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Chapter 05 – Criminal Law and Cybercrimes

Chapter 5

Criminal Law and Cybercrimes

I. Key Terms

Aggravated arson (p. 113) Homicide (p. 112)

Aggravated burglary (p. 113) Intimidation (p. 116)

Aggravated murder (p. 112) Involuntary manslaughter (p. 112)

Aggravated robbery (p. 114) Irresistible impulse test (p.125 )

American Law Institute (ALI test ) (p. 125) Knowledge (p. 106)

Arson (p. 113) Manslaughter (p. 112)

Assault (p. 113) Misdemeanor (p. 105)

Battered spouse syndrome (p. 127) M-Naughten Rule (p. 125)

Battery (p. 113) Negligence (p. 107)

Breaking and entering (p. 113) Obstruction of justice (p. 116)

Bribery (p. 115) Passing bad checks (p. 115)

Burglary (p. 113) Perjury (p. 116)

Crime (p. 101) Premediated murder (p. 112)

Criminal simulation (p.115) Purpose (p. 106)

Cyber-trespass (p. 118) Recklessness (p. 107)

Cyber-extortion (p. 119) Resisting Arrest (p. 116)

Defense of others (p. 126) Robbery (p. 114)

Defrauding creditors (p. 115) Second-degree murder (p. 112)

Dereliction of duty (p. 115) Self-defense (p. 126)

Double jeopardy (p. 102) Stand your ground (p. 126)

Embezzlement (p. 114) Tampering with evidence (p. 116)

Entrapment (p. 125) Theft (p. 114)

Felony (p. 104) Theft in office (p. 115)

First-degree murder (p. 112) Trespass (p. 113)

Forgery (p. 114) Victim’s rights (p. 102)

Fraud (p. 114) Voluntary manslaughter (p. 112)

II. Learning Objectives

1. Explain the purpose of criminal law.

2. Enumerate the various categories and classes of crimes.

3. Describe the nature of an act within the concept of criminal liability.

4. Identify the four mental states to be found in the criminal code.

5. Explain the nature of corporate criminal liability.

6. Explain the various theories of punishment within criminal law.

7. Enumerate and explain the elements of several key crimes.

8. Define and explain the nature of cybercrimes.

9. Explain the three standards for the insanity defense in criminal law.

10. Outline the requirements of entrapment as a defense in criminal law.

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Chapter 05 – Criminal Law and Cybercrimes

III. Major Concepts

5-1 Definition and Classes of Crimes

A crime is an offense against the public at large. As such, a crime threatens the peace,

safety, and well-being of the entire community. For this reason, crimes are punishable by

the official governing body of a nation or state. A felony is a crime punishable by death or

imprisonment in a federal or a state prison for a term exceeding one year. Some felonies

are also punishable by fines. A misdemeanor is a less serious crime that is generally

punishable by a prison sentence of not more than one year.

5-2 Elements of a Crime

The two elements necessary to create criminal liability are (a) an act and (b) the requisite

state of mind. Generally speaking, a crime cannot be committed unless the criminal act

named in the statute is performed with the requisite state of mind. Many state criminal

codes include four possible states of mind: (a) purpose, (b) knowledge, (c) recklessness,

and (d) negligence. Establishing motive may help investigators pinpoint the guilty party,

but proving an evil motive is not necessary for a criminal conviction. Conversely, estab–

lishing the existence of a good motive will rarely absolve a defendant of criminal

liability.

5-3 Specific Crimes

Crimes against people include but are not limited to first-degree murder, second-degree

murder, manslaughter, battery, and assault. A more recent addition to this list involves

hate speech. Crimes against property include but are not limited to burglary; breaking and

entering; trespass; aggravated arson; arson; aggravated robbery; robbery; theft, fraud, and

related offenses. Crimes involving business include embezzlement, forgery, criminal

simulation, passing bad checks, and defrauding creditors. RICO offenses also involve

business crime. Crimes against justice include bribery, theft in office, and dereliction of

duty. Others, such as intimidation, are committed against a public official or public

servant. Still others, such as obstruction of justice, resisting arrest, perjury, and tampering

with evidence are committed against the justice system itself.

