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In this presentation and we will discuss criminal law. At the end of this presentation we will be able to:
• Describe and discuss what criminal law is
• List classes of crimes
• Identified mental states in the criminal code
• Discuss corporate criminal law and liability
When considering criminal law, the main objective will be to protect the public. We want to put laws in place, enforce laws, to protect the public. How are we going to be able to do that? We can define what things are going to be not good, or against the law, for the public and we need to enforce those things for a few different reasons. One, to discourage things that are going to be not good for the public, typically going to be things that will be harmful not only to the individual but to others within society and therefore be harmful to society as a whole. If individuals are doing things that are harmful to society, then we want to make sure that the punishment involved will either remove them from society, if necessary, or will be sufficient enough to reduce the likelihood of things that are harmful to society to happen.
Given the fact that a crime is something against the public, it's the idea that there's going to be something that's threatening the safety of people, or the peace, or well-being of a community. It is important to note that there could be, and often is, overlap between tort law and criminal law. In other words, one act could both be a violation of criminal law and tort law, the objectives then being different.
Under criminal law there is a problem with regard to Society. The act was against the well-being of society and therefore in the realm of criminal law, but it is quite possible that that act also had negative consequences towards other individuals and those other than individuals could seek to get remedy for those under tort law. It’s important to note that there is a concept of double jeopardy, that concept being that an individual or party cannot be tried twice for the same crime. However, this doesn't apply to the case where we have the criminal case and then could have a similar tort case brought up for an individual or defendant.
Part of the reason that double jeopardy does not apply in this case is that the objective for a criminal case in the objective for a tort case are going to be different in that the criminal case the requirement is that the defendant be found guilty of a crime beyond a reasonable doubt, but for a tort case the defendant is liable for the tort by a preponderance of the evidence. Therefore, there's going to be a slight difference in terms of what the goal is to seek in order to seek prosecution or be found guilty in terms of a criminal case versus a tort case.
Victims typically have rights with in criminal cases as well and those rights will typically include the notification that the offender has been arrested, giving the criminal defendant’s name, saying whether there is eligibility for pretrial release of the defendant, a telephone number of the law enforcement agency responsible for the caretaking of the defendant, and the date in the time when the defendants release will be.
Criminal law is typically something that will be left to these states to fund the State Police and create the criminal law. However, the federal government does enact criminal law and has the Federal Bureau of Investigation (FBI), which is basically a national police force.
We could categorize crimes by level of seriousness. For example, treason, felonies, and then misdemeanors. A felony is something that could be punishable by death or imprisonment. Examples of a felony could be something like an armed robbery or manslaughter.
A misdemeanor is going to be something that's less serious, less serious of a crime and of course then the punishments would be less to comply with the less serious crime. General punishment of prison sentence of not more than a year. If we have a prison sentence for a felony it will typically be over a year, misdemeanor typically prison sentence under a year.
Example of a misdemeanor would be something like a disorderly conduct or traffic violations. It's important to note that it's not just the criminal act that needs to be in place to have criminal liability but also a factor involving the state of mind. The state of mind itself cannot generally require or constitute a criminal act. In other works, thinking about a crime will typically not be enough to be convicted of a crime. We need both the criminal act and the intention or some form of state of mind during that process. For example, drinking and driving would be a crime if we had both the driving and the state of mind being one which is intoxicated.
There are generally four states of mind to consider when considering the state of mind as it relates to criminal activity, those being purpose, recklessness, knowledge, and negligence.
Purpose means that the individual acted with the purpose, the intention, of having the outcome that happens. They knew the outcome they, planned the outcome, they had the purpose of the outcome as their mind set.
Knowledge would typically mean that the person that has the action has knowledge, or has a reasonable knowledge, of what the outcome could be. They know what the outcome will be even if we perhaps aren’t intentionally planning for that outcome.
Recklessness is the idea that people have a disregard for the likely outcome. If we're acting recklessly we probably have a very good knowledge that there is a fairly high chance of a negative result of to be happening from the behavior and therefore we have the recklessness mindset in that we're perceiving or continuing with behavior when we know it could have a high risk of negative consequences such as someone being injured or killed.
