Bus 670 Week 2 Assignment Negligent Tort

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Chapter 6

Criminal Law Criminal law is the branch of law that concerns itself with the punishment of prohibited behavior seen as harmful to society as a whole. In every society, criminal law is the primary vehicle through which government imposes standards of behavior for its citizens as a means of preventing antisocial behavior and maintaining order. Because criminal law punishes behavior deemed to be damaging to society, it is the branch of law that most clearly re�lects a society's ethical values. All crimes are offenses against society, and convicted criminals are punished by having them forfeit their property (by having to pay a �ine), their freedom, and even their lives, depending on the seriousness of their crime. In a criminal trial, a prosecutor (the government representative who is charged with proving the guilt at trial of individuals accused of committing crimes) charges a person suspected of committing a crime (the criminal defendant) in order to have that person punished by having to pay a �ine, being sentenced to jail, or both. In extreme cases, convicted criminals may also be put to death. Thus, criminal law is punitive in nature, with the intended result of a successful conviction being the punishment of the criminal for having committed the prohibited act.

Although criminal law in both England and the United States developed as common law based on custom and tradition, today all states have extensive criminal codes that enumerate a wide range of prohibited conduct and specify its punishment. As is often the case in our legal system, there are important differences in criminal law statutes at the state and federal level, in terms of both the kinds of conduct that are prohibited and the kinds of punishment that can be exacted for such conduct. Despite these differences, there are still many similarities in the kinds of conduct that are prohibited in each of the 50 states and by the federal government, since all criminal statutes trace their roots to the common law. Most states today have incorporated at least in part the Model Penal Code promulgated by the American Law Institute in 1962 and revised in 1981. (Go to the American Law Institute website (http://www.ali.org/index.cfm?fuseaction=publications.ppage&node_id=92) to access this source.) In this chapter, we will focus on areas of criminal law that are fairly standard in most states. Keep in mind, however, that the law is �luid and subject to revision and change; this is particularly true in the area of criminal law, where legislatures are constantly making changes, both to the types of conduct deemed criminal and to the punishment for such conduct, in order to re�lect changing societal values and varying needs for law and order.

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6.1 Elements of a Crime There are two elements to every crime that the prosecution must prove before a criminal defendant can be found guilty of having committed a crime: (1) a criminal act or omission by the accused and (2) the existence of a wrongful state of mind or intent at the time of the commission of the wrongful act or omission. (A criminal omission is a failure to act when the law imposes a duty to act, such as the duty of a parent to care for and protect a minor child.) If a criminal act (or criminal omission) is carried out with the required criminal intent, then a crime is complete; but criminal intent alone or a harmful act that was not committed with the required criminal intent does not rise to the level of a crime. A few examples should help to illustrate.

1. Jane hates Josh and wishes he were dead. She spends every waking moment hoping for his demise and imagining ingenious, painful ways of bringing it about. One day, Josh is struck by lightning and dies, much to Jane's delight. Jane is guilty of no crime, since she committed no act to help bring about Josh's death.

2. Jane wishes Josh were dead. She takes a butcher knife and plunges it into Josh, intending to kill him. Josh dies. Jane is guilty of a crime (murder) since she undertook a criminal act (plunging the knife into Josh) while possessing the necessary criminal intent (the intent to kill him).

3. Jane, while deer hunting, sees the luckless Josh in the woods 100 yards away. He is wearing a tan deerskin-colored coat and hat and crawling on all fours looking for a lost contact lens. Believing Josh to be a deer, Jane shoots and kills him. Jane is not guilty of a crime under the facts given, despite the fact that a criminal act was committed (homicide), since she lacked the required criminal intent. (The wrongful act was caused by a mistake rather than the intent to do harm.)

In general, failure to act will not result in criminal liability unless the accused had a duty to act. In our society, individuals are generally free to stand by and do nothing when others are faced with danger unless:

1. There is a special relationship that by its nature requires the bystander to come to the assistance of the person in danger; or

2. The dangerous situation was caused or contributed to by the bystander.

If a special relationship exists that imposes a duty to act on a bystander, or if the bystander contributed through his actions to placing the victim in a dangerous situation, then the bystander will be guilty of criminal omission if he does not render assistance. The following example will illustrate:

Sam, a sadistic sociopath who enjoys others' suffering, watches as a sightless stranger crosses a busy intersection while a tractor-trailer approaches her at a high rate of speed. He does not warn the stranger of the danger or move to assist her. If the truck strikes the sightless woman, Sam will not generally be guilty of any crime. As a stranger, he has no duty to warn or assist another in danger. His failure to do so is clearly morally reprehensible, but since he did not place the woman in the dangerous situation and owed her no legal duty, he is guilty of no crime in failing to assist her through word or deed. Sam would, however, have had an af�irmative duty to at least warn the woman if he were the woman's husband or father, or if he were a police of�icer on duty whose responsibility is to protect and safeguard the welfare of all citizens in his community.

It is possible to be guilty of a crime without having the required criminal intent in a few kinds of special cases. There are certain types of behavior that legislatures want to prevent regardless of the intent of the person engaging in the behavior, usually because of the inherently dangerous nature of the behavior and the danger it poses to others. Such criminal offenses are termed strict liability crimes. Whenever a strict liability crime is involved, the only issue is whether the act was committed; the mental state of the person committing the act is irrelevant. Typical strict liability offenses include traf�ic violations and driving while under the in�luence of alcohol or other drugs. If a person is accused of speeding or running a red light, for example, all that needs to be shown by the prosecutor is that the act occurred. It is irrelevant that the accused did not intend to speed or did not see the red light before crossing it; what is punishable is the act itself. Likewise, with driving while under the in�luence or driving with ability impaired, the fact that the accused may not have intended the violation or was so intoxicated that he or she lacked the ability to form criminal intent is irrelevant.

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Types of Crimes

6.2 Classi�ication of Crimes Traditionally, crimes have been classi�ied into three basic categories based upon their seriousness: felonies, misdemeanors, and violations. Felonies are the most serious crimes and are punishable by more than one year's imprisonment in a state or federal penitentiary. Misdemeanors are less serious criminal offenses that can carry a maximum penalty of one year's imprisonment. Violations are minor offenses that typically are punishable by a �ine or short prison sentence of 30 days or less.

