(Only do slides 6-9 include notes and examples in notes) I attached the chapterThe instructor asked that we outline the assigned chapter. Her instructions are as follows:- All slides must contain speaker notes- She stated we could copy/paste from the book- Copy/paste from other sources- Be sure to cite our references- She does not want the slides to be “Wordy”- She wants us to use bullet points with a few words- We can insert videos (2 min videos) in place of our bullet points as long as it’s relevant to the chapter content- We can use our experiences as they pertain to the contents in the chapter- Pictures are ok, but keep to a minimum- Pictures must be relevant to the contents of the chapter
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CHAPTER 7 Criminal Law and Cybercrime
Definition of a Crime
A crime is defined as any act done by an individual in violation of those duties that he or she
owes to society and for the breach of which the law provides that the wrongdoer shall make
amends to the public. Many activities have been considered crimes through the ages, whereas
other crimes are of recent origin.
A violation of a statute for which the government imposes a punishment.
Penal Codes and Regulatory Statutes
Statutes are the primary source of criminal law. Most states have adopted comprehensive penal
codes that define in detail the activities considered to be crimes within their jurisdictions and the
penalties that will be imposed for their commission. A comprehensive federal criminal code
defines federal crimes.1
A collection of criminal statutes.
Each state has a criminal penal code that lists and defines the activities that are illegal in that
state. These crimes include first-degree murder, burglary, robbery, arson, rape, and other crimes.
In addition, state and federal regulatory statutes often provide for criminal violations and
penalties. The state and federal legislatures are continually adding to the list of crimes.
Statutes such as environmental laws, securities laws, and antitrust laws that provide for
criminal violations and penalties.
Federal securities statutes are regulatory statutes that establish rules for disclosure of information
before securities can be sold to the public. These federal statutes also make it a crime for an
issuer of securities to defraud investors.
The penalty for committing a crime may consist of the imposition of a fine, imprisonment, both,
or some other form of punishment (e.g., probation). Generally, imprisonment is imposed to (1)
incapacitate the criminal so he or she will not harm others in society, (2) provide a means to
rehabilitate the criminal, (3) deter others from similar conduct, and (4) inhibit personal
retribution by the victim.
Parties to a Criminal Action
In a criminal lawsuit, the government (not a private party) is the plaintiff. The government is
represented by a lawyer called the prosecutor or prosecuting attorney. The accused, which is
usually an individual or a business, is the defendant. The accused is represented by a defense
attorney. Sometimes the accused will hire a private attorney to represent him or her if he or she
can afford to do so. If the accused cannot afford a private defense lawyer, the government will
provide one free of charge. This government defense attorney is often called a public defender.
Law cannot persuade where it cannot punish.
Classification of Crimes
Crimes are classified from serious to minor. A crime is usually classified as one of the following:
The most serious type of crime; an inherently evil crime. Most crimes against persons
and some business-related crimes are felonies.
A crime that is less serious than a felony; a crime that is not inherently evil but prohibited
by society. Many crimes against property are misdemeanors.
A crime that is neither a felony nor a misdemeanor that is usually punishable by a fine.
Felony. Felonies are the most serious kinds of crimes. Felonies include crimes that are
mala in se —that is, inherently evil. Felonies are usually punishable by imprisonment. In
some jurisdictions, certain felonies (e.g., first-degree murder) are punishable by death.
Federal law2 and some state laws require mandatory sentencing for specified crimes.
Many statutes define different degrees of crimes (e.g., first-, second-, and third-degree
murder). Each degree earns different penalties. Serious violations of regulatory statutes
are also felonies.
Most crimes against persons (e.g., murder, rape) and certain business-related crimes (e.g.,
embezzlement, bribery) are felonies in most jurisdictions.
Misdemeanor. Misdemeanors are less serious than felonies. They are crimes mala
prohibita ; that is, they are not inherently evil but are prohibited by society.
Misdemeanors carry lesser penalties than felonies. They are usually punishable by fines
and/or imprisonment for one year or less.
Many crimes committed against property, such as robbery, burglary, and less serious
violations of regulatory statutes, are classified as misdemeanors in most jurisdictions.
