Ch6. Criminal Law

For conviction, prove:

*Actus Reus + Mens Rea*

OCGA 16-9-93

*Computer Trespass*(무단침입) : Any person who uses a computer or computer network with knowledge that such use is without authority and with the intention of: (1)*Deleting* or in any way removing, either temporarily or permanently, any computer program or data from a computer or computer network; (2)Obstructing(방해하다), interrupting, or in any way interfering with the use of a computer program or data; or (3)Altering, damaging, or in any way causing the malfunction(고장) of a computer, computer network, or computer program, regardless of how long the alteration, damage, or malfunction persists *shall be guilty of the crime of computer trespass.*

Cisco Systems, Inc., offers a warranty program to authorized resellers of Cisco parts. Ihenyi Frank Chinas and Robert formulated a scheme to sue this program to *defraud Cisco by obtaining replacement parts to which they were not entitled*. The two men sent numerous e-mails and Internet service requests to Cisco to convince the company to shift them new parts via *commercial carriers*. Ultimately, Chinas and Chambliss were convicted of:

*Mail and Wire Fraud* - maximum penalty: up to 20 years or fined - fined up to $1 million ) or up to 30 years

Leo Harris, a successful drug dealer, becomes a partner with a restauranteur. Little by little, the restaurant shows increasing profits. As a partner in the restaurant, Harris is able to report the "profits" of the restaurant as legitimate income on which he pays federal and state telex. He can then spend those funds without worrying that his lifestyle may exceed the level possible with his reported income.

*Money Laundering*

*Exclusionary (배제하기 위위한)Rule*

*exclude evidence* obtained in violation of constitutional rights (basis for motions) - "fruit of the poisonous tree" 1) *Fourth Amendment* - Reasonable expectation of privacy e.g. email - *Search warrant* - should you have gotten - Probable cause - did you have 2) *Fifth Amendment* - Right against Self-Incrimination(스스로 증언을 해서) 자기를 유죄에 이르게 함)- don't have to testify(*NO PERSON shall be compelled in any criminal case to be a witness against himself*) - Miranda Rule(US legal doctrine according to which confessions obtained by police are admissible *only if the suspect was informed of his or her certain constitutional rights before being interrogated(심문하다).*) 3) *Sixth Amendment* - Right to Speedy Trial - Right to Confront Witnesses - Right to Attorney

When the state wishes to obtain information from a person accused of a crime, the state can grant:

*immunity* from prosecution or agree to prosecute for a less serious offense in exchange for information. 👉Once immunity is given, the person can no longer refuse to testify on 5th amendment grounds 👉*plea bargaining*(유죄 답변 협상): the process by which a criminal defendant and the prosecutor work out an agreement to dispose of the criminal case, subject to court approval

Corporate Liability

- Liable for crimes committed by : their agents and employees : within the scope of their employment : Bouncer(문지기) that harmed a patron(고객)

Felony Murder (GA)

1) *Actus Reus* - Committed certain violent felony - Arson(방화) - Burglary (sentence often *1 year for first offense*) - Kidnapping - Rape - Robbery(협박/폭력 이용하는 강도) - Someone *died* during the commission of the crime 2) *Mens Rea* - Intended to *commit violent felony* (such as burglary)

Stages of a Criminal Trial

1. *Arrest* 2. *Bail*(보석금 - pay bail to get out *while waiting on trial*) 👉Must be reviewed in GA after set time 3. *Indictment(고소) by Grand Jury(대배심) (felony)* - indictment: a formal charge by a grand jury that there is probable cause to believe that a named person has committed crime - Grand Jury: A group of citizens who decide, after hearing the state's evidence, whether probable cause exists for believing that a crime has been committed and that a trial should be held 😮For lesser crimes, an individual may be formally charged with a crime by *information* issued by a government prosecutor (정부 검사) 4.* Arraignment(기소여부절차) - Plead guilty/not guilty*(법정에서 형사사건 피고가 자신이 유죄/무죄라고) 답변하다 : the prosecutor will attempt to get the defendant to enter into a *plea bargain*(피고가 유죄를 인정하면 감형해준다는 피고와 검찰 사이의 합의) 5. *Hearing on Pre-trial Motions*(재판 전 신청서) 6. *Trial* - jury trial - bench trial (no jury, judge decides questions of fact as well as questions of law) - at a criminal trial, the accused person does not have to prove anything, the entire burden of proof is on the *prosecutor(the state)*/the prosecutor must show that defendant's guilt is *established beyond a reasonable doubt* 7. *Sentencing* 8. *Appeal*

