which was the penalty
for all theft except petty larceny during most of the 1700s. The severity of the penalty made judges reluctant to in-
crease the number and kinds of acts that would fit the definition of larceny. In fact, there were a number of judge-
made exclusions grafted onto the offense (for example, the exclusion of thefts of fixtures, deeds, and dogs).
Parliament, too, elected not to alter the old crime of larceny to cover embezzlement. Instead, it created a new
crime and assigned it a less severe punishment than that for larceny. In America, the states generally adopted
England’s division of theft into three separate crimes—larceny, embezzlement, and false pretenses. This division has
often caused difficulties in successfully prosecuting thieves.
a. Bazeley’s Case, 2 East King’s Bench Reports, Pleas of the Crown 571 (Crown Cases Reserved, 1799).
E. MAIL AND WIRE FRAUD

Use of the mails to defraud is a federal crime that requires (1) devising a scheme to defraud and (2) using the
mails to carry it out.
F. CYBER CRIME
These are crimes that occur within the Internet community.
1. Financial Crimes
Cyber theft is accessing a computer online, without authority, to obtain classified, restricted, or protected
data, or attempting to do so. This includes financial crimes, such as transferring funds via computer without
authorization.
2. Identity Theft
Identity theft occurs when a form of identification is stolen and used illegitimately.
or in part.
Identity Theft
Identity theft is a federal crime under 18 U.S.C. Section 1028. This statute was enacted in 1982 and has been
amended many times since to respond to changes in technology, increase the penalties for violations, and give victims
rights to work with creditors and credit bureaus to remove negative information from credit reports, among other
things. Following is the text of 18 U.S.C. Section 1028.
18 U.S.C. Section 1028