Violation. Violations are the least serious of crimes. These crimes are generally
punishable by fines. Occasionally, one day or a few days of imprisonment is imposed.
Crimes such as traffic violations and jaywalking are usually classified as violations.
CONCEPT SUMMARY Classification of
The most serious kinds of crimes. They are mala in se (inherently evil) and are
usually punishable by imprisonment.
Misdemeanor Crimes that are less serious than felonies. They are mala prohibita (prohibited by
society) and are usually punishable by fine and/or imprisonment for less than one
Crimes that are neither felonies nor misdemeanors. Violations are generally
punishable by a fine.
Most crimes require criminal intent to be proven before the accused can be found guilty of the
defined crime. Two elements must be proven for a person to be found guilty of an intent crime :
(1) criminal act (actus reus) and (2) criminal intent (mens rea).
A crime that requires the defendant to be found guilty of committing a criminal act (actus
reus) with criminal intent (mens rea).
“Guilty act”—the actual performance of a criminal act.
“Evil intent”—the possession of the requisite state of mind to commit a prohibited act.
specific intent crime
A crime that requires that the perpetrator intended to achieve a specific result from his or
her illegal act.
general intent crime
A crime that requires that the perpetrator either knew or should have known that his or
her actions would lead to harmful results.
1. Criminal act (actus reus). The defendant must have actually performed the prohibited act.
The actual performance of the criminal act is called the actus reus (guilty act).
Sometimes, the omission of an act can constitute the requisite actus reus.
Killing someone without legal justification constitutes a criminal act (actus reus) because
the law forbids persons from killing one another. If a taxpayer who is under a legal duty
to file income tax returns and to pay income taxes that are due the government fails to do
so, there is the requisite criminal act (actus reus). A person who commits auto theft has
engaged in a criminal act.
2. Criminal intent (mens rea). To be found guilty of an intent crime, the accused must be
found to have possessed the requisite state of mind when the act was performed. This is
called mens rea (evil intent). Juries may infer a defendant’s intent from the facts and
circumstances of the case. Many jurisdictions have defined intent crimes as either general
intent crimes or specific intent crimes:
1. Specific intent crime. Specific intent crimes require that the perpetrator intended
to achieve a specific result from his or her illegal act.
Premeditated murder is a specific intent crime because the perpetrator intends a
specific result, the death of the victim. Arson, forgery, and fraud are other
examples of specific intent crimes.
2. General intent crime. General intent crimes require that the perpetrator either
knew or should have known that his or her actions would lead to harmful results.
The government does not have to prove that the accused intended the precise
harm that resulted from his or her actions.
Assault and battery are usually considered general intent crimes because the
perpetrator intends to commit the crime but does not know the actual result of the
crime in advance.
Individual criminal statutes state whether the crime requires a showing of specific or general
intent. Some jurisdictions have eliminated the distinction between specific and general crimes.
Merely thinking about committing a crime is not a crime because no action has been taken. Thus,
merely thinking about killing someone or evading taxes and not actually doing so is not a crime.
CONCEPT SUMMARY Elements of an
Actus reus Guilty act
Mens rea Evil intent
Most states have enacted laws that define certain unintended conduct as a crime. These are called
nonintent crimes . Nonintent crimes are often imposed for reckless or grossly negligent conduct
that causes injury to another person.
A crime that imposes criminal liability without a finding of mens rea (intent).
The following feature discusses how criminal acts may also be the basis for civil tort actions by
an injured victim or a deceased victim’s relatives.
Contemporary Environment Criminal Acts
as the Basis for Tort Actions
An injured victim of a crime or the relatives of a deceased victim of a crime may bring a civil
action against a wrongdoer who has caused injury or death during the commission of a criminal
act. Civil lawsuits are separate from the government’s criminal action against the wrongdoer. In
a civil lawsuit, the plaintiff usually wants to recover monetary damages from the wrongdoer.
A person commits the crime of battery and physically injures the victim. In this case, the
government can prosecute the perpetrator for the crime of battery. In addition, the victim may
sue the perpetrator in a civil lawsuit to recover monetary damages for the injuries the victim
suffers because of the attack.