5-4 Cybercrimes

Cybercrimes include cyber-trespass, which involves any conventional crime committed

with a computer. Cybercrimes that focus on the use of a computer include

cyber-extortion, cyber-stalking, cyber-harassment, cyber-assault, cyber-bullying,

cyber-spoofing, phishing, smishing, and vishing. Crimes that target computers include

cyber-terrorism, identity theft, cyber-vandalism, and cyber-germ warfare. Federal

cybercrimes include Computer Fraud and Abuse Act (CFAA), the Electronic

Communications Privacy Act (ECPA), the Communications Assistance for Law

Enforcement Act (CALEA), the Economic Espionage Act (EEA), the National Stolen

Property Act (NSPA), the Identity Theft and Assumption Deterrence Act (ITADA).

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Chapter 05 – Criminal Law and Cybercrimes

5-5 Defenses to Criminal Liability

Because criminal liability relies on the two essential elements of act and requisite mental

state, a logical defense aims at eliminating one or both of those elements. Most defenses

attempt to do just that. The most common defenses are insanity, entrapment, justifiable

force, and mistake

IV. Outline

I. Definition and Classes of Crimes (5-1)

A. Definition of a Crime

1. A crime is an offense against the public at large.

2. Criminal laws are created by the federal and state government.

3. The primary objectives of criminal law are to protect the public, to preserve order and

stability within society, to punish those who commit criminal acts, and to discourage

future disruptive conduct.

4. The objectives of criminal law and tort law differ.

5. A single act can be both a tort and a crime.

6. The standard of proof in a criminal case is beyond a reasonable doubt whereas in a

civil case, the plaintiff’s attorney must prove liability by a preponderance of the

evidence.

7. The United States Constitution through the rule of double jeopardy protects people

from being tried twice for the same crime.

a. The rule does not protect a defendant from being tried for a criminal offense and

then being sued under tort law for the same wrongful act.

b. A single offense may trigger two prosecutions if the offense can be designated as

two different crimes tried in two different courts.

8. Legislatures have enacted statutes creating victim’s rights.

B. Criminal Law in the American System

1. Federal Criminal Law

a. The federal government has no express power in the Constitution that allows it to

enact criminal law statutes or establish a national police force.

b. Through adaptive processes at work within the legal system, the federal

government enacted criminal laws, set up the Federal Bureau of Investigation as a

national police force, and has a cabinet-level criminal law enforcement official,

the attorney general.

2. Criminal Law Adaptation

a. The way in which Congress has assumed powers in the criminal law area

illustrates how the law adapts.

b. Congress can create criminal law statutes only in those areas over which it has

jurisdiction.

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Chapter 05 – Criminal Law and Cybercrimes

c. Congress has extended its power to include police power through the Commerce

Clause of the U.S. Constitution.

C. Classes of Crimes

1. A felony is generally defined as a crime punishable by death or imprisonment in a

federal or a state prison for a term exceeding one year.

2. Some felonies are also punishable by fines.

3. A misdemeanor is a less serious crime generally punishable by a prison sentence of

not more than one year.

4. Some states have specific categories for the least serious offenses commonly called

petty offenses or minor misdemeanors.

II. Elements of a Crime (5-2)

A. A Criminal Act

1. Under American law, crime cannot be committed unless some overt act has occurred.

2. Courts strike down convictions based on laws that are ambiguous, vague, or overly

broad.

3. A failure to act may be considered criminal, but generally the failure to act must be

coupled with a legally imposed duty in order for criminal liability to attach.

4. Many states specifically exclude involuntary movement and behavior from the

general definition of a criminal act.

5. Involuntary behavior may not absolve a person from criminal liability if, for example,

a person was aware of a propensity for such behavior but took no steps to control it.

B. The Required State of Mind

1. A specified state of mind is usually required for a finding of criminal activity.

2. Many state criminal codes recognize purpose, recklessness, knowledge, and

negligence as states of mind supporting criminal activity.

3. Individuals act with purpose when they act with the intent to cause the result that does

in fact occur.

4. Individuals act with knowledge when they act with an awareness that a particular

result will probably occur.

5. People act recklessly when they disregard known risks of negative consequences.

6. People act with negligence when they fail to see the possible negative consequences

of their actions.