Fraud and related activity in connection with identification documents, authentication features, and information
(a) Whoever, in a circumstance described in subsection (c) of this section—
(1) knowingly and without lawful authority produces an identification document, authentication feature, or a false
identification document;
(2) knowingly transfers an identification document, authentication feature, or a false identification document knowing
that such document or feature was stolen or produced without lawful authority,
(3) knowingly possesses with intent to use unlawfully or transfer unlawfully five or more identification documents
(other than those issued lawfully for the use of the possessor), authentication features, or false identification
documents;
(4) knowingly possesses an identification document (other than one issued lawfully for the use of the possessor),
authentication feature, or a false identification document, with the intent such document or feature be used to
defraud the United States;
(5) knowingly produces, transfers, or possesses a document-making implement or authentication feature with the
intent such document-making implement or authentication feature will be used in the production of a false
identification document or another document-making implement or authentication feature which will be so used;
(6) knowingly possesses an identification document or authentication feature that is or appears to be an identification
document or authentication feature of the United States or a sponsoring entity of an event designated as a special
event of national significance which is stolen or produced without lawful authority knowing that such document or
feature was stolen or produced without such authority;
(7) knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with
the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of
Federal law, or that constitutes a felony under any applicable State or local law; or
(8) knowingly traffics in false or actual authentication features for use in false identification documents, document-
making implements, or means of identification;
shall be punished as provided in subsection (b) of this section.
(b) The punishment for an offense under subsection (a) of this section is—
or in part.
(1) except as provided in paragraphs (3) and (4), a fine under this title or imprisonment for not more than 15 years, or
both, if the offense is—
(A) the production or transfer of an identification document, authentication feature, or false identification document
that is or appears to be—
(i) an identification document or authentication feature issued by or under the authority of the United States; or
(ii) a birth certificate, or a driver's license or personal identification card;
(B) the production or transfer of more than five identification documents, authentication features, or false
identification documents;
(C) an offense under paragraph (5) of such subsection; or
(D) an offense under paragraph (7) of such subsection that involves the transfer, possession, or use of 1 or more means
of identification if, as a result of the offense, any individual committing the offense obtains anything of value
aggregating $1,000 or more during any 1-year period;
(2) except as provided in paragraphs (3) and (4), a fine under this title or imprisonment for not more than 5 years, or
both, if the offense is—
(A) any other production, transfer, or use of a means of identification, an identification document, authentication
feature, or a false identification document; or
(B) an offense under paragraph (3) or (7) of such subsection;
(3) a fine under this title or imprisonment for not more than 20 years, or both, if the offense is committed--
(A) to facilitate a drug trafficking crime (as defined in section 929(a)(2));
(B) in connection with a crime of violence (as defined in section 924(c)(3)); or
(C) after a prior conviction under this section becomes final;
(4) a fine under this title or imprisonment for not more than 30 years, or both, if the offense is committed to facilitate
an act of domestic terrorism (as defined under section 2331(5) of this title) or an act of international terrorism (as
defined in section 2331(1) of this title);
(5) in the case of any offense under subsection (a), forfeiture to the United States of any personal property used or
intended to be used to commit the offense; and
(6) a fine under this title or imprisonment for not more than one year, or both, in any other case.
(c) The circumstance referred to in subsection (a) of this section is that—
(1) the identification document, authentication feature, or false identification document is or appears to be issued by
or under the authority of the United States or a sponsoring entity of an event designated as a special event of national
significance or the document-making implement is designed or suited for making such an identification document,
or in part.
authentication feature, or false identification document;
(2) the offense is an offense under subsection (a) (4) of this section; or
(3) either—
(A) the production, transfer, possession, or use prohibited by this section is in or affects interstate or foreign
commerce, including the transfer of a document by electronic means; or
(B) the means of identification, identification document, false identification document, or document-making
implement is transported in the mail in the course of the production, transfer, possession, or use prohibited by this
section.
(d) In this section and section 1028A—
(1) the term “authentication feature” means any hologram, watermark, certification, symbol, code, image, sequence of
numbers or letters, or other feature that either individually or in combination with another feature is used by the
issuing authority on an identification document, document-making implement, or means of identification to determine
if the document is counterfeit, altered, or otherwise falsified;
(2) the term “document-making implement” means any implement, impression, template, computer file, computer
disc, electronic device, or computer hardware or software, that is specifically configured or primarily used for making
an identification document, a false identification document, or another document-making implement;
(3) the term “identification document” means a document made or issued by or under the authority of the United
States Government, a State, political subdivision of a State, a sponsoring entity of an event designated as a special
event of national significance, a foreign government, political subdivision of a foreign government, an international
governmental or an international quasi-governmental organization which, when completed with information
concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of
individuals;
(4) the term “false identification document” means a document of a type intended or commonly accepted for the
purposes of identification of individuals that—
(A) is not issued by or under the authority of a governmental entity or was issued under the authority of a
governmental entity but was subsequently altered for purposes of deceit; and
(B) appears to be issued by or under the authority of the United States Government, a State, a political subdivision of a
State, a sponsoring entity of an event designated by the President as a special event of national significance, a foreign
government, a political subdivision of a foreign government, or an international governmental or quasi-governmental
organization;
(5) the term “false authentication feature” means an authentication feature that—
(A) is genuine in origin, but, without the authorization of the issuing authority, has been tampered with or altered for
purposes of deceit;
(B) is genuine, but has been distributed, or is intended for distribution, without the authorization of the issuing
or in part.
authority and not in connection with a lawfully made identification document, document-making implement, or means
of identification to which such authentication feature is intended to be affixed or embedded by the respective issuing
authority; or
(C) appears to be genuine, but is not;
(6) the term “issuing authority”—
(A) means any governmental entity or agency that is authorized to issue identification documents, means of
identification, or authentication features; and
(B) includes the United States Government, a State, a political subdivision of a State, a sponsoring entity of an event
designated by the President as a special event of national significance, a foreign government, a political subdivision of a
foreign government, or an international government or quasi-governmental organization;
(7) the term “means of identification” means any name or number that may be used, alone or in conjunction with any
other information, to identify a specific individual, including any—
(A) name, social security number, date of birth, official State or government issued driver's license or identification
number, alien registration number, government passport number, employer or taxpayer identification number;
(B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;
(C) unique electronic identification number, address, or routing code; or
(D) telecommunication identifying information or access device (as defined in section 1029(e));
(8) the term “personal identification card” means an identification document issued by a State or local government
solely for the purpose of identification;
(9) the term “produce” includes alter, authenticate, or assemble;
(10) the term “transfer” includes selecting an identification document, false identification document, or document-
making implement and placing or directing the placement of such identification document, false identification
document, or document-making implement on an online location where it is available to others;
(11) the term “State” includes any State of the United States, the District of Columbia, the Commonwealth of Puerto
Rico, and any other commonwealth, possession, or territory of the United States; and
(12) the term “traffic” means—
(A) to transport, transfer, or otherwise dispose of, to another, as consideration for anything of value; or
(B) to make or obtain control of with intent to so transport, transfer, or otherwise dispose of.
(e) This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law
enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of
the United States, or any activity authorized under chapter 224 of this title.
or in part.
(f) Attempt and conspiracy.—Any person who attempts or conspires to commit any offense under this section shall be
subject to the same penalties as those prescribed for the offense, the commission of which was the object of the
attempt or conspiracy.
(g) Forfeiture procedures.—The forfeiture of property under this section, including any seizure and disposition of the
property and any related judicial or administrative proceeding, shall be governed by the provisions of section 413
(other than subsection (d) of that section) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
U.S.C. 853).
(h) Forfeiture; disposition.—In the circumstance in which any person is convicted of a violation of subsection (a), the
court shall order, in addition to the penalty prescribed, the forfeiture and destruction or other disposition of all illicit
authentication features, identification documents, document-making implements, or means of identification.
(i) Rule of construction.—For purpose of subsection (a)(7), a single identification document or false identification
document that contains 1 or more means of identification shall be construed to be 1 means of identification.
3. Cyber Stalking
Cyber stalking—harassing a person in cyberspace (via e-mail, for example)—is prohibited by all states. Some
states require a physical act.
ENHANCING YOUR LECTURE—
  STALKING AND INTERNET DATA BROKERS

