Test 2 BLAW CH. 5, 6, 7, 8

Al, who has no history of violence or mental disease, has just attended services at his house of worship. The sermon was very compelling and instructed the audience to do all they could to rid the world of evil. Immediately after hearing the sermon, Al goes home and, knowing that killing is wrong, burns his neighbor Hilda to death because he believed her to be a witch. He is charged with murder

Al is guilty of murder because he acted with premeditation

Not Guilty by Reason of Insanity (NGRI)

American law recognizes that individuals cannot be held responsible for their actions if they do not know what they are doing; in addition, it serves no practical purpose to imprison someone who needs the care of mental health professionals; for these reason, insanity is recognized as a valid defense to criminal conduct

A single act may be either a tort or a crime but not both

F

Ivana has an unanticipated seizure while driving a car and causes an accident that kills two persons. Ivana may be charged with involuntary manslaughter

F

Crimes against people

First degree murder, second degree murder, manslaughter, battery, and assault

Involuntary Movement or Behavior

Many states specifically exclude involuntary movement and behavior from their general definition of a criminal act. Convulsions, reflexes, movements during sleep or unconsciousness, or behavior during a seizure are all considered involuntary movement or behavior falling outside the limits of criminal liability. however, the mere fact that someone is unconscious during a seizure may not absolve that individual of criminal liability if that person knew that he or she might suffer the seizure, yet took no precautions to avoid harming people or property.

The death penalty

The safeguards come in the form of aggravating and mitigating circumstances, which must be taken into consideration by the court at the time of sentencing. Aggravating circumstances are those that involve offenses so that appalling that the death penalty is clearly warranted. In most jurisdictions the list of aggravating circumstances look like this: page 95

Aggravated Robbery

involves attempting to commit or actually committing a theft using a deadly weapon or a dangerous ordinance or doing the same by inflicting physical harm on the victim.

Cyber Stalking

involves targeting individuals for exploitation using computer connections; usually target vulnerabe individuals who may be searching for a gneuine connection of the internet

Criminal Law as Adaptation

Congress can create criminal law statutes only in those areas over which it has jurisdiction; congress balanced the actual words of the constitution against the need to interpret those words to protect the people from criminal activity; the balance occurred when congress extended its power through a generous interpretation of the commerce clause

First degree murder

Homicide: any killing of one human being First degree murder, aggravated murder, or premeditated murder: depending on the jurisdiction, when an unlawful killing is done with premeditation and deliberated intent

Phishing and Spear phishing

Phishing involves sending out phony emails that solicit buyers and, in the process, obtain credit card information, account numbers, PINs, account balances, and so on. Spear Phishing: when the email has been customized to such an extent that the recipient believes the email comes from a coworker, a friend, or a relative

Smishing and Vishing

Smishing: linkings SMS texting with phishing Vishing connects phising to voice messaging

Double Jeopardy

The United States Constitution protects people from being tried twice for the same crime; double jeopardy does not protect a defendant from being tried for a criminal offense and then being sued under tort law for that same wrongful act.

The Required State of Mind

a crime cannot be committed unless the criminal act named in the statute is performed with the require state of mine; purpose, knowledge, recklessness, negligence

Cyber Spoofing

a cyber criminal must falsely adopt the identity of another computer user or create a false identity on a web site to commit fraud

Mistake

a defense to charges of criminal liability, as long as the mistake destroys one of the elements necessary to that crime; if the mistake does not destroy an element, it is not a valid defense. To be a successful defense, the mistake must be based on a reasonable belief. page 109

Classes of Crimes

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; some states define a felony as a crime subject to "punishment by hard labor" as an "infamous crime" or as a "crime subject to infamous punishment Manslaughter, armed robbery, and arson are examples of felonies some states also have separate categories for their most serious crimes; for instance, a state might classify premeditated murder and murder as special felonies or capital felonies if these are the only two offenses that might result in a death sentence or life imprisonment. States may also have a separate category for violent offenses; sometimes these violent offenses are termed aggravated felonies; assault with a deadly weapon might be an example of an aggravated felony; a misdemeanor is a less serious crime, generally punishable by a prison sentence of not more than one year. Included in this category are offenses such as disorderly conduct. The label for these lease serious offenses varies, but two of the most common are petty offenses and minor misdemeanors. Traffic violations and building code violations are usually within this classification.

Identity Theft

a perpetrator uses one of the techniques noted previously to steal credit card information, PINs, financial data, access codes, passwords, or debit card information.

American Law Institute (ALI) 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."