C. The Matter of Motive

1. Motive is the wrongdoer’s reason for committing a crime.

2. Motive is not necessary for a criminal conviction.

D. The Matter of Corporate Liability

1. Corporate liability requires that the prosecutor prove that the defendant possessed a

particular mental state which can create a problem when corporations are involved.

2. The law has established that corporations are “legal people.”

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3. An early theory on corporate criminal liability emerged from within the doctrine of

strict liability.

4. Courts began to hold corporations liable for criminal acts of employees under the

theory of respondeat superior.

5. The doctrine of respondeat superior has been extended to the point that even if a

worker is prohibited from violating the law, the corporation might still be declared

liable for the worker’s crime.

6. Under the Model Penal Code, a corporation might be held criminally liable if the

corporate officers or directors authorize, approve, or recklessly tolerate the criminal

action of employees acting on the job when the crimes occur.

E. The Matter of Punishment

1. One approach to sentencing involves protecting the public at large.

a. Consequences of crime send a message to potential offenders as well as the

offender.

b. Techniques include deterrence, education, and retribution.

2. Another approach to punishment involves sentencing tailored to fit the individual

offense or the individual offender.

a. Consequences created to fit a particular offense or to punish a specific offender

are designed to prevent further criminal activity by an individual offender.

b. Techniques include prevention, restraint, and rehabilitation.

3. The death penalty in criminal cases is subject to controls designed to limit its

imposition to cases in which the criminal defendant truly deserves death including

safeguards in the form of aggravating and mitigating circumstances.

4. The appellate court that reviews application of the death penalty is required to

evaluate the conduct of the sentencing judge for partiality, impropriety, or outside

pressure.

5. Normally, the governor of a state has the power to commune a death sentence.

III. Specific Crimes (5-3)

A. Crimes Against People

1. Any killing of one human by another may be labeled as a homicide.

a. Criminal homicide is either murder or manslaughter.

b. When unlawful killing is done with premeditations and deliberate intent, it is

labeled first-degree murder, aggravated murder, or premeditated murder.

c. Most states define first degree murder to include killing with premeditation and

killing while committing a major crime such as rape, robbery, or kidnapping; and

several other jurisdictions add other circumstances.

d. If conditions for first degree murder do not apply, the crime is known as

second-degree murder or murder.

e. In many jurisdictions the death penalty may be imposed for first-degree murder,

but not for second-degree murder.

f. Manslaughter is an unlawful killing of a person without the intent to kill and may

be classified as voluntary manslaughter when a person has lost the ability to

reason or involuntary manslaughter when the killing results from negligence.

2. Battery and assault are other crimes against people.

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a. Historically, the term “battery” described a crime causing physical harm to the

victim, and “assault” included the threat of harm.

b. Historical distinctions are no longer applicable in many jurisdictions.

c. Some states have altered or added offenses in this category, and checking criminal

code in applicable jurisdictions is advisable.

3. Hate Speech

a. Statutes have attempted to criminalize hate speech involving the use of certain

symbols, writings, and speech intended to provoke outrage or fear on the basis of

race, religion, color, or gender.

b. Such statutes are constitutional only if they are not content specific.

B. Crimes Against Property

1. The crime of burglary has evolved since the Middle Ages definition of an unlawful

entry into a dwelling place at night.

a. Modern legislatures define burglary as including using force, deceit, or cunning to

trespass into an occupied structure with the intent to commit a crime.

b. A more serious form of burglary is aggravated burglary involving, for example,

the use of a deadly weapon.

c. A related offense to burglary is breaking and entering which involves illegally

gaining entry to unoccupied structures or trespassing on land with the intent to

commit theft or a felony.

d. Another related offense to burglary is trespass which involves knowingly entering

land without permission.

2. The crime of arson had been expanded by legislatures to include aggravated arson.

a. Aggravated arson includes using fire or explosives to create a substantial risk of

physical harm to an individual or to an occupied building and may include hiring

another person to do so.

b. A lesser offense is ordinary arson involving using fire or explosives to cause harm

or a substantial risk of harm to the property of another or to the offender’s own

property and includes hiring another to do so.

3. Aggravated robbery and robbery are other forms of crimes against property.

a. Aggravated robbery involves attempting to commit or actually committing a theft

using a deadly weapon or dangerous ordnance, or doing the same by inflicting

physical harm on the victim.

b. In ordinary robbery, the offender does not use or show a weapon.

c. Ordinary robbery may also involve attempting to commit or committing a theft by

inflicting or attempting to inflict physical harm on a third party.

