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  • >> All right, we're going to talk about criminal law

  • 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.

>> All right, we're going to talk about criminal law

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B1 中級 美國腔

刑法 (Criminal Law)

  • 58 9
    Amy.Lin 發佈於 2021 年 01 月 14 日
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