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Chapter 10
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,
2 UNIT TWO: TORTS AND CRIMES
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. 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 (local district attorneys, for example), not by victims.
A. KEY DIFFERENCES BETWEEN CIVIL AND CRIMINAL LAW
1. Burden of Proof
Proof that a certain person committed a crime must be beyond a reasonable doubt. The
2. Criminal Sanctions
Criminal sanctions are intended to punish those who commit crimes and to deter others from
B. CIVIL LIABILITY FOR CRIMINAL ACTS
Criminal acts may also be subject to civil liability.
C. CLASSIFICATION OF CRIMES
Crimes are classified as felonies or misdemeanors.
• Felonies are punishable by death or by imprisonment for more than a year
II. Criminal Liability
Crime requires—
• The performance of a prohibited act,
• A specified state of mind.
A. THE CRIMINAL ACT
Most crimes require an act of commission—an actus reus, or guilty act. Some acts of omission are
B. STATE OF MIND
What constitutes a wrongful mental state—mens rea—varies according to the act. For murder, the act is
CHAPTER 10: CRIMINAL LAW AND CYBER CRIME 3
1. Recklessness
Criminal recklessness is conscious disregard for a substantial and justifiable risk.
2. Criminal Negligence
3. Strict Liability and Overcriminalization
Strict liability crimes do not require a wrongful mental state to establish criminal liability. Critics
contend that strict liability is the wrong theory to apply to social problems such as illegal drug use.
a. Federal Crimes
The federal criminal code lists more than four thousand criminal offenses, and over ten
b. State Crimes
Many states also punish behavior as criminal without requiring a showing of intent.
C. CORPORATE CRIMINAL LIABILITY
1. Liability of the Corporate Entity
A corporation may be held liable for crimes committed by its agents or employees within the course
2. Liability of the Corporate Officers and Directors
Corporate directors and officers are personally liable for the crimes they commit, and may be liable
III. Types of Crimes
Criminal acts can be grouped into the following categories.
A. VIOLENT CRIME
Murder, sexual assault (rape), assault and battery, robbery (the taking of another’s personal property,
from his or her person or immediate presence, by force or intimidation)—these crimes are classified by
degree, subject to intent, weapon, and level of victim’s pain and suffering.
CASE SYNOPSIS—
Case 10.1: State of Minnesota v. Smith
Over a Labor Day weekend, two homes and a business in Rochester, Minnesota, were burglarized. One
4 UNIT TWO: TORTS AND CRIMES
day later, less than five blocks away, in Albert Smith’s room at the Bell Tower Inn, cleaning personnel found a
garbage bag containing a passport that belonged to the owner of one of the burglarized homes and
documents that belonged to the business. The police arrested Smith. A search of a bag in his possession
revealed other stolen items and burglary tools. Convicted in a state court of burglary, Smith appealed.
..................................................................................................................................................
Notes and Questions
Suppose that the rightful owners of the property recovered all of the stolen items. Under those
The circumstances of this case might form the background for a review of the prosecutorial
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
B. PROPERTY CRIME
1. Burglary
Burglary is, in most states, breaking and entering the building of another.
2. Larceny
Larceny is the wrongful or fraudulent taking and carrying away by any person of the personal
property of another.
CHAPTER 10: CRIMINAL LAW AND CYBER CRIME 5
3. Obtaining Goods by False Pretenses
4. Theft
5. Receiving Stolen Goods
To commit this crime, a recipient must or should know that the goods are stolen.
6. Arson
7. Forgery
Forgery is the fraudulent making or alteration of any writing that changes the legal liability of an-
other.
C. PUBLIC ORDER CRIME
ENHANCING YOUR LECTURE—
THE CASE OF THE “CUSSING CANOEIST”
Timothy Boomer, then a twenty-eight-year-old engineer, went on a swearing rampage when his canoe
tipped over on the Rifle River in Michigan. Others heard the swearing, including a couple and their two
children, and a sheriff, who wrote him a ticket for violating an 1897 Michigan law that banned cursing in front
of women and children. Specifically, the law made it illegal for anyone to use indecent, immoral, obscene,
vulgar, or insulting language near children and women. Boomer was convicted and ordered to pay a fine of
$75 and serve four days in a child-care program. Boomer, with the assistance of the American Civil Liberties
Union, appealed the decision, arguing that the law was unconstitutionally vague. After all, what might be
considered “vulgar” or “obscene” to one person might not be by another. A Michigan appellate court agreed
and struck down the law.a
THE BOTTOM LINE
Eight other states—Louisiana, New Mexico, Oklahoma, South Carolina, South Dakota, Texas, Virginia,
and Wisconsin—also have “swearing laws.” Whether these laws will survive challenges remains to be seen.
CHAPTER 10: CRIMINAL LAW AND CYBER CRIME 7
D. WHITE-COLLAR CRIME
White-collar crime is often committed in the course of a legitimate occupation.
