Unit VI Discussion Board Criminal Law

Overview

Now more than ever, per­sons have an abun­dance of prop­erty to pro­tect. Crim­i­nal statutes in­clude prop­erty crimes such as theft, bur­glary, arson, and com­puter crimes. Al­though the el­e­ments of the of­fenses vary, each in­volves the unau­tho­rized tak­ing of real, tan­gi­ble, or in­tan­gi­ble prop­erty. The var­i­ous prop­erty crimes and vari­a­tions of crimes in­clude lesser or ag­gra­vated of­fenses.

Introduction

The crime of theft is char­ac­ter­ized by sev­eral dif­fer­ent terms, in­clud­ing ac­quis­i­tive of­fenses, wrong­ful ac­qui­si­tion, and mis­rep­re­sen­ta­tion. To in­crease your un­der­stand­ing of theft of­fense, it is im­por­tant to un­der­stand the el­e­ments of lar­ceny and the dif­fer­ent types of prop­erty.

Defining Theft

Theft is con­duct that un­law­fully de­prives some­one of their prop­erty. Let's ex­am­ine the dif­fer­ent terms that de­scribe the types of con­duct con­sti­tut­ing theft.

• Ac­quis­i­tive of­fenses

• Wrong­ful ac­qui­si­tion crimes

• Crimes of mis­rep­re­sen­ta­tion

Lar­ceny is the com­mon law crime of theft. Today’s state crim­i­nal statutes have par­tic­u­lar­ized the crime of theft in var­i­ous ways. The com­mon law el­e­ments of lar­ceny are as fol­lows:

• Mens Rea:

• • The in­ten­tional and un­law­ful

• Actus Reus:

• • Tak­ing of an­other’s per­sonal prop­erty with in­tent to keep it

Lar­ceny gen­er­ally con­sists of gar­den va­ri­ety theft. If, for ex­am­ple, the de­fen­dant sees a wal­let in an un­su­per­vised purse and takes it, the per­son is guilty of lar­ceny.

Elements of Larceny

Today’s crim­i­nal statutes gen­er­ally cod­ify four el­e­ments for lar­ceny:

• In­ten­tion­ally and un­law­fully (or wrong­fully)

• Tak­ing (or car­ry­ing away)

• The prop­erty of an­other

• With the in­tent to keep (as op­posed to bor­row)

Let's ex­am­ine three types of prop­erty:

• Tan­gi­ble prop­erty

• Real prop­erty

• In­tan­gi­ble prop­erty

Prop­erty of An­other: Grand Lar­ceny (felony) is dif­fer­en­ti­ated from petit lar­ceny (mis­de­meanor) by the mar­ket value or spe­cial char­ac­ter­is­tic of the ob­ject taken. Ex­am­ple: the theft of firearms con­sti­tutes grand lar­ceny.

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Unlawful Taking

For the crime of lar­ceny, the per­son must in­ten­tion­ally and un­law­fully take the prop­erty of an­other. Let’s ex­am­ine the el­e­ment of un­law­ful tak­ing or tres­pas­sory tak­ing.

Tres­pas­sory tak­ing is “tak­ing with­out con­sent.” The scope of con­sent is ex­am­ined, and if it is de­ter­mined that the de­fen­dant's con­duct went out­side the bound­aries of con­sent, then the de­fen­dant may be guilty of lar­ceny.

The word tak­ing, or as­porta­tion, means the car­ry­ing away of an ob­ject. The el­e­ment of as­porta­tion in crim­i­nal lar­ceny statutes in­cor­po­rates the loss of the value or ac­cess caused by the de­fen­dant's con­duct.

If a bailee is en­trusted with goods that are in­ten­tion­ally de­stroyed or sold for profit with­out con­sent, that in­di­vid­ual is guilty of lar­ceny. To be con­sid­ered in­ten­tional, the act or con­duct must in­clude the in­tent to steal; there­fore ware­house at­ten­dants who ac­ci­den­tally, reck­lessly, or neg­li­gently de­stroy or lose the bailer’s items are not guilty of a crim­i­nal crime. How­ever, they may be held civilly re­spon­si­ble for re­pay­ment of mon­e­tary losses to the owner.