In many cases, a person injured by a criminal act does not sue the criminal to recover civil
damages because the criminal is often judgment proof—that is, the criminal does not have the
money to pay a civil judgment.
Criminal and civil law differ in the following ways:
Party who brings
Trial by jury
Burden of proof
Yes, except actions for equity
Preponderance of the evidence
Judgment for plaintiff requires specific jury
vote (e.g., 9 of 12 jurors)
Monetary damages and equitable remedies
(e.g., injunction, specific performance)
Beyond a reasonable doubt
unanimous jury vote
punishment, fine, probation
The procedure for initiating and maintaining a criminal action is quite detailed. It includes both
pretrial procedures and the actual trial.
Critical Legal Thinking
1. Compare a criminal case with a civil case. Why is there such a difference in the burden of
proof? Why is there a difference in the required jury vote?
Before the police can arrest a person for the commission of a crime, they usually must obtain an
arrest warrant based on a showing of probable cause. The police go before a judge and present
the evidence they have for arresting the suspect. If the judge finds that there is probable cause to
issue the warrant, he or she will do so. The police will then use the arrest warrant to arrest the
suspect. Probable cause is defined as the substantial likelihood that a person either committed or
is about to commit a crime.
A document for a person’s detainment, based on a showing of probable cause that the
person committed a crime.
The police have obtained information from a reliable informant about the criminal activity of an
individual; they further investigate the situation and arrive at the conclusion that the individual
who is the target of their investigation is involved in the illegal selling of drugs. The police can
take this evidence, place it before a judge, and request that the judge issue an arrest warrant. If
the judge believes there is probable cause, the judge will issue an arrest warrant. The police can
then arrest the suspect pursuant to the arrest warrant.
Evidence of the substantial likelihood that a person either committed or is about to
commit a crime.
An arrest can be made without obtaining an arrest warrant if there is no time to obtain one or it is
otherwise not feasible to obtain a warrant prior to the arrest. Warrantless arrests must be based
on probable cause.
An arrest that is made without obtaining an arrest warrant. The arrest must be based on
probable cause and a showing that it was not feasible to obtain an arrest warrant.
Go to www.fbi.gov and click on “Most Wanted” and then “Ten Most Wanted Fugitives.” Who is
the number-one fugitive listed, and what crime is he or she wanted for?
The police can make a warrantless arrest if they arrive during the commission of a crime, when a
person is fleeing from the scene of a crime, or when it is likely that evidence will be destroyed.
In Atwater v. Lago Vista, Texas,3 the U.S. Supreme Court held that a police officer may make a
warrantless arrest pursuant to a minor criminal offense. Gail Atwater was driving her pickup
truck in Lago Vista, Texas, with her 3-year-old son and 5-year-old daughter in the front seat.
None of them were wearing seat belts. Bart Turek, a Lago Vista police officer, observed the seat
belt violation and pulled Atwater over. A friend of Atwater’s arrived at the scene and took
charge of the children. Turek handcuffed Atwater, placed her in his squad car, and drove her to
the police station. Atwater was booked, her mug shot was taken, and she was placed in a jail cell
for about one hour, until she was released on $310 bond. Atwater ultimately pleaded no contest
to the misdemeanor seat belt offenses and paid a $50 fine. Atwater sued the City of Lago Vista
and the police officer for compensatory and punitive damages for allegedly violating her Fourth
Amendment right to be free from unreasonable seizure. The U.S. Supreme Court ruled against
Atwater, finding that the Fourth Amendment permits police officers to make a warrantless arrest
pursuant to a minor criminal offense.
After a person is arrested, he or she is taken to the police station to be booked. Booking is the
administrative procedure for recording an arrest, fingerprinting the suspect, taking a photograph
of the suspect (often called a mug shot), and so on.
Indictment or Information
An accused person must be formally charged with a crime before he or she can be brought to
trial. This is usually done through an indictment issued by a grand jury or an information
statement issued by a magistrate.
The charge of having committed a crime (usually a felony), based on the judgment of a
The charge of having committed a crime (usually a misdemeanor), based on the judgment
of a judge (magistrate).
