Chapter 3 The General Principles of Criminal Liability
The prosecution is required to prove every element of the crime beyond a reasonable doubt. One basic principle of criminal liability is the requirement of a criminal act. The criminal act is an element of criminal liability that the prosecution has to prove beyond a reasonable doubt.
There are two types of crime
based on their elements: crimes of criminal conduct and crimes of criminal conduct
causing criminal harms. Crimes of criminal conduct have a mental state and an
act triggered by the mental state. The concurrence element requires that the
act be caused or triggered by the intent (mens rea). Intending to commit
a crime is not a crime because it hasn’t ripened into a criminal act (actus
There are two types of criminal omissions: failure to report and failure to intervene. Criminal omissions create criminal liability only when a legal duty is not reasonably performed.
Possession is a passive state, but it can qualify as a criminal act when properly defined by law. There are a number of aspects or possible elements of possession crimes. First is physical control of an item. Second is awareness of physical control of some item. Third is awareness of the nature of the item (whether it is contraband or not). Actual possession means the item is on your person or within your reach. Constructive possession means the item is under your control but not on your person or within your reach. Things you leave at your home by putting them in your safe (for which you have the combination), are constructively possessed. Mere possession means you have possession of it, and know you have possession, but don’t know the nature of the item (that it is contraband). Knowing possession means that you knowingly possess the item and know that the item is contraband. Most states require proof that the possessor knew the item was contraband before a conviction can be obtained.
4 The General Principles of Criminal Liability:
Mens Rea, Concurrence and Causation
Most crimes have a mens rea or mental element that must be proven by the prosecution beyond a reasonable doubt. The basic idea is that it is not fair to punish someone unless they had some form of mental fault or blameworthiness.
The mental element can apply to or modify other elements of a crime and thus a crime can have more than one mental element. For instance, the mens rea can apply to the act, the harm or the circumstances.
General intent means intent to do the criminal act. Specific intent means an intent that applies to any other element of the crime other than the criminal act. Transferred intent is a doctrine that transfers the criminal’s intent from the intended victim to the victim the criminal actually hurt.
There are many different types of intent or culpability in various jurisdictions. Many states follow the Model Penal Code approach of having only four types of culpability or mens rea.
The first is purpose. This means it was the actor’s conscious object. Knowing means that the actor knew something was likely to happen or occur. Recklessness means that the person was aware of a serious risk but went ahead and took that risk anyway, even though an objectively reasonable person would not have taken that risk. Negligence means the actor did not conform to the external, objective standard of what a reasonable person would have known or done in the same circumstances. Purpose and knowing are subjective mental states. Recklessness is both objective and subjective. Negligence is a totally objective standard.
A few crimes do not have a mens rea element. These are called strict liability crimes. These crimes are controversial because they can punish persons who had no mental fault. A person could be punished for an accident. On the other hand, it is argued that certain types of crimes involve such important governmental interests and would be too difficult to enforce if a mens rea element was required. Strict liability crimes are always minor crimes that are rarely, if ever, punished by imprisonment.
If a crime has a harm or result element, the prosecution must prove that the defendant caused the harm beyond a reasonable doubt. The prosecution must prove that the defendant’s acts were both (1) the cause in fact (but for cause) and (2) the proximate or legal cause. Cause in fact is an empirical or factual issue. Proximate or legal cause involves the question of whether it is fair or just to make the defendant responsible for a harm that occurred in an unusual fashion. For instance, sometimes a defendant will do an act and start a chain of events in motion, but some other events will occur after the defendant’s act and contribute to causation of the harm. In general, if this intervening cause was normal and foreseeable, the defendant will not be relieved of liability for the harm.
Chapter 5 Parties to Crime and Vicarious Liability
A person can be criminally liable for the criminal acts of another. The doctrine of complicity (parties to crime) establishes when on account of your own conduct you can be held criminally liable for someone else’s crimes.
The doctrine of vicarious liability establishes what types of relationships can make you liable for someone else’s crimes.