Felonies and misdemeanors are further subdivided into other categories based upon the maximum penalty by which they are punishable. The following example is typical, but be aware that, in keeping with our common law system, there is great variation in the criminal statutes among the states in both the classi�ications and punishment of crimes.

First-degree felony: Punishable by death or imprisonment from 15 years to life, or by a �ine of up to $250,000

Second-degree felony: Punishable by imprisonment of up to 15 years and/or a �ine of up to $10,000

Third-degree felony: Punishable by imprisonment of up to 5 years and/or a �ine of up to $5,000

Violations are also classed by their type and the maximum sentence or �ine to which violators can be subjected. Common violations include minor traf�ic infractions as well as such offenses as littering and spitting on the sidewalk. The maximum �ine for each violation is commonly $500 or less.

Types of Crimes From Title: Crime, Law, and Enforcement: Due Process (https://fod.infobase.com/PortalPlaylists.aspx?wID=100753&xtid=48002)

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6.3 Crimes in Business: White Collar Crime The most common type of crime that you will experience in your work life is socalled white collar crime. When most people speak of white collar crime, they mean nonviolent state or federal crimes committed in a business setting. There are literally hundreds of types of white collar crimes, ranging from insurance fraud to embezzlement, so it is impossible to cover all of these in one textbook. As a manager, your primary concerns should be the following:

1. Not engaging in illegal behavior, even unknowingly;

2. Keeping clear, concise, and organized records in the event that your business is investigated or subpoenaed;

3. Complying with all local, state, and federal taxes; and

4. Complying with all laws regarding workers, such as those from the Occupational Safety and Health Administration (OSHA), workers' compensation board, Social Security, and the Federal Insurance Contributions Act (FICA).

Furthermore, as an employee, rather than a manager, you should be aware of your duty to not engage in illegal activity even when ordered to do so by a superior. Following orders is not an excuse for illegal conduct and can result in criminal charges.

Fraud in the Workplace

As a manager, it is important that you be acutely aware of fraud in the workplace. In a 2012 survey of businesses, the Association of Certi�ied Fraud Examiners determined that the typical organization loses 5% of its revenues to fraud each year, which translates to $3.5 trillion worldwide per year for all businesses—a staggering amount (Report to the Nations on Occupation Fraud and Abuse: 2012 Global Fraud Study). Fraud is the most likely crime to take place at work, and perhaps surprisingly, the fraud perpetrator usually has no prior fraud charges or convictions. Employees who commit fraud at work are most likely to be in one of six departments: accounting, operations, sales, executive/ upper management, customer service, or purchasing.

Computer Fraud and Hacking

One of the more likely types of fraud taking place in business is computer fraud. The federal statute law that governs this crime is known as the Computer Fraud and Abuse Act (18 USC §1030). This federal law makes the following acts illegal:

1. Intentionally accessing a computer without authorization to obtain: Information contained in a �inancial record of a �inancial institution, or contained in a �ile of a consumer reporting agency on a consumer;

Information from any department or agency of the United States; or

Information from any protected computer;

2. Intentionally accessing without authorization a government computer and affecting the use of the government's operation of the computer; and

3. Knowingly accessing a protected computer with the intent to defraud and thereby obtaining anything of value.

For example, in International Airport Centers v. Citrin (which can be found at here (http://caselaw.�indlaw.com/us-7th-circuit/1392048.html) ), an employee erased all the information on his laptop computer when he quit his job. Much of the data he erased was valuable information that the company needed. One reason he chose to delete all the �iles was to hide his own improper conduct. The provision of the Computer Fraud and Abuse Act (CFAA) on which the employer relied was successfully applied against the employee.

Consider the key excerpts from the following case (citations omitted) and its application of the CFAA to an employee:

Cases to Consider: U.S. v. Nosal

U.S. v. Nosal (676 F.3d 854) C.A.9 (Cal.) (2012)

Computers have become an indispensable part of our daily lives. We use them for work; we use them for play. Sometimes we use them for play at work. Many employers have adopted policies prohibiting the use of work computers for non-business purposes. Does an employee who violates such a policy commit a federal crime? How about someone who violates the terms of service of a social networking website? This depends on how broadly we read the Computer Fraud and Abuse Act.

David Nosal used to work for Korn/Ferry, an executive search �irm. Shortly after he left the company, he convinced some of his former colleagues who were still working for Korn/Ferry to help him start a competing business. The employees used their log-in credentials to download source lists, names and contact information from a con�idential database on the company's computer, and then transferred that information to Nosal. The employees were authorized to access the database, but Korn/ Ferry had a policy that forbade disclosing con�idential information. The government indicted Nosal on twenty counts, including trade secret theft, mail fraud, conspiracy and violations of the CFAA. The CFAA counts charged Nosal with violations of 18 U.S.C. §1030(a)(4), for aiding and abetting the Korn/ Ferry employees in "exceed[ing their] authorized access" with intent to defraud.

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Nosal �iled a motion to dismiss the CFAA counts, arguing that the statute targets only hackers, not individuals who access a computer with authorization but then misuse information they obtain by means of such access.

Discussion

The CFAA de�ines "exceeds authorized access" as "to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter." 18 U.S.C. §1030(e)(6). This language can be read either of two ways: First, as Nosal suggests and the district court held, it could refer to someone who's authorized to access only certain data or �iles but accesses unauthorized data or �iles—what is colloquially known as "hacking." For example, assume an employee is permitted to access only product information on the company's computer but accesses customer data: He would "exceed [ ] authorized access" if he looks at the customer lists. Second, as the government proposes, the language could refer to someone who has unrestricted physical access to a computer, but is limited in the use to which he can put the information. For example, an employee may be authorized to access customer lists in order to do his job but not to send them to a competitor.

***

Congress enacted the CFAA in 1984 primarily to address the growing problem of computer hacking, recognizing that, "[i]n intentionally trespassing into someone else's computer �iles, the offender obtains at the very least information as to how to break into that computer system."

Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by g-chatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use policies, although employees are seldom disciplined for occasional use of work computers for personal purposes. Nevertheless, under the broad interpretation of the CFAA, such minor dalliances would become federal crimes. While it's unlikely that you'll be prosecuted for watching Reason.tv on your work computer, you could be. Employers wanting to rid themselves of troublesome employees without following proper procedures could threaten to report them to the FBI unless they quit. Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.