Key difference between *Civil Law* and *Criminal law*

1. *Burden of Proof*(입증책임) <*Civil Case*> - *plaintiff* must prove his or her case by a *preponderance(우세함) of the evidence* - *Plaintiff*must convince *the court* that, based on the *evidence* presented by both parties, *it is more likely than (50%) not that the plaintiff's allegation (누가 부정적인 일을 했다는 주장) is true <*Criminal Case*> - *the state* must prove its case *beyond a reasonable doubt*(의심할 여지없는/the standard of proof) that the defendant has committed *every essential element of the offense with which she or he is charged - Not beyond *all doubt* - Highest burden

Liability of Corporate Officers and Directors

1. *Corporate Officers and Directors* : Liable(법적 책임이 있는) for *crimes they commit* whether the crimes were committed for *personal benefit* or on *behalf of the corporation* 2. *Responsible Corporate Officer Doctrine(정책)* : Court may impose *criminal liability on a corporate officer* regardless of(~에 상관없이) whether he/she participated in, directed or even *knew* about a criminal violation 👉In position of *responsibility* and had influence over the corporation's actions

Cyber Crime

1. *Cyber Fraud* - Online Auction Fraud(a person puts up an *expensive* item for auction, on either a legitimate or a fake action site, and then refuses to send the product after receiving payment - Online Retail Fraud(consumers pay directly (without bidding) for items that are never delivered) - *cheap* 2. *Cyber Theft* - *Identity Theft*: illegal use of someone else's personal information to *access the victim's financial resources* - *Phishing*(피싱): email fraud came where email looks real but really used to get individuals to reveal financial data or password - *Hacking*: get into another computer or system

Types of consequences

1. *Direct* - Considered part of the *conviction(유죄)* - Duration of sentence - Parole eligibility(가석방자격) - Imposition of fines(과태료 부과) 2. *Collateral(이차적인)* - Considered legally *separate from conviction* - Many civil sanctions(제재) may be imposed at discretion(재량) of an agency - Other civil sanctions attach automatically - Stigma(오명) and loss of employment opportunities e.g. *United States Supreme Court case of Padilla v. Kentucky* - In 2010, *SCOTUS* declared duty to give advice about certain sanction that most consider to be *collateral consequence* - *immigration impact* - The SCOTUS requires counsel to inform the client whether a plea (간청) carries a risk of deportation(추방)

Classification of Crimes

1. *Misdemeanors*(경범죄) - Less serious crimes - Punishable by *less than one year in jail*, can be handled by *fine* and/or probation(보호관찰) e.g. petty offense - the least serious kind of criminal offense - traffic or building code violation (경범죄), shoplifting(상점에서 물건 훔치는것) 2. *Felonies*(흉악범죄) - Serious crimes - arson, murder, rape, robbery - Punishable by *at least one year* in prison or in some cases *death* e.g. Theft of laptop or car Burglary(빈집털이) Embezzlement(횡령)

What are the two elements that must exist simultaneous for a person to be convicted of a crime?