The common law on complicity was complex. A principal in the first degree was the person who actually committed the crime. Principals in the second degree were those who were present at the scene of the crime and aided the principal in the first degree. Such aid could take the form of being a lookout or driving the getaway car. Accessories before the fact were those who were involved in the crime before it was committed and were not present when it was committed. An example would be a person who provides safe-cracking tools for the safecracker. Finally, an accessory after the fact is one whose only aid comes after the crime was completed.
Today, the law has been simplified. Under the current approach, participants before and during the commission of crimes are guilty of the crime itself. These persons are liable as accomplices. Participants after the commission of crimes are guilty of a separate, less serious offense.
The essence of accomplice
The core idea of accessory liability is that it’s not as blameworthy to help someone else escape prosecution as it is to participate in the crime itself.
Mens rea in business crimes is hard to prove because of the size and complexity of organizations and decision-making. Legislatures attempt to overcome this by creating strict liability crimes (eliminating any mens rea) and/or creating vicarious liability. Vicarious liability raises due process constitutional issues and policy questions about its effectiveness.
Individual vicarious liability involves making an individual responsible for the acts of other individuals: for instance, making owners of cars vicariously liable for operators’ parking tickets. The liability is created because of the owner-operator relationship.
Vicarious liability of parents based on the parent-child relationship grew out of public fear, frustration, and anger over juvenile crime. There is little case law on such statutes and some have been held unconstitutional.
Chapter 6 Inchoate Crimes: Attempt, Conspiracy and Solicitation
Inchoate offenses involve punishing people for crimes they haven’t completed. The term “inchoate” comes from the Latin “to begin.” Inchoate offenses require some action but not enough to finish the crime intended. Such offenses enable the police, courts and corrections to intervene before the intended harm occurs. All of these offenses have both a general intent and a specific intent element. General intent is to do the act, say the words, make an agreement, etc. Specific intent is any intent other than general intent. In these crimes, the specific intent is to commit a crime above and beyond the inchoate offense. Inchoate crimes are generally punished separately and less severely than the completed offense.
Criminal liability for criminal attempt offenses is based on two rationales: First is preventing dangerous conduct, and second is neutralizing dangerous people. The mens rea of inchoate crimes is the specific intent to commit a complete crime.
Legal impossibility is a defense to attempt liability. If the defendant did everything he or she wanted to do and it still wouldn’t be a crime, then it is a valid defense. The principle of legality would seem to require this. Factual impossibility is not a defense. If certain factors unknown to the defendant would make it impossible to complete the crime, this is not a defense. In some jurisdictions voluntary and complete abandonment of an attempt in progress may be a defense to attempt liability.
Solicitation and conspiracy both involve more than one person. Punishing conspiracy and solicitation to commit a crime is based not only on preventing crime, but also on the special danger of group criminality.
Criminal conspiracy is the
crime of agreeing with one or more people to commit a crime. The actus
The traditional approach to conspiracy required that at least two people really and sincerely agree to commit a crime (bilateral approach). Under this approach, a person could not be guilty of conspiring with an undercover police officer that had no intent to agree or carry out a crime.
Under the unilateral approach, there can be a conspiracy even though another party does not truly agree and doesn’t even know some of the others involved.
Criminal solicitation is
the crime of trying to get one or more persons to commit a crime. The actus
Chapter 7 Defenses to Liability: Justifications
There are three kinds of defenses: alibis, justifications, and excuses. Alibis free defendants from criminal liability, because they prove it’s impossible for the defendants to have committed the crime because they were somewhere else at the time of the crime. Justifications free defendants from criminal liability, because they prove the defendants aren’t blameworthy. Doing the criminal acts was right or justified. An example is self-defense. Excuses free defendants from criminal liability, because they prove the defendants aren’t responsible for their acts. An example is the insanity defense.
All the justification defenses are exceptions to the rule of law. They allow individuals to take the law into their own hands. According to the rule of law, the government has a monopoly on the use of force. Use of force by individuals must be justified by law.
Self-defense is a concession to necessity and is only justified when the force is reasonably and immediately necessary for defense. Deadly force is justified only when the necessity is unprovoked and the attack involves threatened death or serious bodily injury. The amount of force used must be the minimum amount reasonably necessary to defend against an imminent threat. The general rule is that a person must retreat if they can safely do so before using deadly force. This rule puts a premium on human life—even the life of an attacker. The castle exception and the rules regarding the defense of home clearly demonstrate the ancient doctrine that homes are castles is still alive and well. In general, a person is not required to retreat from or in their own home before using deadly force.