Prosecutions and Lawsuits

a single act can be both a crime and a tort; the standard of proof required in a criminal case differs from that required from in a tort case; in a criminal case the prosecutor or district attorney is required to prove that the criminal defendant is guilty of the crime beyond a reasonable doubt; in a tort case the plaintiff's attorney must prove that the defendant is liable for the tort by a preponderance of the evidence;

Tampering with Evidence

altering, destroying, or removing any piece of evidence with the intent to somehow lessen the probative value of that evidence; includes presenting false evidence to a public official in order to somehow destroy the effectiveness of an official investigation

Criminal Simulation

analogous to forgery because it also involves the alteration or falsification of an object or a document with intent to defraud. However, criminal simulation involves altering or falsifying art objects, antiques, photographs, films, tapes, recordings, and/or antiquities with the intent to defraud.

Obstruction of Justice

any activity design to prevent the discovery, apprehension, arrest, prosecution, conviction, or punishment of a criminal defendant;

Omissions and Refusals to Act

at times, the failure to act, an omission, or the outright refusal to act may be considered criminal. generally, however, an omission must be couple with a legally imposed duty. An air traffic controller who sees two planes, on a collision course, yet fails to warn the pilots, would be held criminally liable for this omission. This liability exists even though the controller did not act but instead failed to act.

Crimes Against Property

burglary; breaking and entering; trespass; aggravated arson; arson; aggravated robbery; robbery; theft; fraud, and related offenses

Dereliction of Duty

can involve law enforcement officers and public servants; in relation to law enforcement officers: is any activity that involves the officer's failutre to carry out his or her lawful duties Public Servants are charged with carrying out those duties that are specifically related to the proper operation of their governmental office; many dereliction of duty statues 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

Cyber Assault

can involve using social media to threaten to inflict immediate and sever bodily harm on the target victim; can also mean a direct attack on a computer system with the intent to disrupt that system

Cyber Extortion (electronic extortion, or e-extortion)

can occur when an experienced hacker gains access to the computer records of a corporation or other institution and discovers some sort of illegal, negligent, unethical, or embarrassing conduct that might damage the reputation of the target organization.

Individual Offenses and Punishments

consequences that have been created to fit a particular offense or to punish a specific offender are designed to make certain that the individual offender will no longer engage in criminal activity. Those experts who believe in the prevention support long sentences unpleasant prisons so that criminal defendants will abandon their criminal career. Those who support restraint believe that criminal defendants incarcerated or even executed for capital offenses to prevent them from ever committing that time - or any crime, for that matter - ever again. Those who support the theory of rehabilitation say that convicted defendants ought to be given the opportunity to reform their conduct restructure their lives, and start over.

Protecting the public at large

consequnces that have been created to protect the public send a message not ust to the convicted felon but also to all potential offender. Deterrence: advocate long and difficult prison sentences so that other people in society are dissuaded from committing similar offenses and thus suffering the same fate. Education: the criminal process should be presented in a public way so that the public will learn the difference between acceptable and unacceptable behavior Retribution: convinced that it does society good to seek revenge against those who have disrupted the smooth running of the social system.

Criminal Law in the American System

consists of the federal and the state systems; each state has its own code and its own procedures, which, though similar in most respects to all other states, may have its own peculiarities

The matter of Corporate Liability

criminal liability requires that prosecutor prove that the defendant possessed a particular mental state when the criminal act was committed. Such mental states are generally stated quite clearly in the statute that creates criminal offense. in fact, since criminal liability requires only two elements, the act and the mental state, legislators are very careful in drafting criminal law statures to make certain that they explain both elements stating booth with great specificity. the prosecutor must product eveidence, generally consisting of actions and words, that demonstrate what was in the mind of the defendant at the time that the criminal act was committed. Corporations do no have mental states. nor do they act or speak, excpet through their corporate officers and employees.

Crimes Committed with a computer

cyber-extortion, cyber stalking, cyber harassment, cyber assault, cyber bullying, cyber spoofing, phishing, smishing, and vishing;

Cybercrimes

cyber-tresspass, computer trespass, or e-trespass

Resisting arrest

defined as interfering in the lawful arrest of a criminal defendant; most also penalize the resister for any harm that comes to a law enforcement officer involved in the arrest

The Economic Espionage Act (EEA)

designed to protect trade secrets; a trade secret is a plan, process, or device that is used in a business and is known only to those employees who need to know the secret to carry out their work.