4. Many jurisdictions place theft, fraud, and related offenses together under a single

heading.

a. These offenses have in common the attempt to separate the rightful owner of

property from that property or to profit from that separation once it has taken

place.

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b. Theft is often defined as knowingly raking or obtaining control over the property

of another without that individual’s consent using deceit, threats, or coercion.

c. Fraud involves a deliberately engineered deception that the offender uses to obtain

property or services belonging to another.

C. Crimes Involving Business

1. Embezzlement is defined as wrongfully taking property or funds that have been

entrusted to the care of the offender.

2. Forgery involves the making or changing of a writing (without proper authorization)

with the intent to defraud.

3. Criminal simulation involves altering or falsifying, for example, art objects, antiques,

photographs with the intent to defraud.

4. Passing bad checks includes issuing or transferring a check or other negotiable

instrument with the intent to defraud knowing it will be dishonored.

5. The crime of defrauding creditors involves removing, hiding, or destroying, for

example, any person’s property with the intent to defraud creditors; or hiding or

refusing to disclose information about the existence or location of a person’s property

to a fiduciary appointed to administer that person’s affairs or estate.

6. To prevent a criminal invasion of legitimate businesses, Congress passed the

Racketeer Influenced and Corrupt Organizations Act.

a. Conducting a legitimate business with the funds acquired from a pattern of

racketeering activities can give rise to criminal liability under the act.

b. Violation can give rise to criminal charges and also civil liability.

D. Crimes Against Justice

1. Crimes against justice involve offenses committed by or with the cooperation of a

public servant or a public official.

2. In most states, bribery involves offering, promising, or actually giving something of

value to a public official with the goal of influencing that official in the discharge of

his or her public duties.

3. It is also bribery when the public official solicits or accepts a thing of value in

exchange for that public official’s influence in whatever capacity.

4. Many states have further expanded the crime of bribery to include witnesses who are

offered or given something of value in exchange for their testimony.

5. Most jurisdictions define theft in office to include any theft offense in the criminal

code that is committed by a public official or a party official involving the use of that

official’s governmental or party power to obtain unlawful control over governmental

or party property or services.

6. In relation to law enforcement officers, dereliction of duty is any activity that

involves the officer’s failure to carry out his or her lawful duties.

7. Public servants are charged with carrying out those duties that are specifically related

to the proper operation of their governmental office, and many dereliction of duty

statutes also expressly state that public servants have an affirmative duty to keep their

department or agency within the budget set for it by the state legislature.

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8. The crime of intimidation involves threats of harm to the person or property of a

public servant, party official, or witness with the intention of coercing that individual

into some violation of his or her public duty.

9. Most jurisdictions define obstruction of justice as any activity designed to prevent the

discovery, apprehension, arrest, prosecution, conviction, or punishment of a criminal

defendant.

10. Resisting arrest is defined as interfering in the lawful arrest of a criminal defendant.

11. Under the laws of most states, perjury is defined as making a false statement under

oath.

12. Tampering with evidence means altering, destroying, or removing any piece of

evidence with the intent to somehow lessen the probative value of that evidence and

includes presenting false evidence to a public official in order to somehow destroy the

effectiveness of an official investigation.

E. The Posse Comitatus and Insurrection Acts

1. Increased use of paramilitary police by states brings up the point that the law prevents

the federal government from using the U.S. military to uphold the law of an

individual state.

2. The Posse Comitatus Act of 1878 in tandem with the Insurrection Act of 1807 forbid

the use of the U.S. military to uphold the laws of any individual state although these

laws do not over the National Guard or the Coast Guard.

3. In 2012, the National Defense Authorization Act included a provision permitting the

military to detain individuals for in undefined period of time even though charges

have not been filed.

4. Some argue that the National Defense Authorization Act effectively repeals the Posse

Comitatus Act while others contend that the Posse Comitatus Act has been repealed in

a de facto manner on the basis that the police have turned into a military force without

any need for legislative action.

IV. Cybercrimes (5-4)

A. Cyber-trespass

1. Cyber-trespass is the process of gaining access to a computer with the intent to

commit a crime.