The right to defend others includes everyone from close family members to any stranger who needs immediate protection from attack. The same rules apply as in self-defense.
The choice-of-evils defense is also based on necessity. This defense protects those who make the right choice in deciding to commit a lesser crime to avoid the imminent harm of a greater crime or social harm. The crime results in a net social good.
The general rule is that consent by the victim is not a defense. However, consent is a defense to some crimes in some circumstances. The consent must be knowing and voluntary. The value of individual autonomy (not necessity) is the heart of the defense of consent.
Chapter 8 Defenses to Criminal Liability: Excuses
Defendants who plead excuses admit what they did was wrong but claim they weren’t responsible because of mental abnormality or unusual circumstances.
The excuse of insanity is rarely used, is rarely successful, and almost always leads to at least temporary civil commitment if successful. The defense of insanity stands for the proposition that we can’t blame people who aren’t responsible because of mental diseases or defects that impair their reason or will. Insanity is not the equivalent of mental disease or defect; it is caused by mental disease or defect.
There are a number of tests
of the insanity defense. The right-wrong (M’Naghten)
test focuses on defects in reason. The product-of-mental illness
John Hinckley, who attempted
to assassinate President Reagan, was found not guilty by reason of insanity.
This verdict troubled many and may have been caused by the fact that the prosecution
was required to prove that
Diminished capacity involves mental disease or defect that will not qualify for the insanity defense. It may reduce the degree of a crime, because it impairs the capacity to specific intent.
If successful, it may reduce the crime to a lower level or completely acquit because the required mens rea cannot be proven. The insanity defense leads to a special verdict.
Age can excuse criminal liability; it can also increase it. At common law, there was an irrebuttable presumption that a child under seven couldn’t form criminal intent. Between seven and fourteen, there was a rebuttable presumption of incapacity to form intent. At age fourteen, children were presumed to be capable of forming intent. Many states follow some updated form of the common law. All jurisdictions now have juvenile courts and special laws for juveniles. Juveniles over a certain age who commit serious crimes can be tried in criminal courts as adults.
Duress can be an excuse when individuals are threatened and forced to commit a crime or be killed. In most states, duress is not a defense to murder.
At common law, and in most, if not all states, voluntary intoxication was not a defense. While voluntary intoxication is not an excuse, involuntary intoxication is a defense.
Entrapment occurs when law enforcement officers actively induce, trick or persuade individuals to commit crimes they otherwise wouldn’t commit. There are two main types of entrapment defenses. The subjective version focuses on whether or not the defendant was predisposed to commit the crime anyway. The objective version focuses on whether the government action would cause a reasonable, law-abiding person to commit a crime.
Various types of syndromes or conditions such as post-traumatic stress disorder and premenstrual syndrome (PMS) have been tried as defenses. In general, they are not successful.
Chapter 9 Crimes Against Persons I: Criminal Homicide
Criminal homicides are different from all other crimes because of the finality of the result—the death of the victim. Because of the seriousness of the harm and the penalty, this is probably the most complex area of substantive criminal law. Although the definitions vary from state to state there are many common principles. All criminal homicides involve the killing of another person. The mens rea can include knowingly, intentionally, purposely, recklessly and negligently. The mens rea must trigger the act and the act must cause the death. The causation element has two components: cause in fact and legal cause.
The law of homicide has its origins in the common law. Early on, there were only three types of homicide: justifiable, excusable and criminal. A justifiable murder was not punishable if the defendant could establish a justification such as self-defense. An excusable murder was not criminal if the defendant could establish an excuse such as an accident.
Murder was defined as killing with malice aforethought. The crime of murder was expanded by creating implied malice situations, such as the deprave heart and felony murder. The common law also created the crime of voluntary manslaughter, which involved an intentional killing during the heat of passion.