Theft, also known as larceny, involves the intentional and unlawful taking of another’s personal property with the intent to keep it. The three types of property are tangible, intangible, and real. You should now be able to provide examples of each type of property. You should also be able to define trespassory taking and asportation.

OBJECIVES

Theft, also known as lar­ceny, in­volves the in­ten­tional and un­law­ful tak­ing of an­other’s per­sonal prop­erty with the in­tent to keep it. The three types of prop­erty are tan­gi­ble, in­tan­gi­ble, and real. You should now be able to pro­vide ex­am­ples of each type of prop­erty. You should also be able to de­fine tres­pas­sory tak­ing and as­porta­tion.

OBJECTIVES

• Define theft

• Identify wrongful acquisition crimes

• Summarize the definitions and principles of crimes of theft

SEQUENCE

Introduction

The crime of lar­ceny gen­er­ally holds that a per­son can­not be charged with theft of his or her own prop­erty. An­a­lyz­ing the con­cepts of in­tent to steal, em­bez­zle­ment, and con­ver­sion of per­sonal prop­erty is im­por­tant.

Property of Another

For the crime of lar­ceny, gen­er­ally, a per­son can­not be held li­able for the theft of his or her own prop­erty. How­ever, con­sider the fol­low­ing fact sce­nario:

A tow truck com­pany is called by the owner of the prop­erty, Jan, to come and re­move a car that is il­le­gally parked on her prop­erty. The tow­ing com­pany ar­rives and tows the car from the lot. The prop­erty man­ager does not re­al­ize he has given the wrong li­cense plate num­ber to the tow­ing com­pany. The car they towed ac­tu­ally was parked legally.

The owner of the car, Jack, con­tacts the tow­ing com­pany. The rep­re­sen­ta­tive of the com­pany ex­plains that they were told to tow the car be­cause Jack failed to pur­chase a park­ing pass.

Jack ex­plains that he has the re­ceipt for the pass. The tow­ing com­pany ex­plains that he will have to dis­cuss that with the owner of the prop­erty. In the mean­time, in order to have his car re­leased, he must pay the cost for the tow­ing and fines. Jack is fu­ri­ous; he has a friend take him to where his car is lo­cated. He dri­ves onto the prop­erty of the tow­ing com­pany and re­al­izes he could eas­ily get into his car and drive away.

Jack gets into his car and dri­ves away with­out pay­ing for the tow.

The tow­ing com­pany calls the po­lice. Has Jack com­mit­ted the crime of lar­ceny?

Intent to Steal

Let's ex­am­ine the last el­e­ment of lar­ceny, the in­tent to steal. This el­e­ment re­quires the dis­trict at­tor­ney to prove that the de­fen­dant in­ten­tion­ally and wrong­fully de­prived some­one of an item who law­fully has pos­ses­sion of it, even if he or she is not the owner.

In the pre­vi­ous hy­po­thet­i­cal tow­ing case, would Jack be guilty of de­priv­ing the tow com­pany of his car? The an­swer could be yes in that his dis­pute is with the owner of the park­ing lot, not with the tow­ing com­pany. The tow­ing com­pany was au­tho­rized to tow the car.

Would Jack be able to as­sert the claim of right defense?

ght defense?

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Embezzlement

The crime of em­bez­zle­ment is the un­law­ful con­ver­sion of some­one else’s per­sonal prop­erty to one’s own. Here the de­fen­dant has been en­trusted with the per­sonal prop­erty. The con­sent is given for the orig­i­nal pos­ses­sion but the de­fen­dant’s fraud­u­lent con­ver­sion con­sti­tutes the crime of em­bez­zle­ment.