A hearing during which the accused is brought before a court and is (1) informed of the
charges against him or her and (2) asked to enter a plea.
Evidence of serious crimes, such as murder, is usually presented to a grand jury. Most grand
juries are comprised of between 6 and 24 citizens who are charged with evaluating the evidence
presented by the government. Grand jurors sit for a fixed period of time, such as one year. If the
grand jury determines that there is sufficient evidence to hold the accused for trial, it issues an
indictment. Note that the grand jury does not determine guilt. If an indictment is issued, the
accused will be held for later trial.
For lesser crimes (e.g., burglary, shoplifting), the accused is brought before a magistrate
(judge). A magistrate who finds that there is enough evidence to hold the accused for trial issues
an information statement.
The case against the accused is dismissed if neither an indictment nor an information statement is
If an indictment or information is issued, the accused is brought before a court for an
arraignment proceeding during which the accused is (1) informed of the charges against him or
her and (2) asked to enter a plea. The accused may plead guilty or not guilty.
When a person is arrested, a bail amount is usually set by the court. If the court sets a bail
amount and the arrested person posts bail (pays the bail amount), he or she can be released from
prison. If he or she does not post bail, the arrestee may be kept in jail for some period of time
and, in serious crimes, until the date of trial. The arrested person can post the bail him- or herself
by paying the court the set bail amount, which will be returned to him or her if he or she shows
up for trial. More often, the arrestee (or a relative or friend) pays a bail bonds professional who
operates a bail bonds business to post a bail bond with the court. Bail bonds professionals
usually require payment of 10 percent of the bail in order to post bond. For example, if the bail is
set at $100,000, then the arrestee pays the bail bonds professional $10,000 to post bail. The bail
bonds professional keeps this $10,000 payment. The bail bonds professional guarantees the court
that he or she will pay the court $100,000 if the arrestee does not show up for trial. If this
happens, the bail bonds professional attempts to obtain the amount of the bond—here,
$100,000—from the arrestee. Bail bonds professionals often require collateral (e.g., title to an
automobile, second mortgage on a house) before they issue a bail bond.
Peter has been arrested for the crime of automobile theft. At the arraignment, Peter is asked how
he pleads. Peter replies, “Not guilty.” Peter has pleaded not guilty rather than guilty. The
majority of accused persons plead not guilty at their arraignment.
A party may enter a plea of nolo contendere , whereby the accused agrees to the imposition of a
penalty but does not admit guilt. The government has the option of accepting a nolo contendere
plea or requiring the defendant to plead guilty or not guilty. If the government agrees to accept
the nolo contendere plea, the accused and the government usually enter into a plea bargain in
which the accused agrees to the imposition of a penalty but does not admit guilt. A nolo
contendere plea cannot be used as evidence of liability against the accused at a subsequent civil
trial. Corporate defendants often enter this plea.
The government brings charges against a corporation for criminally violating environmental
pollution laws. The government and the corporation enter into an agreement whereby the
corporation pleas nolo contendere and agrees to pay a fine of $5 million but does not plead guilty
to the violation.
Sometimes the accused and the government enter into plea bargain negotiations prior to trial
with the intent of avoiding a trial. If an agreement is reached, the government and the accused
execute a plea bargaining agreement that sets forth the terms of their agreement.
plea bargain agreement
An agreement in which the accused admits to a lesser crime than charged. In return, the
government agrees to impose a lesser sentence than might have been obtained had the
case gone to trial.
An accused is charged with first-degree murder, which if proven carries a penalty of life
imprisonment. The government and the accused engage in plea bargaining, and an agreement is
reached whereby the accused agrees to plead guilty to the crime of second-degree murder, which
carries a maximum penalty of 20 years in jail. Therefore, a trial is avoided.
The government engages in plea bargaining to save costs, avoid the risks of a trial, and prevent
further overcrowding of the prisons. In return, the government agrees to impose a lesser penalty
or sentence on the accused than might have been obtained had the case gone to trial and the
accused found guilty. The accused often agrees to a plea bargain to avoid the risks of trial,
where, if he or she were found guilt …
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