CHAPTER 17
Criminal Law
INTRODUCTION
This chapter examines what a crime is,
what the basics of criminal procedure
are, and the major constitutional issues
involving criminal procedure. The
chapter also introduces other federal
criminal statutes involving such areas
as white-collar crime, computer crime,
and environmental laws.
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DEFINITION OF
A CRIME
Crime is an offense against the general
public at large.
 The Criminal Act – actus rea
 The State of Mind – mens rea
– Strict liability statues are generally
disfavored.
– Mens Rea: negligence, recklessness and
intention.
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CRIMINAL VS. CIVIL
LIABILITY
 Not mutually exclusive; criminal law protects
society as a whole by punishing the criminal, while
civil law monetarily compensates the victim.
 Negligence Per Se – violation of a criminal statue
that causes civil injury.
 Burden of Proof
– Civil Trial – preponderance
– Criminal Trial – beyond a reasonable doubt
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SOURCES OF
CRIMINAL LAW
 Types of Crimes – felony is a crime punishable by
over one year in prison and/or a fine, or death; a
misdemeanor is punishable by one year or less in
jail and/or a fine.
 Ex Post Facto Clause – a person can be convicted
of a crime only if the person’s actions constituted a
crime at the time they occurred.
 The Model Penal Code – a set of criminal law
statues that were proposed by the National
Conference of Commission of Uniform State Laws
for adoption by the U.S..
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THE FEDERAL SENTENCING
GUIDELINES
It gives judges less discretion.
 Federal Sentencing Guidelines for Individuals – parole
abolished in 1984.
 Federal Sentencing Guidelines for Organizations –
added in 1991.
– Punishment under the guidelines.
– Misgivings about the guidelines.
– Guidelines should be updated for cyber crimes and
cyber terrorism.
– Letting employees take the rap.
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CRIMINAL PROCEDURE
 Arrest – put in police custody.
 Preliminary hearing to demonstrate probable cause.
 Arraignment – the accused is asked to state his or her
response to the charges: guilty, not guilty, or nolo contendere.
 Plea Bargaining – a reduced charge and sentence for a guilty
plea.
– Use Immunity – cannot use testimony against the witness in any way.
– Transactional Immunity – no criminal charges on any matter discussed
in the witness’s testimony.
– Consent Decree – court order based on an agreement by the defendant
corporation to take steps to remedy the problem that led to the criminal
charges.
• Trial
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FOURTH AMENDMENT
PROTECTIONS
 The Arrest Warrant Requirement – probable cause required for
arrest or for a seizure.
 Searches and Seizures and Reasonable Expectations of Privacy –
police need a warrant because of very strong privacy expectations
in the home.
– Warrantless searches – most police searches are of this type
because the search is either not unreasonable under the
circumstance, or
– Search falls within the six established exceptions to the
search warrant requirement.
– Distinction between visual and tactile search [Bond v. U.S.
(2000)].
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FOURTH AMENDMENT
PROTECTIONS
 Suspicionless and Adminstrative
Searches and Seizures.
– Thermal Imaging scanners [U.S. v. Kyllo (2000)].
– Cordless, Cellular Phones and Email.
 Obtaining a search warrant – three
requirements: probable cause basis,
supported by oath or affirmation, and
especially detailed as to what is to be
searched and seized.
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THE EXCLUSIONARY RULE
 The fruit of the poisonous tree,
excludes evidence seized in
violation of the Fourth or Fifth
Amendments. Exceptions:
 “Good faith”
 “Inevitable discovery”
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FIFTH AMENDMENT
PROTECTIONS
 Self-Incrimination – applies to criminal cases.
– Business records and papers and the Collective
Entity Doctrine.
– Foreign prosecutions
 Double jeopardy – cannot be tried to a verdict twice
for the same crime.
– Civil and criminal prosecutions by the
government.
 Due Process and voluntary confessions.