Review

The crime of lar­ceny re­quires the in­tent to steal, which is the know­ing and in­ten­tional act of de­priv­ing some­one of a pos­ses­sion. You should now un­der­stand the el­e­ments of theft and the de­f­i­n­i­tion of em­bez­zle­ment.

Introduction

Prop­erty crimes en­com­pass a va­ri­ety of crim­i­nal acts, rang­ing from those in­volv­ing fraud and de­ceit, to ac­cept­ing stolen goods, and even crimes against per­sons. To in­crease your un­der­stand­ing of prop­erty crimes, it is im­por­tant to an­a­lyze the crime of false pre­tenses, the el­e­ments of forgery, and re­ceiv­ing stolen prop­erty.

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False Pretenses

The crime of false pre­tenses has the same el­e­ments as em­bez­zle­ment, only here the de­fen­dant ob­tained the orig­i­nal con­sent for pos­ses­sion through mis­rep­re­sen­ta­tion or false pre­tenses.

A com­mon sce­nario is that of the door-to-door sales­per­son who con­vinces an el­derly cou­ple that he/she is sell­ing them real prop­erty in Alaska. The real prop­erty, of course, does not exist, and the sales­per­son is guilty of ob­tain­ing prop­erty (in this case, money for land in Alaska that he/she does not own) by false pre­tenses.

Forgery

The forgery and ut­ter­ing of a writ­ten in­stru­ment is the crime of al­ter­ing a legal doc­u­ment with the in­tent to un­law­fully ob­tain prop­erty. The ut­ter­ing el­e­ment refers to the pass­ing or use of the forged doc­u­ment. This crime in­volves in­tan­gi­ble prop­erty.

Pay­day loans and check cash­ing com­pa­nies in some ju­ris­dic­tions have begun to use these types of statutes to dis­cour­age par­ties from ei­ther forg­ing checks or at­tempt­ing to utter forged doc­u­ments. How­ever, many of these com­pa­nies are using these statutes to at­tempt to ob­tain civil reme­dies through crim­i­nal av­enues.

Many of the par­tic­i­pants in the pay­day loan cycle find them­selves un­able to pay the high in­ter­est rate of these mod­ern-day loan sharks. Those who fall help­lessly be­hind can find them­selves charged with crim­i­nal check fraud.

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Property and Computer Crimes

Topic 03: Property Related Crimes

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Receiving Stolen Property

The de­fen­dant must know that the prop­erty is stolen at the time of re­ceipt and then must in­ten­tion­ally keep the prop­erty.

The great­est chal­lenge to pros­e­cut­ing this type of crime is prov­ing that the de­fen­dant knew the prop­erty was stolen. The more rare and valu­able the item, the less likely it is that the de­fen­dant did not know he or she was re­ceiv­ing stolen goods.

This crime is named ap­pro­pri­ately-re­ceiv­ing stolen prop­erty, and has the fol­low­ing el­e­ments:

Se­lect each item to learn more.

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Property and Computer Crimes

Topic 03: Property Related Crimes

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Receiving Stolen Property

The de­fen­dant must know that the prop­erty is stolen at the time of re­ceipt and then must in­ten­tion­ally keep the prop­erty.

The great­est chal­lenge to pros­e­cut­ing this type of crime is prov­ing that the de­fen­dant knew the prop­erty was stolen. The more rare and valu­able the item, the less likely it is that the de­fen­dant did not know he or she was re­ceiv­ing stolen goods.

This crime is named ap­pro­pri­ately-re­ceiv­ing stolen prop­erty, and has the fol­low­ing el­e­ments:

Se­lect each item to learn more.

The defendant

When you hear the word ex­tor­tion, gen­er­ally, its syn­onym bribery is not far be­hind. In early times, the crime of ex­tor­tion was de­fined as an at­tempt to col­lect an un­law­ful fee as a pub­lic of­fi­cer; bribery (both then and now) was the pay­ment of a fee or a re­ward to a pub­lic of­fi­cer in order to gain in­flu­ence with that per­son. Today, the crime of ex­tor­tion has been ex­panded to in­clude any per­son who uses the threat of fu­ture force or ex­po­sure to ob­tain prop­erty from an­other.