Enforcement of the CFAA against minor workplace dalliances is not chimerical. Employers have invoked the CFAA against employees in civil cases.

***

Employer-employee and company-consumer relationships are traditionally governed by tort and contract law; the government's proposed interpretation of the CFAA allows private parties to manipulate their computer-use and personnel policies so as to turn these relationships into ones policed by the criminal law.

Basing criminal liability on violations of private computer use policies can transform whole categories of otherwise innocuous behavior into federal crimes simply because a computer is involved. Employees who call family members from their work phones will become criminals if they send an email instead. Employees can sneak in the sports section of the New York Times to read at work, but they'd better not visit ESPN.com.

. . . The Internet is a means for communicating via computers: Whenever we access a web page, commence a download, post a message on somebody's Facebook wall, shop on Amazon, bid on eBay, publish a blog, rate a movie on IMDb, read www.NYT.com (http://www.nytimes.com/) , watch YouTube and do the thousands of other things we routinely do online, we are using one computer to send commands to other computers at remote locations. Our access to those remote computers is governed by a series of private agreements and policies that most people are only dimly aware of and virtually no one reads or understands.

For example, it's not widely known that, up until very recently, Google forbade minors from using its services. . . . Adopting the government's interpretation would turn vast numbers of teens and pre-teens into juvenile delinquents—and their parents and teachers into delinquency contributors. Similarly, Facebook makes it a violation of the terms of service to let anyone log into your account. ("You will not share your password, . . . let anyone else access your account, or do anything else that might jeopardize the security of your account.") (last visited Mar. 4, 2012). Yet it's very common for people to let close friends and relatives check their email or access their online accounts. Some may be aware that, if discovered, they may suffer a rebuke from the ISP or a loss of access, but few imagine they might be marched off to federal prison for doing so.

Not only are the terms of service vague and generally unknown—unless you look real hard at the small print at the bottom of a webpage— but website owners retain the right to change the terms at any time and without notice. Accordingly, behavior that wasn't criminal yesterday can become criminal today without an act of Congress, and without any notice whatsoever.

The government assures us that, whatever the scope of the CFAA, it won't prosecute minor violations. But we shouldn't have to live at the mercy of our local prosecutor. And it's not clear we can trust the government when a tempting target comes along. Take the case of the mom who posed as a 17-year-old boy and cyber-bullied her daughter's classmate. The Justice Department prosecuted her under 18 U.S.C. §1030(a)(2)(C) for violating MySpace's terms of service, which prohibited lying about identifying information, including age. See United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009). Lying on social media websites is common: People shave years off their age, add inches to their height and drop pounds from their weight.

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We therefore respectfully decline to follow our sister circuits and urge them to reconsider instead. For our part, we continue to follow in the path blazed by Brekka, 581 F.3d 1127, and the growing number of courts that have reached the same conclusion. These courts recognize that the plain language of the CFAA "target[s] the unauthorized procurement or alteration of information, not its misuse or misappropriation."

Conclusion

Because Nosal's accomplices had permission to access the company database and obtain the information contained within, the government's charges fail to meet the element of "without authorization, or exceeds authorized access" under 18 U.S.C. §1030(a)(4). Accordingly, we af�irm the judgment of the district court dismissing counts 2 and 4–7 for failure to state an offense. The government may, of course, prosecute Nosal on the remaining counts of the indictment.

Af�irmed.

Read the full text of the case here (http://www.ca9.uscourts.gov/datastore/opinions/2012/04/10/10-10038.pdf) .

Questions to Consider

1. What does the Computer Fraud and Abuse Act make illegal?

2. What was the defendant in this case charged with doing that was allegedly illegal?

3. What did the court say was legal under the act? What did the court say was illegal under the act?

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6.4 Crimes Against Property Crimes against property include offenses that result in the destruction of property or the permanent or temporary deprivation of the owner's right to exclusively use and enjoy real or personal property.

Arson

Under common law, arson was de�ined as the intentional burning of another's home. Today, the de�inition of arson has been substantially expanded in the criminal law statutes of most jurisdictions to include the intentional burning of another's occupied structure or the intentional burning of any property, including one's own, for the purpose of collecting insurance. For purposes of arson, an occupied structure is usually de�ined as any personal or real property that is constructed so as to permit overnight accommodation of persons or the conducting of business therein, whether or not the structure is actually occupied at the time that it is burned. Thus, all homes and businesses are subject to arson, as are mobile homes and trailers that are set up for human occupancy. Arson is typically a second-degree felony.

Criminal Mischief

Damaging the personal or real property of another purposely, recklessly, or negligently by the use of explosives, �ire, or other dangerous means constitutes criminal mischief. Criminal mischief can be a third-degree felony, a class A, B, or C misdemeanor, or a violation, depending on the nature and extent of the damage caused. (Under §220.3, paragraph 2 of the Model Penal Code, for example, it is a third-degree felony if damage in excess of $5,000 is caused, a misdemeanor if more than $100 but less than $5,000 in damages is caused, a petty misdemeanor if more than $25 but less than $100 in damages is caused, and a violation if $25 or less in damages results from the criminal mischief.)

Burglary

Under common law, burglary was de�ined as breaking and entering into the dwelling house of another at night with the intent to commit a serious crime inside. As is the case with arson, modern criminal law statutes have liberalized the de�inition to be less restrictive. A common de�inition of burglary today is breaking and entering any occupied structure with the intent of committing any crime inside. The requirement of a breaking is ful�illed whenever the burglar exerts any amount of force to gain access to a building; turning a doorknob or gently pushing in a door that is unlocked both constitute a suf�icient breaking in most states. The requirement of entering is satis�ied by the intrusion of any part of a person or any tool in his or her control into the occupied structure. The crime is complete as soon as the breaking and entering is accomplished, provided that the burglar intended to commit a crime inside (see Section 6.1 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/sec6.1#sec6.1) , Elements of a Crime).

The following three examples constitute the crime of burglary.

Bob Burglar kicks in a door and enters Victoria Victim's home in order to steal her valuables. Once inside, he is scared off by Victoria wielding a shotgun before he has a chance to take anything of value.

Belinda Burglar pushes an unlocked door and walks into Vince Victim's apartment in order to physically assault him.