2. This strategy incorporates the rest of the criminal code into this one crime, making it

an offense to use a computer to commit any other crime in the code.

B. Crimes Committed With a Computer

1. Cyber-stalking involves targeting individuals for exploitation using their computer

connections.

2. Cyber-harassment involves using computer connections to blanket the target with

offensive comments aimed at disrupting the victim’s peace of mind.

3. Cyber-assault may mean using social media to inflict threats or it may mean a direct

attack on a computer system.

4. Cyber-bullying involves intentional, aggressive, upsetting activities aimed at

destroying the mental well-being of a peer.

5. Cyber-piracy is one of the most lucrative e-crime.

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a. Cyber-piracy, electronic piracy, or e-piracy occurs when website operators take

intellectual property and carry them on their websites or sell them on the Internet

without paying royalties.

b. Cyber-extortion, electronic extortion, or e-extortion can occur when a hacker

gains access to computer records, uncovers conduct that might damage the

reputation of the target, and then threatens exposure unless payment is made.

6. Cyber-spoofing involves adopting the identity of another computer user or creating a

false identity on a computer web site to commit fraud.

7. Phishing involves sending out phony e-mails that solicit buyers in order to obtain

information such as account numbers while spear phishing occurs when the e-mail

has been customized so that the recipient believes the e-mail comes from someone

who is known.

8. Smishing links SMS (short message service) texting with phishing, and vishing

connects phishing to voice messaging in connection with a scheme to falsely warn

victims of account problems in order to obtain account information.

C. Crimes that Target Computers

1. Cyberterrorism involves using a computer to disrupt or destroy one of the critical

elements of the nation’s cyber-infrastructure.

2. Identity Theft occurs when a perpetrator steals credit card information, financial data,

access codes, passwords, or debit card information and then passes himself or herself

off as the victim.

3. Cybervandalism occurs when vandals attack a computer system so that a web site is

destroyed or paralyzed.

4. Cybergerm Warfare occurs when criminals use viruses to attack a computer system.

D. Federal Cybercrimes

1. The Computer Fraud and Abuse Act is the first act in which Congress specifically

addressed computer crime and outlaws a number of crimes involving the wrongful

use of or damage to computers.

2. The Electronic Communications Privacy Act amended the original wiretap act to

cover communication by computer and prohibits the intentional interception of

electronic communication.

3. The Communications Assistance for Law Enforcement Act amended the Electronic

Communications Privacy Act by requiring communication companies to update their

electronic equipment in order to make certain that law enforcement officers could

carry out surveillance duties properly.

4. The Electronic Espionage Act is designed to protect trade secrets and outlaws the

downloading of trade secrets.

5. Under the National Stolen Property Act (NSPA), it is a federal crime to use interstate

or foreign commerce to transport personal property, currency, or securities that an

individual is aware were stolen, were secured by fraud, or were taken by some other

illegal method including an unauthorized electronic transfer.

6. The Identity Theft and Assumption Deterrence Act as amended outlaws the

unauthorized transfer, possession, or use of a means of identifying another person to

violate federal law.

7. The CAN SPAM Act is designed to deal with the problem of pop-up advertisements

and unsolicited commercial e-mail.

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8. While it has not passed and consideration has been postponed, The Stop Online

Piracy Act (SOPA)was designed to attack foreign cyber-pirates by, for example,

penalizing American websites carrying pirated works and servicing cyber-pirates with

payment processors and advertisements.

E. The Global Cyber-crisis

1. The U.S. government, U.S. corporations, and the U.S. military have become

increasingly aware of both the power and the vulnerability of the Internet.

2. One step to deal with dangers might be to split up data and send it along a series of

different routes so that, if one data stream is compromised, the others continue on

their way unimpeded; but this does not always work.

3. The federal government has responded to threats in a number of ways such as by

established a new cyber-command center, officially referred to as Cyber Command or

Cybercom, which is charged with the job of protecting the military’s computer

command system.

4. On the home front, the federal government ahs taken steps to combat domestic

cybercrime by establishing the Internet Crime Complaint Center which handles

complaints involving cybercrimes such as hacking, trade secret infringement, identity

theft, cyber-extortion and Internet fraud.