The mens rea of criminal homicide is typically intentionally, knowingly, recklessly, or negligently (criminal negligence). There are, however, other types of murders. For instance, the intent to commit a qualifying felony substitutes for the intent to kill in felony murder. Many states have limited the felony murder doctrine to violent or dangerous felonies
Most of the law of criminal
homicide is about grading the offense according to the elements of mens rea,
Most murder statutes apply to corporations. However, in most cases, liability doesn’t extend beyond the rare prosecution for involuntary manslaughter in outrageous cases.
A voluntary manslaughter is an intentional, sudden killing triggered by an adequate provocation.
Provocation isn’t an excuse
for criminal homicide; it only reduces the punishment to allow for human weaknesses.
Most jurisdictions have both objective and subjective requirements for the elements
of voluntary manslaughter. Only certain types of provocation are deemed legally
adequate. Usually these are mutual combat, assault and battery, trespass and
adultery. Words alone are almost never deemed an adequate provocation. Catching
a spouse in the act of adultery is generally recognized as an adequate provocation.
Further, the killer must not have cooled off from the sudden passion. If the
killer did cool off, it is an intentional murder and not a voluntary manslaughter.
Specifically, the elements of voluntary manslaughter are as follows. The actus
Involuntary manslaughter is the least blameworthy form of criminal homicide. It involves unintentional (reckless or negligent) killing. Recklessness involves conscious creation of a serous and unjustifiable risk. Negligence involves unknowing creation of a substantial and unjustifiable risk.
The common law and early statutes recognized a form of involuntary manslaughter that involved an intentional killing during the course of committing a misdemeanor or an unlawful act. Most jurisdictions have severely limited or abolished this form of involuntary manslaughter.
10 Crimes Against Persons II:
Criminal Sexual Conduct, Bodily Injury and Personal Restraint
Crimes against persons involve four types: taking a life (homicide), unwanted sexual invasions (rape and sex offenses), bodily injury (assault and battery), and personal restraint (kidnapping, false imprisonment). In one form or another, all of these were common law crimes.
Sex offenses are serious even if there is no physical injury, because they violate intimacy and privacy and bodily integrity in a way typical physical injuries cannot. The criminal justice system handles rapes by strangers and men with weapons well, but it doesn’t do as well with the overwhelming number of rapes by men who know their victims, including date rape.
The old rape law defined a crime of forcible sexual penetration that only men could commit against women who weren’t their wives. The elements of rape at common law were:1. intentional vaginal intercourse, 2. between a man and a woman who was not his wife, 3. achieved by force or a threat of severe bodily harm, 4. without the woman’s consent
Modern statutes have expanded
the crime of rape and other sex crimes in criminal sexual conduct statutes.
These new offenses include a list of gender-neutral sex offenses, involving
unwanted sexual penetrations and contacts. Rape in most jurisdictions today
has four elements: 1. the actus
One controversial issue
is whether there should also be a specific intent element in rape. The leading
case on the point is the controversial English case of
When American courts face that intent question, they vary in their response. Many come down between the English specific-intent rule and strict liability on the issue of intent or knowledge to have sex without the victims consent. Some of these courts have adopted a reckless or negligent standard with regard to the consent problem.
Current rape law has shifted the emphasis from the resistance of victims to lack of consent.
The traditional emphasis
on physical violence (or threats thereof) to satisfy the element of force in
According to the law, the prosecution has to prove nonconsent by the victim beyond a reasonable doubt. However, as a matter of strategy, defendants claim victim consent as a defense.
Most current statutes divide rape into two degrees: simple (second-degree) rape and aggravated
(first-degree) rape. Aggravated rape involves at least one of the following circumstances: victim suffers serious bodily injury, stranger rape, rape occurs in conjunction with another crime, rapist is armed, multiple offenders, or victim is a minor while the rapist is significantly older. All other rapes are “simple” rapes with lesser penalties.
Much of the law of rape and rape prosecutions has changed over the years. The marital exception and prompt report rule have been abolished in many jurisdictions. Corroboration of the victim’s testimony is no longer required. Rape shield laws limit the ability of the defense to bring out evidence of the victim’s prior sex life. Utmost resistance by the victim is no longer required.
Reasonable resistance is enough.
Bodily injury crimes include unlawful nonsexual contacts (battery) or threats of them (assault). The elements of battery are negligently, recklessly, knowingly or purposely causing and unlawful, offensive touching of another. The grading of the seriousness of a battery depends on the amount of injury and the circumstances of the touching.