Negligence is going to be a mindset in which an individual is acting in such a way that they just aren't aware of the potential risk. They're going to be participating in something that could have a negative outcome and they are unaware, their mindset is unaware, of that negative outcome. Therefore, they're acting in a negligent way.
When considering criminal cases, we often hear the term motive. The idea of the motive is going to be the reason for the act, the reason for the wrongdoer committing the act. It's important to note that we haven't listed motive in the mindset for being convicted of a criminal activity. Motive is not required to be a convicted of a criminal activity. A motive however, might help the situation, if we can determine a motive that would lead to the criminal act. That could be good evidence leading towards what we would be thinking as a reason for the criminal act, or a reason for us to believe that the mindsets necessary to be convicted of a criminal act is indeed there.
When considering a criminal act as we've defined it so far it applies very well to an individual. We have to have an actual act, a criminal act, and we have to have a mindset. Things get a little bit more confusing when we apply this definition to a corporation. We still can have that criminal act, but the mindset is a bit more confusing. To understand this, we need to understand what a corporation is.
A corporation is going to be a separate legal entity. The corporation is an entity into itself. Therefore, when a corporation commits a criminal act we’re not really saying it's an individual committing the act. We're saying it's a corporation. We've given the corporation some rights as we would individual rights. It has the right to be able basically to own property and certain other types of rights which we typically only think of as rights to individuals including even a right to life liberty and property for the corporation. Therefore, the corporation can also be sued. We can sue this entity, this thing. that has these characteristics that we are attributing to the entity as we would an individual.
The corporation itself is not one individual, doesn't have a mind in itself. We can’t really say what's the mindset of a corporation because the corporation is really a conglomerate of individuals making decisions within the corporation. How do we set up that mindset type of state? We're going to basically be saying that if someone within the corporation, acting as an employee in the corporation, acting as a decision-maker in the corporation, acting in a way as an agent of the corporation, supposed doing what is best for the corporation, or making decisions on behalf of the corporation, does something that is a criminal act, we can then apply that mindset to the corporation.
When considering the punishment for crimes we want to remember what the purpose of the criminal law will be and that's really to safeguard the public. When considering what the consequences will be we want to define or make the law in such a way that it will achieve that goals.
In one sense we want to make sure that the crime or the punishment will fit the crime, that it is an appropriate punishment to fit the crime and this will help society in general because they will see that hopefully there’s some consistency, they'll see that there's some fairness. It's really important in order to have some fairness in the legal system so people have confidence in the legal system. We also want to have some consistency so that people can know what to be expected. We need to know what the rules are in some degree or in some way in order to act in accordance to being in alignment with society so everybody I can move along with everything they need to do.
We also need to make sure that there's a deterrence factor within the law. It's clear that the law is not going to be able to catch every criminal and our legal system is designed so that we don't want to punish someone who was innocent. We're leaning towards, within the law, to actually not punish someone who is going to be innocent which means that we’re more likely to let go people that are actually guilty. We would rather have it that way. We would rather let people go that are guilty then punish someone who is innocent and that means that there's going to be many types of consequences where people break the law and they're not going to be caught. What we have to do on the deterrent side is make the punishment high enough so that the risk of being caught to a reasonable person would be high enough so that they would not commit the crime.
For example if we were to drive in the carpool lane with only one individual in the car, violating the rule that we need more than one person in the carpool lane, if we did that every day, we may only get caught once every month or once every couple months but we're still not going to do it because even if we had no regard for the fact or for the reasons of the carpool lane, if we have no regard for that, we would still not do it, if we were just self-interested, because the punishment of the fine and other ticket or other consequences of being in the carpool lane would be high enough for us not to get the benefit of being in the carpool lane.
We also want to remove individuals from a society who are going to have negative consequences either to society in general or to others within the society. This would include things like taking people out of the society either through imprisonment or through things like the death penalty.
A list of crimes against people would include things like assault, which would be a threat of harm, as opposed to battery which beep would be harm to a victim, things like murder and manslaughter. A first-degree murder has aggravated and premeditated intent within the murder. When we talk about manslaughter we're talking about death, but the premeditated intent is not necessarily there or not to proven.
