14.1 Criminal Law Generally
We learned in chapter 4 at 4.2 that criminal law is concerned with public rights and remedies, i.e., with wrongs committed against the public or whole community. You will also recall that violations of criminal law are called crimes and that the primary goal of criminal law is to punish the wrongdoer. Criminal law, therefore, is concerned with defending legal rights as well.
We also learned previously that criminal law derives from statutory law rather than common law (i.e., legislative-made law rather than judge-made law, see chapter 5 at 5.2 and 5.4, respectively). In addition, crimes may be a product of local, state, or federal law, although many of the most familiar crimes (e.g., assault, burglary, and robbery) arise from state statutes. We will identify these and other specific crimes at 14.7. Depending on the state, such crimes are typically prosecuted by an appointed or elected public official called a district attorney, county attorney, or attorney general (or one or more of their assistants or deputies).
14.2 Mens Rea and Actus Reus
Two elements must be present to define an act as a crime—mens rea and actus reus. Mens rea means “guilty mind” in Latin. Mens rea is sometimes referred to as culpability. It is required for nearly very crime, except for crimes where a person may be strictly liable (a concept that we will discuss below). Actus reus means “guilty act” in Latin. The reason that an actus reus is required for crimes is because in the United States we do not punish persons merely for bad thoughts (fortunately, you might say). We punish persons only for acting on their bad thoughts.
There are four general categories of mens rea in criminal law: (1) purposely (or intentionally in some states); (2) knowingly; (3) recklessly; and (4) negligently (or with criminal negligence in some states). These categories are found in a state’s criminal statutes, often called a “criminal code” or a “penal code.” In addition, there are a small number of crimes—called strict liability crimes—that do not require a mens rea, but do not typically arise in business scenarios. Examples of strict liability crimes include felony murder (i.e., a murder that occurs during the commission of another felony), driving under the influence (or while intoxicated), traffic violations, and statutory rape.
While state criminal statutes vary, many states have based their statutes on portions of the Model Penal Code, a publication of the American Law Institute. The Model Penal Code’s purpose was to assist state legislatures in updating and standardizing their criminal statutes. It is not the law in any state, but approximately two-thirds of the states have incorporated portions of the text. A typical state’s criminal statutes define the four categories generally as follows:
Purposely (or intentionally). A person acts purposely (or intentionally) if his conscious object is to engage in the prohibited conduct or to cause the prohibited result. For example, if Party A points a gun towards Party B with the desire to kill or injure Party B, and Party A fires the gun and kills or injures Party B, Party A has acted purposely. If, however, Party A is a bad shot and instead kills or injures Party C (who was standing next to Party B), Party A has still acted purposely. This is called “transferred intent.” Party A’s intent to kill or injure Party B is transferred to his killing or injuring of Party C, and Party A will be criminally responsible for Party C’s death or injury.
Knowingly. A person acts knowingly if he is aware that his conduct is prohibited or that a prohibited consequence is practically certain to result.
Recklessly. A person acts recklessly if he consciously disregards a substantial and unjustifiable risk that his conduct is prohibited or that it will cause the prohibited result.
Negligently (or with criminal negligence). A person acts negligently (or with criminal negligence) if he should be aware of a substantial and unjustifiable risk that his conduct is prohibited or that it will cause the prohibited result. In criminal law, the person’s failure to become aware of the risk must constitute a “gross deviation” from the “reasonable person” standard, discussed below.
The reasonable person standard is the standard of care that each of us in society is expected to follow. It is an objective test. It is society’s judgment on how persons should act. In a jury trial, the jury—as the “fact-finder”—makes this judgment. The factual issue for the jury to decide is “how would an ordinary, prudent person act under the same or similar circumstances?”