Ben Burglar slides open a window to Victoria's home and, using a �ishing pole, manages to hook and reel in a purse and a gold chain from her nightstand as she sleeps.

Bob, Belinda, and Ben are all guilty of burglary since the requirement of breaking and entering with a criminal intent is met in all three cases. Notice that in the third case, Ben never physically enters Victoria's home; nevertheless, when he casts the �ishing line through the window, it is the same as if he had entered himself. Notice too, in that example, that the sliding up of an unlocked window constitutes a suf�icient breaking, and the crime is complete as soon as the line is cast through the window with the intent to commit a crime (stealing the purse and chain), even if he fails to snag the personal property after several casts and goes away empty handed.

Burglary is usually a third-degree felony, but it can be raised to a second-degree felony in many states if the crime is committed at night, if anyone is injured during the commission of the crime, or if the burglar carries a deadly weapon during the burglary.

Criminal Trespass

Anyone who knowingly enters real property owned by another without permission to do so is guilty of criminal trespass, a misdemeanor. Entering any building not open to the general public without permission constitutes criminal trespass, as does the entering into posted land that warns intruders not to trespass, or the entering into land that the trespasser knows or reasonably should have known belongs to another. Failure to leave another's property when instructed to do so also constitutes trespass, even if the trespasser originally was given permission to enter the land by its owner or tenant. Willfully throwing a rock onto another's land is trespass, as is �iring a bullet or arrow above another's land—even if the bullet or arrow never touches the ground. On the other hand, if a ball accidentally bounces onto a neighbor's land when children are playing basketball, it would not constitute trespass because the ball was not intentionally thrown there. But the intentional act of retrieving the basketball without consent would constitute trespass.

Under common law, property rights extended below one's real property (subsurface rights) to the center of the earth and above one's property (air rights) all the way to the heavens. Today, every jurisdiction limits air rights, typically to a given number of feet above the tallest structure on one's land. Were this

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not the case, it would be virtually impossible to engage in civil aviation, and even satellites orbiting miles above the earth would be trespassing on landowners' air rights.

Robbery

A theft that is accomplished through either the use of force or the threat of force constitutes the crime of robbery. Robbery is usually a second-degree felony, but it can become a �irst-degree felony if the perpetrator in�licts or attempts to in�lict serious bodily harm during the course of the crime.

Larceny

The intentional taking and carrying away of the property of another with the intent to permanently deprive the owner of its use constitutes the crime of larceny. Larceny can be either a third-degree felony or misdemeanor, depending upon the value of the stolen property.

Embezzlement

The misappropriation of property in one's care belonging to another constitutes the crime of embezzlement, which is typically punishable the same as larceny.

Receiving Stolen Property

A person who purchases or otherwise acquires stolen property is guilty of the crime of receiving stolen property, which is usually punishable exactly the same way as larceny, provided that the property is received with actual knowledge that it was stolen or under circumstances that should have made the receiver suspicious that it might be stolen.

Theft of Services

A person who knowingly receives the bene�it of services that are available for compensation through the use of deception or any physical means to avoid paying for such services is guilty of theft of services, a crime punishable the same way as larceny. Common examples of theft of services include using slugs in public telephones, vending machines, or parking meters, as well as illegal hookups to cable services and the use of illegal descramblers to obtain scrambled satellite broadcasts.

Forgery

The crime of forgery consists of any material alteration to a written document issued by another that is made in order to defraud or mislead anyone. The crime of forgery is a felony or misdemeanor depending on the nature of the offense. Altering government or commercial enterprise instruments that purport to have monetary value, such as currency, stamps, stocks, bonds, and similar instruments, represents a second-degree felony. Altering documents that affect legal relationships, such as wills, trusts, deeds, contracts, and claims releases, is a felony in the third degree. Any other forgery, such as the material alteration of the date in a driver's license, is a misdemeanor.

Issuing a Bad Check

It is a misdemeanor to issue a bad check: a check drawn on an account that no longer exists or on an account with insuf�icient funds to honor the check when it is presented. In many states, a person may avoid criminal liability for such checks, also known as bounced checks, by promptly paying the due amount (typically within 10 days of the notice of dishonor).

Credit Card Fraud

Using a forged or stolen credit card to obtain goods, services, or cash advances and using a credit card after it has been canceled or recalled constitutes credit card fraud. Credit card fraud is usually a third-degree felony if the amount of the fraudulent charge exceeds $500 or a misdemeanor if the amount is $500 or less.

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6.5 Bribery, Extortion, and Crimes Against the Judicial Process To ensure fairness in the administration of justice and in the normal conduct of business, the criminal statutes of every state prohibit conduct that seeks to interfere with fair business practices or the impartial administration of justice.

Bribery of a Public Official

At common law, the crime of bribery consisted of promising to give something of value in exchange for a public of�icial's of�icial conduct. The solicitation, acceptance, or promise to give or accept a bribe—called bribery of a public of�icial—is all equally punishable as a misdemeanor. The consideration involved need not be monetary; a promise of sexual favors made to a judge, police of�icer, or housing inspector for favorable of�icial action is as much bribery as a promise to exchange money or goods for such action.

Commercial Bribery

It is a misdemeanor in most states to solicit, accept, or agree to accept anything of value in exchange for violating a duty of �idelity owed to one's employer, client, or company as an employee, of�icer of a corporation, partner, trustee, guardian, or member of a profession. Commercial bribery applies to a wide variety of settings and would include each of the following:

A promise by a parent to pay a little league umpire $100 if he does not call a child out on strikes;

A promise to give the CEO of XYZ Company an executive position in ABC Company if she discloses trade secrets;

An offer by a plaintiff 's attorney to a defendant's attorney in a civil suit to pay him $100,000 if he loses the case;

An offer of a new car by an unquali�ied applicant to Ivy League University to the director of admissions if she is accepted as a student;

An offer of a designer suit made by Failing Student to Scruffy Professor in exchange for a passing grade.

Threatening a Public Official

Threatening any public of�icial with harm in order to in�luence of�icial action is a misdemeanor. Making similar threats to in�luence a judicial or administrative proceeding, however, is a third-degree felony. (Members of a jury are deemed public of�icials for purposes of this crime.)

Influence Peddling

It is a misdemeanor to solicit, receive, or agree to receive any consideration for the trading of political in�luence by a public servant. This crime, called in�luence peddling, includes the solicitation, giving, or receiving of a political endorsement by a public of�icial in exchange for something of value.

