and cyber crime.

If we were to take a look at some of the civil law

we've talked about, compare it to criminal law--

the two big areas of difference are burden of proof

and the sanctions.

So, there is kind of a comparison in your chapter

of the differences.

The big ones under "Burden of Proof" is that the civil burden

is a preponderance of the evidence,

which means, basically, it's more likely than not.

The verdict is typically a majority.

In a criminal case, the case needs to be proved

by the prosecutor beyond a reasonable doubt.

The verdict is almost always unanimous.

The sanctions are different, too.

In a civil case, we're looking at damages and equitable relief.

We've talked about that already in earlier chapters

in terms of remedies from our complaint

as well as tort action, specifically.

In a criminal case, it's designed to punish

a guilty person with fines, imprisonment,

or possibly even death.

In order to have criminal liability,

there has to be both a criminal act

and a wrongful mental state simultaneously.

"Actus reus" is another way of saying "a criminal act."

In most cases, this is an act of commission.

It's something you're prohibited from doing...

but in some cases, you had a duty to do something

and the failure to do that-- like file a tax return--

would be considered a criminal act.

In terms of "mens rea," or "wrongful mental state,"

what specifically is required--

what intent is required depends on the crime-- the statute.

In some cases, it might be an intentional act,

it might be recklessness, or criminal negligence.

In some cases, it doesn't really matter-- it's strict liability.

If you do that particular crime-- you speed--

it doesn't really matter whether you intended to or not.

And in some cases, it just gets to a point

where there's kind of an over-criminalization of things--

making things a crime which don't necessarily require

any type of criminal intent.

There's more of that in your chapter.

Corporations can also have criminal liability.

To have it, the crime has to occur

within the scope of employment.

If they fail to fulfill some statutory duties--

there's some statutes that require certain disclosures

or, in the accounting area, signing financial statements.

Corporate officers and directors can be held criminally liable

under the "Responsible Officer" doctrine,

so even though they didn't directly commit the act

if they directed it or knew about it,

failed to stop it, they may have criminal liability.

Now, look at categories of crimes...

and you distinguish between violent and property crimes.

Violent crimes would include crimes against persons

like murder, rape, robbery would be a violent crime.

And here are some examples of property crimes--

burglary, larceny, obtaining goods by false pretenses,

receiving stolen goods, arson, forgery.

Each one of these crimes have what are called "elements"

and the prosecutor has to prove each one

beyond a reasonable doubt.

Some of these build upon each other--

for example, larceny is the intentional taking

and carrying away of the personal property of another.

If you add the element of force or threat of force,

that takes you to robbery.

Here are some white collar crimes--

basically, it means they're more likely to occur

in the business setting among, you know,

those who wear a white collar--

the administrative type, leaders.

Embezzlement, mail and wire fraud,

bribery, bankruptcy fraud, theft of trade secrets,

insider trading.

Organized crime-- typically, people think of the mob, gangs,

money laundering is a common type

of organized crime activity--

taking illegally obtained money and laundering it

through legitimate organizations.

"Racketeering Influenced Corrupt Organization" Act-- RICO--

has both civil and criminal penalties.

Often used in organized crime cases--

you don't have to memorize the particular amount of fines

or imprisonment,

but know that there's both civil and criminal penalties.

In the civil area, it could be forfeiture of the property

that was obtained and even up to treble damages.

Another way of classifying crimes

is felonies versus misdemeanors.

Felonies are more serious crimes punishable by death

or imprisonment over a year.

Misdemeanors are less serious--

punishable by fines or confinement up to one year.

Usually, we think of felonies as prison,

misdemeanor as local jail time.

Could be that somebody's charged with a felony

but ends up pleading or sentenced to a misdemeanor.

Here are some defenses to criminal liability.

Each one of these is not an automatic excuse

for criminal liability,

but it might be the case that somebody committed a crime

but they have an excuse or reason for doing it.

Justifiable use of force would be along the lines

of self-defense, defense of others.

Necessity-- that it was necessary to commit the crime.

Insanity usually requires some mental disease or defect

that causes somebody to not be able to stop

what they're doing or not know that it's wrong.