We need to careful when analyzing the concept of negligence because criminal negligence differs from civil negligence, which we will discuss in chapter 15 at 15.6. While both refer to the “reasonable person” standard, negligence in the criminal law requires a “gross deviation” from the standard of care, not merely a failure to live up to the standard. This is why some states use the term “criminal negligence” instead of the more generic term “negligently.” An example of the difference between criminal and civil negligence is illustrated in New York’s jury instructions for the crime of Assault Third Degree, which provides:
Does a person have a duty to act? In other words, can a person commit a crime by failing to act, sometimes call an omission? The general rule is no. With some exceptions discussed below, there is no duty to act either: (1) to prevent or stop harm being done to another or come to the aid of the person (commonly called the “duty to rescue”); or (2) to report harm being done to another. Bystanders, therefore, typically cannot be prosecuted merely for being a passive observer. But the lack of legal responsibility does not necessarily mean lack of moral culpability, which is a different issue. Many persons in society may find it morally repugnant for a bystander to turn his head or walk away from coming to the aid of a victim, or at a minimum reporting a crime to the proper authorities. In social psychology circles, doing nothing in these types of situations is now commonly referred to as the “bystander effect” or “Genovese syndrome.”
There are, however, some exceptions to the general rule that a person has no duty to act under the criminal law. The exceptions include: (1) special relationships (e.g., a parent must prevent and stop harm and come to the aid of a minor child; spouses have a similar obligation to each other); (2) contractual obligations (e.g., someone who is hired to care for an elderly person must provide the contractual care); (3) creation of risks (e.g., a hunter who accidently shoots his partner must render aid and seek medical assistance); and (4) statutory duties (e.g., a driver involved in an accident must stop his automobile and not flee the scene, and certain classes of professionals, such as pediatricians, are “mandatory reporters” of child abuse under relevant statutes). In addition, a small number of states have enacted so-called “bad samaritan” statutes, which make it a crime (usually a misdemeanor punishable by a fine and, at least theoretically, a short jail term) for a person to fail to rescue a person being harmed or to report such harm under certain circumstances. We will discuss whether a person has a duty to act under the civil law, i.e., under tort law and contract law theories, at chapters 15 and 18, respectively.
We will identify various “guilty acts,” i.e., specific crimes, at 14.7.
14.3 Classification of Crimes
Crimes are classified as either felonies or misdemeanors. The classification normally depends on the mens rea of the defendant and the seriousness or nature of the crime (i.e., the circumstances of the actus reus). Offenses less serious than misdemeanors are called violations.
Felonies. Felonies are more serious crimes, historically punishable by death or imprisonment for one year or longer. State criminal statutes define the crimes that are felonies and sometimes further classify felonies into classes (e.g., Class A, Class B) and degrees (e.g., First Degree, Second Degree).
Misdemeanors. Misdemeanors are less serious crimes, historically punishable by imprisonment for less than one year or fines. As with felonies, state criminal statutes define the crimes that are misdemeanors and sometimes further classify misdemeanors into classes (e.g., Class A, Class B) or continue the degrees from felonies (e.g., Third Degree, Fourth Degree).
Violations. Violations are offenses less serious than misdemeanors; sometimes they are called petty offenses. Violations are not considered crimes. They may arise from state statutes or local ordinances, and are punishable by fines. Most traffic offenses are violations.
14.4 Accomplice, Vicarious, Managerial, and Corporate Liability
Accomplice liability. Accomplice liability is the concept of imposing legal responsibility upon a person who solicits another person in committing a crime, or aids or agrees to aid such other person in planning or committing a crime. In some states, an accomplice’s act may be referred to as “aiding and abetting” a crime. The “lookout” and “getaway driver” at a bank robbery are classic examples of persons who are accomplices. Accomplices, therefore, are typically present at a crime scene, although that is not required. In addition, in many states other persons who may have aided a crime in some lesser way may be liable as “accessories.” An example of an accessory is someone who is aware that a crime has occurred and either does something to conceal the crime or assists the criminal in avoiding capture by law enforcement. These accessory offenses are commonly called “obstruction of justice.”
Vicarious liability. Vicarious liability is the concept of imposing legal responsibility upon a person for another person’s act. Generally, there is no vicarious liability in the criminal law; the concept of vicarious liability most often arises in the civil law. A notable exception is where employers have participated in or authorized the criminal acts of their employees. In such cases, employers may be liable for their employees’ criminal acts. Employers are not ordinarily liable, however, for their employees’ unauthorized criminal acts.