 
A cutting-edge issue coming before today’s courts has to do with stalking and Internet data brokers—those in the
business of selling personal information via the Internet. Suppose that a stalker purchases personal information (such
as a home address) from a Web broker and then uses that information to commit a crime (such as murder). The
stalker, of course, can be prosecuted under criminal law for the crime of murder. At issue is the broker’s responsibility
for the crime. Can the broker be sued under tort law (see Chapter 7) for damages?
ONE COURT WEIGHS IN
At least one court has weighed in on this issue. In Remsburg v. Docusearch, Inc.,a the Supreme Court of New
Hampshire concluded that an Internet data broker had a duty to exercise reasonable care when selling personal
information online. The case involved Liam Youens, a New Hampshire resident, and Docusearch, Inc., an Internet-
based investigation and information service. Youens contacted Docusearch through its Web site and requested
information about Amy Boyer. Youens provided his name, address, and phone number and paid Docusearch’s fee by
credit card. In return, Docusearch provided Boyer’s home address, birth date, and Social Security number. Youens also
asked for Boyer’s workplace address, which Docusearch obtained for him. After Youens had obtained the address of
Boyer’s place of employment, he drove to the workplace, fatally shot her, and then shot and killed himself.
or in part.
Helen Remsburg, Boyer’s mother, sued Docusearch, claiming that the defendant had acted wrongfully. The federal
district court referred the case to the New Hampshire Supreme Court for a determination of the parties’ duties under
the state’s common law. The state supreme court held that an information broker who sells information about a third
person to a client has a duty to exercise reasonable care in disclosing the information.
A FORESEEABLE RISK?
One of the key issues for the court was whether the crime committed by Youens was a foreseeable risk to
Docusearch. Under tort law, the test for proximate cause—and the extent of a defendant’s duty of care—is the
foreseeability of a risk of harm. If certain consequences of an action are not foreseeable, there is no proximate cause.
In determining whether a risk of criminal misconduct was foreseeable to Docusearch, the Supreme Court of New
Hampshire found that Docusearch’s information disclosure presented two foreseeable risks: stalking and identity theft.
Therefore, the company had a duty to exercise reasonable care in disclosing personal information about Boyer to
Youens. Because Docusearch had not exercised reasonable care (taken steps to find out if Youens’s requests were for a
legitimate purpose), Docusearch could be sued for damages for breaching this duty.
FOR CRITICAL ANALYSIS
Are there any other crimes, in addition to stalking and identity theft, that might qualify as “foreseeable risks”
created by the online sale of personal data by information brokers?
a. 149 N.H. 148, 816 A.2d 1001 (2003).
4. Hacking and Cyber Terrorism

Hacking consists of using one computer to break into another. Cyber terrorism is exploiting computers for
serious impacts, such as the exploding of an internal data “bomb” to shut down a central computer or
spreading a virus to cripple a computer network.
5. Prosecuting Cyber Crimes

Jurisdictional issues and the anonymous nature of technology can hamper investigation and prosecution of
cyber crimes. Cyber theft is prohibited by the federal National Information Infrastructure Protection Act of
1996 (an amendment to the Counterfeit Access Device and Computer Fraud and Abuse Act of 1984). The
crime consists of (1) accessing a computer without authority and (2) taking data. Penalties include fines and
imprisonment for up to twenty years (and civil suits).
ENHANCING YOUR LECTURE—
 HOW CAN YOU PROTECT AGAINST CYBER CRIME?  

