Chapter 8
Criminal Wrongs
Chapter Objectives
1. Explain the difference between
criminal offenses and other types of
wrongful conduct.
2. Indicate the essential elements of
criminal liability.
3. Describe the constitutional
safeguards that protect the rights of
persons accused of crimes.
4. Identify and define the crimes that
affect business.
5. Summarize the defenses to criminal
liability.
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Civil and Criminal Law
Civil Law
Criminal Law
Spells out the duties that
exist between persons or
between citizens and their
governments, excluding
the duty not to commit
crimes.
In a civil case, damages
are awarded to
compensate those harmed
by others’ wrongful acts,
or equitable remedies may
be granted.
Has to do with crimes,
which are defined as
wrongs against society
proclaimed in statutes and,
if committed, punishable by
society through fines
and/or imprisonment—and,
in some cases death.
Because crimes are
offenses against society as
a whole, they are
prosecuted by a public
official, not by victims.
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Civil and Criminal Law Compared
ISSUE
CIVIL LAW
CRIMINAL LAW
Area of concern
Rights and duties
between individuals
Offenses against
society as a whole
Wrongful act
Harm to a person
Party who brings
suit
Standard of proof
Person who suffered
harm
Preponderance of the
evidence
Damages to compensate
for the harm
Violation of a statute
that prohibits some
type of activity
The state
Remedy
Beyond a reasonable
doubt
Punishment (fine or
imprisonment)
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Classification of Crimes
Depending on their degree of
seriousness, crimes are classified as:
Felonies
Misdemeanors
Serious crimes
punishable by death
or by imprisonment in
a penitentiary for
more than a year.
Under federal law and
in most states, any
crime that is not a
felony.
or
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Criminal Liability
Two elements must exist
simultaneously for a person to be
convicted of a crime:
Intent
Guilty Act
In general, some form
of harmful act must
be committed for a
crime to exist.
and
An intent to commit a
crime, or a wrongful
mental state, is
required for a crime to
exist.
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Case 8.1 In Re Gavin T.
Gavin T., a fifteen-year-old student, was charged
in a California state court with assault by “any
means of force likely to produce great bodily
injury,” after knocking a teacher unconscious
with a half-eaten apple. The student did not
intend to hit the teacher, but to hit the outside
wall. The court found the student “guilty” in
order to send a message to other students that
his actions were wrong.
If the lower court’s message to Gavin and his
classmates was that reckless behavior would
not be condoned, what was the appellate court’s
message to the lower court?
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Case 8.2 United States v. Hanousek
Edward Hanousek worked for Pacific & Arctic Railway
and Navigation Co. (P&A) as a roadmaster of the
White Pass & Yukon Railroad in Alaska. Hanousek
was responsible for every safety aspect of the entire
railroad. A rock quarry known as “6-mile” had a
high-pressure oil pipeline running next to it owned by
Pacific & Arctic Pipeline, Inc., P&A’s sister company.
When the quarry’s backhoe operator punctured the
pipeline, 1,000-5,000 gallons of oil were released
into the river. Hanousek was charged with
negligence and violating the Clean Water Act (CWA).
He was found guilty and appealed to the U.S. Court
of Appeals.
One of the essential elements of criminal liability is
intent. How can you square the criminal provisions
of the (CWA) with this intent requirement?
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White-Collar Crimes
Forgery
 The fraudulent making or altering of
any writing in a way that changes the
legal rights and liabilities of another.
Robbery
 The forceful and unlawful taking of
personal property of any value from
another.
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White-Collar Crimes
Money laundering
 Establishing legitimate enterprises
through which “dirty” money
(obtained through criminal activities)
can be “laundered.”
Insider trading
 The buying or selling of corporate
securities by a person in possession
of material nonpublic information in
violation of securities laws.
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White-Collar Crimes
Arson
 The willful and malicious burning of a
building or (in some states) personal
property owned by another.
Mail and wire fraud
 Using the mails, wires, radio, or
television to defraud the public.
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White-Collar Crimes
Bribery
 Includes bribery of public officials,
commercial bribery, and bribery of
foreign officials.
 The crime of bribery is committed when
the bribe is tendered.
Bankruptcy fraud
 Encompasses crimes committed in
connection with bankruptcy proceedings,
including false claims of creditors and
fraudulent transfers of assets by
debtors.
