Vargas, Earl Lloyd M.

LM4A – ALM 2204_CRIMINAL LAW WITH BUSSINESS\CYBERCRIME

ASSIGNMENT#1

I. CRIMINAL LAW – PART ONE: DEFINITION SOURCES, & PUNISHMENT

CRIMINAL LAW

 CRIME
o An action that violates existing law
 It is the violation of a law that may be prosecuted by the
government, not by and individual or another entity.
 PRINCIPLE OF LEGALITY
o Characterized by the latin maxim, nulla poena sine lege “no penalty
without a law”
o Has come to represent that people need to know which act maty be
considered as a crime and that act may be a result of punishment
 THE GOVERNMENT HAS THE POWER TO REGULATE BEHAVIOR
o People’s behavior is influenced by both civil law and criminal law
 Criminal laws must be balanced with our civil liberties.

SOURCES OF CRIMINAL LAW

 COMMON LAW
o Developed in England and brought to the united states by English
colonists
 Stare decisis – doctrine that judicial decisions stand as
precedent for case arising in the future
 Precedent – prior decisions of the same court or of a higher
court
 STATUTORY LAW
 ORDINANCES
 ADMINISTRATIVE LAW
  COURT RULES
 THE MODEL PENAL CODE

PURPOSE OF CRIMINAL LAW

 To protect society
 General goal is the prevention of undesirable behavior
A. The tool used to prevent such behavior is punishment

PUNISHMENT

 SPECIFIC DETERRENCE – specific individuals, teaches the individual not to

commit crimes in the future
 GENERAL DETERRENCE – aimed at all members of the society by watching
others being punished
 INCAPACITATION – removes individuals from society
 REHABILITATION – altering behavior through methods
 RETRIBUTION – societal vengeance
I. CRIMINAL LAW – PART TWO: THE TWO ELEMENTS

TWO ESSENTIAL ELEMENTS

 MENS REA
o General intent; mental element of a crime
 ACTUS REUS
o Voluntary act; physical element of a crime

MENS REA – COMMON LAW

 GENERAL INTENT – intended the act bit not the result of the act
 SPECIFIC INTENT – desire or purpose to cause the result of the act
 CONSTRUCTIVE INTENT – under common law, the result was not intended
but the act was very likely to cause the result
 TRANSFERRED INTENT – an unintended illegal act results from the intent to
commit a crime
MENS REA – STRICT LIABILITY

 Guilty of a criminal offense even if you had no criminal intention

 do not require criminal intent
o regulatory crimes; petty offenses; and infractions

MENS REA- VICARIOUS LIABILITY

 legal responsibility for the acts of another person because of some

relationship with that person
A. no requirement of mens rea; no requirement for an act.
 CORPORATE LIABLITY – liability of corporations for that acts of its directors,
officers, shareholders, agents, and employees.

MENS REA – MODEL PENAL CODE

 MODEL PENAL CODE – suggested approaches to laws. Recognizes four

states of mind:
o PURPOSEFUL – the result must be intentionally desired
o KNOWING – must be aware of the nature of the act and must be
practically certain that it will cause the result
o RECKLESS – conscious disregards a substantial and unjustifiable risk
that the result will occur
o NEGLIGENT – no conscious awareness; action is a gross deviation
from a law-abiding person’s standards.

MENS REA – PROVING MENS REA

 SUBJECTIVE INTENT – a defendant’s actual intent

 OBJECTIVE INTENT – not the defendant’s actual intent
 INFERENCES – a conclusion that judges or juries are permitted to make after
considering the facts of the case
 PRESUMPTION – a conclusion that must be made by a judge or a jury
o REPUTTABLE PRESUMPTION – conclusions that must be drawn by a
judge or jury, unless disproven by the facts
 o IRREPUTTABLE PRESUMPTION – regardless of what the evidence
shows, and irrebuttable presumption stands as a fact