1. *Performance* of a prohibited act 2. a specified *state of mind* or *intent* on the part of the actor *there must be a concurrence (동시발생) between the act and the intent*

Types of Crimes(Violent Crime)

1. *Violent Crime* : Crimes against persons, because *they cause others to suffer harm or death e.g. Murder, sexual assault(성폭행), rape, assault, battery - *Robbery*: The act of *forcefully and unlawfully* taking personal property of any value from another - states have more sever penalties for aggravated(가중 처벌이 가능한) robbery - with use of a deadly weapon

Types of Crime(Property Crime)

2. *Property Crimes* : most common type, the goal of the offender is some form of *economic gain or the damaging of property* e.g. Robbery = Property crime + Violent Crime 1) *Burglary(절도)*: unlawful entry or *breaking into a building* with intent to commit a felony - when deadly weapon used, could be charge with *aggravated burglary* and punished severely 2) *Larceny(절도)*: the wrongful taking and carrying away of another person's personal property with the intent to *permanently deprive the owner of the property* = theft = does not force/fear - 컴퓨터 프로그램 훔치는것도 포함! 3) *Obtaining Goods by False Pretenses(위장)* e.g. paying for an iPad with a stolen credit-card number/selling an iPad that you claim is yours when you actually do not own it 4) *Receiving Stolen Goods* 5) *Arson*(방화): burning a building 6)*Forgery*(위조죄): fraudulent making or altering of any writing (including electronic records) in a way that changes the legal rights and liabilities of another e.g. changing trademarks, falsifying public records, counterfeiting(모조), altering a legal document

Types of Crime(Public Order Crime)

3. *Public Order Crime* : public drunkenness, prostitution, gambling, illegal drug use = *victimless crimes* (they only harm the offender), detrimental to society(they may create an environment that gies rise to *property violent crimes* e.g. having sex on a flight

Types of Crime (White-Collar Crime)

4. *White-Collar Crime* : Nonviolent crime committed by individuals or with the intent to deprive them of it permanentlys to obtain a personal or business advantage(*legitimate business world) - Corporate Crime - Larceny and forgery may also be this crime if they occur *within the business context* 1)*Embezzlement*(횡령): the fraudulent appropriation of funds or other property by a person who was entrusted with (맡기다) funds or property -carried out by an *employee who steal funds* - particularly in banks - *NOT* larceny; wrongdoer does *NOT* Physically take the property from another's possession - *NOT* robbery; force or fear is *NOT* used - takes a relatively small amount at one time but does so *repeatedly* over a long period - employer's failure to remit state withholding taxes that were collected from employee wages - embezzled property 돌려준다고 해결*X* 2) *Mail and Wire Fraud* : make scheme a *federal crime* if use mail or wire 3) *Bribery*(뇌물수수): offering something valuable to someone in an attempt to influence that person - bribery of public officials, commercial bribery, bribery of foreign officials - intent must be present and proved - doesn't matter if *it is accepted* (accepting is a *separate crime*) - Foreign Corrupt Practices Act 4) *Insider Trading*: the purchase or sale or securities on the basis of *inside information* *information that has not been made available to public) e.g. Enron, Secrets about stocks in a company and buy or sell on that informationp 5) *Theft of Trade Secrets*: federal crime to steal trade secrets

Types of Crime (*Organized Crime*)

5. *Organized Crime* : *illegitimately by among other things, providing illegal goods and services e.g. traditional preferred market: gambling, prostitution, illegal narcotics, loan sharking (leading at higher than legal interest rates) counterfeiting(위조) credit card scams - *Money Laundering*(돈세탁) : engaging in financial transactions to *conceal* the identity, source, or destination of illegally gained funds

Remedy - Civil v. Criminal

<*Civil*> - Monetary damages - In certain instances, decree to required equitable result (give person a job) <*Criminal*> - Fine, probation(보호 관찰), jail time, and in certain instances the death penalty(사형) - Criminal Trial - *5th Amendment protections.* Testify in Civil Trial.