Perjury

Making a material misrepresentation while under oath or through a sworn statement (such as an af�idavit) constitutes the crime of perjury, a third-degree felony. A misrepresentation is material if it can affect the course or outcome of a proceeding.

Tampering With Public Records

It is a misdemeanor to knowingly falsify, destroy, or attempt to hide any of�icial government record or document. This crime, called tampering with public records, also includes creating or using falsi�ied documentation issued by the government, such as using a false Social Security or Alien Registration Card. If the tampering is done to defraud or injure anyone, then the offense is a third-degree felony. Simply carrying a false Social Security card, for example, is a misdemeanor, but using it to attempt to obtain social services that one is not entitled to receive, thereby defrauding the government, is a third-degree felony.

Obstruction of Justice

Any intentional interference with the administration of justice in a person's of�icial or private conduct is a misdemeanor called obstruction of justice, regardless of whether such interference is obtained through physical force or of�icial action. Physically interfering with an arrest, disrupting courtroom proceedings, or giving false information that misleads police in an investigation are all examples of obstructing justice.

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6.6 Attempted Crimes and Criminal Conspiracy The law punishes not only completed criminal acts, but also the attempted commission of a crime that for some reason is not completed. In addition, conspiring to commit a crime, whether or not the crime is ultimately committed, is a separate offense unto itself.

Aiding in the Commission of a Crime

Any assistance rendered to a criminal in the commission of a crime, called aiding in the commission of a crime, and hiding or converting the proceeds of criminal activity are punishable as a misdemeanor. If the underlying crime was a �irst- or second-degree felony, however, then facilitating its commission is a third-degree felony.

The Crime of Attempt

Under the Model Penal Code and the criminal codes of most states, the attempt to commit a crime that is not ultimately carried out is punishable to the same degree that the crime itself would have been punishable if completed. In general, in order to convict a criminal defendant for a crime of attempt, all that is necessary is that the defendant have taken a substantial step toward committing the criminal act and that the defendant have acted with the required criminal intent. The penalty for attempting a crime is the same as that for committing the crime attempted, with the exception that �irst-degree crimes become second-degree attempted crimes.

For example, attempted murder is a second-degree felony because murder is a �irst-degree felony. But attempted robbery is a second-degree felony because robbery is a seconddegree felony, and attempted larceny is either a third-degree felony or a misdemeanor depending on the value of the goods, exactly as is the case with larceny itself.

It must be noted that a defendant can be tried and convicted for either the attempt to commit a crime or the crime itself, but not both.

Criminal Conspiracy

Either planning and agreeing to commit a crime with others or agreeing to assist others in the commission of a crime results in the crime of criminal conspiracy. Criminal conspiracy, like the crime of attempt, is subject to the same punishment as the underlying crime that the conspirators intend to perpetrate. As is the case with the crime of attempt, criminal conspiracies to commit crimes that are �irst-degree felonies are punished as seconddegree felonies, and the punishment for conspiring to commit any second-degree felony or lower crime is exactly the same as for the underlying crime itself.

The crime of conspiracy is a completely separate crime from the underlying crime that the conspirators intend to commit. Therefore, persons found guilty of criminal conspiracy can also be found guilty of the underlying crime that the conspirators perpetrated, or its attempt if the crime was not fully carried out. The following example will illustrate.

Tom, Dick, and Harriet agree to kill Bill Billionaire and to steal the valuables from his home. Tom agrees to buy a gun from a local illegal gun dealer that specializes in untraceable weapons, Dick agrees to drive the car and disable Bill's alarm system, while Harriet agrees to do the actual killing. On the appointed day, the three thugs arrive at Bill's home and break in. Harriet attempts to shoot Bill several times, but the gun jams and will not �ire. The three panic, run out, and are arrested a short time later. They are charged with burglary and criminal conspiracy to commit murder, and Harriet is charged with attempted murder. Under the facts given, the three are guilty on all counts.

Despite the fact that there was a criminal conspiracy to commit more than one crime in the example (burglary and murder), there can be only a single conviction for any conspiracy that is ongoing. In this case, the conspiracy charge would be based on attempted murder rather than burglary, since it is the more serious offense. Similarly, if a group of bank robbers plan and execute a dozen successful robberies, they can be charged with 12 separate counts of bank robbery but only a single count of conspiracy to commit bank robbery, since the criminal af�iliation was ongoing and subject to the same agreement by the parties to commit the crimes.

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6.7 Defenses to Criminal Liability As previously noted, there are two prerequisites to criminal liability: a criminal act and criminal intent. Unless a prosecutor can establish both beyond a reasonable doubt, the defendant is entitled to an acquittal. It stands to reason, then, that criminal defendants can avoid a conviction by presenting evidence that they did not commit the criminal act (such as an alibi that shows they were not present in the area at the time the crime was committed) or, if the criminal act occurred, that the defendant lacked the required intent for criminal culpability. To put it another way, criminal defense attorneys have two basic pillars on which to base their defense: that the act in question was not committed by the criminal defendant or that, if the act was committed, the defendant did not possess the requisite criminal intent. In addition, behavior that is normally criminal may be justi�iable under certain circumstances, such as the intentional in�liction of bodily harm to another in self-defense.

In a criminal trial, the prosecutor must establish beyond a reasonable doubt both that a criminal act occurred and that the defendant committed the act with the required criminal intent. In turn, all that counsel for the defense needs to do in order to be entitled to an acquittal is to inject a reasonable doubt into the minds of jurors as to the defendant having committed the alleged act or as to the defendant having acted with the required criminal intent. Even in situations when the defense cannot effectively raise a reasonable doubt as to a defendant's guilt, there are some af�irmative defenses that the defense can raise to excuse criminal liability. When any of the af�irmative defenses is raised at trial, the burden of proof is on the defendant's attorney to prove the defense by a preponderance of the evidence. The following example will illustrate.

Andrew Angry runs up to Don Dunderhead, a candidate for political of�ice in his state, yelling "I'm going to punch your lights out, you blundering idiot. I've been listening to your meandering speeches for months and have yet to hear you say a single thing that makes any sense." Andrew then jumps onto the speaker's platform and beats Don silly. At his trial for aggravated assault, Andrew's attorney won't be able to deny either the act or the intent, since both were broadcast for a week over every television news program. But she might be able to assert an af�irmative defense, such as insanity or intoxication, to win Andrew's acquittal.