Crimes involving business

embezzlement, forgery, criminal simulation, passing bad checks, and defrauding creditors

Breaking and Entering

generally includes using force, deceit, or cunning to trespass into an unoccupied structure with the intent to commit any theft or any felony. Can also involve trespassing on land with the intent to commit a felony

Battery

has been used to describe a crime in which the offender causes actual physical harm the victim

Assault

has generally been taken to include the threat of harm to the victim

Irresistible Impulse Test

holds that criminal defendants can be found NGRI if, at the time of the offense, they were stricken with a mental disease that preented them from knowing right from wrong or that compelled them to commit the crime

Defense of Others

if a person uses force to rescue another person who is the victim of an apparent attack, most states will allow the rescuer to escape criminal liability; must have a good reason to believe that the victim was in danger of severe bodily injury or even death.

Competency to Stand Trial

if the issue of competency is raised, the defendant will undergo psychiatric examinations to determine his or her level of competency; generally, defendants are considered competent to stand trial if they understand the the nature and the purpose of the charges against them, and if they are capable of aiding their attorneys in their defense; when defendants are found to be incompetent, they are usually given treatment to improve their competency level so that they an understand what is going on and can assist in their case

Second degree murder

in criminal law, the purposeful killing of another human being without premeditation; if none of the condition for first degree murder apply in many jurisdictions, the difference between first and second degree murder is important because first degree murder usually carries the death penalty. Manslaughter: an unlawful killing of a person without the intent to kill Voluntary Manslaughter: a killing that results when a person is in a state of extreme fright, terror, anger, or blind rage that destroys the ability to reason Involuntary Manslaughter: when the killing results from negligence

Hate Speech

in recent year, many legislative bodies have attempted to criminalize the use of certain symbols, writing, and speech inteded to provoke outrage or fear on the basis of race, religion, color, or gender. These statutes and ordinances are frequently referred to as laws against hate speech.

Burglary

include using force, deceit, or cunning to trespass into an occupied structure with the intent to commit a crime

Theft in Office

includes any theft offense in the criminal code that is committed by a public official or a party official; theft must involve the use of that official's government or party power to obtain unlawful control over governmental or party property or services

Aggravated Burglary

includes everything that burglary includes but adds the use of a deadly weapon, the infliction of harm, the threat of harm, or the attempt to harm another person.

Passing Bad Checks

includes issuing or transferring a check or other negotiable instrument knowing it will be dishonored and with the intent to defraud.

Aggravated Arson

includes using fire or explosives to create a substantial risk of physical harm to an individual or to an occupied building; often also included in this offense is the hiring of another person to carry out the burning or the use of the explosives

Cyber terrorism

involve using a computer to disrupt or destroy one of the critical elements of the nations cyber infrastructure, such as the power grid, the air traffic control system, water and sanitation, plants, the ground transportation system, and etc.

Recklessness

involves a perverse disregard of a known risk of negative consequences. People act reclessly when they are indifferent to a serious risk they know to exist

Robbery

involves essentially the same elements as aggravated robbery. However, in ordinary robbery the offender possesses a deadly weapon but neither uses nor shows the weapon; can also involve attempting to commit or actually committing a theft by inflicting or attempting to inflict physical harm on another person.

Cyber Bullying

involves intentional, aggressive, upsetting activities by a single individual or a group of individuals aimed at destroying the mental well being of a peer

Trespass

involves knowingly entering land without permission to do so.

Crimes against Justice

involves offenses committed by or with the cooperation of a public servant or a public official bribery, theft in office, and dereliction of duty; intimidation, obstruction of justice, resisting arrest, perjury, and tampering with evidence

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; also when the public official solicits or accepts a thing of value in exchange for that public official's influence in whatever capacity; may include witnesses who are offered or given somehting of value in exchange for their testimony; can be committed by the person who offers the bribe and by the witness who solicits or accepts the bribe

Forgery

involves the false making or changing of a writing (without proper authorization) with the intent to defraud; to possess or sell an altered or false writing with the intent to defraud;

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; some jurisdictions of expanded to include threats of harm to the public servant's reputation by the publication of false information;

Cyber Harassment

involves using computer connections, often via email or some other social media, to blanket the target with offensive sexual, racial, religious, or political comments, photographs, videos, and so on aimed at disrupting the victim's peace of mind.

Arson

involves using fire or explosives to harm or cause a substantial risk of harm or cause substantial risk of harm to the property of another or to do the same to another's property or to the offender's own property in order to carry out fraud.

Crime

is an offense against the public at large; a crime threatens the peace, safety, and well being of the entire community; are punishable by the official governing body of a nation or state; the state or federal government, representing the public at large, is the prosecution, that is, the one who brings the criminal action; the person accused of the crime is called the defendant; no act can be considered criminal unless it is prohibited by the law of the place where it is committed, and the law provides for the punishment of the offenders, these laws are created by the federal government and the governments of the 50 states.