or in part.
In addition to protecting their physical property, business owners today also are concerned about protecting their
intangible property—such as computer data or files—from unauthorized access. U.S. business firms lose millions of
dollars to industrial espionage and sabotage every year. Once a computer system has been corrupted, it can be
difficult to recover. To prevent losses through computer systems, some firms hire experts to improve the security of
the systems.
COMPUTER SYSTEM SAFEGUARDS
Many sources of software offer security programs that can easily be used to protect computers that are connected
to an internal network or to the Internet. For example, most word processing programs include a “password” function.
To gain access to information within the program, a user must know the password. A document that can be unlocked
only with the password can be e-mailed as an attachment, providing some security.
Cryptography also provides increased protection for computer data and files. Encryption hardware is available in
the form of computer chips and is commonly used in automated teller machines. These chips quickly encrypt, or
decrypt, information. The same results can be achieved using encryption software.
Additionally, effective “firewalls” can be installed at the interface between computers and the Internet to protect
against unwanted intruders. Firewall software can also be used to keep internal network segments secure.
EMPLOYMENT POLICIES
Although outside hackers are a threat, employees, former employees, and other “insiders” are responsible for
most computer abuse, including breaches of information security. Generally, employees should be given access only to
information that they need to know. Additionally, employees and other insiders should be instructed in what
constitutes proper and improper use of your company’s computer systems. They should also be told that any form of
computer abuse is against company policy, is illegal, and will be the basis for termination of employment.
Another safeguard is to have employees agree, in a written confidentiality agreement, not to disclose confidential
information during or after employment without the employer’s consent. Monitoring certain computer-related
employee activities may be appropriate, but if monitoring is to take place, employees should be informed (see Chapter
33). Still other security measures include the use of digital signatures (see Chapter 19), facility lockups, visitor
screenings, and announced briefcase checks.
CHECKLIST FOR THE BUSINESS OWNER
1. Consider protecting your computer security and documents through the use of passwords, encryption, and
firewalls.
2. Instruct your employees in how computers and computer information are to be used and not used.
3. Consider using confidentiality agreements, monitoring, and digital signatures to protect your computer system and
data against unauthorized use.
or in part.
G. BRIBERY
1. Bribery of Public Officials

Bribery of public officials is a crime. The bribe can be of anything that the official considers valuable.
Commission of the crime occurs when the bribe is tendered—the official does not have to agree to do
anything nor even accept the bribe.
2. Commercial Bribery
In some states, commercial bribery (kickbacks and payoffs from an individual working for one company to
another individual working for another company) is a crime. Commercial bribes are typically given to obtain
proprietary information, cover up an inferior product, or secure new business. Industrial espionage
sometimes involves commercial bribery.
3. Bribery of Foreign Officials

Bribing foreign officials to obtain favorable business contracts is also a crime.
H. RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT (RICO)

The Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO) has become an effective tool in attacking
securities fraud (involving the sale of stocks and bonds) and mail fraud, which are criminal violations of RICO. Any
individual found guilty of a violation is subject to a fine of up to $25,000 per violation or imprisonment for up to
twenty years—or both.
VII. Defenses to Criminal Liability

The burden of proving a defense is on the accused.
A. INFANCY
At common law, children up to seven years of age were considered incapable of committing a crime because they
lacked the moral sense to understand that they were doing wrong. Children between the ages of seven and
fourteen were presumed to be incapable of committing a crime, but the presumption could be rebutted by
showing that the child understood the wrongful nature of the act. Most states retain these distinctions, although
age limits vary from state to state. Other states reject the rebuttable presumption and set a minimum age for
criminal responsibility.
B. INSANITY
To defend against criminal charges on the ground of insanity, a defendant must meet a test for legal insanity.
Most federal courts and some states use the standard in the Model Penal Code: “A person is not responsible for
criminal conduct if . . . as a result of mental disease or defect he lacks substantial capacity either to appreciate
the wrongfulness of his conduct or to conform his conduct to the requirements of the law.” Other states use the
M’Naghten test. Some states have adopted the irresistible impulse test.
C. ENTRAPMENT
Entrapment occurs when a government officer suggests that a crime be committed and pressures or induces an
individual to commit it. The defense is not intended to prevent the police from setting a trap for unwary
or in part.
criminals; it is designed to prevent government agents from encouraging persons to commit crimes. The
important issue is whether a person who committed a crime was predisposed to do so.
D. IMMUNITY
To obtain information, the state can grant immunity from prosecution. Once immunity is given, a person may be
compelled to answer questions (which it cannot do otherwise because under the Fifth Amendment a person can
refuse to answer questions on the ground of self-incrimination). Often a grant of immunity from prosecution for
a serious crime is part of a plea bargain under which the defendant may still be convicted of a lesser offense, and
the state uses his or her testimony to prosecute accomplices for serious crimes carrying heavy penalties.
Plea Bargaining
In most criminal cases, defendants plead guilty. Usually, this is after the prosecutor promises that concessions will
be granted (or at least sought). This is known as plea negotiation, or plea bargaining. Sometimes a defendant agrees
to plead guilty to a charge less serious than the evidence supports because the consequences are not as undesirable.
A lesser penalty will result, for example. In other cases, a defendant pleads guilty to the original charge in exchange for
the prosecutor’s promise to seek leniency, or at least not to oppose the defendant’s request for leniency, or to drop
other charges.
Plea bargaining came about, in part, because of crowded court dockets and expensive changes in the jury process.
Thus, from the prosecutor’s point of view, plea bargaining helps dispose of large numbers of cases—in some cities, 80
to 95 percent of all criminal cases—in a quick and simple way. Critics charge that the practice has at least two negative
results: serious offenders get undeserved leniency and innocent persons plead guilty (to avoid delays before trial and
risks of conviction on greater charges).
 FACING A LEGAL PROBLEM 