Speci�ic defenses to criminal liability include insanity, intoxication, infancy, self-defense, defense of others, defense of property, and entrapment.

Insanity

The basic premise behind the insanity defense is that a person who, owing to some mental illness or de�iciency, commits a criminal act that he or she would not otherwise commit should not be held responsible for such an act. A defendant who effectively raises an insanity defense in fact proves to the satisfaction of the jury that, even though he or she committed the criminal act as charged, the act was committed without the requisite criminal intent. In other words, whenever the insanity defense is successfully used, the defense convinces the jury that although a criminal act was committed, its cause was not criminal intent but rather the defendant's mental in�irmity.

Intoxication

The defense of intoxication is very similar to the insanity defense in that it seeks to exculpate criminal behavior by showing that, at the time the behavior took place, the criminal defendant was incapable of forming criminal intent because he or she was intoxicated.

If the intoxication is involuntary, the intoxication is treated exactly in the same manner as insanity. If, for example, a state subscribes to the Model Penal Code de�inition of insanity, then a person who is involuntarily intoxicated cannot be found guilty of a crime if the intoxication prevented the defendant at the time of committing the criminal act from recognizing the wrongfulness of his conduct or from conforming his conduct to the requirements of the law. In order to qualify for involuntary intoxication, the defendant must establish that he or she was tricked or forced into taking the intoxicating substance.

In cases of voluntary intoxication, where the defendant took the intoxicating substance freely, the effect on the defense varies depending on the nature of the crime. If the crime is one that requires a �inding of willful criminal intent in order to prove culpability, as is the case with such offenses as murder, rape, or robbery, then it makes no difference whether the intoxication was voluntary or involuntary. Voluntary intoxication will not be a valid defense, however, when the crime is one that does not require willful criminal intent, such as a strict liability crime (driving while intoxicated or general traf�ic offenses, for example) or a crime based on negligence or recklessness, such as reckless endangerment or negligent homicide. The following two examples will illustrate.

Juan while at a party eats several cookies that, unknown to him, have been laced with LSD. An hour later, while his world seems to melt around him, Juan burns down his college's administration building and drives away in the college president's car. He then drives the car at 95 miles per hour in a 15-mph school zone, killing a pedestrian. He is charged with arson, vehicular manslaughter, larceny of the automobile, speeding, and driving while intoxicated. In most states, he has a valid defense of involuntary intoxication to all charges, since none of the offenses would have been committed but for his unintentional intoxication.

If Juan committed the above offenses after voluntarily drinking a �ifth of vodka while at the party and became so drunk as to lose the ability to know what he was doing, however, his voluntary intoxication would be a valid defense in most states to the arson and larceny charges, for they require willful intent, but not to the manslaughter, speeding, or driving-while-intoxicated charges, since these are offenses based on recklessness and strict liability.

Self-Defense

A person is free to use reasonable force in defense against an unprovoked attack. A person may generally use any necessary force to repel a physical attack or the threat of an attack. A person faced with an attack that he or she reasonably believes may cause death or serious bodily injury may use any physical

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force to repel such a threat or attack, up to and including deadly physical force. The key to the justi�ication of the use of force is the reasonableness in the mind of the victim of the perceived danger. If, for example, a mugger pulls a realistic-looking toy gun on a victim who shoots him with a real gun in response, the victim of the mugging would be justi�ied in repelling the attack even if the mugger were killed in the process, provided that he or she reasonably feared death or serious injury before fending off the attack. If the mugger's gun in the last example were clearly visible to the victim as a neon- green, transparent toy water pistol, however, the shooting in self-defense would not be justi�ied. In addition, some states require that a victim exhaust all reasonable options, including �light from the scene, where practical, before resorting to the use of deadly force (other states have laws that allow would-be victims to "stand their ground"). Even in states where the victim must exhaust reasonable options, though, he or she may generally use deadly force to repel a reasonably perceived threat of death or serious injury within his or her own home without �irst trying to evade the home invader.

Defense of Others

In every state, a person who rushes to the aid of another who is being victimized may use as much force in defending the person as the person could use himself in his own defense. Thus, if Susan, a passerby, sees Sam with his back against a wall being held up by a gunman who is threatening to kill him, she can use any force against the assailant that Sam himself could use (she can injure or even kill the assailant in this example, since Sam is clearly in danger of death or serious bodily injury). A problem arises for good Samaritans when, as is often the case, they act impulsively and base their actions on how things appear, not how they actually are.

Mohammed, a passerby, notices Carla, who is dressed as a police of�icer, being held at gunpoint by Frank, whom he hears saying "If you move, I'll shoot." Mohammed, sure that a police of�icer is in danger, tackles Frank, wrestles with him for the gun, and shoots him during the scuf�le. Later, he learns that Frank was an undercover police of�icer attempting to arrest Carla, who had held up a convenience store while impersonating a police of�icer.

Mohammed's fate as a mistaken good Samaritan depends upon the state where the action occurred. In some states, Mohammed's actions would be judged simply on their reasonableness under the circumstances; if a reasonable person would have believed Carla to have been a police of�icer in danger, then Mohammed's actions would be justi�ied and not subject him to criminal liability. In other states, however, good Samaritans are held to "stand in the shoes" of persons they try to defend; in such states, a person can use only as much force as the perceived victim had a legal right to use against the perceived attacker. In a state with such a rule, Mohammed would be criminally liable for the injury in�licted on Frank (the undercover police of�icer) since Carla, the person he perceived to be a victim, in fact had no actual right to defend herself under the circumstances.

Defense of Property

All states recognize the right of an individual to protect property from being taken, misused, or damaged by another. Any force short of deadly physical force (force that may reasonably be expected to cause death or life-threatening injury) may be used to protect one's property. In other words, you may threaten, restrain, or physically prevent another from harming or taking your property, but you may not kill or seriously wound another merely to protect your property. Keep in mind that you may use deadly physical force if you reasonably feel threatened with death or serious bodily injury. For example, in most states, you may use deadly force to protect yourself from a carjacking during the course of which you are threatened with serious injury, but you may not use deadly force to prevent your car from being stolen from your driveway by shooting the thief from inside your home when you are not directly being threatened.

