General Criminal Law Concepts

Cybercrimes, sometimes called computer crimes, involve situations where people use the internet or computers as the medium for, or target of, criminal activity. Some crimes, such as computer trespass, are prosecuted by extending existing criminal laws to new situations that have arisen with new technology. Computer networks facilitate these crimes. Other laws define new crimes that did not exist before computers. The use of computers as a medium to commit crimes is growing. Criminals also target computers and the data that they contain. Consider the following:

• A federal judge sentences a computer hacker to almost 5 years in prison for violating the Computer Fraud and Abuse Act (CFAA). The hacker created botnets and sold access to them. Other attackers used the botnets to launch distributed denial of service (DDoS) attacks.
• A federal judge sentences a defendant to 2.5 years in prison for taking nude videos of a news reporter and posting them to the internet. The judge also orders the defendant to pay restitution to the victim.
• The federal government charges three members of a hacking group with hijacking the website of a telecommunications company. The company’s users could not access the website for about 90 minutes.
• A man is charged with cyberextortion. He is alleged to have attempted to extort a life insurance company by threatening to send millions of computer spam messages. Authorities say he wanted to damage the reputation of the insurance company.

Crimes are instances of wrongdoing, or actions that harm society. They are deviations from behavior that society, through its government, has defined as unacceptable. Some crimes do not even need individual victims. Society is the “victim” of the crime.

In simple terms, a crime is a violation of society’s code of conduct. Crime and the concept of criminal law are very old. The Sumerian and Babylonian civilizations included codes of conduct in their laws in 2100 B.C.E. Although these codes did not resemble modern criminal law, they did define conduct that society decided was not acceptable.

As discussed in other chapters in this book, the American legal system is based in large part on English common law. The U.S. Constitution is the main source of law for the United States. The Constitution presumes that U.S. citizens will behave lawfully. However, it includes provisions for how the government should handle crimes in Article III. The Constitution even defines a specific crime. Article III, section 3, states that treason against the United States is a crime.

The U.S. Congress has passed laws defining federal crimes since the formation of the government. Most states also have passed laws that have defined criminal offenses. Because crimes are wrongs against society, the government pursues the alleged wrongdoers. The federal government prosecutes violations of federal law, whereas state governments prosecute violations of state laws.

Main Principles of Criminal Law

Criminal law is very different from civil law. Each system has different goals. Criminal law aims to deter wrongful behavior through a combination of punishment and rehabilitation of the offender. In contrast, civil law aims to right personal wrongs. It does this by allowing people to sue to recover monetary compensation for injuries.

This section focuses on substantive criminal law. Substantive law describes a person’s rights and responsibilities. It defines how people should relate to one another and how they should relate to the government. Substantive law also is known as subject matter law. Criminal law is only one of many categories of substantive law. Contract law, business law, property law, and tort law are all different types of substantive law.

Substantive criminal law defines the conduct that constitutes a crime. It also establishes penalties. Governments can specify criminal penalties in the same statute that defines a crime. They also can list them in a separate penalty statute.

Type of Wrongful Conduct

Society recognizes two basic types of wrongful conduct. The first type is conduct or acts that society universally agrees are wrong, morally repugnant, or dangerous to other people. For example, almost all societies agree that murder and rape are wrong. Mala in se is a Latin term that defines these types of wrongful conduct. Mala in se means “evil in itself.” It describes conduct that is inherently wrong. Crimes that are mala in se include murder, rape, kidnapping, robbery, theft, and arson.

Other types of conduct are mala prohibita. Mala prohibita is Latin for “wrong because it is prohibited.” Society defines conduct that is mala prohibita. This conduct is not inherently evil, but society prohibits it nonetheless. Crimes that are mala prohibita include intellectual property violations (where prohibited by law, such as federal copyright offenses), traffic law violations, and tax evasion. Many types of cybercrimes are mala prohibita.

Crimes generally are classified into two groups, misdemeanors and felonies. The two types of crimes are usually distinguishable by the way society punishes the criminals who commit these crimes. Misdemeanors are less serious than felonies and bear a less severe penalty. A misdemeanor is generally punishable by no more than 1 year in prison. Felonies are more serious crimes. They are usually punishable by more than a year in prison.

The levels of felonies and misdemeanors may vary from state to state. Some states have different levels of misdemeanors and felonies. Language such as “first degree” or “second degree” differentiates between different levels of crime. A state can prosecute some types of crimes as either a misdemeanor or a felony depending on the circumstances surrounding the crime.

Elements of a Crime

Criminal law is based on the principle that a guilty mind must accompany a criminal act. Another principle is that criminal conduct harms society. In short, the American system of law holds people responsible for their actions. A government must prove the following elements to show that a crime has been committed:

• Mens rea
• Actus reus
• Causation

To prove that a crime has been committed, a government must show that a person acted with criminal intent. It must show that a person knowingly, intentionally, or recklessly engaged in criminal conduct. The Latin term mens rea means “guilty mind.” Mens rea describes a person’s intent to commit a crime. Someone who lacks mens rea cannot be held responsible for a crime.