Managerial liability. Managerial liability is the concept of imposing legal responsibility upon a manager of a business entity for his own act (or omission) or another person’s act (i.e., vicarious liability, discussed above). As with vicarious liability, managerial liability more typically arises in the civil law. For example, a managerial act (or omission) may constitute a tort against another person or entity (see chapter 15) or a breach of fiduciary duty to the business entity’s owners, which we will discuss in chapter 20 at 20.2. During the past couple of decades, however, managerial liability has also developed in the criminal law.
In 1990, California was the first state to pass a Corporate Criminal Liability Act (CCLA), which some attorneys and business owners termed the “Be a Manager, Go to Jail Act.” The California CCLA provides for criminal sanctions against a manager who has “actual knowledge of a serious concealed danger” and fails within 14 days—or immediately if there is “imminent risk of great bodily harm or death”—to inform the appropriate state agency of such danger and warn the affected employees. Managers are persons with actual management authority and significant responsibility over the safety, research, or testing of a product or business practice. Criminal sanctions against a manger may include up to three years in state prison and a $25,000 fine.
The concept of managerial criminal liability also exists at the federal level. A recent example is the retaliation against whistleblowers provision of the Sarbanes-Oxley Act of 2002, which is applicable to publicly-traded companies (see chapter 22 at 22.2). Under this provision, managers may be criminally prosecuted for knowingly taking—with the intent to retaliate—any adverse action against an employee who provided information relating to the commission a federal offense; conviction may result in fines and imprisonment up to ten years.
Corporate liability. Corporate liability is the concept of imposing legal responsibility upon a corporation (or a limited liability company, i.e., LLC)—as a fictitious, but legal “person”—for another person’s act; typically, the other person is an employee, officer, or director of the corporation. Corporate liability may arise under the criminal law or civil law. In the criminal law context, the Model Penal Code suggests that states adopt statutes imposing corporate liability for conduct that was “authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of the corporation within the scope of his office or employment.” A “high managerial agent” is a person “having duties of such responsibility that his conduct may fairly be assumed to represent the policy of the corporation or association.”
The California CCLA, discussed previously, is also an example of a statute providing for criminal sanctions against a corporation or LLC. Of course, it is impossible to punish a corporation or LLC by imposing a state prison term, so the available penalty is a large fine. Under the California CCLA, the fine may be as high as one million dollars.
At the federal level, most criminal statutes do not specifically provide for corporate liability. Corporations and other business entities, however, may be included under statutory sections defining “person” and “whoever” as including corporations and other business entities; in fact, that is the default position in the federal statutory scheme. Therefore, unless Congress carves out corporate liability from a specific federal statute, the practical effect is that corporations and other business entities can commit any federal offense.
14.5 “White Collar” Crime
There is not a specific crime called “white collar” crime; it’s a generic term for a type of crime. The term white collar crime rose to popularity in 1939, when sociologist Edwin Sutherland described it in a speech (to a joint meeting of the American Sociological Society and the American Economic Association) as crime “committed by a person of respectability and high social status in the course of his occupation.” But there is no universal agreement on its definition or the specific crimes encompassed by the term. Rather, white collar crime is typically defined in one of three ways: (1) by the category of offender (e.g., high socioeconomic status or position of trust); (2) by the category of offense (e.g., economic or business crime); or (3) by the form of organizational culture. While Mr. Sutherland defined it the first way, the US Department of Justice, Federal Bureau of Investigation (FBI) has largely defined it the second way—“. . . those illegal acts which are characterized by deceit, concealment, or violation of trust and which are not dependent upon the application or threat of physical force or violence. Individuals and organizations commit these acts to obtain money, property, or services; to avoid the payment or loss of money or services; or to secure personal or business advantage.” Under the FBI’s definition, we can think of white collar crime generally as nonviolent “paperwork” crime, rather than “street” crime, which is often violent.
As with white collar crime, there is not a specific crime called “cybercrime” (also sometimes referred to as “computer crime” or “network crime”). Instead, cybercrime generally refers to a type of crime that uses or targets computers or computer networks. Examples of federal cybercrimes include computer intrusions, denial of service attacks, viruses, and worms. States also have cybercrime statutes. In addition, some cybercrimes could be considered white collar crimes. And in today’s world, there are certain crimes that can be accomplished with or without a computer. In that way, a cybercrime could also be considered as a violent crime (e.g., stalking) or a property crime (e.g., theft).