Civil - Criminal Case comparison

<What happened if verdict in civil case before criminal case?> - Damages - Criminal might not happen - Not enough for criminal determination <What happens if verdict in criminal case before civil case?> - Guilty - could be used in civil case, more proof here - Not guilty - cannot be used in civil case

Actus reus

A *guilty (prohibited) act.* The commission of a prohibited act is one of the two essential elements required for criminal liability(책임), the other element being the intent to commit a crime - *must* cause some harm to a person or to property (thoughts *X*) e.g. for murder: act that must be proven is the taking of a life - how to prove? 1) Murder weapon, bloody machete(칼) 2) DNA, John's house, not in a pool of blood, interviewed, pool of blood 3) Mental state - text messages, evidence that they planned it out

Insanity

A person who suffers from a mental illness may be *incapable of the state of mind* required to commit a crime - *NGI*: Not Guilty by Reason of Insanity (GA) 👉The defendant who is successful with this defense will be place in a mental institution(until released by a court until competent to stand trial)

Castle Doctrine

Right to use *deadly force* if an intruder enters your home (GA) - Not required to retreat(후퇴하다) 👉This is not because you are simply protecting your property - *your home*. You are protecting your life and have already '*retreated*' to your home - out of the public sphere.

The Roscoe family owned the Customer Company, which operated an underground storage tank that leaked gasoline. After the leak occurred, an employee, John Johnson, notified the state environmental agency, and the Roscoes hired an environmental services firm to clean up the spill. The clean-up did not occur immediately, however, and the state *sent many notices to John Roscoe, a corporate officer*, warning him that the company was *violating federal and state environmental laws*:

The state filed *criminal charges* against the corporation and the Roscoes *individually convicted* 👉*under responsible corporate officer doctrine*

Mens rea

The wrongful mental state ("guilty mind"), or intent, that is one of the key requirements to establish criminal liability for an act e.g. For theft, - guilty act: taking of another person's property - mental state: knowledge that the property belongs to another + intent to deprive the owner of it - *Homicide* (Pre-meditated murder) : Intended to shoot drug dealer to steal drugs - *Voluntary Manslaughter(살인)* : Killing where person had no pervious intent to kill and did so in the "heat of passion"(홧김에) - *Involuntary Manslaughter* : *Criminal negligence* - unjustified, substantial, and foreseeable risk that results in harm (in this instance death) - The failure to use reasonable care to avoid consequences that threaten or harm the safety of the public and that are the foreseeable outcome of acting in a particular manner - homicide is involuntary manslaughter when it results from an act of criminal negligence and there is no intent to kill

Liability of Corporate Officers and Directors

Under *responsible corporate officer doctrine*: a court may impose criminal liability on a corporate officer regardless of whether she or he participated in, directed, or even knew about a given criminal violation

Duress(협박)

Unlawful pressure brought to bear on a person, causing the person to perform an act that she or he would not otherwise perform - can be used as a defense to most crimes except *murder*

Entrapment

a defense in which a defendant claims that he or she was induced by a public official(law enforcement agent) to commit a crime that he or she would otherwise not have committed

A prostitution ring, the Gold club, was operating out of motels in West Virginia. A motel manger, who was also an officer in the corporation that owned the motels, gave discounted rates to Gold Club prostitutes, and they paid him in cash. The corporation receive *a portion of the funds generated by the Gold Club's illegal operations*. At trial, the jury found that the corporation was criminally liable because:

a supervisor within the corporation-the motel manager- had *knowledge of prostitution* and the *corporation allowed it to continue*

crime

a wrong against society proclaimed(선언된) in a statute and, if committed, punishable by society through fines, imprisonment, or death

Scope of employment

actions of an employee which further the business of the employer and are not personal business, which *becomes the test as to whether an employer is liable for damages* due to such actions under the doctrine of respondeat superior (make the master answer).