Most criminal laws have language that specifies the amount of mens rea that a person must have to be held responsible for a crime. For example, the Wisconsin first-degree murder statute states: “Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.”¹ The “intent to kill” portion of the statute describes the mens rea required to commit a crime.

Acts that are purely accidental do not meet the required mental showing for criminal prosecution. However, that does not mean that the government prosecutes only intentional actions. The government also can prosecute a person who acts recklessly for criminal behavior.

A showing of recklessness means that a person acted in a manner that consciously disregarded whether or not harm could result from the actions. For example, the Wisconsin first-degree reckless homicide statute states: “Whoever recklessly causes the death of another human being under circumstances which show utter disregard for human life is guilty of a Class B felony.”² The “which show utter disregard for human life” portion of the statute describes the mens rea required to commit this crime.

Criminal statutes do not require governments to prove damages to prosecute a defendant for a crime. However, governments can use the amount of harm that a defendant causes to increase the level of the crime.

The actus reus is the wrongful act that constitutes a crime. Actus reus is the Latin term for “guilty act.” To be a crime, the action must be voluntary. The actus reus requires a physical act in furtherance of a crime. For example, the U.S. Supreme Court held that a California law that punished people for being addicted to illegal drugs violated the Constitution.³ The California law made being “addicted” to drugs the offense, even if the person who was addicted to drugs never used or possessed drugs in the state. The law was challenged.

In Robinson v. California (1962), the U.S. Supreme Court said that there were many ways that the state could make certain acts related to drug use illegal. However, simply making the status of being an addict illegal was a violation of the Constitution. The case stands for the proposition that criminal activity requires a voluntary, physical act.

A wrongful act also can include the failure to act when there is a duty to do so. For example, parents have a duty to care for their children. A state may punish a parent who fails to take care of his or her children when that failure rises to a level of criminal conduct. For instance, in March 2010 the South Korean government arrested a couple for child neglect. The government alleged that the couple’s video game addiction led them to neglect their daughter, who starved to death. Tragically, the video game that the couple was addicted to involved caring for a “virtual child” in an online game.⁴

Jurisdiction

Courts can hear only cases, or disputes, that are within their jurisdiction. Jurisdiction describes the types of cases that a court has the authority to hear.

Jurisdiction can be described in several different ways. Jurisdiction can be used to describe the function of a court. For example, trial courts generally have original jurisdiction. This is the ability to conduct trials and to hear initial disputes between parties. Appellate courts such as the U.S. Supreme Court have appellate jurisdiction. They can only review decisions made by lower courts.

Jurisdiction also can describe the power of a court to hear a certain type of case and make a binding decision in that case. Courts must have the proper jurisdiction to make a valid judgment. To make a valid judgment, a court must have:

• Subject matter jurisdiction
• Personal jurisdiction

Subject matter jurisdiction is the power of a court to decide certain types of cases. A court cannot decide cases where it has no subject matter jurisdiction. For example, federal courts have jurisdiction only to decide cases about federal laws. This is federal question jurisdiction. They also can decide certain types of disputes between citizens of different states. This is diversity of citizenship jurisdiction. In contrast, state courts can decide only cases about state laws or actions that occurred within the geographic boundaries of the state.

FYI

Personal jurisdiction refers to a court’s ability to exercise power over a particular defendant. If a court does not have personal jurisdiction over a defendant, then it cannot impose a sentence on that person. Personal jurisdiction is important for both criminal and civil cases. Typically, state courts can exercise personal jurisdiction over people who commit acts within the state.

For criminal law, personal jurisdiction comes into play when criminal acts are committed in several different states. It is also implicated when crimes affect residents in many different states. The U.S. Supreme Court addressed this issue in 1911.⁵ In Strassheim v. Daily, the Supreme Court used a “detrimental effects” test to determine if a state could exercise jurisdiction over a person who committed crimes outside of the state. The Court’s test had three parts:

• Did the act occur outside the state?
• Did the act produce detrimental effects within the state?
• Were the acts the actual cause of detrimental effects within the state?

The test focuses on the defendant’s intent. It also looks at the consequences of the defendant’s actions in a particular state. Under the detrimental effects test, a state criminal court can exercise jurisdiction over a person who commits actions outside of the state if those actions cause harm within the state.

The Supreme Court’s detrimental effects test used in the Strassheim case is a common law rule. Many states have enacted legislation that codifies the detrimental effects test. For example, Alaska law states that state courts have jurisdiction over crimes that are “commenced outside the state but consummated inside.”⁶

Issues about jurisdiction are not just questions between the states. Personal jurisdiction also can be an international issue. It is one of the main obstacles in cybercrime cases because of the truly global nature of the internet. The Council of Europe Convention on Cybercrime, which went into force in 2004, increases cooperation in the investigation and prosecution of cybercrimes. Members of the convention must adopt legislation to criminalize certain types of cyber-related offenses and copyright infringement. They also agree to assist one another in criminal investigations. Sixty-five nations have ratified it.⁷

Criminal Procedure

Criminal procedure is the body of rules that govern how governments prosecute people for crimes. These procedural rules make sure that criminal defendants receive due process. Due process means that a defendant in a criminal case is entitled to a fair and consistent process within the courts. The laws of criminal procedure make sure that the government safeguards the defendant’s constitutional rights. They also provide the government with a method for fairly prosecuting defendants for their crimes.