Let’s ex­am­ine two ad­di­tional types of ex­tor­tion crimes:

• Black­mail: This type of ex­tor­tion crime in­volves the threat of ex­pos­ing one’s crim­i­nal past or one's pri­vate acts to pub­lic shame.

• Com­pound­ing a crime: The de­fen­dant threat­ens to re­port the vic­tim for a crime the vic­tim has com­mit­ted.

Real prop­erty con­sists of land and fix­tures, such as a car, a house, or a garage. Con­se­quently, real prop­erty of­fenses are com­mit­ted in vi­o­la­tion of one or more of these items. Com­mon crimes against real prop­erty in­clude bur­glary, loot­ing, and arson.

Re­cently there have been pub­li­cized raids on Amer­i­can cor­po­ra­tions that em­ploy il­le­gal im­mi­grants. Some­times, these il­le­gal im­mi­grants have used stolen iden­ti­fi­ca­tion doc­u­ments to val­i­date their em­ploy­ment.

The crime of iden­tity theft is quickly evolv­ing. With ad­vances in com­puter tech­nol­ogy, a po­ten­tial thief can gain ac­cess to per­sonal in­for­ma­tion more eas­ily.

NStudy Guide

Property and Computer Crimes

Topic 04: Crimes Against Real Property

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Burglary

Now let’s ex­am­ine crimes against real prop­erty. Bur­glary is com­monly known as the break­ing and en­ter­ing into a dwelling or res­i­dence with in­tent to com­mit a felony. The crime in­cludes the break­ing and en­ter­ing of cars, motor homes, boats and so on.

Some argue that break­ing and en­ter­ing sim­ply means en­ter­ing with­out per­mis­sion, and as a re­sult, many ju­ris­dic­tions have re­moved the re­quire­ment of a locked fa­cil­ity or car. The de­fen­dant still must force his way in; oth­er­wise he is guilty of crim­i­nal tres­pass, a lesser of­fense of bur­glary.

Se­lect each item to learn more.

The de­fen­dant must force his or her way into a struc­ture to com­mit bur­glary. Where a de­fen­dant uses a robot or mech­a­nism to enter and com­mit the crime, this is called con­struc­tive entry. The actus reus of the robot is im­pugned to the de­fen­dant.

Loot­ing is the crime of tak­ing per­sonal prop­erty from a ge­o­graph­i­cal area that has been de­clared to be in a state of emer­gency.

Loot­ing crimes gen­er­ally in­volve the entry into dam­aged struc­tures and steal­ing of goods from iden­ti­fi­able stores, un­like an ar­mored truck ac­ci­dent, where cash falls into the street and hun­dreds of peo­ple dive for dol­lars.

Arson

The modern day crime of arson incorporates the destruction of property through the lighting of a fire.

Mens rea: Maliciously and intentionally

With the ad­vent of the In­ter­net and in­creased ac­cess to com­put­ers, law en­force­ment of­fi­cers have be­come in­creas­ingly in­volved in en­forc­ing com­puter crimes, in­clud­ing fraud, tres­pass, and sev­eral other of­fenses. Early on, the law did not ad­e­quately de­scribe com­puter crimes. How­ever, be­gin­ning in the 1980s, leg­is­la­tors began to keep cur­rent with tech­nol­ogy.

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Intellectual Property

Crim­i­nal statutes that cod­ify crimes com­mit­ted with com­put­ers are evolv­ing at an ever in­creas­ing rate.

Law en­force­ment agen­cies are ag­gres­sively pro­vid­ing com­puter tech­nol­ogy train­ing for their of­fi­cers. To con­trol com­puter crime, of­fi­cers have to be­come fa­mil­iar with in­tel­lec­tual prop­erty ter­mi­nol­ogy and method­ol­ogy.