MENS REA – MOTIVE

 The reason why a person does something

 Leads to mens rea
 Pays a role in sentencing, but is not an element of a crime

ACTUS REUS – VOLUNTARINESS

 Actions must be voluntary for criminal liability

 The model penal code lists the following acts as being involuntary
o Reflexes and convulsions
o Bodily movement during unconsciousness or sleep
o Conduct during hypnosis or resulting from hypnotic suggestion
o Other movements that are not a product of the effort or determination
of that actor

ACTUS REUS – THOUGHTS AND STATEMENTS AS ACTS

 Thought alone are not enough

 First amendment protects free speech, however there are limits to its
protection which are:
o Inciting riots
o Treason
o Solicitation
o Conspiracy
o Causing imminent harm to others

ACTUS REUS – PERSONAL STATUS AS AN ACT

 Personal status such as, illness, financial status, race, sex, religion, are
examples of human conditions and cannot be declared criminal
  Personal status may not be criminalized but it may be subject to the
regulatory authority of the state.

ACTUS REUS

 Possession of certain items may be made criminal

 The model penal code states that possession can be actual or constructive

ACTUS REUS – OMMISION AS ACTS

 Failing to do something that should be done

o DUTY IMPOSED BY THE STATUE – leaving a scene of an accident
o DUTY BY RELATIONSHIP – parent to child, spouse to spouse
 DUTY BY CONTRACT – physician and patient
 ASSUMPTION OF DUTY – voluntary taking on a duty
 CREATING DANGER – intentionally or negligently causing a danger to a
stranger

ACTUS REUS – CAUSATION

 TWO FORMS OF CAUSATION

o FACTUAL
o LEGAL
 Act is the cause in fact of the result if the result would not have occurred
unless the act occurred
 Factual cause means that the D starts the chain of events
 LEGAL CAUSE – also referred to as proximate cause
o Result must be consequence of the act
 FACTUAL CAUSE – it must be shown that the defendant’s action set into
motion the events that led to the prohibited result.
 CONCURRENCE – for crimes that have both a mental and a physical
element, concurrence must be present
o The joining of mens rea and the act
I. CRIMINAL LAW – PART THREE: CRIMES AGAINST THE PERSON
EXAMINING CRIMES

 ELEMENTS – every element of a crime must be proven beyond a reasonable

doubt by the prosecution
 MERGER DOCTRINE – some crimes have all od the elements, save ones, of
a greater offense

HOMICIDE – COMMON LAW

 The killing of one human being by another

 Not all homicide are crimes
 Mens rea (mental state) is extremely important in homicide
 MURDER
o Unlawful killing of a
o Human being with
o Malice forethought
 Manslaughter is elements 1 and 2 only
 FELONY - MURDER DOCTRINE – the principle that if a person (even
accidentally) kills another while committing a felony, then the killing is murder
 MESDEMEANOR MANSLAUGHTER – the principle that if a person (even
accidentally) kills another whole committing a misdemeanor, then the killing is
manslaughter

HOMICIDE – STATUTORY APPROACHES

 FIRST DEGREE MURDER – highest form of murder – more than one type –
includes premeditation or extreme atrocity
 SECOND DEGREE MURDER – a higher crime than manslaughter – murder
without premeditation

HOMICIDE – MANSLAUGHTER

 Manslaughter was an unlawful killing without malice aforethought

 The take away is that manslaughter is a crime less severe than murder,
involving the wrongful, but not malicious, killing of another person
  Absence of a state of mind
 PROVOCATION – an act by one person that triggers the reaction of rage in a
second person
 HEAT OF PASSION MANSLAUGHTER – adultery and mutual combat,
blinded with rage or acted without thinking
 Words alone are not adequate provocation
 IMPERFECT SELF - DEFENSE – misjudging the situation or using excessive
force
 IMPERFECT DEFENSE OF OTHERS – same as imperfect self-defense
 INVOLUNTARY MANSLAUGHTER – the lowest form of criminal homicide, for
of a negligence or reckless manslaughter. Vehicular homicide