Entrapment

A person who is enticed or convinced to commit a crime by law enforcement agents when he or she is not otherwise predisposed to commit such a crime can escape criminal liability by asserting the defense of entrapment. In order to successfully assert the defense, the criminal defendant must prove two elements:

1. That the commission of the crime was instigated or enticed by a law enforcement agent(s); and

2. That the crime would not have been committed but for the enticement or instigation of the law enforcement agent(s).

It is not enough for a defendant to show that police provided the opportunity for the crime to occur or that police suggested the crime's commission; to successfully assert an entrapment defense, the defendant must show that he or she was not predisposed to commit the crime. Let's look at two examples for the sake of clari�ication.

Lina, an undercover police of�icer, offers to purchase a vial of crack cocaine from Freddy, a drug dealer. Freddy sells Lina the crack and Lina immediately arrests him.

Lyssandra, a special agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), offers Rosalie, a state legislator, $20,000 to transport a kilogram of heroin from a contact in Mexico. Rosalie initially refuses, but Lyssandra manages to convince her, wearing down her resistance through the use of hard-sell tactics over a period of several weeks. When Rosalie delivers the drugs, Lyssandra arrests her for drug traf�icking.

Freddy, in the �irst example, will not be able to successfully assert the defense of entrapment. Even though he was approached by a police of�icer, he was clearly predisposed to commit the crime and was not in any way convinced to do so. In the second example, however, Rosalie will be able to successfully assert the defense of entrapment, since it is clear from the facts given that she was not predisposed to commit the crime but was convinced to do so by Lyssandra.

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In the real world, the more pressure a police of�icer needs to exert on a would-be perpetrator to agree to commit the illegal act, the likelier it is that the defendant will be able to successfully assert the defense of entrapment. A criminal defendant who offers little or no resistance to the suggestion of committing a crime will not be able to successfully assert the defense of entrapment. One of the key elements for prosecutors trying to overcome the defense when it is raised is the criminal predisposition of the defendant to commit the crime. Predisposition is usually shown by a pattern of previous behavior; thus, persons who are enticed by police to commit criminal acts that they are known to have committed in the past have a very dif�icult time in raising the defense of entrapment because their previous acts point to a predisposition to commit the crime they are charged with.

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6.8 Responding to a Criminal Investigation This section will cover two events that may take place during the course of a criminal investigation, search and seizure and grand jury inquiries.

Search and Seizure

The Fourth Amendment provides that a search of a person or place and the seizure of a person (arrest) or property cannot take place without probable cause. Probable cause is a standard meaning "more likely than not that a crime has been committed." If the police see someone sell another person crack cocaine, there is probable cause to arrest, for example, because the crime is being committed in front of the police, or "in plain view." If there is probable cause, but the crime is not committed in plain view, the police may obtain either a search or arrest warrant, which may be served on a business or residence. The seizure of people or property can then legally take place. From a strictly legal (as opposed to ethical) point of view, if a police of�icer arrives at a place of business without a warrant and makes inquiries about business activities or a particular employee, the business does not have to answer those questions or turn over any documents.

If serious crimes are involved, the district attorney will most likely convene a grand jury to bring a criminal proceeding against a business or individual, as described next.

Grand Jury Inquiries

Criminal charges for white collar crime will most likely begin with proceedings in a grand jury. Grand juries are convened by the state or federal prosecutor for the purpose of presenting evidence to a group of jurors, who then determine whether there is enough evidence to issue an indictment, which is a formal criminal charge against the defendant.Grand juries can conduct extensive investigations and subpoena all sorts of records. One question that may confront you as a manager is how you should appropriately respond to a subpoena.

The subpoena may be for a person to appear before the grand jury, for the production of records, or both (i.e., for a person to bring speci�ic records). A subpoena is an order from the court that can take a number of forms. A subpoena test is an order to show up at a deposition to give testimony. A subpoena duces tecum is an order issued to produce records. A simple subpoena is an order to show up at a criminal proceeding to testify.

The subpoena will most likely be served at the workplace by a police of�icer or, if a federal matter, by an FBI agent. To prevent the embarrassment of being served at work, a business should have its attorney receive the subpoena, if possible.

As a general rule, the materials (�iles) requested in a subpoena are presumed to be reasonable under the case U.S. v. R. Enterprises, Inc. (498 U.S. 292, 111 S. Ct. 722, 112 L.Ed.2d 795 [1991]), unless "there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury investigation." Since it is relatively easy to show that any information is relevant to any procedure, this standard is considered extremely low, meaning that anything is subject to the subpoena. As a manager, it is imperative that you respond to a subpoena in a timely and professional manner. This means that you should contact the of�ice that issued the subpoena, show up at court early, dress professionally, and present all records in an organized manner. The best circumstance, of course, is to refer the matter to the business's counsel where a subpoena is concerned, since it indicates that a serious criminal matter is under way.

In the event that the subpoena or the legal proceeding personally involves you in any way, then it is imperative that you hire your own attorney and that your attorney respond to the subpoena and deal directly with the prosecutor's of�ice. Even if you have the best intentions and are completely innocent, criminal proceedings are intimidating, complicated, and can result in serious consequences. The cost of hiring an experienced criminal defense attorney is well worth protecting your freedom. Although your attorney cannot be present inside the grand jury room if you testify, you can leave the grand jury room and confer with your attorney to obtain advice about your answers during the session.

For further information about responding to criminal actions, consult the following:

1. "Business Crime: What to Do When the Law Pursues You (http://www.mitexeced.com/lal/images/51333_sloan-rev.pdf) ," by John Akula, MIT Sloan Management Review.

2. Responding to Federal Criminal Trial Subpoenas (http://www.orrick.com/�ileupload/2121.pdf) ; and Federal Grand Jury Crash Course (http://corporate.�indlaw.com/litigation-disputes/federal-grand-jury-crash-course.html) .

3. Federal Practice: Responding to a Subpoena (http://www.weil.com/�iles/Publication/925ba5e1-3ebb-4758-8e83- a1424fdff940/Presentation/PublicationAttachment/e8247337-b86d-4df9-b01b-a953f20b0545/10.18.10-

Federal%20Practice%20Responding%20To%20A%20Subpoena%20(1-503-1741)%20(2)%20(2).pdf) , by David J. Lender, Jared R. Friedmann, and Jason B. Bonk Weil, Gotshal & Manges LLP.