Questions
When discussing this chapter’s Facing a Legal Problem, you might like to ask the following questions.
1. What recourse might the owner of the purse have against Ray in a civil court? The civil action that corresponds to
the crime of theft is the tort of conversion. The owner might base a lawsuit against Ray on this ground. Crimes are
considered offenses against society as a whole; civil law is concerned with wrongs more personal in nature. Criminal
defendants are prosecuted by public officials; civil defendants are sued by private individuals. Those who are found
guilty of crimes are punished; those who lose in a civil suit are generally required to compensate the injured.
2. If Ray had changed his mind and attempted to return the purse and its contents to the owner but had been
arrested before he could do so, would that intent have absolved him of the crime? No. An intent to return stolen
property does not exculpate one who commits a crime.
or in part.
ANSWER TO ETHICAL QUESTION

Should there be any exceptions to the rule that suspects be informed of their rights? Discuss. When this rule was
first imposed, some observers argued that it would hamper police efforts to bring criminals to justice. Exceptions were
made for the admission of some confessions that occurred before suspects were advised of their rights. Now some
observers argue that there are too many exceptions, making the situation confusing for police and the courts.
Alternatives include enforcing the requirement in all cases or dropping the requirement and videotaping all
interrogations.
TEACHING SUGGESTIONS
1. A good starting point might be to discuss the basis of criminal responsibility—the criminal act and the criminal
state of mind. Emphasize that criminal liability is not imposed for merely thinking about a crime (if it was, we might all
be guilty of something). Point out that an accused’s mental state is determined by examining what happens after it
happens—in other words, the law uses hindsight to discern intent, which may be evident from an individual’s stated
purpose, his or her knowledge, or his or her acting in spite of certain knowledge or in spite of something that he or she
should have known. There are some crimes for which an individual will be held strictly liable (selling liquor to a minor,
for example).
2. The objectives of criminal law are: (1) to protect persons and property, (2) to deter criminal behavior, (3) to punish
criminal conduct, and (4) to rehabilitate criminals. Discuss these objectives with your students. Protecting persons and
property is often said to be the ultimate goal of all civilized societies, but what priority should the other three
objectives be given? Ask students whether punishment, for example, is more important than rehabilitation. If
punishment is emphasized, will that also serve to deter? Is state-meted punishment the only deterrent to criminal
behavior? Emphasizing deterrence as an objective may serve to create appropriate punishments. What are
appropriate punishments? What is an appropriate standard for determining that a criminal has been rehabilitated?
How should that standard be met—that is, how should a criminal be rehabilitated (if education is the means, for
example, should prisons become trade schools and colleges)?
3. It should be clear to your students by now that the law is not so frozen that there is no room for disagreement.
Attorneys, and even judges, often disagree with each other over the interpretation and application of the law. Your
students might be reminded that to put apparently contradictory statements together in a meaningful way, they
should pay close attention to how you—their teacher—presents the material (what is covered and in what order, for
example). You might also remind them that a review shortly after a topic is discussed can be as helpful as the time
spent on the topic before it is discussed.
Cyberlaw Link
Does the Fourth Amendment prevent the seizure, without cause, of email messages? Does the propagator of a
or in part.
virus violate traditional criminal laws?
DISCUSSION QUESTIONS
1. On what basis are misdemeanors and felonies distinguished? The punishment: Felonies are crimes punishable by
death or by imprisonment in a federal or state penitentiary for more than a year; misdemeanors are punishable by a fine or by
confinement for up to a year in a local jail. Felonies are often further categorized by type of punishment (for example, capital
offenses are those punishable by death and first degree felonies are those punishable by life imprisonment) and may be divided
into degrees to provide less severe penalties for some. Some states also classify misdemeanors according to lengths of confine-
ment.
2. What are the elements of a crime? A crime requires (1) the performance of a prohibited act and (2) a specified state of
mind. All criminal statutes prohibit certain acts. Most are acts of commission; some are acts of omission. Attempting a criminal
act may also be a crime, if substantial steps toward a criminal objective are taken. Elements of the requisite state of mind vary
with the act. For larceny, for example, the required act is the taking of another person’s property, and the necessary state of
mind is both the knowledge that the property is another’s and the intent to deprive the other of it. States of mind also vary in
degree, and punishment varies accordingly. There are also certain conditions that will relieve an accused of criminal liability.
These are called defenses.
3. What are some of the crimes affecting businesses? Forgery. Forgery is the fraudulent making or alteration of any
writing that changes the legal liability of another. Most states have special statutes for additional prosecution of crimes of
forgery involving credit cards. Robbery. Robbery is the taking of another’s personal property from his or her person or
immediate presence by force or intimidation. Burglary. At common law, burglary was breaking and entering the dwelling of
another at night with the intent to commit a felony. Most states have eliminated some of these requirements: the time at
which the crime occurs is usually immaterial; often, no breaking is required; and all buildings are included. Larceny. The
wrongful or fraudulent taking and carrying away by any person of the personal property of another is larceny. Larceny is distin-
guished from robbery by the fact that robbery involves force or intimidation and larceny does not. Obtaining goods by false
pretenses. Representing as true some fact or circumstance that is not true, with the intent of deceiving and with the result of
defrauding an individual into relinquishing property without adequate compensation, is obtaining goods by false pretenses.
Receiving stolen goods. It is only required that the recipient of stolen goods knows or should have known that the goods are
stolen. Arson. The willful and malicious burning of a structure (and in some states personal property) owned by another is
arson. Every state has a special statute that covers burning a building for the purpose of collecting insurance
4. What are some white-collar crimes? Embezzlement. Embezzlement is the fraudulent conversion of property or money
owned by one person but entrusted to another. Embezzlement involves conversion by a person in lawful possession of
another’s property; larceny involves the taking and carrying away of another’s property, usually without any right to possession.
Embezzlement is not robbery because there is no taking by force or intimidation. A special form of embezzlement called