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SELF-INCRIMINATION
Case 17.2 Synopsis. United States v. Hubbell (US, 2000).
During an independent counsel investigation of possible violations of
federal law by former president Bill Clinton, his wife Hillary, and their
Arkansas law partners in connection with the Whitewater
Development Corporation, Webster Hubbell entered into a plea
bargain. Hubbell pled guilty to charges of mail fraud and tax evasion,
and promised to provide full information relating to the Whitewater
investigation. The independent counsel later served Hubbell with a
subpoena for eleven categories of Whitewater documents. Hubbell
attempted to invoke the Fifth Amendment privilege against selfincrimination, but was required to provide documents and records
with the assurance that he would be granted immunity “to the extent
allowed by law.” CONTINUED
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SELF-INCRIMINATION
Case 17.2 Synopsis. (Cont’d)
The contents of the documents provided the basis for a second
grand jury prosecution of Hubbell in which he was indicted on ten
counts of tax-related crimes and mail and wire fraud. Hubbell
challenged the indictment on the grounds that it was based on the
documents produced by Hubbell under a claim of immunity, in
violation of his privilege against self-incrimination. ISSUE: Does
the Fifth Amendment privilege against self-incrimination protect a
witness from having to testify about the existence and sources of
potentially incriminating information? HELD: YES. Indictment
was dismissed.
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SIXTH AMENDMENT
PROTECTIONS
 Assistance of Counsel – a right in most
criminal prosecutions.
 Jury Trial – allowed in most criminal
trials.
 Other Procedural Rights – speedy trial,
right to confront and to cross-examine
witnesses.
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NON-CONSTITUTIONAL
PROTECTIONS
 Prosecutors must provide the
defendant with all the information
requested.
 Attorney-Client Privilege – protects
the relationship that has been
established.
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LIABILITY FOR
CRIMINAL ACTIONS
 Individual Liability – criminal act against, or for, a
corporation.
 Vicarious Liability – managers liable for employee’s
acts.
– Responsible Corporate Officer Doctrine [U.S. v. Park
(1975)].
– Impossibility defense to strict liability.
 Corporate Liability – vicariously liable if employees’
acts are within the scope of their duty.
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WHITE-COLLAR CRIME
A violation by a corporation or one of its managers.
 Types
– Larceny
– Embezzlement
– Fraud
– Bribes
 Crime by a Corporation – such as consumer fraud,
securities fraud, tax evasion. Pollution, price fixing,
misappropriation of trade secrets, and violations of
copyrights, patents, and trademarks.
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RACKETEER INFLUENCED AND
CORRUPT ORGANIZATIONS ACT
 RICO prohibits:
– Investing in any enterprise of income derived
from racketeering
– Acquisition of an Interest in an enterprise
through a pattern of racketeering activity.
– Participation in an enterprise through a pattern
of racketeering activity involving at least two
related predicate acts, in a ten year period.
– Conspiracy to engage in any of these activities.
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RICO
 RICO Requirements – broadly defined.
 Use of RICO – partially effective against
insider trading.
 Penalties under RICO:
– Criminal: fines and imprisonment up to 20 years.
– Civil: individuals can recover treble damages and attorney’s
fees.
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THE WIRE AND MAIL FRAUD ACTS
AND THE FALSE STATEMENTS AND
CLAIMS ACTS
 Wire and Mail Fraud:
– Scheme intended to defraud or obtain
money/property by fraudulent means.
– Use of mail or interstate phone lines in
furtherance of the scheme.
 False Statements Act (1994)
 False Claims Act – used against defense
contractors and health care fraud.
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COMPUTER CRIME
 Computer Fraud – use of computer to
steal company or government money.
– Computer Fraud and Abuse Act (CFAA).
– Computer Piracy – theft or misuse of software.