HOMICIDE – THE MODEL PENAL CODE

 A person guilty of criminal homicide if he purposely, knowingly, recklessly, or

negligently causes the death of another human being
o MURDER – all purposeful and knowing homicides; felony of the 1 st
degree
 RECKLESS HOMICIDE – a murder committed under
circumstances manifesting extreme indifference to the value of
human life
 FELONY – MURDER – recklessness and indifference to human
life are presumed of the D was engaged in the commission or
attempted commission of robbery, rape, arson, burglary,
kidnapping, or felonious escape.
 MANSLAUGHTER – felony of the 2nd degree – all reckless homicide – an act
that would normally be murder will be manslaughter when it is committed
under the influence of extreme mental or emotional disturbance
 NEGLIGENT HOMICIDE – felonies of the 3rd degree – acts done negligently

HOMICIDE – BEGINNING OF LIFE AND SUICIDE

 When life begins is a continually-changing area of the law

  Under the common law, successful suicide was a crime and the property of
that individual was confiscated by the crown, today, encouraging or aiding a
suicide is a crime

HOMICIDE – CORPUS DELICTI

 THE BODY OF THE CRIME

 Prosecutors have the burden to prove the body of the crime at a trial
 A confession alone is not enough to contribute corpus delicti

ASSAULT AND BATTERY

 BATTERY – an intentional, unconsented to, physical contact by one person

with another person. Uses of deadly weapon
 ASSAULT – an intentional threat, show of force, or movement that could
reasonably make person feel in danger of a physical attach or harmful
physical contact
 AGGRAVATED ASSAULT AND BATTERY – more serious – can have
special names. Assault intent to commit rape or assault with intent to commit
murder

MAYHEM

 It is the crime of intentionally dismembering or disfiguring a person

 It was the act of rendering an opponent unable to fight due to dismemberment

SEX CRIME – RAPE

 ELEMENTS OF RAPE WERE

o Sexual intercourse with a
o Woman, not a man’s wife
o Committed without the victim’s consent and
o By using force
 These elements were extremely problematic in that they only
allowed for a man to be convicted
  Fortunately, over time, these problems have been addressed by
the states
 MOST MODERN ELEMENTS
o Sexual intercourse
o With another against that person’s will or without that person’s consent
and
o By use of force or under such a threat of force that a reasonable
person would have believed that resistance would have resulted in
serious bodily harm or death
 Sexual intercourse is penis- vagina. Other acts fall under sodomy
 The model penal code punishes rape as felony in the 2 nd degree, unless
serious bodily injury occurs or the victim was not a social companion of the
rapist, in which case the rape is of the 1st degree

SEX CRIME – NONFORCIBLE RAPE

 STATUTORY RAPE – the crime of a man having sexual intercourse with a

girl under a certain state-set age whether or not the girl consents
 STRICT LIABLITY CRIME – the act alone is sufficient
 Similarly having sex with those who are incapable of consenting due to
mental or emotional disability is also rape

SEX CRIME – RAPE

 General word for unnatural sex act or the crime committed by such act
 Law enforcement generally has no incentive to enforce these laws unless
there has been force and\or a resulting injury from the act

SEX CRIME – RAPE SHIELD LAWS

 Prohibits use of most evidence of a rape or other sexual crime victim’s past
sexual conduct, or that protects’s the vitim’s identity
 Tactics putting the victim on trial accounted for non-reporting of many rapes

SEX CRIME – INCEST, CRIME AGAINST CHILDREN, CASTRATION

  INCEST- sex between family members
 SEX CRIMES AGAINST CHILDREN – every state has laws protecting
children
 MEGAN’S LAW – all states now require sex offenders to register
 CASTRATION – chemical and physical

KIDNAPPING, FALSE IMPRISONMENT, STALKING

 KIDNAPPING – taking away and holding a person illegally, usually against

the person’s will or by force
o ELEMENTS OF KIDNAPPING
 The unlawful
 Taking and confinement and
 Asportation of
 Another person
 By use of force, threat, fraud, or deception
 FALSE IMPRISONMENT – one person interferes with another’s liberty by the
use of threat or force without authority
 STALKING – the crime of repeatedly following, threatening, or harassing
another person in ways that lead to a legitimate fear of physical harm

