Scheb and Scheb, Scheb and Scheb, Criminal Law and ProcedureCriminal Law and Procedure

77thth edition edition

Chapter 4:

Elements of Crimes and

Parties to Crimes

Basic Elements of a CrimeBasic Elements of a Crime

actus reusactus reus wrongful act wrongful act

mens reamens rea criminal intentcriminal intent

Actus Reus Actus Reus

The term The term actus reus actus reus means “the act means “the act of a criminal.” of a criminal.”

The rationale for the The rationale for the actus reus actus reus requirement is to prevent a person requirement is to prevent a person from being guilty of an offense based from being guilty of an offense based on thoughts or intent alone. on thoughts or intent alone.

Model Penal CodeModel Penal Code

defines “act” as a “bodily movement defines “act” as a “bodily movement whether voluntary or involuntary”; whether voluntary or involuntary”;

states that “a person is not guilty of states that “a person is not guilty of an offense unless his liability is based an offense unless his liability is based on conduct that includes a voluntary on conduct that includes a voluntary act or the omission to perform an act act or the omission to perform an act of which he is capable.”of which he is capable.”

When Does Failure to Act When Does Failure to Act Constitute an Act?Constitute an Act?

To be guilty of a crime for failure to act, To be guilty of a crime for failure to act, there must have been a legal duty to there must have been a legal duty to act in the first place. act in the first place.

Such a duty can arise in one of three Such a duty can arise in one of three ways: ways:

(1) by relationship of the actor to the (1) by relationship of the actor to the victimvictim

(2) by a statutory duty; (2) by a statutory duty;

(3) by contract between the actor and (3) by contract between the actor and the victim.the victim.

Hypothetical ProblemHypothetical Problem

Mark, an expert swimmer, is lying on the Mark, an expert swimmer, is lying on the beach and sees a young girl, unrelated beach and sees a young girl, unrelated to him, struggling to stay afloat and to him, struggling to stay afloat and crying for help. Mark disregards her crying for help. Mark disregards her cries, and she drowns. Is Mark criminally cries, and she drowns. Is Mark criminally liable? The answer is no, for although we liable? The answer is no, for although we might agree that Mark had a strong might agree that Mark had a strong moral obligation to attempt to save the moral obligation to attempt to save the child, there was no legal obligation to do child, there was no legal obligation to do so.so.

Status as a Criminal Act?Status as a Criminal Act?

““Status” refers to a person’s state of Status” refers to a person’s state of being, and ordinarily the state cannot being, and ordinarily the state cannot criminalize a person’s status.criminalize a person’s status. Theft is a crime; being a thief is not.Theft is a crime; being a thief is not. Gambling may be a crime; being a Gambling may be a crime; being a

gambler is not.gambler is not. Public drunkenness is an offense; Public drunkenness is an offense;

being an alcoholic cannot be.being an alcoholic cannot be.

Robinson v. California Robinson v. California (U.S. Sup. Ct., 1962)(U.S. Sup. Ct., 1962)

The Court declared unconstitutional a The Court declared unconstitutional a California statute that made it an offense for a California statute that made it an offense for a person “to be addicted to the use of person “to be addicted to the use of narcotics.” narcotics.”

The Court said: “We hold that a state law The Court said: “We hold that a state law which imprisons a person thus afflicted as a which imprisons a person thus afflicted as a criminal, even though he has never touched criminal, even though he has never touched any narcotic drug within the State or been any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of cruel and unusual punishment in violation of the Fourteenth Amendment.” the Fourteenth Amendment.”

Ordinance Invalidated in Ordinance Invalidated in Papachristou v. Papachristou v. City of Jacksonville City of Jacksonville (1972)(1972)

““Rogues and vagabonds, or dissolute persons who go about Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants.…”of their wives or minor children shall be deemed vagrants.…”

Possession as a Criminal ActPossession as a Criminal Act

carrying a concealed weaponcarrying a concealed weapon possession of contrabandpossession of contraband possession of burglar’s toolspossession of burglar’s tools

Actual and Constructive PossessionActual and Constructive Possession

Actual possession exists when a Actual possession exists when a person has something under his or person has something under his or her direct physical control. her direct physical control.

A person who has the power and A person who has the power and intention to control something either intention to control something either directly or through another person is directly or through another person is said to be in constructive possession. said to be in constructive possession.

Mens ReaMens Rea

The law normally requires criminal The law normally requires criminal intent because we don’t normally intent because we don’t normally punish people for accidents.punish people for accidents.