misapplication of trust funds occurs when funds are entrusted to a contractor for a specific purpose, and the contractor does
not use the money for the purpose. Use of the mails to defraud. Use of the mails to defraud requires a scheme to defraud and
use of the mails to carry it out. It is also a crime to use a telegram, telephone, radio, or television to defraud. Unlike obtaining
goods by false pretenses, mail fraud does not require that the scheme succeed. Bribery. Bribery of public officials is a crime.
The bribe can include anything that the official considers valuable. The crime occurs when the bribe is tendered (the official
does not have to agree to do anything or accept the bribe). In some states, commercial bribery (kickbacks and payoffs) is a
crime. Commercial bribes are typically given to obtain proprietary information, cover up an inferior product, or secure new
or in part.
business. Industrial espionage sometimes involves commercial bribery. Bribing foreign officials to obtain favorable business
contracts is also a crime. Insider trading. Insider trading is using material inside information about a corporation to profit by
buying and selling the corporation’s securities. Inside information is information not available to the public. Generally, one who
possesses inside information has a duty to disclose it to whoever is on the other side of the transaction.
5. What are some important constitutional protections of individuals’ rights that apply in the area of criminal law?
Important constitutional protections of individuals’ rights in the area of criminal law include the Fourth Amendment protection
against unreasonable searches and seizures; the Fourth Amendment requirement of probable cause before a warrant for a
search or an arrest can be issued; the Fifth Amendment requirement that no one can be deprived of life, liberty, or property
without due process; the Fifth Amendment prohibition against double jeopardy; the Sixth Amendment guarantees of a speedy
trial, trial by jury, a public trial, the right to confront witnesses, and the right to legal counsel; and the Eighth Amendment
prohibitions against excessive bail and fines and cruel and unusual punishment. All evidence obtained in violation of the rights
guaranteed by the Fourth, Fifth, and Sixth Amendments must be excluded, as must all evidence derived from any illegally
obtained evidence. Individuals who are arrested must be informed that they have a right to remain silent and a right to legal
counsel. These restrictions apply in all federal courts, and the United States Supreme Court has ruled that most of them also
apply in state courts (through the due process clause of the Fourteenth Amendment).
6. Describe the prosecutory process from arrest to conviction. Probable cause must exist for believing that an individual
has committed a crime. A warrant for arrest is then issued (an arrest may be made without a warrant if there is no time to get
one, but the probable cause standard still applies). A grand jury or a magistrate determines whether there is sufficient evidence
to bring the individual to trial. (The standard used to determine this varies—some courts use probable cause; others,
preponderance of the evidence; some, a prima facie case standard). Individuals are formally charged. After the indictment or
information is filed, the defendant is arraigned (brought before a judge, informed of the charges, and asked to enter a plea). If
the defendant pleads guilty, he or she waives the right to a trial. If not, the case goes to trial. At the trial, the accused need not
prove his or her innocence; the prosecution proves the accused’s guilt (which must be established beyond a reasonable doubt).
7. Could probable cause exist to detain a suspect and conduct a search if the suspect has multiple e-mail accounts,
regularly uses the Internet, is sophisticated with computers, and knows how to protect access to passwords and accounts? The
Fourth Amendment provides protection against unreasonable searches and seizures and requires that probable cause must
exist before a search can be conducted or a warrant for a search can be issued. If a suspect refuses to consent to a search, a law
enforcement officer has to obtain a search warrant. If the officer then searches without a warrant and cannot show that there
were exigent circumstances constituting probable cause to justify the search, the exclusionary rule will prohibit the introduction
at trial of any evidence the officer obtains. The factors listed here could support a finding of probable cause, especially when
coupled with other indications of crime. For example, if the suspect is accused of cyberstalking an individual whom he or she
clearly knows but denies knowing, probable cause would exist. Similarly, if the suspect denies having the computer expertise or
owning the hardware that he or she clearly possesses, a search may be justified.
8. Suppose that a foreign nation does not prosecute cyber criminals and does not cooperate with U.S. authorities to
investigate cyber crimes against U.S. citizens. What effect might this have on the deterrence or proliferation of cyber crime?
The most likely effect is that these circumstances would allow cyber crime to increase. The Internet is not limited by political
boundaries, and cyber crime similarly knows no bounds. An individual who resides in a nation that does not prohibit or punish
acts constituting crimes in other nations and does not cooperate with those that do can operate with near impunity from that
locale. Even if such acts were universally recognized as crimes, issues of jurisdiction, evidence and proof, and national
sovereignty could delay or limit criminal prosecutions.
or in part.
9. At the time that this book went to press, the media was exposing Web sites that purported to sell tickets to certain
concerts and would accept credit and banking information from would-be buyers but did not deliver the tickets. What can
consumers do to avoid being duped by such fraud? A legitimate Web site that offers concert tickets to the public should have
several features that are likely to distinguish it from a bogus site. A legitimate seller, for example, would probably offer tickets
to more than one event and possibly to more than a single venue. A legitimate seller would likely post one or more customer
service phone numbers that someone would actually answer. A legitimate seller is more likely to offer a refund and describe
how it could be obtained (even if a service charge is imposed). A consumer might also be more protected if he or she uses a
credit card rather than debit card.
10. What are the steps that the administrator of an information technology system or computer network in a business
environment might take to protect against the crimes discussed in this chapter? Protection against these crimes starts with the
awareness at management and staff levels of the potential harm that could result. Even the temporary loss of a system’s
functions while its software is replaced due to a virus’s infection or other destructive event could prove costly. Thus,
management should make appropriate funds available to pay for security, impose procedures to identify the system’s
vulnerability, require the use of security hardware and software, and conduct security audits on an ongoing basis. The use of
passwords among those with access to the system is also an important step when used correctly. Backed-up data can be key,
and storing the backed-up data off-site can be even more effective.
ACTIVITY AND RESEARCH ASSIGNMENTS