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White-Collar Crimes
Burglary
 At common law, defined as breaking
and entering the dwelling of another at
night with the intent to commit a felony.
 State statutes now vary in their
definitions of burglary.
Larceny
 The wrongful or fraudulent taking and
carrying away of another’s personal
property with the intent to deprive the
owner permanently of the property.
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White-Collar Crimes
Obtaining goods by false pretenses
 Such as cashing a check knowing that there
are insufficient funds in the bank to cover it.
Receiving stolen goods
 A crime if the recipient knew or should have
known that the goods were stolen.
Embezzlement
 The fraudulent appropriation of another
person’s property or money by a person to
whom the property or money was
entrusted.
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Crimes Affecting Business
Many crimes that occur in the
business context are commonly
referred to as white-collar crimes.
White-collar crimes are those
involving nonviolent acts
committed by individuals or
corporations to obtain a personal or
business advantage.
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Criminal RICO Violations
Criminal RICO offenses include:
 The use of legitimate business enterprises
to shield racketeering activity
 Securities fraud
 Mail fraud
Under criminal provisions of RICO,
any individual found guilty may be
subject to fines of up to $25,000
per violation, imprisonment for up
to 20 years, or both.
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Computer Crime
Any act that is directed against
computers and/or computer parts,
that uses computers as instruments
of crime, or that involves computers
and constitutes abuse.
Computer crime often includes
financial crimes that involve
computers, such as:
 Theft of computer software, equipment,
data, or services
 Vandalism and destructive programming of
computers
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Prosecuting Computer Crime
The Internet has given rise to perplexing
legal issues, particularly where existing
criminal laws are being applied to
activities taking place “online.”
For example, in U.S. v. LaMacchia the
court held existing copyright laws did not
cover LaMacchia’s actions in posting
software on the Internet.
Do you think that the easy pirating of
software via the Internet will eventually
stifle innovation on the part of software
manufacturers?
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Defenses to Crimes
The most important defenses to criminal liability are:





Infancy
Intoxication
Insanity
Mistake
Consent
 Duress
 Justifiable use
of force
 Entrapment
 Statute of
limitations
 Immunity
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Responsibility of Infants for
Criminal Acts Under the Common
Law
Age 0 - 7
Absolute presumption of incompetence.
Age 7 - 14
Presumption of incompetence, but
government may oppose.
Age 14+
Presumption of competence, but infant
may oppose.
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Intoxication
The law recognizes two types of
intoxication, whether from drugs or
from alcohol:
 Involuntary—occurs when a person either
is physically forced to ingest or inject an
intoxicating substance or is unaware that a
substance contains drugs or alcohol.
 Voluntary—using voluntary drug or alcohol
intoxication as a defense is based on the
theory that extreme levels of intoxication
may negate the state of mind that a crime
requires.
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Case 8.3 Montana v. Egelhoff
James Egelhoff was charged in a Montana
state court with 2 counts of deliberate
homicide. Egelhoff claimed that he had been
intoxicated when the incident occurred,
therefore, he lacked the mental state
required for commission for the crime of
murder. Under a state statute, the jury was
not required to consider his intoxication in
determining his mental state. The jury found
him guilty, and he appealed.
Do you agree that disallowing voluntary
intoxication as a defense “deters
drunkenness or irresponsible behavior while
drunk”? Why or why not?
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Insanity
Just as a child is often judged incapable
of the state of mind required to commit a
crime, so also may be someone suffering
from a mental illness.
Model penal code says:
 A person is not responsible for criminal
conduct if at the time of such conduct as a
result of mental disease or defect he lacks
substantial capacity either to appreciate the
wrongfulness of his conduct or to conform
his conduct to the requirements of the law.
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Mistake
Ordinarily, ignorance of the law or a
mistaken idea about what the law
requires is not a valid defense.
In some states that rule has been
modified.
People who claim that they honestly did
not know that they were breaking a law
may have a valid defense if:
 The law was not published or reasonably
made known to the public, or
 The people relied on an official statement of
the law that was erroneous.
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Consent
The law allows consent as a defense if
the consent cancels the harm that the law
is designed to prevent.
Consent or forgiveness given after a
crime has been committed is not really a
defense, though it can affect the
likelihood of prosecution.
Consent operates as a defense most
successfully in crimes against property.