14.7 Specific Crimes
While state criminal statutes may differ in terminology, they are generally alike regarding the types of “guilty acts” and “guilty minds” that constitute crimes. In addition, as mentioned in 14.2, many crimes have classes or degrees based on the mens rea of the defendant and the seriousness or nature of the crime (e.g., the circumstances of the actus reus, including the severity of a victim’s injury or amount of property damage).
There are numerous crimes that potentially relate in some way to business entities; we obviously cannot possibly recognize them all here. Plus, of those that we will mention, we cannot possibly explore them in any depth. Consequently, in this section, we will simply identify various crimes, including some that affect business entities, and divide the crimes into four types: violent, property, cyber, and white collar crime. Some crimes may properly be categorized in more than one type.
Larceny / Theft
Receiving Stolen Property
Access Device Fraud
Computer Fraud and Abuse Act
Unlawful Access to Stored Communications
White Collar Crime.
Issuing Bad Checks
Mail and Wire Fraud
Obstruction of Justice
Theft of Trade Secrets
14.8 Defenses to Crimes
There are many defenses available to persons accused of crimes. Depending on the state, however, defenses may differ in availability and application. The following are the main defenses generally available.
Consent. Consent is a very limited defense to crimes—e.g., a person cannot consent to crimes such as murder, drug use, or prostitution (except, in the latter case, in certain counties in Nevada). But consent may be a defense if it negates an element of the crime (such as mens rea) or precludes the harm sought to be prevented by the law. Moreover, when conduct constitutes a crime because it causes or threatens bodily harm, a victim’s consent to the conduct is usually a defense if the bodily harm is not serious or when the harm is a reasonably foreseeable hazard of lawful activity. For example, if Party A asks Party B to punch him in the stomach, which Party B does causing injury to Party A, Party B has a defense to the crime of assault based on Party A’s consent. If, however, Party A asks Party B to stab him with a knife, which Party B does causing serious injury to Party A, Party B would not have a valid defense because the injury was “serious” and the activity was not “lawful.”
In addition, because states do not want to encourage persons to settle their differences by physical fights (as in the examples discussed previously), persons agreeing to such fights typically may both be charged with a violation or petty offense (see 14.2 above) such as simple assault. Finally, a victim’s consent is also not a defense if it is given by a person legally incompetent to authorize the conduct or who, by reason of immaturity, insanity, intoxication, or use of drugs is unable and known (by the person claiming consent) to be unable to exercise a reasonable judgment regarding the harm involved.
Duress. Duress is a defense to crimes available when a person’s wrongful act overcomes the free will of another person—normally when a person is threatened with immediate, serious harm or death to himself or another person, as illustrated by the following scenario. Party A puts a gun to Party B’s head outside of a convenience store and says “you’re going to rob the convenience store for me.” As Party A waits outside with his gun pointed at Party B, Party B goes to the counter and tells the cashier to give him all of the cash in the register, otherwise he will shoot the cashier. In so doing, Party B has robbed the convenience store. But Party B had no meaningful choice under the circumstances but to rob the convenience store. Therefore, Party B’s defense to the crime of robbery is duress. While this is obviously the extreme case, duress may also occur in more subtle forms.
Entrapment. Entrapment is a defense when a person commits a crime because he was “induced” or “encouraged” to do so by the police or another person acting in cooperation with the police for the purpose of obtaining evidence against him. Also, the methods used by the police must create a substantial risk that the person would commit the crime when he was not otherwise disposed to commit it. That is, conduct merely affording a person an “opportunity” to commit crime does not constitute entrapment. Law enforcement may set a trap for an unsuspecting person, but they may not push the person into it.
Ignorance or Mistake. Ignorance of the law (also called mistake of law) is generally not a defense to crimes. Everyone in society is responsible for knowing the law. The only exceptions are when a person’s mistaken belief is founded upon a statement of the law contained in a statute, an administrative order, a court decision, or a written interpretation of the law made by a public servant or agency empowered to administer, enforce, or interpret the law. Mistake of fact, however, may be a defense to crimes. This will be the case when the mistake negates the mens rea required for the crime, the statute defining the crime expressly provides that mistake is a defense, or the person’s conduct is justified by self-defense or defense of another person or property, which we will discuss below.