The California Supreme Court The California Supreme Court observed in observed in In re Hayes In re Hayes (1968), “an (1968), “an essential element of every orthodox essential element of every orthodox crime is a wrongful or blameworthy crime is a wrongful or blameworthy mental state of some kind.”mental state of some kind.”

General and Specific IntentGeneral and Specific Intent At common law, crimes were At common law, crimes were

classified as requiring either general classified as requiring either general intent or specific intent; American intent or specific intent; American courts followed that tradition. courts followed that tradition.

General intent is the intent to do an General intent is the intent to do an act but not necessarily to cause the act but not necessarily to cause the results that occur from that act.results that occur from that act.

Specific intent refers to an actor’s Specific intent refers to an actor’s mental purpose to accomplish a mental purpose to accomplish a particular result beyond the act itself. particular result beyond the act itself.

General Intent StatutesGeneral Intent Statutes

Statutory words such as “willfully” or Statutory words such as “willfully” or “intentionally” generally indicate that “intentionally” generally indicate that the offender must have only the offender must have only intended to do the act and not to intended to do the act and not to accomplish any particular result. accomplish any particular result.

A statute making it the crime of A statute making it the crime of arson to “willfully and unlawfully” set arson to “willfully and unlawfully” set fire to a building is generally viewed fire to a building is generally viewed as defining a general-intent crime. as defining a general-intent crime.

Specific Intent StatutesSpecific Intent Statutes

A statute making it an offense for A statute making it an offense for any person “to willfully and with the any person “to willfully and with the intent to injure or defraud an intent to injure or defraud an insurance company set fire to any insurance company set fire to any building.” building.”

A statute defining burglary as “the A statute defining burglary as “the unauthorized entry of a dwelling by a unauthorized entry of a dwelling by a person with the intent to commit person with the intent to commit theft therein.” theft therein.”

CausationCausation

When an offense is defined in a manner When an offense is defined in a manner that a specific result must occur, the that a specific result must occur, the concept of causation becomes important.concept of causation becomes important.

Sometimes lawyers refer to legal causation Sometimes lawyers refer to legal causation as proximate cause, defined as “a cause as proximate cause, defined as “a cause that in a natural, continuous sequence, that in a natural, continuous sequence, unbroken by any intervening causes, unbroken by any intervening causes, produces the consequences that occur.” produces the consequences that occur.”

Sometimes the “but for” test is employed Sometimes the “but for” test is employed here, meaning that “but for” the accused’s here, meaning that “but for” the accused’s actions, the harm would not have occurred. actions, the harm would not have occurred.

Common Common Mens Rea Mens Rea TermsTerms

IntentionallyIntentionally KnowinglyKnowingly WillfullyWillfully MaliciouslyMaliciously DeliberatelyDeliberately PurposefullyPurposefully

UnlawfullyUnlawfully WrongfullyWrongfully FeloniouslyFeloniously DeliberatelyDeliberately RecklesslyRecklessly NegligentlyNegligently

Model Penal Code Approach to Model Penal Code Approach to Mens ReaMens Rea

Four “culpable mental states”Four “culpable mental states” Purposely or IntentionallyPurposely or Intentionally KnowinglyKnowingly RecklesslyRecklessly NegligentlyNegligently

““Purposefully” or “Intentionally”Purposefully” or “Intentionally”

A person acts intentionally with A person acts intentionally with respect to a result or to conduct respect to a result or to conduct described by a statute defining an described by a statute defining an offense, when his purpose is to cause offense, when his purpose is to cause that result or to engage in that that result or to engage in that conduct.conduct.

““Knowingly”Knowingly”

A person acts knowingly with respect A person acts knowingly with respect to conduct or to a circumstance to conduct or to a circumstance described by a statute defining an described by a statute defining an offense when he is aware that his offense when he is aware that his conduct is of that nature or that the conduct is of that nature or that the circumstance exists.circumstance exists.

““Recklessly”Recklessly”

A person acts recklessly with respect A person acts recklessly with respect to a result or to a circumstance to a result or to a circumstance described by a statute defining an described by a statute defining an offense when he is aware of and offense when he is aware of and consciously disregards a substantial consciously disregards a substantial and unjustifiable risk that the result and unjustifiable risk that the result will occur or that the circumstance will occur or that the circumstance exists. exists.

Criminal Negligence Criminal Negligence

A person acts with criminal A person acts with criminal negligence with respect to a result or negligence with respect to a result or to a circumstance which is defined to a circumstance which is defined by statute as an offense when he by statute as an offense when he fails to perceive a substantial and fails to perceive a substantial and unjustifiable risk that the result will unjustifiable risk that the result will occur or that the circumstance occur or that the circumstance exists.exists.