This is another area where mindset is very important here. When we talk about murder versus manslaughter there's a big difference between those two in terms of punishments and note that the outcome could still be the same. For example, if someone got hit by a car and they died there's a big difference as to whether it was an intentional running over of an individual which would be murder, be premeditated and would result in a higher penalty than if it was manslaughter and unintended. You would have a much different consequence in terms of what the penalty would be. Note the consequent to the individual, the person who was hit, is the same. It's important to note that intention plays a big role in many areas of the law and it's this is one area where it's very distinct; we can see it very clearly
Crimes against property include burglary, breaking and entering, and trespass. Burglary is going to be the idea of someone forcing an entry or through deceit a trespass into an occupied structure with the intent to commit a crime. If we add to that a weapon, a weapon involved in the burglary, we then have aggravated burglary. Breaking and entering is the idea of using either force or deceit to trespass to commit a theft or any kind of felony. The crime of arson involves the burning of someone's home. The crime of theft involves the taking of someone’s property without that individuals consent. and
Then we have the concept of fraud and frauds another interesting example because it does involve some type of intent and it involves some type of deceit to obtain property or services that don't belong to the individual. That's another example where we would need to prove then the reasons for the fraud, the act that was being perpetrated, had the intention of committing some kind of deceit in order for the individual to receive some type of personal gain. Note that often is going to be the difficult component to proving fraud. It is difficult to prove what's in someone’s mind, their intention, so that’s going to be the component that would need to be differentiated to prove a case of fraud.
Crimes involving a business typically involve things like embezzlement, forgery, or some type of defrauding of creditors from the business. Embezzlement is going to be something where there is a taking of the assets, often by an employee, someone who has authority on a business perspective in order to act as an agent of the business then taking resources from the business. Other types of crimes that we could say are crimes against justice include things like intimidation, bribery, and theft.
If we are in office dereliction of duty are going to be other types of crime. Bribery involves the offering or a promise for something to a public official to receive something in return. Dereliction of duty is going to involve something for of duty. For example, law enforcement officer who doesn't comply or achieve the duties that would be expected in a certain situation, we would say that they were derelict of duties. Intimidation would be a threat of some kind. If we have a threat to a public servant or official to have to cause them to receive something of benefit, that would be some type of intimidation.
We also have obstruction of justice as another component of a crime which would be to prevent the discovery, apprehension, arrests, prosecution, conviction, or punishment of any criminal defendant.
Resisting arrest, perjury, and tampering with evidence are going to be some other examples of crimes. Perjury is the making of false documents under oath. We also have the concept of a cyber trespass and that's going to be the deliberate access to a computer without authorization with the intent to commit a crime.
Other crimes involving computers include things like cyber harassment or cyber stalking. Cyber extortion is when an individual gains access to a computer and finds something that could be of a problem to the individual involved, something like evidence of an illegal act, or just something that’s going to be an embarrassment to the individual and which could damage the reputation of the individual.
Phishing crimes are the idea of sending out emails or some type of information to obtain information to get access to personal data. The idea is that you’re sending out someone to pretend to be something you are not for the individual to then respond and give personal information. Phishers they're looking to gain things like account numbers, possibly pin numbers, possibly access codes to online sites such as banking sites or even any other site that they can continually gather information from.
The concept of cyber spoofing is going to be the idea of someone falsifying their identity by gaining access to someone else’s computer to get a different identity in order then to commit some kind of crime some kind, to commit fraud. The idea of cyber terrorism is the use of a computer to gain access to a computer system to disrupt a nation’s infrastructure in some way to cause harm. Cyber vandalism is going to be different than a phishing attack in that a fishing attack is used to gain information for later use while cyber vandalism is designed to just destroy something. The vandal just wants to destroy the system so that it can no longer be used and typically cyber vandalism has no real goal in terms of gain.
How can we defend against criminal liability? We need to first look at those two components of a crime again. We have a criminal act and the mindset. To defend again criminal liability, we have to disprove one of those two components. We could try to prove something like insanity in order to disprove that mindset factor and that would be one form of defense.
Entrapment would be another defense for criminal liability. The idea of entrapment would be that the breaking of the law was caused by law enforcement to induce the crime to happen. In other words, if it wasn’t for the intervention of the law enforcement in some way the crime would not have happened. Justifiable force would be something like the self-defense or a defense of others. If the acted criminal act or the charge on the criminal act was one in terms of self-defense or the defense of others these could be defenses against criminal liability.
