Chapter 8: Criminal Law and Cyber Crime 27
Chapter 8
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 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. The sanctions are different from those in civil law, and criminal law prerequisites of fault or guilt are different. Also, courts cannot create new crimes (unlike torts). Only legislative bodies can create or abolish crimes as public knowledge, experience, and technology change.
Cyber crime, which is a category that groups crimes according to a particular means of commission, is also discussed in this chapter.
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, 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 government must prove that the defendant committed each element of the offense with which she or he is charged beyond a reasonable doubt. If a jury views the evidence as reasonably permitting either a guilty or a not guilty verdict, then the jury’s verdict must be not guilty.
2. Criminal Sanctions
Criminal sanctions are intended to punish those who commit crimes and to deter others from committing similar acts. Sanctions include fines, imprisonment, and death.
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
• Misdemeanors are punishable by a fine or by confinement for up to a year. Petty offenses are a subset of misdemeanors.
II. 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. State of Mind
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.
1. Recklessness
Criminal recklessness is conscious disregard for a substantial and justifiable risk.
2. Criminal Negligence
Criminal negligence is a deviation from the standard of care that a reasonable person would use under the same circumstances—an unjustified, substantial, foreseeable risk that results in harm.
3. Strict Liability and Overcriminalization
Strict liability crimes do not require a wrongful mental state to establish criminal liability.
a. Federal Crimes
The federal criminal code lists more than four thousand criminal offenses, and over ten thousand federal rules can be enforced through criminal sanctions—many of these offenses and rules do not require intent. These include environmental crimes, drug offenses, and other violations affecting public health, safety, and welfare.
b. State Crimes
Many states also punish behavior as criminal without requiring a showing of intent.
C. Corporate Criminal Liability
Corporations cannot be imprisoned, but they can be fined or denied certain legal privileges.
1. Liability of the Corporate Entity
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.
2. Liability of Corporate Officers and Directors
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.
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.
B. Property Crime
1. Burglary
Burglary is, in most states, breaking and entering the building of another.
Case Synopsis—Case 8.1: State v. Smith
Over a Labor Day weekend, two homes and a business in Rochester, Minnesota, were burglarized. One 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.
A state intermediate appellate court affirmed. The circumstances “are consistent with guilt and inconsistent with any rational hypothesis except that of guilt. Smith possessed property reported as stolen from both homes and the business.” Smith claimed, among other things, that he bought some of the items on Craigslist. But “the inferences that Smith requests that we draw from the circumstances *** are not reasonable. The only rational hypothesis *** is that Smith committed the burglaries.”
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Notes and Questions
Suppose that the rightful owners of the property recovered all of the stolen items. Under those circumstance, would it be fair to impose criminal penalties on Smith? Yes, it would be fair to impose criminal penalties on Smith even if the owners of the stolen property recovered all of the items. Smith was convicted of the crime of burglary. Whether the rightful owners recovered their property is not an element of, or a defense to, a theft charge.
Among the purposes of criminal law are punishment and deterrence. If criminals could escape culpability because their victims did not suffer all of the intended harm, these purposes would not be met. In fact, persons might be encouraged to commit more crimes if they could avoid liability should their victims recover their property.
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 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)..
2. Larceny
Larceny is the wrongful or fraudulent taking and carrying away by any person of the personal property of another.
3. Obtaining Goods by False Pretenses
Obtaining goods by false pretenses is theft by trickery or fraud, and often applies to the illegal acquisition of funds or services.
4. Receiving Stolen Goods
5. Arson
Arson is the willful and malicious burning of a building or some other structure, and in some states personal property.
6. Forgery
Forgery is the fraudulent making or alteration of any writing that changes the legal liability of another.
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.aThe 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.
a. Michigan v. Boomer, No. 98-17285M (2002). This case, which is not reported, is discussed in Tresa Baldas, “A ‘Cussing Canoeist’ Cans a Controversial Michigan Law,” The National Law Journal, May 6, 2002, p. A6.
C. Public Order Crime
These include public drunkenness, prostitution, gambling, and illegal drug use.
D. White-Collar Crime
White-collar crime is often committed in the course of a legitimate occupation.
Case Synopsis—Case 8.2: 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.
A state intermediate appellate court affirmed. Although “return of the property is not a defense to embezzlement,” it may show that “a defendant’s intent at the time of the taking was not fraudulent.” But the issue in the circumstances of this case was whether Sisuphan intended to use the money “for a purpose other than that for which the dealership entrusted it to him.” His purpose was to get a subordinate fired. Because this was “outside the trust afforded him by the dealership,” evidence that he took the money for this purpose does not prove a lack of the requisite intent.
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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, the payment was “owned” by the dealership. entrusted to Sisuphan on its behalf, and appropriated by him for his own purpose. Whatever other circumstances might have surrounded his theft of the amount, these were the salient facts for his conviction.
Given that Sisuphan returned the cash and the checks, was it fair of the dealership’s general manager to terminate Sisuphan’s employment? Why or why not? It is hard to imagine that Sisuphan’s employer would ever be criticized on ethical grounds for firing Sisuphan in these circumstances. Sisuphan had many responsibilities at the dealership, among them handling financial transactions with customers and receiving payments from them. By taking the cash and checks from McClelland’s sale, even with the intention of returning them, he put them to a use other than his employers intended and thereby violated the trust they placed in him. The general manager and general sales manager of the dealership both confessed that they trusted Sisuphan and “were shocked that he had taken the money.” Even if Sisuphan had returned the money within the twenty-four hour period (and thus, according to the general manager, would not face criminal charges), Sisuphan’s actions would be cause for termination in almost any employment environment.
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 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 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 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
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 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 increase 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).
1. Embezzlement