Mens Rea Elements of Criminal Mens Rea Elements of Criminal Homicide in TennesseeHomicide in Tennessee

First-degree murder: “the First-degree murder: “the premeditatedpremeditated and and intentionalintentional killing of another” killing of another”

Second-degree murder: “a Second-degree murder: “a knowingknowing killing of killing of another” another”

Voluntary manslaughter: “the Voluntary manslaughter: “the intentionalintentional or or knowing knowing killing of another in a state of killing of another in a state of passion produced by adequate provocation…” passion produced by adequate provocation…”

Reckless homicide: the “Reckless homicide: the “recklessreckless killing of killing of another” another”

Criminally negligent homicide: “criminally Criminally negligent homicide: “criminally negligentnegligent conduct which results in death” conduct which results in death”

Strict Liability OffensesStrict Liability Offenses

Legislative bodies have the power to Legislative bodies have the power to dispense with the necessity for the dispense with the necessity for the mental element and authorize mental element and authorize punishment of particular acts without punishment of particular acts without regard to the actor’s intent.regard to the actor’s intent.

Strict liability offenses now constitute Strict liability offenses now constitute a substantial part of the criminal law.a substantial part of the criminal law.

Many Many mala prohibita mala prohibita crimes are strict crimes are strict liability offensesliability offenses

These include “regulatory” or “public These include “regulatory” or “public welfare” types of offenses, which often are welfare” types of offenses, which often are tailored to address public safety, tailored to address public safety, environmental, and public health concerns. environmental, and public health concerns.

Examples of strict liability laws today Examples of strict liability laws today include mostly traffic regulations, food and include mostly traffic regulations, food and drug laws, and laws prohibiting the sale of drug laws, and laws prohibiting the sale of liquor and cigarettes to minors. liquor and cigarettes to minors.

Statutory Rape a Strict Liability CrimeStatutory Rape a Strict Liability Crime

In later stages of the English law, it became In later stages of the English law, it became a statutory offense for a man to have carnal a statutory offense for a man to have carnal knowledge of a female child less than ten knowledge of a female child less than ten years of age with or without the child’s years of age with or without the child’s consent. This offense came to be known as consent. This offense came to be known as statutory rape.statutory rape.

Statutory rape laws are now gender-neutral Statutory rape laws are now gender-neutral in most states, and some impose penalties in most states, and some impose penalties only if there is at least a two to five-year only if there is at least a two to five-year disparity between the ages of the disparity between the ages of the perpetrator and the underage party.perpetrator and the underage party.

Statutory Rape (cont.)Statutory Rape (cont.)

A few states have allowed a defendant to A few states have allowed a defendant to defend against a charge of statutory rape defend against a charge of statutory rape on the basis that he or she was mistaken on the basis that he or she was mistaken about the victim’s age, but most hold the about the victim’s age, but most hold the defendant strictly liable even if he or she defendant strictly liable even if he or she made a reasonable inquiry in good faith to made a reasonable inquiry in good faith to determine the victim’s age. determine the victim’s age.

Morissette v. United States Morissette v. United States (U.S. Sup. Ct., 1952)(U.S. Sup. Ct., 1952)

The defendant was convicted of violating The defendant was convicted of violating federal law by taking some old bomb federal law by taking some old bomb casings from a government bombing range. casings from a government bombing range.

At trial, the district court refused to instruct At trial, the district court refused to instruct the jury on the issue of intent, in effect the jury on the issue of intent, in effect holding that the government was required holding that the government was required to prove only the defendant’s act, not his to prove only the defendant’s act, not his intent, because the statute required proof intent, because the statute required proof of only the prohibited act. of only the prohibited act.

Morissette v. U.S. Morissette v. U.S. (cont.) (cont.)

The Supreme Court reversed Morissette’s The Supreme Court reversed Morissette’s conviction. conviction.

The Court held that the crime for which he The Court held that the crime for which he was prosecuted was a variant of the was prosecuted was a variant of the common-law offense of larceny and that common-law offense of larceny and that failure to include the intent requirement in failure to include the intent requirement in the statute did not eliminate the element the statute did not eliminate the element of intent.of intent.

Parties to CrimesParties to Crimes

At common law, a person directly At common law, a person directly involved in committing a felony was involved in committing a felony was classified as a classified as a principalprincipal..

A person whose conduct did not A person whose conduct did not involve direct participation was involve direct participation was classified as an classified as an accessoryaccessory. .

Principals at Common LawPrincipals at Common Law

A person who directly or through the acts A person who directly or through the acts of an innocent agent actually committed of an innocent agent actually committed the crime was a the crime was a principal in the first principal in the first degreedegree. .