– Computer Viruses
 View From Cyberspace: Fighting CyberCrime
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COMPUTER FRAUD AND
ABUSE ACT (CFAA)
Case 17.3 Synopsis. Shurgard Storage v. Safeguard Self
Storage, (W.D.Wash. 2000).
Shurgard sued a competitor, Safeguard, for allegedly
embarking on a “systematic” scheme to hire away key
employees for the purpose of obtaining trade secrets.
Shurgard claimed Leland, its employee, used Shurgard’s
computers to access various trade secrets and proprietary
information belonging to Shurgard, and to send e-mails
containing the information to Safeguard. The emails were
sent to Safeguard while Leland was employed at Shurgard. at
the time he sent the e-mails.
CONTINUED
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COMPUTER FRAUD AND
ABUSE ACT (CFAA)
Case 17.3 Synopsis. (Cont’d).
Shurgard alleged misappropriation of trade secrets, conversion,
unfair competition, tortious interference with a business
expectancy, and violations of the Computer Fraud and Abuse Act.
Safeguard moved to dismiss the CFAA claims. ISSUE: Does the
CFAA apply to an employee’s use of his employer’s computer to email misappropriated trade secrets to a competitor? HELD:
Motion to Dismiss was DENIED. . . . [T]he CFAA was intended to
control interstate computer crime, and since the advent of the
Internet, almost all computer use has become interstate in nature.
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CRIMES INVOLVING
INTELLECTUAL PROPERTY
 The Copyright Act – criminalizes the willful infringement
of copyrights for commercial gain.
 No Electronic Theft Act – permits federal prosecution of
willful copyright infringement, even if the infringer has
not acted for his or her commercial advantage or private
financial gain, if the infringer reproduced or distributed
one or more copies of a copyrighted work with a retail
value in excess of $1000.
 Economic Espionage Act of 1996 – theft of trade secrets
a federal crime.
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TAX AND
ANTITRUST LAWS
 The Sherman Act
– Penalties
– Prosecution
 Securities Law Violations
– Federal Securities Laws
• 1933 Act
• 1934 Act
 Blue Sky Laws
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BLUE SKY LAWS
Case 17.4 Synopsis. Mueller v. Sullivan (1998).
Mueller controlled Farm Loan Services, an auction house for
the sale of securities. He was charged with violating
Wisconsin’s version of the Uniform Securities Act, which
provides that the willful omission of material facts in
connection with the purchase of sale of securities is a crime.
The trial judge instructed the jury that Mueller could be
convicted under the act if the prosecution proved that he
knew that the investors were not being told relevant
information that was objectively material. Mueller and
Stopple were subsequently convicted. CONTINUED
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BLUE SKY LAWS
Case 17.4 Synopsis. (Cont’d)
Mueller challenged his conviction, claiming that the Due
Process Clause of the Fourteenth Amendment required a
more stringent showing of mental state, specifically, the
intent to deceive, required in cases under Section 10(b) of
the Securities Exchange Act of 1934 (1934 Act), on which
many sections of the Uniform Securities Act were modeled.
ISSUE: Does the Due Process Clause permit conviction for
violation of state securities laws when the defendants knew
what they were doing, but did not know that it was illegal?
HELD: YES.
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OTHER FEDERAL CRIMINAL
REGULATORY LAWS
 The Environmental Laws
– The Clean Water Act
– The Resource Conservation and Recovery Act
 The Occupational Safety and Health Act
– OSHA Requirements – safe work environment
– Penalties under OSHA – civil and criminal
– State Law Prosecutions of Workplace Safety
Hazards
 The Foreign Corrupt Practices Act
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REVIEW
1. Discuss the positive and negative aspects of the Federal
Sentencing Guidelines.
2. Explain why a search warrant is not needed for a cellular
telephone conversation. Should a warrant be required for
thermal imaging? For email?
3. Does the FBI’s “Carnivore” software that monitors our email
violate our right to privacy?
4. What creative sentencing and punishment should be
imposed for computer crimes and cyberterrorists?
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