1. Have students bring to the class current news articles about business-related events that involve crimes or might
ultimately involve criminal prosecutions. Ask them to identify possible crimes in the events and to discuss, based on the
information in the articles, whether the elements of those crimes have been satisfied. What are their predictions as to the
outcome of any prosecution?
2. Ask your students to attend a criminal trial and report what they observe. Ask them to find out how long it might be
between an accused’s arrest and his or her indictment, how long between the indictment and arraignment, and how long
before a trial must commence. Does it make any difference whether the accused is in custody? To what might any delays be
attributed? What happens if the state exceeds these time periods?
BEFORE THE TEST—
 ISSUE SPOTTERS 

1. Without Jim’s permission, Lee signs Jim’s name to several checks that were issued to Jim and then cashes them.
Jim reports that the checks were stolen and receives replacements. Has Lee committed forgery? Why or why not? Yes.
Forgery is the fraudulent making or altering of any writing that changes the legal liability of another. In some instances,
however, authorization to sign another’s name negates a charge of forgery.
2. Carl appears on television talk shows touting a cure for AIDS that he knows is fraudulent. He frequently mentions
that he needs funds to make the cure widely available, and donations pour into local television stations to be
forwarded to Carl. Has Carl committed a crime? If so, what? Yes. Federal law makes it a crime to use the mails, a
or in part.
telegram, a telephone, radio, or television to defraud. Carl has committed a violation of federal wire fraud statutes.
Bonus Question
Ben downloads consumer credit files from a computer of Consumer Credit Agency, without permission. He then
sells the data to Dawn. Has Ben committed a crime? If so, what is it? Yes. The National Information Infrastructure
Protection Act of 1996 amended the Counterfeit Access Device and Computer Fraud and Abuse Act of 1984. The
statute provides that a person who accesses a computer online, without permission, to obtain classified data (such as
consumer credit files in a credit agency’s database) is subject to criminal prosecution. The crime has two elements:
accessing the computer without permission and taking data. It is a felony if done for private financial gain. Penalties
include fines and imprisonment for up to twenty years. The victim of the theft can also bring a civil suit against the
criminal to obtain damages and other relief.