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 stole, were secured by fraud, or were taken by some other illegal method including an unauthorized electronic transfer.

The Communications Assistance for Law Enforcement Act (CALEA)

later amended to help law enforcement officials keep pace with modern advances in electronic communication; amended the earlier law by required communication companies to update their electronic equipment in order to make certain that such law enforcement officers could carry out their surveillance duties properly

Perjury

making a false statement under oath; many also add that the false statement must be material to the proceeding a statement is material if it can have an impact on the final disposition of the case

Entrapment

may be used if a law enforcement officer induces a law abiding citize to commit a crime; the person using the defense must show that the crime would not have been committed had it not been for the inducement of the office;

The Matter of Motive

motive in criminal law is the wrongdoer's reason for committing the crime. one common misconception about criminal law is that motive is an element of criminal liability. establishing motive may help the prosecution persuade the jury that the accused is guilty, but providing an evil motive is not necessary for a criminal conviction

Joe is overheard stating that he could make a lot of money robbing a local bank that has no security guards on duty. Joe may be criminally charged with:

no crime

Corporate Liability Theories

once the courts decided that a corporation was person enough to sue or be sued, it was not a huge leap for them to conclude that a corporation could be held criminally liable as well. one of the earliest theories on corporate criminal liability emerged from within the doctrine of strict liability. Strict liability was an appropriate theory at the time, because it does not require intent, something that was difficult to prove in the case of a corporation. By the beginning of the 20th century, however, the courts began to hold corporations liable for the criminal acts of their employees using the doctrine of vicarious liability, a theory which is also called respondent superior. Under this approach, the courts decided that a corporation could be declared criminally responsible if one of its employees committed a crime while on the job, working for the benefit of the corporation.

The Electronic Communications Privacy Act (ECPA)

originally was designed to cover only wire and oral communications; amended the original wiretap act to cover communication by computer; the purpose was to protect the privacy of electronic communication in the same way that wire and oral communication are protected; prohibits the intentional interception of electronic communication

The Computer Fraud and Abuse Act (CFAA)

outlaws the following activities: obtaining national security information, compromising the confidentiality of a computer, trespassing in a government computer, accessing a computer to defraud, damaging a computer, damaging computer information, trafficking in passwords, and threatening to damage a computer

Battered Spouse Syndrome

protects a married individaul from being abused by his or her spouse; a protective order: bar the abusing spouse from maintaining any contact with the victim; enforced by the local police. not always effective the set of circumstances that leads a woman to believe that the only way that she can escape death or sever bodily injury is to use force against her tormentor; because the spouse had good reason to believe that she was in danger of death or sever bodily injury, battered spouse syndrome is considered a form of self defense in some courts

Justifiable Force

self-defense defense of others, and battered spouse syndrome

Cyber Vandalism

sometimes expert vandals can attack a computer system so that a web site is completely destroyed or paralyzed to the extent that legitimate business can no longer be conducted on that sites

The CAN SPAM Act

spam is the nickname for all of those pop up advertisements that appear on computer screens while users are tapped into the internet. the act is designed to deal with this problem, as well as the problem of unsolicited commercial email;

Defrauding Creditors

the crime of removing, hiding, destroying, giving away, or transferring any person's property with the intent to defraud creditors; it is also criminal to hide, misrepresent, or refuse to disclose information about the existence, amount, or location of a person's property to a fiduciary who has been appointed to administer that person's affairs or estate; can either be a felony or misdemeanor depending on the amount of the property involved in the fraud.

Federal Criminal Law

the federal government has no express power in the Constitution that allows it to enact criminal law statures or establish a national police force; yet the federal government does enact criminal law and has set up the federal bureau of investigation (FBI) as a national police; the federal government also has a cabinet level criminal law enforcement official called the attorney general who has the power to conduct federal criminal investigation; the existence of the federal criminal law system and the various national law enforcement agencies is made possible by the adaptive processes at work within the legal system itself.

Corporate Personality

the law has established that corporations are "legal people". As a corporate person, a corporation possesses an identity, a corporate self, if you will, that maintains an existence that is separate from those who formed it in the first place. The upside to this is that the corporation will exist long after its founders. The downside is that corporations are taxed directly for what they earn as a part of the marketplace. The courts have also decided that corporations have just enough "person-hood" to qualify for constitutional protections. Thus under the Fourteenth Amendment, a corporation has the right to life, liberty, and property, rights that cannot be violated by the government either at the state or the federal levels. In addition, as a legal person, a corporation can institute a lawsuit or can be the target of a lawsuit.