In­tel­lec­tual prop­erty refers to the in­for­ma­tion owned by a com­pany that can be pro­tected by patent, copy­right, or other legal means.

Judges and lawyers are also find­ing the need to fa­mil­iar­ize them­selves with the in­tri­ca­cies of com­puter crime.

The next screen ex­am­ines early cases and the legal chal­lenges posed by com­puter crimes.

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Property and Computer Crimes

Topic 05: Computer Crimes

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History of Prosecution of Computer Crimes

Ini­tially, states strug­gled with how to clas­sify the theft of com­puter ser­vices or in­tan­gi­ble prop­erty.

Dis­trict at­tor­neys began to be­come cre­ative within the crim­i­nal statutes. They pros­e­cuted com­puter crimes under mail fraud, wire fraud, em­bez­zle­ment, and the like.

Let’s re­view the facts and hold­ing of three 1972 com­puter crime cases:

Se­lect each item to learn more.

Lund v. Com­mon­wealth

This case held that the grad­u­ate stu­dent could not be held li­able for unau­tho­rized use of the com­puter at his uni­ver­sity under the lar­ceny statutes.

Ward v. Su­pe­rior Court

Here the busi­ness ex­ec­u­tive un­law­fully copied a pro­gram and used it to make money. The court held that he was cul­pa­ble under trade se­cret and copy­right crim­i­nal statutes.

Peo­ple v. Weg

This case in­volved the unau­tho­rized use of a com­puter; again the court re­fused to hold the de­fen­dant li­able.

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Property and Computer Crimes

Topic 05: Computer Crimes

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Computer Crime Laws

Se­lect each item to learn more.

Com­puter Fraud and Abuse Act of 1984

CSEA 2002

The Dig­i­tal Theft De­ter­rence and Copy­right Dam­ages Im­prove­ment Act of 1999

Com­mu­ni­ca­tion De­cency Act (CDA) of 1996

Communication Decency Act of 1996. This act attempted to make illegal the display of pornography or submission of pornography to minors. The attempt to criminalize this conduct could not overcome First Amendment protections and was not implemented.

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Property and Computer Crimes

Topic 05: Computer Crimes

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Computer Crime Laws

Se­lect each item to learn more.

Com­puter Fraud and Abuse Act of 1984

CSEA 2002

The Dig­i­tal Theft De­ter­rence and Copy­right Dam­ages Im­prove­ment Act of 1999

Com­mu­ni­ca­tion De­cency Act (CDA) of 1996

Increased the amount of damages that can be awarded to victims of computer crime.

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Property and Computer Crimes

Topic 05: Computer Crimes

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Computer Crime Laws

Se­lect each item to learn more.

Com­puter Fraud and Abuse Act of 1984

CSEA 2002

The Dig­i­tal Theft De­ter­rence and Copy­right Dam­ages Im­prove­ment Act of 1999

Com­mu­ni­ca­tion De­cency Act (CDA) of 1996

This federal act provided sentencing guidelines for computer crimes, including life imprisonment where human life was threatened.

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Property and Computer Crimes

Topic 05: Computer Crimes

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Computer Crime Laws

Se­lect each item to learn more.

Com­puter Fraud and Abuse Act of 1984

CSEA 2002

The Dig­i­tal Theft De­ter­rence and Copy­right Dam­ages Im­prove­ment Act of 1999

Com­mu­ni­ca­tion De­cency Act (CDA) of 1996

This federal statute codified elements for computer crimes.

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Topic 05: Computer Crimes

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Types of Cybercrimes

Se­lect each item to learn more.

Added Facts: Some statutorily recognized property.

Burning refers to the destruction of property through any element: fire, smoke, flames, etc. Criminal statutes also define degrees of arson. For example, recklessly setting fire to a structure is a lesser degree of arson.