Intoxication. Voluntary intoxication from alcohol or drugs is not normally a defense to crimes. A person may, however, introduce evidence of intoxication whenever it is relevant to negate an element of crime, and the fact-finder at a trial may take it into consideration in determining whether such element has been proved beyond a reasonable doubt. Involuntary intoxication, however, is a defense. This could occur when a person is forced to ingest or inject an intoxicant or is unaware that a drink or food contains an intoxicant. If someone were to commit a crime after being drugged, he may have a defense of involuntary intoxication.
Self-Defense, Defense of Another Person, and Defense of Property. While the other defenses to crimes that we discussed previously are fairly consistent throughout the states, “justification” defenses—such as self-defense, defense of another person, and defense of property can vary significantly. Some states allow a person more leeway in defending himself, others, and his property (or the persons and property of others) than in other states. Therefore, this is an area of the law where it is imperative for someone to be aware of his specific state’s statutes.
There are two categories of force in the law: deadly and non-deadly. Deadly force is an assault or confinement that a person commits with the purpose to create a substantial risk of death or serious bodily harm. For example, purposely shooting a gun in the direction of another person constitutes deadly force. Non-deadly force, on the other hand, is an assault or confinement that does not constitute deadly force. In some states, the act of producing or displaying a weapon (for the purpose of creating an apprehension that a person will use deadly force if necessary) constitutes non-deadly force rather than deadly force.
The general rule is that a person may use reasonable force to protect himself, other persons, and his property. What is “reasonable,” of course, depends on the facts and circumstances of a particular case. A person’s use of deadly force in self-defense or defense of another person when someone is about to use unlawful, deadly force against him or the other person would typically be considered reasonable, but may depend upon the location of the incident. In almost all states, a person has the right to defend against invasion and attack (and has no duty to retreat) in his own home; this is commonly referred to as the “Castle Doctrine.” And in nearly half of the states, a person has no duty to retreat from other locations where he is legally permitted to be; these are commonly referred to as “Stand Your Ground” laws.
A person’s use of deadly force to protect only property in his house would rarely be considered reasonable, unless the use of force was also for self-defense or defense of another person.
14.9 Constitutional Provisions
In this section, we will cover a piece of criminal procedure, the legal rules covering the steps in a criminal case. The steps include the investigation, prosecution, and adjudication of a criminal case. (And if a defendant is convicted of the crime, there are additional steps of sentencing and appeal.) But instead of trying to cover the entirety of criminal procedure—which is a one semester course in law school—we will focus on and briefly discuss a handful of constitutional issues that arise in the criminal procedure context. These constitutional issues involve the Fourth, Fifth, and Sixth Amendments to the US Constitution.
Fourth Amendment. The Fourth Amendment provides persons with two key protections from government intrusion into their private affairs: (1) the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”; and (2) the requirement of “probable cause” to obtain and effectuate warrants “describing the place to be searched, and the persons or things to be seized.” Though the language of the Fourth Amendment only covers federal government actions, the US Supreme Court has held that the Due Process Clause of the Fourteenth Amendment (see chapter 11 at 11.8) applies (i.e., incorporates) the Fourth Amendment protections to the states;in addition, the Court has held that the Fourth Amendment protects a person’s “legitimate expectation of privacy.” “Legitimate” means an actual expectation of privacy that society believes is “reasonable.”
What happens if the police violate a person’s Fourth Amendment rights by making an unreasonable arrest or search? For the last half century, evidence illegally seized is excluded from use in a criminal prosecution against the person whose rights were violated; this is called the “exclusionary rule.” The reason for the US Supreme Court created rule (the rule is not in the text of the Constitution) is to discourage illegal police conduct. Until the creation of the exclusionary rule, courts did not suppress incriminating evidence against defendants—as future US Supreme Court Justice Cardozo stated—“because the constable blundered.”