5. The battle against cyber abuse can also be fought in the home.

V. Defenses to Criminal Liability (5-5)

A. The Insanity Defense

1. Competency to Stand Trial

a. Generally, defendants are considered competent to stand trial if they understand

the nature and the purpose of the charges against them, and if they are capable of

aiding their attorneys in their defense.

b. If defendants are found to be incompetent, they are usually given treatment to

improve their competency so that they can assist in their case.

2. Not Guilty by Reason of Insanity (NGRI)

a. Under the M’Naughten Rule, a defendant can be found NGRI if the defendant

was suffering from a mental disease that was so serious that the defendant did not

know the nature of the act or did not know that the act was wrong at the time the

criminal act was committed.

b. Under the irresistible impulse test, a defendant can be found NGRI if the

defendant was stricken with a mental disease which prevented the defendant from

knowing right from wrong or compelled the defendant to commit the crime.

c. Under the American Law Institute test, a person is not responsible if “as a result

of mental disease or defect he lacks substantial capacity either to appreciate the

criminality of his conduct or to conform his conduct to the requirements of law.”

d. People found not guilty by reason of insanity are committed to institutions and

must undergo periodic psychiatric examinations.

B. Entrapment

1. If a law enforcement officer induces a law-abiding citizen to commit a crime,

entrapment may be used as a defense.

2. The person using the defense must show that the crime would not have been

committed had it not been for the inducement of the officer.

C. Justifiable Force

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1. Self-Defense

a. In order to rely on the defense of self-defense, the defendant must first have a

bona fide belief that his or her life was in danger or that severe bodily harm was a

danger.

b. Words by themselves, in most states, are insufficient to prove the requisite belief.

c. When self-defense is used in a criminal case, the defendant must show that he or

she did not start the altercation

d. The person claiming self-defense must not have used more force than necessary.

e. In some states, the person claiming self-defense must retreat if possible.

f. A person does not have a duty to retreat if the attack occurs in his or her own

home, and, in many states, this exception has been extended to a person’s vehicle.

2. Defense of Others

a. If a person uses force to rescue another person who is the victim of an apparent

attack, most states allow a defense known as the defense of others.

b. The rescuer must have had good reason to believe that the victim was in danger of

severe bodily injury or death.

3. Stand-Your-Ground Laws

a. Some states have statutory provisions and some have common law traditions

allowing for the stand-your-ground defense.

b. A stand-your-ground statute extends self-defense by eliminating any requirement

to retreat, even outside one’s home or vehicle.

4. Battered Spouse Syndrome

a. Protective orders bar an abusing spouse from maintaining any contact with the

victim, but sometimes the orders do not work.

b. The set of circumstances that leads a woman to believe that using force against a

spouse is called battered spouse syndrome.

c. Battered spouse syndrome is considered a form of self-defense in some courts.

D. Mistake

1. Mistake is a defense to charges of criminal liability as long as the mistake destroys

one of the elements necessary to the crime at issue.

2. Mistake must be based on a reasonable belief.

3. Arguing lack of knowledge that particular conduct was proscribed by law is not a

defense.

4. Mistake must destroy the criminal nature of the act in the mind of the accused.

V. Background Information

A. Cross-Cultural Notes

1. Under some conditions, Australia allows a good behavior bond. It is discussed at the

following site from the Legal Services Commission of South Australia:

http://www.lsc.sa.gov.au/dsh/ch10s11.php

2. An interesting article titled “How Saudi Arabia’s Harsh Legal Punishments Compare

to the Islamic State’s,” is available from The Washington Post at

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https://www.washingtonpost.com/news/worldviews/wp/2015/01/21/how-saudi-arabi

as-harsh-legal-punishments-compare-to-the-islamic-states/.

3. The Foreign Corrupt Practices Act prohibits bribery of foreign government officials

to assist in obtaining or retaining business. There are some exceptions, but these are

confusing. The United States Department of Justice discusses the act at

http://www.justice.gov/criminal-fraud/foreign-corrupt-practices-act.

4. Roman slaves accused of forgery received the death penalty.

5. Bribery is part of nearly every culture and there is a word for it in most languages.

The following is a list of some of the words for bribery in other countries: Egypt—

baksheesh, France—pot au vin, Honduras—pajada, Indonesia—uong sogok, Iran—

roshveh, Mexico—mordida, Nigeria—dash, Peru—coima.