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Duress
Duress exists when the wrongful threat of
one person induces another person to
perform an act that he or she would not
otherwise perform.
The following requirements must be met:
 The threat must be of serious bodily harm or
death.
 The harm threatened must be greater than
the harm caused by the crime.
 The threat must be immediate and
inescapable.
 The defendant must have been involved in
the situation through no fault of his or her
own.
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Entrapment
A defense designed to prevent police
officers or other government agents from
encouraging crimes in order to apprehend
persons wanted for criminal acts.
“Sentencing entrapment” occurs when
undercover police officers induce a
criminal suspect to commit a more
serious crime than the crime
contemplated by the suspect, thus
causing the person, if convicted, to
receive a harsher penalty under the
federal sentencing guidelines.
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Statute of Limitations
Criminal cases must be
prosecuted within a certain
number of years.
If a criminal action is brought
after the statutory time period
has expired, the accused
person can raise the statute of
limitations as a defense.
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Immunity
In cases in which 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 the
information.
Once immunity is given, the person
can no longer refuse to testify on
Fifth Amendment grounds.
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Constitutional Safeguards
The rights of accused persons are
protected under the Constitution,
particularly by the Fourth, Fifth, Sixth,
and Eighth Amendments.
Under the exclusionary rule, evidence
obtained in violation of the constitutional
rights of the accused will not be
admissible in court.
In Miranda v. Arizona, the United States
Supreme Court ruled that individuals
must be informed of their constitutional
rights on being taken into custody.
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Procedure in Criminal Law
Criminal procedures are designed to
protect the constitutional rights of
individuals and to prevent the
arbitrary use of power on the part
of the government.
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The Fifth Amendment and
Foreign Governments
The Fifth Amendment to the U.S. Constitution allows
defendants or witnesses in criminal cases to refuse to
answer certain questions that may be selfincriminating.
In U.S. v. Balsys, Aloyzas Balsys was required to
testify to determine if he had lied on his immigration
application about his activities during WWII. Balsys
asserted the Fifth Amendment contending that
testifying would subject him to prosecution for war
crimes by foreign governments. The Supreme Court
held the Fifth Amendment applied only to federal or
state prosecution.
How would you argue in support of the
Supreme Court’s conclusion in this case?
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Can Asset Forfeitures Violate the
Eighth Amendment?
Questions of fairness often arise in asset
forfeiture proceedings under RICO or other
laws because sometimes the punishment
(value of the assets forfeited) can be
grossly disproportionate to the crime.
In 1998, the U.S. Supreme Court gave some
guidance to the lower courts on this issue.
The court held that “a punitive forfeiture
violates the Excessive Fines Clause if it is
grossly disproportional to the gravity of a
defendant’s defense.”
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Miranda v. Arizona (1966)
The Miranda decision held that criminal
defendants must be informed of their
constitutional right to remain silent and to
have an attorney when they are taken into
custody. Hence the phrase, “Miranda rights.”
Should illegally seized evidence be excluded
from a criminal trial even if the evidence
clearly shows the guilt of the person charged?
Why should defendants who have admitted
that they are guilty be allowed to avoid
criminal liability because of procedural
violations?
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Using Trickery to Obtain Confessions
Criminal suspects may waive their
Miranda rights, but the waiver must be
made voluntarily. What if trickery is used
to obtain a confession from a criminal
suspect, who voluntarily provides it
based on that deceit?
Trickery may lead to more guilty
defendants being convicted. What cost is
nonetheless imposed on society by such
actions?
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Criminal Process
Procedures governing arrest,
indictment, and trial for a
crime are designed to
safeguard the rights of the
individual against the state.
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Federal Sentencing
Guidelines
Guidelines established by the
U.S. Sentencing Commission
indicating a range of penalties
for each federal crime.
Federal judges must abide by
these guidelines when
imposing sentences on those
convicted of federal crimes.
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For Review
1. What is the difference between criminal
law and civil law?
2. What two elements must exist before a
person can be held liable for a crime?
Can a corporation be liable for crimes?
3. List and describe the various types of
crimes. Give examples of each type.
4. What defenses might be raised by
criminal defendants to avoid liability for
criminal acts?
5. What constitutional safeguards exist to
protect persons accused of crimes?
What are the basic steps in the criminal
process?
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