1. Embezzlement
Embezzlement is the fraudulent conversion of property or money owned by one person but en-
trusted to another. Intending to ultimately return embezzled property is not a defense.
CASE SYNOPSIS—
Case 10.2: People v. Sisuphan
Lou Sisuphan was the director of finance at Toyota of Marin in California. To purportedly jeopardize the
employment of a subordinate finance manager, Sisuphan kept a payment of nearly $30,000 from one of the
subordinate’s customers. More than two weeks later, Sisuphan told the dealership’s general manager what he
had done, adding that he had “no intention of stealing the money.” The general manager terminated
Sisuphan, who returned the cash. He was subsequently convicted of embezzlement in a California state court
and appealed, arguing that his return of the cash negated the element of fraudulent intent.
..................................................................................................................................................
Notes and Questions
In this case, the customer had given the payment to the finance manager who soon left it in
Sisuphan’s charge atop his safe in his office at the dealership. Suppose that the customer had
handed the payment directly to Sisuphan, without the intermediation of the subordinate, off the
premises and after hours. Would the result in this case likely have been different? No. Embezzlement
is the fraudulent conversion of property or money owned by one person but entrusted to another. In this case,
ADDITIONAL BACKGROUND—
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
8 UNIT TWO: TORTS AND CRIMES
and charged with larceny.
The Doctrine of Constructive Possession. 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 prop-
erty and the employer impliedly remained in possession.
Embezzlement Statutes. 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
2. Mail and Wire Fraud
CHAPTER 10: CRIMINAL LAW AND CYBER CRIME 9
3. Bribery
• Bribery of public officials is a crime. The bribe can be of anything that the official considers
4. Bankruptcy Fraud
To be relieved of oppressive debt under the bankruptcy laws, a debtor must disclose all assets. A
5. Insider Trading
6. Theft of Trade Secrets and Other Intellectual Property
• The Economic Espionage Act of 1996 made the theft of trade secrets a federal crime. The act
also made it a crime to buy or possess trade secrets of another, knowing that they were
acquired without the owner’s authorization.
E. ORGANIZED CRIME
Organized crime operates illegitimately to supply illegal goods and services.
1. Money Laundering
Money laundering is engaging in financial transactions to conceal the identity, source, or
2. Racketeering
To curb the entry of organized crime into legitimate business, the Organized Crime Control Act of
1970 included the Racketeer Influenced and Corrupt Organizations Act (RICO). It is a federal
crime—
• Use income obtained from racketeering activity to purchase any interest in an enterprise.
CHAPTER 10: CRIMINAL LAW AND CYBER CRIME 11
a. Broad Application of RICO
RICO incorporates by reference twenty-six federal crimes and nine state felonies; if a person
b. Civil Liability
The government can seek divestiture of a defendant’s interest in a business or dissolution of
IV. Defenses to Criminal Liability
Prosecutorial procedural violations are also defenses.
A. JUSTIFIABLE USE OF FORCE
Generally, people can use the amount of force that is reasonably necessary to protect themselves, their
dwellings or other property, or to prevent the commission of a crime. Deadly force can be used in self-
defense if—
• There is a reasonable belief that imminent death or great bodily harm will otherwise result.
• The attacker is using unlawful force.
• The defender has not initiated or provoked the attack.
ENHANCING YOUR LECTURE—
STAND-YOUR-GROUND LAWS
Traditionally, the justifiable use of force, or the self-defense, doctrine required prosecutors to distinguish
between deadly and nondeadly force. In general, state laws have allowed individuals to use that amount of
nondeadly force that is necessary to protect themselves, their dwellings, or other property, or to prevent the
commission of a crime.
THE DUTY-TO-RETREAT DOCTRINE
In the past in most states, deadly force could be used in self-defense only if there was a reasonable belief
that imminent death or bodily harm would otherwise result. Additionally, the attacker must have been using
unlawful force and there had to have been no other possible response or alternative way out of the life-
threatening situation.a Further, many states, particularly in the Northeast, have on their statute books “duty-to-
retreat” laws that require an individual to retreat from an invader or an assailant unless that individual’s life is
in danger. Even in the Northeast, juries have not consistently followed the duty-to-retreat doctrine. One
famous case in the 1980s involved Bernard Goetz, who shot and injured four young men who asked him for
money while he was riding the subway. The jury found that Bernard had reasonably believed that he was in
danger of being attacked physically.b
12 UNIT TWO: TORTS AND CRIMES
STAND-YOUR-GROUND LEGISLATION ON THE INCREASE
On October 1, 2005, Florida became the first state to enact a statute allowing the use of deadly force to
prevent the commission of a “forcible felony,” such as robbery, carjacking, and sexual battery.c The law allows
Floridians to use deadly force without proving that they feared for their safety. This law extends to homes and
vehicles. The law also prohibits the arrest, detention, or prosecution of individuals covered by the law.
Additionally, the law prohibits civil suits against said individuals. The trend here is clearly to expand the right
to shoot home and vehicle intruders who pose no physical threat to the occupant’s safety.