CIVIL RIGHTS AND HATE CRIMES

 CIVIL RIGHTS – any persons acting pursuant to state law or authority who
deprives a person of a federally secured right due to alienage, race or color is
guilty of a federal civil rights crime
 HATE CRIME – most of the hate crimes statutes do not declare any particular
act criminal; they are sentence enhancements for crimes in which he motive
was the victim’s race, ethnicity, religion, or other factor.
I. CRIMINAL LAW – PART FOUR: CRIMES AGAINST PROPERTY AND
HABITATION

HISTORICAL CONTEXT
  Property is both personal and real
 Some crimes also include a crime against a person
 HABITATION – a home not merely property, a refuge a sanctuary

ARSON – HISTORY AND COMMON LAW

 A crime against property and habitation

 Is the malicious and unlawful burning of a building
 At common law, it was the
o Malicious
o Burning
o Of a dwelling house
o Of another

ARSON – TODAY AND THE MODEL PENAL CODE

 More broadly defined to prohibit the burning of one’s own property and that of
businesses
o If dwelling is burned it is often considered as aggravated arson
 States use degrees
o First – dwellings
o Second – uninhabited structures
o Third – personal property
 Mens rea – is purposeful and reckless. Fire needs not to touch the structure,
setting the fire is enough

BURGLARY – HISTORY AND THE COMMON LAW

 Crime against property, habitation, and the person

o The breaking and entering
o Of another’s dwelling
o At night
o For the purpose of committing a felony once inside
BURGLARY – TODAY

 Requirement of breaking has been eliminated

 No jurisdictions still require that property be a dwelling
 At night is no longer required
 Many states continue to require the intent to commit a felony
 COMMON ELEMENTS
o An unlawful entry
o Of any structure or building
o For the purpose of committing a felony or stealing from the premises
o Once inside

THEFT CRIMES – INTRODUCTION

 Larceny was the first theft crime in common law

 Early larceny was punishable by death and did not include thefts by fraud or
deception
 Two other theft crimes were eventually added to fill this void- embezzlement
and false pretenses

THEFT CRIMES LARCENY

 COMMON LAW ELEMENTS

o The trespassory taking
o And carrying away of personal property
o Of another
o With an intent to permanently deprive the owner of possession
 Trespassory taking means without consent
 Constructive possession was developed to protect employers when they
entrusted property to their employees

THEFT CRIME – EMBEZZLEMENT

  Was created to address those situations that did not meet the element of
trespassory
 At common law
o The conversion
o Of personal property
o Of another
o By one who has acquired lawful possession
o With an intent to defraud the owner
 CONVERSION – any act that deprives an owner of property without that
owner’s permission and without just cause
 MENSREA – intent to defraud

THEFT CRIME – FALSE PRETENSES

 Common law did not criminalize lies designed to gain ownership of the
property
 At common law the elements are
o A false presentation
o Of a material present or past fact
o Made with the knowledge that the fact is false
o And with an intent to defraud the victim
o Thereby causing the victim to pass title to property to the actor

THEFT CRIM – FALSE PRETENSES – FRAUDULENT CHECKS

 A type of false pretenses involves fraudulent checks

 THREE COMMON ELEMENTS
o Mens rea may be proven by showing either an intent to defraud the
payee or knowledge that there were insufficient funds in the account
o The check must have actually been insufficient funds in the account

THEFT CRIMES – RICO

  RICO – racketeer influenced and corrupt organizations act
 All businesses today are subject to RICO
 Must prove
o The defendant received money or income
o From a pattern of racketeering activity
o Invested that money in an enterprise
o Which is in interstate commerce or affects interstate commerce