Statute of Limitations

apply to crimes just as they do to civil wrongs 👉 state must initiate criminal prosecution *within a certain number of years*

General Warrent

arrest of the author, printer, or publisher of a seditious libel, without naming the persons to be arrested. - warrant providing a law-enforcement officer with broad discretion or authority to search and seize *unspecified places or persons* - unconstitutional because *they do not meet the Fourth Amendment's specificity requirements.*

Carlos is walking down the street, minding his own business, when suddenly a person attacks him. In the ensuing struggle, the attacker (assailant) stabs Carlos several times, seriously injuring him. A police officer restrains and arrest the wrongdoer. *The attacker maybe subject to:*

both to *criminal prosecution by the state and to a tort lawsuit brought by Carlos*.

Kent Peterson works at the firm of Jacoby * Myers. He offers to *pay Laurel, an employee in a competing firm, if she will give him her firm's trade secrets and pricing schedules*. Kent has committed:

commercial bribery - kickbacks(사례금), payoffs for special favors or services - *Economic Espionage Act* made the theft of trade secrets a *federal crime* - can be imprisoned for up to 10 years and fined up to $500,000 - if corporation: $5 million - criminal *forfeiture*(몰수):any property acquired as a result of the violation, such as airplanes and automobiles, and any property used in the commission of violation, such as servers and electronic devices (the *government* can take property) e.g. theft of trade secrets conducted via the internet --> forfeiture of every computer or other device used to commit or facilitate the crime

PASSWORD

currently receives *5th Amendment* protection - *Fingerprint*: does not receive 5th Amendment protection at this time

self-incrimination

giving testimony in a trial or other legal proceeding that could expose the person testifying to criminal prosecution

Criminally reckless

if she or he *consciously disregards a substantial and unjustifiable risk*

Dr. Conrad Murray, the personal physician of pop star Michael Jackson was convicted of ______________ in 2011 for prescribing the drug that led to Jackson's sudden death in 2009. Murray had given Jackson propofol, a powerful anesthetic normally used in surgery, as a sleep aid on the night of his death, even though Murray knew that Jackson had already taken other sedatives.

involuntary manslaughter(과실치사)

Federal Crimes

many of which do not require a specific mental state

*Criminal negligence*

occurs when the defendant *takes an unjustified, substantial, and foreseeable risk* that results in harm - defendant can be negligent even if she or he was not actually aware of the risk but *should have been aware of it*

14th Amenment Protections

protects the "right of people to be secure in their persons, houses, papers and effects" 👉Before searching or seizing private property, normally law enforcement officers must obtain a *search warrant* - *search warrent*(수색영장): an order granted by a public authority, such as a judge, that authorizes law enforcement personnel to search particular premises or property

A 14 years old New Jersey girl posted a Facebook message saying that *she was going to launch a terrorist attack* on her high school and asking if anyone wanted to help. The police arrested the girl for the crime of making a terrorist threat, which:

requires the *intent to commit an act of violence with "intent to terrorize* or *in reckless disregard of the risk of causing* terror or inconvenience.

Self-Defense

the legally recognized privilege to do what is reasonably necessary to *protect oneself*(up to deadly force), one's property(*not* deadly force), or someone else against injury by another(up to deadly force - most states) - *deadly force*: ruling in death or serious bodily harm 👉only can be used when defender believes that imminent death or grievous bodily harm will otherwise result - *nondeadly force*: force that reasonably appears necessary to prevent the imminent(불쾌한 일이 임박한) use of criminal force

Liability of the Corporate Entity

the prosecutor must show that *the corporation could have prevented the act* or that *a supervisor within teh corporation authorized or had knowledge of act*

Racketeer Influence and Corrupt Organizations Act(RICO)

to curb the entry of organized crime into legitimate business world <criminal crime criteria> - use income obtained from racketeering activity to purchase any interest in an enterprise - acquire or maintain an interest in an enterprise through racketeering activity - conduct or participât in the affaire of an enterprise through racketeering activity - conspire(공모하다) to do any of the preceding ㅁㅊ샤퍄샫ㄴ

probable cause

상당한 근거/이유 reasonable *grounds* for believing that a *search should be conducted* or that a person should be arrested