FYI

Most criminal procedure principles stem from the U.S. Constitution. This means that many processes are similar among the states and the federal government. However, some procedural rules are unique to each jurisdiction. The description provided here is intentionally general and is meant to be a guide. The process also can be different depending upon whether the crime committed is a misdemeanor or felony.

A criminal case begins when a law enforcement agency begins an investigation. Law enforcement agencies have certain rules that they must follow as they conduct their investigation. When law enforcement officers complete their investigation, they send the case to the prosecutor. A prosecutor then reviews the case and decides whether to bring charges against the person that law enforcement identified as the perpetrator of the crime. Prosecutors have a lot of discretion in determining whether to charge a person with a crime.

If a prosecutor decides to charge a person with a crime, he or she must file a written document in court to start the criminal process. In some states, a prosecutor may file a document called an information. An information specifies the charges against the perpetrator of the crime. The prosecutor can exercise discretion when filing an information.

In other states, defendants have a right to a grand jury indictment. A grand jury is a panel of citizens who hear evidence presented by a prosecutor. The grand jury determines if there is enough evidence to bring a person to trial for a crime. The grand jury issues an indictment if it determines that the evidence is sufficient. An indictment is the formal written criminal charges issued by a grand jury.

FYI

A criminal prosecution begins once a grand jury returns an indictment or after a prosecutor files an information. At this point, the perpetrator of the crime becomes a defendant. In a criminal case, the defendant is the person accused of a crime.

The next step in the criminal process is the initial hearing. This is sometimes called an arraignment. The purpose of this hearing is to begin the formal court process. At this hearing, a court must:

• Inform the defendant about the charges.
• Advise the defendant about his or her legal and constitutional rights.

During the initial hearting the defendant must enter a response to the charges, called a plea. A defendant can enter a plea of guilty or not guilty. In some cases, she or he also can enter a plea of nolo contendere, which is Latin for “I do not wish to contend.” It is also called a plea of no contest. A no-contest plea is not a guilty plea. However, it has the same effect as one. Most jurisdictions have limits on how and when defendants can use this type of plea.

If a defendant enters a guilty plea, the court will set a date to sentence the defendant. A 2018 study found that 90 percent of federal defendants plead guilty.⁹ That same study found that only 2 percent of federal defendants have cases that go to trial.

If the defendant enters a not-guilty plea, the court sets the case for trial. The U.S. Constitution guarantees criminal defendants the right to a trial by jury. Article III of the Constitution guarantees this right, and the Sixth Amendment to the Constitution clarifies the scope of the right.

Under the Sixth Amendment, criminal defendants are entitled to a court-appointed attorney if they cannot afford one on their own. Courts usually grant this request only when a defendant faces a prison sentence. The Supreme Court case of Gideon v. Wainwright (1963) held that a court must appoint an attorney to an indigent defendant charged with a felony.¹⁰ The defendant must prove that he or she is indigent and cannot afford an attorney. The Supreme Court in the Gideon case also held that a conviction is automatically reversed if a state denies a defendant the right to counsel.

After the arraignment, the prosecution and the defendant’s attorneys will begin the discovery process. Discovery is the process where the government gives the defendant the evidence that it plans to use in the defendant’s trial. U.S. Supreme Court cases have held that the government must disclose:

• Any deals that the prosecution made with a witness (Giglio v. United States).¹¹
• Any evidence it has that might help prove the defendant’s innocence (Brady v. Maryland).¹²

Courts strictly regulate the criminal discovery process. The rules for the process are clear. A court has a wide range of actions it can take against parties that fail to comply with discovery rules. A court can even dismiss the case if the prosecution fails to comply with the rules of the process. Failure to turn over evidence that might help prove the defendant’s innocence can cause a conviction to be overturned.

If a criminal case goes to trial, the government bears the burden of proving that the defendant violated the law. In criminal cases, the government must prove the defendant’s guilt beyond a reasonable doubt. This is the highest burden of proof that a prosecutor must meet. Reasonable doubt does not mean that a juror is 100 percent convinced of the defendant’s guilt. It does mean, however, that a juror must be fully satisfied that the prosecution has eliminated any reasonable doubts about the defendant’s guilt.

The government has a high burden of proof in criminal cases because criminal punishments infringe on a person’s fundamental rights. These rights include the right to liberty, property, and life. Criminal penalties can include jail time, probation, financial penalties, or even a death sentence. A court may impose these penalties only if the government meets its high burden of proof.

A criminal case ends when a jury decides that a defendant is innocent or guilty. It also ends if the jury cannot reach a decision. A hung jury is a jury that is unable to reach a decision because the jurors disagree. A court will declare a mistrial if the jury cannot reach a decision. In this case, the government may decide to refile the charges and prosecute the defendant again.

A defendant who is convicted may appeal. Different rights allow a defendant to appeal a ruling or conviction to a higher court. These rules are beyond the scope of this discussion.