THEFT CRIMES – FORGERY

 Making a fake document or altering a real document with the intent to commit
fraud
 ELEMENTS OF FORGERY
o Making of
o False documents or the alteration of existing documents making them
false
o And passing the document
o To another
o With the intent to defraud
 ACTU REUS – making the document and the passing the document
 MENS REA – knowledge of the falsity of the document and intent to defraud

THEFT CRIMES – RECEIVING STOLEN PROPERTY

 Criminal offense of getting or concealing property known to be stolen by

another
 ELEMENTS
o Receiving property
o That has been stolen
o With knowledge of its stolen character
o With an intent to deprive the owner of the property

THEFT CRIMES- ROBBERY

  PERSON OR PRESENCE – person generally refers to hands, body, clothing.
Presence refers to anytime the victim is in control of the property
 USE OF FORCE OR THREAT – this element is that most distinguishes
robbery from larceny – a threat of force to the victim or to another
 MENS REA – specific intent to the property and to deprive the owner of it

THEFT CRIMES – EXTORTION

 Also known as blackmail

 Involves a threat of future harm
 At common law, extortion only involved public officers
 Today, the elements are
o The taking or acquisition of property
o Of another
o Using a threat
o With an intent to steal the property
 THREAT – future physical harm and\or to reputation, businesses, financial
status, or family relationships

DESTRUCTION OF PROPERTY

 Called as criminal mischief

 Includes all type of destruction that affect the value or the dignity of the
property

COMPUTER CRIMES

 TWO BASIC TYPES

o Where the computer is the target of the crime. Theft of hardware or
software, destruction and vandalism, and viruses used to destroy
computer programs
o Involves using a computer in the commission of a crime. Includes
cyberstalking and distributing illegal material, like child pornography
I. CRIMINAL LAW – PART FIVE: CRIMES AGAINST THE PUBLIC
DEFINITION

 Crimes involving the public welfare, social order, and society’s morals
 There are no individual victims

CRIMES AGAINST PUBLIC MORALITY

 PROSTITUTION
o ELEMENTS
 Providing
 Sexual services
 In exchange for compensation
 SOLICITATION – any person who engages in selling, buying, or attempting to
buy sex is guilty for solicitation
 INDECENT EXPOSURE AND LEWDNESS
 OBSCENITY

CRIMES AGAINST THE PUBLIC ORDER

 Crimes that involve breaches of the peace

 FAILURE TO DISPERSE
 RIOT
 DISTURBING PEACE
 Fighting words is one such exception to free speech
 Incitement\advocacy of unlawful conduct
 Threats – threat statutes are designed to preserve the public order
 Vagrancy and panhandling
 POSSESSION, SALE AND TRANSFER LAWS
o POSSESSION – improper possession of a weapon that is otherwise
permitted
 FIRMEARMS USE LAWS – forbidding the discharge of firearms in urban
areas absent good cause
  REGISTRATION AND LICENSING – background checks, registration,
licenses
 Drugs and alcohol crimes – these crimes included here because of their
impact on society
 Alcohol related crimes
o Public drunkenness
o Minimum age requirements
o Merchant with liquor license
 Possession of drug paraphernalia – prohibits the sale, use, and the
possession of drug paraphernalia

CRIME AGAINST THE ADMINISTRAION OF GOVERNMENT

 TAX EVASION
 FILLING FRAUDULENT RETURNS
 UNAUTHORIZED DISCLOSURE OF INFORMATION

CRIMES AGAINST SOVEREIGNTY AND SECURITY

 TREASON
 ELEMENTS
o A person who owes an allegiance to the U.S
o Levies war or adheres to an enemy of the U.S and
o Commits an overt act and
o Possesses reasonable intent
 Sedition and espionage
 Terrorism –

CRIME AGAINST THE ENVIRONMENT

 Maintain conditions in which man and nature can exist in productive harmony
 TWO CLASSES OF ENVIRONMENTAL LAW
o Intended to further public health and safety
 o Intended to protect the environment itself
 CLEAN WATER ACT
 CLEAN AIR ACT
 CERCLA