A A principal in the second degree principal in the second degree was a was a person not directly involved but actually or person not directly involved but actually or constructively present at the commission constructively present at the commission of the crime who aided and abetted the of the crime who aided and abetted the perpetrator. perpetrator.

Accessories at Common LawAccessories at Common Law

An An accessory before the fact accessory before the fact was one was one who procured or counseled another to who procured or counseled another to commit a felony but who was not actually or commit a felony but who was not actually or constructively present at the commission of constructively present at the commission of the offense. the offense.

An An accessory after the fact accessory after the fact was one who, was one who, with knowledge of the other’s guilt, rendered with knowledge of the other’s guilt, rendered assistance to a felon in an effort to hinder assistance to a felon in an effort to hinder the felon’s arrest or punishment.the felon’s arrest or punishment.

The Modern American ApproachThe Modern American Approach

The American approach has been to abolish The American approach has been to abolish both the substantive and procedural both the substantive and procedural distinctions between principals and distinctions between principals and accessories before the fact. accessories before the fact.

For example, federal law provides that For example, federal law provides that “[w]hoever commits an offense against the “[w]hoever commits an offense against the United States or aids, abets, counsels, United States or aids, abets, counsels, commands, induces, or procures its commands, induces, or procures its commission, is punishable as a principal….” commission, is punishable as a principal….” 18 U.S.C.A. § 2(a). 18 U.S.C.A. § 2(a).

The Modern American Approach (cont.)The Modern American Approach (cont.)

The common-law distinction between The common-law distinction between principals and accessories before the fact has principals and accessories before the fact has been largely abolished, but the concept of been largely abolished, but the concept of accessory after the fact as a separate offense accessory after the fact as a separate offense has been retained by many jurisdictions. has been retained by many jurisdictions.

Modern statutes view an accessory after the Modern statutes view an accessory after the fact as less culpable than someone who plans, fact as less culpable than someone who plans, assists, or commits a crime. assists, or commits a crime.

Thus, statutes generally define being an Thus, statutes generally define being an accessory after the fact as a separate offense accessory after the fact as a separate offense and provide for a less severe punishment. and provide for a less severe punishment.

Mississippi Code § 97-1-3. Mississippi Code § 97-1-3. Accessories before the fact.Accessories before the fact.

““Every person who shall be an Every person who shall be an accessory to any felony, before the accessory to any felony, before the fact, shall be deemed and considered fact, shall be deemed and considered a principal, and shall be indicted and a principal, and shall be indicted and punished as such; and this whether punished as such; and this whether the principal have been previously the principal have been previously convicted or not.”convicted or not.”

Mississippi Code § 97-1-5. Mississippi Code § 97-1-5. Accessories after the fact.Accessories after the fact.

““Every person who shall be convicted of Every person who shall be convicted of having concealed, received, or relieved any having concealed, received, or relieved any felon, or having aided or assisted any felon, felon, or having aided or assisted any felon, knowing that such person had committed a knowing that such person had committed a felony, with intent to enable such felon to felony, with intent to enable such felon to escape or to avoid arrest, trial, conviction or escape or to avoid arrest, trial, conviction or punishment, after the commission of such punishment, after the commission of such felony, on conviction thereof shall be felony, on conviction thereof shall be imprisoned in the penitentiary not exceeding imprisoned in the penitentiary not exceeding five years, or in the county jail not exceeding five years, or in the county jail not exceeding one year, or by fine not exceeding one one year, or by fine not exceeding one thousand dollars, or by both…thousand dollars, or by both…””

T.C.A. § 39-11-411T.C.A. § 39-11-411Accessory after the fact.Accessory after the fact.

(a)  A person is an accessory after the fact who, after (a)  A person is an accessory after the fact who, after the commission of a felony, with knowledge or the commission of a felony, with knowledge or reasonable ground to believe that the offender has reasonable ground to believe that the offender has committed the felony, and with the intent to hinder the committed the felony, and with the intent to hinder the arrest, trial, conviction or punishment of the offender:arrest, trial, conviction or punishment of the offender:

          (1)  Harbors or conceals the offender;(1)  Harbors or conceals the offender;           (2)  Provides or aids in providing the offender with (2)  Provides or aids in providing the offender with

any means of avoiding arrest, trial, conviction or any means of avoiding arrest, trial, conviction or punishment; orpunishment; or

          (3)  Warns the offender of impending apprehension (3)  Warns the offender of impending apprehension or discovery. …or discovery. …

(c)  Accessory after the fact is a Class E felony.(c)  Accessory after the fact is a Class E felony.