The Model Penal Code

the model penal code offers a third theory of corporate liability. under this theory, a corporation might be held criminally liable if the directors or officers of a corporation authorize, approve, or recklessly tolerate the criminal actions of their employees. Like the doctrine of respondeat superior, the directors or the officers must be acting on the job when the crimes occur. One the surge, this policy looks like an effective tool for stopping corporate criminal activity.

Defenses to Criminal Liability

the most common defenses are insanity, entrapment, justifiable force, and mistake

M'Naughten Rule

the oldest test of insanity; a defendant can be found NGRI if, at the time the criminal act was committed, he or she 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 act was wrong;

Cyber-trespass

the process of gaining access to a computer with the intent to commit a crime

Elements of a Crime

the two elements necessary to create criminal liability are a criminal act and the required state of mind. the criminal law is largely statutory in nature; consequently, specific statutory definitions may vary from state to state

The Matter of Punishment

the ultimate purpose of criminal law is to protect the puble. This purpose menas that criminal law must outline not only the offenses that are prohibited but also the negative consequences that result when an individual has committed on of those offenses. narrowed the debate to two approaches to the sentencing of convicted criminals (1) consequences that are designed to protect the public at large and (2) those that are tailored to fit the individual offense or the individual offender

Racketeer Influced and Corrup Organizations Act (RICO)

to prevent a criminal invasion of legitimate businesses under provisions of this statue, conducting a legitimate business with the funds acquired from a "pattern of racketeering activities" can give rise to criminal liability.

The objectives of Criminal Law

to protect the public at large, to preserve order and stability within society, to punish those who commit criminal acts, and to discourage future criminal activity; tort law is concerned with private wrongs that have caused injury to an individual's physical well being, property, business, or reputation; because tort law involves private wrongs rather than public ones, it focuses on the victim; criminal law protects the public, it seeks to eliminate crime by punishing wrongdoers and removing them from society

A Criminal Act

under American law, a crime cannot be committed unless some act has occurred. An individual cannot be accused of a crime for merely thinking of a criminal act. Often, such ambiguity will occur when the legislature passes a statute that creates a new offense, when the statute outlaws an activity that may be protected by the US constitution, or when the statute seeks to outlaw statutes or behavior that cause no imminent negative effect but may eventually lead to great public harm. The language of a criminal statute is over broad if the courts cannot determine what specific activity the legislature intended to outlaw.

Victims Rights

under common law, criminal law did not focus on the victim; victim's rights often include notice to the victim that an offender has been arrested, the name of the criminal defendant, the defendant's eligibility for pretrial release, the telephone number of the law enforcement agency responsible for the defendant, and the date, time, and place of the defendant's release, if that occurs; the victim is also generally notified of the defendant's acquittal or conviction, the defendant's incarceration, the defendant's appeal, and the defendant's release date; victims are also permitted to provide the prosecutor with a written description of his or her injuries;

The Identity theft and assumption deterrence act (ITADA)

was amended by the identity theft penalty enhancement act, outlaws the unauthorized transfer, possession, or use of a means of identifying another person to violate federal law adds a new crime called aggravated identity theft that makes it clear that identity theft is much worse when it involves certain very serious felonies, including terrorism.

Cyber Germ Warfare

when cyber criminal use viruses to attack a computer system

Self-Defense

when individuals have good reason to believe that they are in danger of death or serious injury, they can use force to protect themselves; in some states, the person claiming self defense must retreat, if possible, before resorting to force.; a person does not have a duty to retreat before using force if the attack occurs in his or her own home. when self defense is used in a criminal case, the defendant must show that he or she was not the one who started the altercation in the first place. in all cases, the person claiming self defense must not have used more force than necessary to stop the unprovoked attack.

Knowledge

when people act with an awareness that a particular result will probably occur, they act with knowledge.

Negligence

when they fail to see the possible negative consequences of their actions; criminal negligence should not be confused with negligence in tort law. negligence in tort law is concerned with the compensation of accident victims. In contrast, negligence in criminal law is concerned with punishing the wrongdoer and protecting the public at large

Purpose

when they intend to cause the result that in fact occurs; intent should not be confused with premeditation, which is often an added condition in the case of aggravated or first degree murder. some states specifically define premeditation as an action that results from the criminal defendant's "prior calculation and design."

Embezzlement

wrongfully taking property or funds that have been entrusted to the care of the offender; the embezzler had control over the property or the funds that were wrongfully taken; often occurs in a business settling and frequently involves the employees of the victim.