An assault requires no touching. There are two kinds of assault: attempted battery (having the specific intent to commit battery and taking steps to complete it), and threatened battery (intentionally scaring the victim). In both types, the victim must be aware of the defendant’s conduct.
Kidnapping and false imprisonment are crimes against the right to come and go as we please. At common law, kidnapping consisted of six elements: 1. Seizing, 2. Carrying away (asportation of) and 3. Confining 4. Another person 5. By force, threat of force, fraud, or deception 6. With the intent to deprive the other of their liberty.
The critical difference
between false imprisonment and kidnapping is that the actus
Kidnapping is usually divided into two degrees: simple and aggravated. The most common aggravating circumstances include kidnapping for the purpose of: sexual invasion, taking a hostage, getting ransom, terrorizing the victim, and achieving political goals. The penalty for aggravated kidnapping is typically life imprisonment and, until recently, even death.
The elements of false imprisonment are: restraining another person’s liberty, with specific intent to restrain. The Model Penal Code requires the restraint to “interfere substantially with the victim’s liberty,” but in most states, any interference with another person’s liberty suffices. In many states false imprisonment means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person against their will and without legal authority.
Chapter 11 Crimes Against Property
Crimes against property are one of three types: taking it, damaging or destroying it, or invading it. Since the 1600s many new ways to steal have arisen. The new crimes created to deal with the new problems of property crime are really only new ways of committing the three original types of crimes. Computer and Internet crimes consist of taking, damaging or destroying, or invading other people’s computers or the information stored on them.
All crimes of taking property descend from larceny—the ancient common law crime of sneaking away with (stealing) someone else’s property. Larceny was born as the common-law instrument to protect the Anglo-Saxons’ most valuable possession—livestock.
Theft (or larceny) is a
specific-intent crime; it requires the intent to permanently deprive the other
person of their property. Larceny actus
Obtaining property already stolen by someone else still is regarded as a crime. Traditionally, it was called receiving stolen property. Over time a number of new property crimes emerged as taking other people’s property. Embezzlement was not a common law crime; it was created by Parliament. Embezzlement involves converting another’s property with intent to permanently deprive the owner of the property. Conversion means keeping someone else’s property that was initially legally obtained and then illegally keeping it for one’s own benefit.
The crime of false pretenses involves the intent to permanently deprive owner of property by using deceit or false representations. This, however, is not the only crime that involves attempting to cheat people by deception.
Taking other people’s money by making false documents is called forgery. The uttering or passing of false or forged documents is also a crime. Forgery consists of making false legal documents or altering existing ones, such as checks, deeds, stocks, bonds, and credit cards. This is done for the purpose of getting someone else’s property. Uttering means to pass false documents on to others.
Robbery is a crime against
persons and their property. It involves taking someone else’s property from
their person by force or the threat of immediate force. Robbery consists of
three elements. The actus
Extortion (also called blackmail)
is a crime against persons and their property. Theft by extortion is taking
someone else’s property by threats of future harm. Time separates extortion
from robbery: robbery is a threat to hurt someone right now if they don’t give
up their property; extortion is a threat to hurt someone later. The elements
of extortion consist of: 1. Mens rea. The specific
intent to take someone else’s property by means of threats; 2. Actus
Arson (damaging or destroying other people’s buildings by fire, explosives, is a felony. Criminal mischief (destroying or tampering with other people’s property or causing money loss by “expensive practical jokes” or false threats) is a misdemeanor. Criminal mischief includes three types of harm to tangible property: 1. destruction or damage by fire, explosives, or other “dangerous acts” (the original malicious mischief), 2. tampering with tangible property so as to endanger it; and 3. deception or threat that causes monetary loss.
The elements of common-law
burglary from which our modern burglary emerged included: 1. breaking and entering
Modern burglary has outgrown its common-law origin of just protecting homes. Now, you can “burglarize” all kinds of structures, even vehicles, at any time of the day. The breaking and entering elements have been eliminated or modified, and the predicate crimes do not always have to be a felony.
A less serious crime related
to burglary is criminal trespass. The actus