6. A British judge was about to sentence a man found guilty of forgery. When the man

asked to say a few words, the judge gave permission and the prisoner said, “It is

absurd that I am guilty of forgery, my lord. I cannot even sign my own name.” The

judge replied, “That may well be, but you are not charged with signing your own

name.”

B. Historical Notes

1. There have been a number of controversial cases in the United States involving the

insanity defense. One of the first examples to spur national debate was in the trial of

John W. Hinckley, Jr., who had tried to assassinate President Ronald Reagan in 1981.

2. An investigation conducted by the FBI in 1978–1980 spurred public debate on the

question of entrapment. The result of the investigation was the conviction of seven

members of Congress and five other public officials for conspiracy, bribery, and other

charges. FBI agents impersonating an Arab sheikh and other high-ranking officers

had offered bribes in return for special favors. Their encounters were recorded on

videotape. In 1982, a Senate panel criticized the FBI’s handling of the investigation

but found that no civil rights had been violated. The United States Senate website

discusses the operation and the expulsion of a senator at

http://www.senate.gov/artandhistory/history/common/expulsion_cases/140HarrisonW

illiams_expulsion.htm.

C. State Variations

1. Differing state standards in regard to the insanity defense are available at the

FindLaw website at

http://criminal.findlaw.com/criminal-procedure/the-insanity-defense-among-the-states.ht

ml.

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2. The National Conference of State Legislatures provides by state penalties for

violations of state ethics and public corruption laws at

http://www.ncsl.org/research/ethics/50-state-chart-criminal-penalties-for-public-corr.asp

3. The National Conference of State Legislatures provides information by state on

cyberstalking and cyberharassment laws at

http://www.ncsl.org/research/telecommunications-and-information-technology/cyberstal

king-and-cyberharassment-laws.aspx.

D. Quotations

1. Laws too gentle are seldom obeyed; too severe, seldom executed.

— Benjamin Franklin (1706–1790)

2. It may be true that the law cannot make a man love me, but it can keep him from

lynching me, and I think that’s pretty important.

—Martin Luther King Jr. (1929–1968)

3. Mistakes are the inevitable lot of mankind.

— Sir George Jessel (1824 – 1883), English judge

VI. Terms

1. The term outlaw dates back to Anglo-Saxon times when it was used to refer to criminals

who were stripped of their privileges of citizenship and deprived of all protection by the

law. An outlaw’s property was given to the king and no matter what injury the outlaw

might suffer, he or she had no legal redress. Mobs often made a sport of catching and

killing outlaws, so an outlaw usually fled from civilization, often into desolate forests to

join other outlaws. Some bands of outlaws became professional robbers to survive.

Because of the violence and crime credited to outlaws, the term has come to stand for any

criminal not yet detained by authorities.

2. The word capital derives from Latin, meaning head. Capital crimes in British law were

usually crimes for which the criminal had his or her head chopped off. The first recorded

use of the word capital appeared in a 1493 document: “To have capytal sentence & be

beheaded.” The term capital punishment was used about a century later in a declaration

that commoners sentenced to death would be hanged, and nobles sentenced to death

would have their heads chopped off.

3. Homicide, suicide, and infanticide all employ the suffix –cide, from the Latin verb

caedere, meaning “to cut, strike, or kill.”

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Chapter 05 – Criminal Law and Cybercrimes

4. Most large buildings during the Middle Ages were fortified with moats and iron bars to

protect inhabitants from thieves. The word burglar comes from the Latin burgus, meaning

fortified place, and latro, meaning thief.

5. Help students learn the meaning of the word premeditate by dividing it into its prefix and

root: Pre- means “to precede” and “meditate” is another word for “thinking.”

VII. Related Cases

1. Fain had fallen asleep in the public room of a hotel. When a porter tried to wake him and

send him to his room, Fain refused. The porter continued to try to awaken Fain, who then

stood up and drew a gun, and fired it three times at the porter, injuring him. In Fain v.

Commonwealth, 78 KY 183 (Ky. 1879), an appellate court remanded the case when

presented with evidence that the defendant was a sleepwalker and capable of appearing to

be awake when he was actually asleep and unaware of his actions.