A mistake is possibly a defense in a criminal case

if it negates the intent.

For example, somebody took luggage

but believed it to be theirs,

then they would lack that intent to steal.

Duress-- duress is some type of extreme pressure

to commit a crime.

Usually it's either physical

or it's some type of emotional pressure

that is more serious than the actual crime.

For example, if I were to tell you that I would kill you

unless you did a crime...

if that crime was not very severe,

then that might be a defense.

Entrapment involves a law enforcement official or agent

who gets somebody to do something

they're not already doing or inclined to do.

Statute of limitations is a statute that limits the time

the prosecutor can bring the actions.

So, sometimes it's a defense to say that the prosecution

waited too long.

And immunity-- there's immunity--

this bargain for where the prosecutor

or it might be based on perhaps diplomatic status

or some type of limited immunity.

Look at constitutional protections.

Under the fourth amendment, there is a requirement

to have probable cause and a search warrant.

Probable cause requires an officer to convince

a reasonable person that the proposed search or seizure

is more likely than not justified.

These things are actually--

probable cause and a search warrant requirement

are in the constitution.

A search warrant is needed to search in places

where there's a reasonable expectation of privacy.

This also applies in search and seizure in businesses.

A warrant is not required in every place in business.

For example, a warrant is not required for contaminated food

or highly regulated industries like liquor or guns.

Under the fifth amendment, there's due process.

Due process has to do with what's fair,

giving the defendant an opportunity

to object to the charges, and that that hearing

is before somebody who's impartial, unbiased.

Double jeopardy says a person cannot be retried

for the same offense in the same court.

However, you know, a criminal prosecution

and then a civil action are permitted.

If you think of the O.J. Simpson case,

he was criminally prosecuted--

acquitted originally in the murder case,

but then he was sued civilly for wrongful death.

Self-incrimination-- a person has a right to remain silent

and not to be forced to testify against themselves.

Sixth and eighth amendment-- here are some protections.

A right to a speedy trial, trial by jury in some cases,

a public trial, a right to confront witnesses,

to have an attorney, and, under the eighth amendment,

prohibition against cruel and unusual punishment.

Exclusionary rule basically is a rule that says evidence obtained

in violation of constitutional procedures must be excluded.

In other words, if the evidence was illegally obtained,

that shouldn't be rewarded by allowing it

to be introduced at trial.

That evidence would be the "fruit of the poisonous tree."

The idea is that if you can't introduce evidence

that you've beaten out of a suspect or, you know,

that you've got through an illegal search,

that this would deter police misconduct,

that they would go about getting the evidence

the legal, constitutional way.

There was a case-- Miranda v. Arizona,

that the Miranda Rule came out of

and basically said that a person

should know their constitutional rights

when they're subject to custodial interrogation--

which means that they're in custody--

not necessarily arrest-- and the interrogation

means they're being asked questions not just generally

but about the crime.

There may be some other reasons why Miranda warnings are given.

It's not always at the time of arrest,

but it is a good idea before there's any conversation

with the defendant.

And then, there's just some other rules around

what would make evidence obtained unconstitutional,

or exceptions.

For example, if there's some reason a law enforcement officer

needs to go into an area due to some emergency,

they can make that argument.

Basically, the burden would be on the prosecution to argue

that there was some reason that excused them

from following a process to obtain the evidence...

you know, a legal or constitutional way.

Cyber crimes-- any act directed against computers

or that use computers as the instrumentality of a crime--

could be fraud, could be theft.

Lately, we've seen a lot of cases involving identity theft.

Phishing-- you know, sending emails

trying to get information from people.

Credit card theft, electronic theft,

hacking into computers, networks,

inserting malware, worms, even cyber terrorism.

Terms of prosecution-- there are some challenges with it.

Determining where the crime actually occurred,

and who would have jurisdiction over it.

There's the Computer Fraud and Abuse Act.

A person is liable if he accesses a computer online

without authority to obtain classified private

or protected information.

There's been lots of this in the news lately

in terms of persons who access the computer,

and the severity of the crimes they faced.

The penalties could include fines and imprisonment.