MORE LEGAL QUESTIONS—
 GAMEPOINTS 

1. You want a copy of “Banx & Chex,” a computer game that simulates financial transactions, with the goal of
accruing as much virtual profit as possible. Without the real money to pay for it, however, you “borrow” one of your
roommate’s paychecks, sign her name to the back, and use to it to buy the game. Which crimes described in this
chapter, if any, have you committed? The crime described in this problem is forgery. Fraudulently making or altering a
writing in a way that changes another’s legal rights is forgery. Forgery also includes changing trademarks,
counterfeiting, falsifying public documents, and altering other legal documents.
2. To obtain the new game-playing device “3D” and a selection of games to play with it, you ask your credit-card
company, BankCard, Inc., to extend your credit card limit, which has been reached. The amount owed exceeds $10,000.
BankCard says no. With your knowledge of software code, you “break” into BankCard’s network from your laptop and
alter figures in its database to indicate that the debt has been paid. Is this a crime? If so, which one? The perpetrator in
this set of facts is a hacker—someone who uses one computer to break into another. Here, the crime of altering the
figures to show that a debt has been paid is larceny (wrongfully taking and carrying away another’s property with the
intent of depriving the owner permanently of it). “Carrying away” can be done by any act that removes something of
value from its owner’s possession, and the “property” may be any type of tangible or intangible item. In this problem,
the “carrying away” is accomplished by altering the figures and the property is the creditor’s right to receive payment.
Bonus Question
You’re playing “Xtreme Climb,” making an ascent up the highest peak in the United States, when a yeti—an
abominable snowman—leaps from an outcropping and tosses your climbing companion from the precipice. The yeti
howls into the wind and stomps along the ledge towards you. Which crimes described in this chapter, if any, has the
yeti committed?
or in part.

or in part.

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Criminal Law and Cyber Crime

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 VIDEO QUESTIONS & ANSWERS 

LECTURE OUTLINE FOR THIS CHAPTER

I. Civil Law and Criminal Law

II. Classification of Crimes

III. What Constitutes Criminal Liability?

A. The Criminal Act

B. Intent to Commit a Crime

IV. Corporate Criminal Liability

A. Searches and Seizures

B. The Exclusionary Rule

C. Informing Suspects of Their Rights

VI. Crimes Affecting Business

E. Mail and Wire Fraud

4. Hacking and Cyber Terrorism

5. Prosecuting Cyber Crime

1. Bribery of Public Officials

H. Racketeer Influenced and Corrupt Organizations Act (RICO)

VII. Defenses to Criminal Liability

DETAILED CHAPTER OUTLINE

I. Civil Law and Criminal Law

II. Classification of Crimes

III. What Constitutes Criminal Liability?

A. THE CRIMINAL ACT

B. INTENT TO COMMIT A CRIME

IV. Corporate Criminal Liability

• The Fourth Amendment protection from unreasonable searches and seizures.

REAL-WORLD CASE EXAMPLE

A. SEARCHES AND SEIZURES

B. THE EXCLUSIONARY RULE

ADDITIONAL CASES ADDRESSING THIS ISSUE —

C. INFORMING SUSPECTS OF THEIR RIGHTS

The Miranda Rights

VI. Crimes Affecting Business

The Creation of Embezzlement

misappropriation would amount to common law larceny.

E. MAIL AND WIRE FRAUD

18 U.S.C. Section 1028

(a) Whoever, in a circumstance described in subsection (c) of this section—

shall be punished as provided in subsection (b) of this section.

(ii) a birth certificate, or a driver's license or personal identification card;

(C) an offense under paragraph (5) of such subsection; or

(B) an offense under paragraph (3) or (7) of such subsection;

(A) to facilitate a drug trafficking crime (as defined in section 929(a)(2));

(B) in connection with a crime of violence (as defined in section 924(c)(3)); or

(C) after a prior conviction under this section becomes final;

(c) The circumstance referred to in subsection (a) of this section is that—

authentication feature, or false identification document;

(d) In this section and section 1028A—

(C) appears to be genuine, but is not;

(6) the term “issuing authority”—

(C) unique electronic identification number, address, or routing code; or

(9) the term “produce” includes alter, authenticate, or assemble;

ENHANCING YOUR LECTURE—

  STALKING AND INTERNET DATA BROKERS

ONE COURT WEIGHS IN

FOR CRITICAL ANALYSIS

a. 149 N.H. 148, 816 A.2d 1001 (2003).

4. Hacking and Cyber Terrorism

5. Prosecuting Cyber Crimes