As you can imagine, there are numerous federal and state cases that have involved and analyzed the reasonableness requirement for arrest and searches. While we cannot cover the entire gambit of uncountable scenarios, the cases illustrate a few general rules. First, the police must have “probable cause” for an arrest or search. Typically, the police must demonstrate to a neutral magistrate that such probable cause exists. If so, the magistrate will issue an arrest or search warrant. Probable cause means a “substantial chance” or “fair probability” that criminal activity has occurred or that evidence may be found, based on the “totality of the circumstances.” Second, some situations arise when the police may not have to obtain a warrant; the most common of these are when there are “exigent circumstances” or when items are in “plain view.” Third, police are permitted to “stop and frisk” persons if they have “reasonable suspicion”—i.e., “specific and articulable facts,” “taken together with rational inferences,” but not just a hunch that a crime has occurred. These stops for brief investigative questioning are called “Terry stops,” after the US Supreme Court case that held them constitutionally valid. Fourth, in rare situations, the government’s need to address potentially perilous, concealed conditions justifies random intrusions made without suspicion. For example, in an airport, police may target, approach, and question a person based on his behavior, but they cannot detain or search him without a warrant. Finally, persons have a legitimate expectation of privacy in their home or curtilage (the immediate area surrounding a home), but not on other parts of the property, such as in the “open fields,” which are visible from aerial surveillance. Consequently, the US Supreme Court has held that the use of a thermal imaging device to monitor heat radiation from a person’s home was a “search,” and that a warrant was therefore required.
Fifth Amendment. In relevant part, the Fifth Amendment prohibits: (1) a person from be criminally prosecuted twice for the same offense (called “double jeopardy”); (2) a person from being compelled in a criminal case to be a witness against himself (called “self-incrimination”); and (3) prohibits deprivation of life, liberty, or property without “due process of law.” We have previously discussed double jeopardy (in chapter 4 at 4.2) and due process of law (in chapter 11 at 11.8), but we have not yet covered a person’s right against self-incrimination.
There are a few key points as regards a person’s right against self-incrimination. First, the right applies against the federal government and the states; as with other amendments, the US Supreme Court has held that the right against self-incrimination has been incorporated to the states. Second, the exclusionary rule, discussed above, precludes use of confessions in trial that were obtained by coercion, i.e., involuntarily. Since the landmark US Supreme Court case of Miranda v. Arizona in 1966, if the police want to admit into evidence a person’s statements in a criminal case, they must give specific warnings to a person in custody before interrogating him; otherwise, any information obtained will be considered presumptively coerced and therefore inadmissible. These warnings required prior to custodial interrogation are commonly called “Miranda warnings” and consist of the following:
5 You can decide at any time to exercise these rights and not answer any questions or make any statements.
Do you understand each of these rights that I have explained to you?
Having these rights in mind, do you wish to talk to us now?
The above warnings, however, do not have to be read verbatim, but simply must reasonably convey to a suspect his rights.
How far does the right against self-incrimination go? Does it allow a person in a state with a “stop and identify” statute the right to refuse to provide proper identification to the police during a stop based on “reasonable suspicion”? The US Supreme Court held “no” in 2004, noting that, “[a]s best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer’s business.” The Court left open the possibility, however, that:
Third, in the context of a trial, a defendant does not have to testify against himself. That is, a defendant may choose to remain silent and not take the witness stand to testify. This also means that the prosecution may not call a defendant to the stand as a witness or comment to the jury on a defendant’s decision not to testify.
Sixth Amendment. In criminal prosecutions, the Sixth Amendment provides persons with the following rights: (1) “to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed”; (2) “to be informed of the nature and cause of the accusation”; (3) “to be confronted with the witnesses against him”; and (4) to have the assistance of counsel for his defense. The latter three rights are fairly self-explanatory, although as you can guess, many cases have arisen when their meaning has been questioned. Regarding the first right, however, the US Supreme Court has held that crimes punishable by less than six months imprisonment are not covered by the jury requirement. In other words, it is permissible for a state not to allow jury trials for violations and petty crimes.
 While a majority of states have strict liability for statutory rape, a substantial minority of states (including California) treat reasonable mistake of age as a valid defense. See Eugene Volokh, “Should ‘I reasonably believed she (or he) wasn’t underage’ be a defense in statutory rape cases?,” The Volokh Conspiracy, July 2, 2014.