The following states have enacted or considered enactment of similar laws: Alabama, Alaska, Arizona,
Georgia, Indiana, Kentucky, Michigan, Mississippi, Missouri, Montana, Pennsylvania, Oklahoma, South
IMPLICATIONS FOR THE BUSINESSPERSON
States that have enacted stand-your-ground laws often include places of business as well as homes and
vehicles. Consequently, businesspersons in those states can be less concerned about the “duty to retreat”
doctrine. Presumably in stand-your-ground states, business liability insurance will eventually be less costly.
FOR CRITICAL ANALYSIS
Those who are against stand-your-ground laws argue that they encourage vigilantism and
preemptive shootings. Do you agree? Explain. “A person’s home is his or her castle.” Does this
traditional saying justify the use of deadly force against an intruder under all circumstances? Why or
why not?
B. NECESSITY
A defendant may be relieved of liability if his or her criminal act was necessary to prevent an even
greater harm.
C. INSANITY
To defend against charges on this ground, a defendant must meet a test for legal insanity.
1. Model Penal Code
Most federal courts and some states use the test in the Model Penal Code: “A person is not
2. M’Naghten and Other State Rules
Other states use the M’Naghten test (a criminal defendant is not responsible if, at the time of the
offense, he or she did not know the nature and quality of the act or did not know that the act was
D. MISTAKE
A mistake of fact will operate as a defense if it negates the required mental state.
E. DURESS
Duress exists when a wrongful threat induces a person to do something that he or she would not
F. ENTRAPMENT
This occurs when a government officer suggests that a crime be committed and pressures or induces an
individual to commit it. The important issue is whether a person who committed a crime was predisposed
to do so.
G. STATUTE OF LIMITATIONS
Most crimes, with the exception of murder, must be prosecuted within a certain time.
H. IMMUNITY
To obtain information, the state can grant immunity from prosecution. A person may then be compelled
to answer questions (under the Fifth Amendment a person can refuse to answer questions only on the
ADDITIONAL BACKGROUND—
Immunity—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
14 UNIT TWO: TORTS AND CRIMES
CHAPTER 10: CRIMINAL LAW AND CYBER CRIME 15
V. Criminal Procedures
Criminal procedures protect the rights of the individual and preserve the presumption of innocence.
A. 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—
• Fourth Amendment—Protects against unreasonable searches and seizures.
• Fourth Amendment—No warrants for a search or an arrest can be issued without probable cause.
• Fifth Amendment—No one can be deprived of “life, liberty, or property without due process of law.”
B. FOURTH AMENDMENT PROTECTIONS
Before searching or seizing private property, law enforcement officers must obtain a search warrant from
a judge or other public official.
1. Probable Cause
2. Scope of Warrant
3. Reasonable Expectation of Privacy
The Fourth Amendment only protects against searches that violate a person’s reasonable
expectation of privacy. A reasonable expectation of privacy exists if—
• The individual actually expects privacy.
• The person’s expectation is one that society as a whole would think is legitimate.
ADDITIONAL CASES ADDRESSING THIS ISSUE —
The Exclusionary Rule
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
16 UNIT TWO: TORTS AND CRIMES
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 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
C. THE EXCLUSIONARY RULE
All evidence obtained in violation of the rights spelled out in the Fourth, Fifth, and Sixth Amendments
must be excluded from trial, as well as all “fruit of the poisonous tree”—evidence derived from the ille-
gally obtained evidence. Courts determine whether evidence has been obtained improperly. The
purpose of the rule is to deter police misconduct.
D. THE MIRANDA RULE
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.
• The United States Supreme Court has recognized a “public safety” exception for such statements
as the location of a weapon. These statements are admissible even if a suspect was not advised of
his or her rights.
ADDITIONAL BACKGROUND—
The Miranda Rights
In Miranda v. Arizona, the United States Supreme Court held that the police must inform suspects, before
CHAPTER 10: CRIMINAL LAW AND CYBER CRIME 17
interrogation, of certain constitutional rights. These rights have become popularly known as the Miranda
rights.
VOLUNTARINESS TEST
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 eval-
uated 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.
INFORMING SUSPECTS OF THEIR RIGHTS
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
QUESTIONS AND EFFECTS
18 UNIT TWO: TORTS AND CRIMES
Although more certain than the old voluntariness test, the Miranda rule 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?
ADDITIONAL CASES ADDRESSING THIS ISSUE —
The Miranda Rule
Cases considering, in the context of the Miranda rule, whether an accused’s statements to the police are
admissible include the following.
• United States v. Abdulla, 294 F.3d 830 (7th Cir. 2002) (a defendant’s spontaneous statement to police
officers, while in custody, that “I robbed a bank, everyone knows I robbed a bank,” was voluntary, even
though the statement was made before the defendant was advised of his Miranda rights and even though he
had previously responded with an identical statement when the police asked him whether he knew why he
was being arrested).