VIII. Teaching Tips and Additional Resources

1. For information regarding the U.S. Department of Justice go to http://www.justice.gov/.

The site has a number or resources including a fact sheet on hate crimes at

http://www.justice.gov/opa/pr/2007/November/07_crt_921.html. The Office for Victims

of Violent Crime is a component of Office of Justice Programs, U.S. Department of

Justice and provides information regarding victims’ rights at

http://www.crimevictims.gov/flash.html.

2. The American Bar Association has a section devoted to criminal justice. Information on

the section can be found at http://www.americanbar.org/groups/criminal_justice.html.

3. Information on indigent defense is available through searching the Web site of the

American Bar Association at http://www.americanbar.org/aba.html.

4. The Federal Bureau of Prisons has a web site at http://www.bop.gov/. Searches can be

done for inmates and facilities. At http://www.bop.gov/locations/list.jsp information

regarding specific institutions can be obtained. Another interesting page involving

services provided to female inmates is at

http://www.bop.gov/inmates/custody_and_care/female_offenders.jsp.

5. The U.S. Sentencing Commission has a web site at http://www.ussc.gov/.

6. The National Association of Criminal Defense Lawyers has an Internet site at

http://www.nacdl.org/public.nsf/freeform/publicwelcome?OpenDocument. The site has

interesting and timely information regarding current issues of interest in the criminal law

arena.

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Chapter 05 – Criminal Law and Cybercrimes

7. Corrections Corporation of America is a privately run prison system. It has a web site at

http://www.cca.com/. An interesting issue for discussion is whether a privately run

prison system is better and more economical than a system operated by government

employees.

8. Additional information regarding the Commerce Clause can be found on the Web site

Legal Information Institute of the Cornell University Law School at

http://www.law.cornell.edu/wex/Commerce_Clause.

9. The National Institute of Justice provides information on electronic crime scene

investigation procedures for first responders at

http://www.nij.gov/publications/ecrime-guide-219941/welcome.htm.

10. Information regarding electronic crimes task forces of the U.S. Secret Service can be

found at http://www.secretservice.gov/ectf.shtml.

11. The National Center for Victims of Crime has extensive information regarding electronic

stalking at https://www.victimsofcrime.org/our-programs/stalking-resource-center.

12. Ask students for examples of when they have been confronted with electronic phishing.

The Federal Trade Commission has an article on “How Not to Get Hooked by a

‘Phishing” Scam” at http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt127.shtm. The

agency also has information on identity theft, along with a video, at

http://www.ftc.gov/bcp/edu/microsites/idtheft/. The U.S. Department of Justice provides

information on identity theft at

http://www.justice.gov/criminal/fraud/websites/idtheft.html. An identity theft quiz is

available at http://www.justice.gov/criminal/fraud/websites/idquiz.html.

13. Extensive information regarding efforts to prevent cyber crime is available from the

Federal Bureau of Investigation at http://www.fbi.gov/about-us/investigate/cyber.

14. For a better understanding of legal terminology, refer students to Legal Terminology, 4th

edition by Gordon W. Brown (Upper Saddle River, NJ: Prentice Hall, 2004).

15. Assign a research paper on crimes involving families. Each student should choose a

specific topic, such as battering, child abuse, kidnapping, spouse rape, or elder abuse.

Students should investigate the psychological profile of typical abusers and theories

about what motivates such crimes and how they can be prevented. Have students also

examine the legal recourse that family members have in situations of abuse.

16. Help students understand the concept of self-defense by holding a mock trial. Think of a

scenario or ask a group of students to create one whereby self-defense could be argued in

a court of law. Write the scenario on a sheet of paper and hand out copies to the entire

class. Ask for volunteers to play the various roles, including witnesses, judge, bailiff,

prosecutor, defense attorney, defendant, and jury. When the trial is finished, ask students

to write a report summarizing the events of the trial.

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Chapter 05 – Criminal Law and Cybercrimes

17. The Death Penalty Information Center has a significant amount of information available

regarding the death penalty along with information by state at

http://www.deathpenaltyinfo.org/states-and-without-death-penalty.

18. Review British Petroleum’s comments regarding environmental efforts at

http://www.bp.com/en/global/corporate/sustainability/environment.html. Do students

believe British Petroleum is environmentally friendly?

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