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Key Terms

Click on each key term to see the de�inition.

aiding in the commission of a crime (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Rendering assistance to a criminal in the commission of a crime, hiding, or converting the proceeds of criminal activity; punishable as a misdemeanor.

arson (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Intentional burning of any property, including one's own, for the purpose of collecting insurance.

Association of Certi�ied Fraud Examiners (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

A U.S. organization that publishes literature and educates the public in the areas of fraud and certi�ies fraud examiners.

bribery of a public of�icial (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Promising to give something of value in exchange for a public of�icial's of�icial conduct.

burglary (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Breaking and entering any occupied structure with the intent of committing any crime inside.

commercial bribery (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

To solicit, accept, or agree to accept anything of value in exchange for violating a duty of �idelity owed to one's employer, client, or company as an employee, of�icer of a corporation, partner, trustee, guardian, or member of a profession; a misdemeanor in most states.

Computer Fraud and Abuse Act (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Federal law (18 USC §1030), which makes it illegal to intentionally access a computer without authorization to obtain consumer �inancial or U.S. government information, or to access a protected computer with the intent to defraud (through hacking).

credit card fraud (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Using a forged or stolen credit card to obtain goods, services, or cash advances or using a credit card after it has been canceled or recalled.

crime of attempt (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Taking a substantial step toward committing a criminal act, wherein the defendant acted with criminal intent.

criminal act or omission (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

A wrong as de�ined by state or federal statute.

criminal conspiracy (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Either planning and agreeing to commit a crime with others or agreeing to assist others in the commission of a crime.

criminal intent (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Also known as mens rea (literally, guilty mind), the de�inition of criminal intent varies from crime to crime. The mens rea for murder is the intent to kill; for robbery, it is the intent to permanently deprive the owner of his property.

criminal mischief (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

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Damaging the personal or real property of another purposely, recklessly, or negligently by the use of explosives, �ire, or other dangerous means.

criminal trespass (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Knowingly entering (or refusing to leave when asked) real property owned by another without permission to do so.

embezzlement (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

The misappropriation of property in one's care belonging to another.

entrapment (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Being enticed or convinced to commit a crime by law enforcement agents when not otherwise predisposed to do so; a defense that can be asserted to escape criminal liability.

felony (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

The most serious type of crime; punishable by more than one year's imprisonment in a state or federal penitentiary.

forgery (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Material alteration to a written document issued by another that is made in order to defraud or mislead.

grand jury (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Group of jurors convened by the state or federal prosecutor for the purpose of presenting evidence; the jury determines whether evidence is suf�icient to indict (formally charge) the defendant with a crime.

indictment (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Formal written accusation of a criminal charge against a defendant, brought by a grand jury.

in�luence peddling (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

To solicit, receive, or agree to receive any consideration for the trading of political in�luence by a public servant; a misdemeanor.

issuing a bad check (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

To issue a check drawn on an account that no longer exists or on an account with insuf�icient funds to honor the check when it is presented.

larceny (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

The intentional taking and carrying away of the property of another with the intent to permanently deprive the owner of its use.

misdemeanor (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Offense that can carry a maximum penalty of one year's imprisonment.

Model Penal Code (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Criminal law guidelines promulgated by the American Law Institute in 1962 and revised in 1981.

obstruction of justice (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Any intentional interference with the administration of justice in a person's of�icial or private conduct; a misdemeanor.

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perjury (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Making a material misrepresentation while under oath or through a sworn statement.

probable cause (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

More likely than not, a crime has been committed: standard used by police before arresting a person or seizing property.

prosecution (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

The state district attorney or U.S. Attorney who brings criminal charges against a defendant on behalf of the government.

robbery (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

A theft that is accomplished through either the use of force or the threat of force.

simple subpoena (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

A court order to appear at a criminal proceeding to testify.

subpoena (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Legal document issued by a court ordering the receiving party to testify in court or to bring documents to court.

subpoena duces tecum (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

A court order issued to produce records.

subpoena test (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

A court order to appear at a deposition to give testimony.

tampering with public records (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

To knowingly falsify, destroy, or attempt to hide any of�icial government record or document; a misdemeanor.

theft of services (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Knowingly receiving the bene�it of services that are available for compensation through the use of deception or any physical means to avoid paying for such services.

violation (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Minor offense that is typically punishable by a �ine or prison sentence of 30 days or less.

white collar crime (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

Nonviolent state or federal crime committed in a business setting.

wrongful state of mind (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section

The mindset necessary to �ind in the defendant for a criminal conviction.

Chapter 6 Flashcards

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Critical Thinking and Discussion Questions

1. What is the basic purview of criminal law? What are the de�ining elements of all crimes?

2. What is a grand jury proceeding?

3. What is a subpoena? What types of subpoenas are there?

4. In general, is there a legal duty for citizens in our society to come to the assistance of those in need? Should there be one, in your opinion? Explain fully.

5. Consider the many uses you and your friends make of computers and devices to access the Internet. Where would you draw the line as to what data on a computer are work- or school-related rather than personal? How would you write such a law? What language would you use?

6. Your immediate supervisor asks that you write a computer policy for your company. Assume that no one has a laptop computer to take home and that all computing is done on site at your company headquarters. Based on the Nosal case, what sort of company policy would you develop?

7. Ben sets �ire to a grain silo in his neighbor's farm after a heated argument. Fortunately, the silo is not attached to the neighbor's house or barn, so the damage does not spread beyond the destruction of the silo and its contents. The next day, Ben is arrested and charged with arson. Should he be convicted of the crime if the prosecutor can show that he purposely set the �ire? Explain.

8. Spark and Flash, malicious but less than brilliant arsonists, agree to burn down a number of apartment buildings in exchange for a fee from landlords eager to collect insurance on unpro�itable rent-controlled apartment buildings. As they arrive at the �irst site, they slosh several gallons of gasoline onto the building only to discover that they neglected to bring matches or a lighter. Housing police arrest the two after observing them go from door to door asking tenants for matches. What crime or crimes, if any, can they be charged with, and what is the maximum penalty they face for each crime or crimes?

Rendering assistance to a criminal in the commission of a crime, hiding, or converting the C l i c k c a rd t o s e e t e r m 👆

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