Scheb and Scheb, Criminal Law and Procedure 7 th edition Chapter 4: Elements of Crimes and Parties to Crimes
Basic Elements of a Crime
The term actus reus means “the act of a criminal.”
The rationale for the actus reus requirement is to prevent a person from being guilty of an offense based on thoughts or intent alone.
Model Penal Code
defines “act” as a “bodily movement whether voluntary or involuntary”;
states that “a person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is capable.”
When Does Failure to Act Constitute an Act?
To be guilty of a crime for failure to act, there must have been a legal duty to act in the first place.
Such a duty can arise in one of three ways:
(1) by relationship of the actor to the victim
(2) by a statutory duty;
(3) by contract between the actor and the victim.
Mark, an expert swimmer, is lying on the beach and sees a young girl, unrelated to him, struggling to stay afloat and crying for help. Mark disregards her cries, and she drowns. Is Mark criminally liable? The answer is no, for although we might agree that Mark had a strong moral obligation to attempt to save the child, there was no legal obligation to do so.
Status as a Criminal Act?
“ Status” refers to a person’s state of being, and ordinarily the state cannot criminalize a person’s status.
Theft is a crime; being a thief is not.
Gambling may be a crime; being a gambler is not.
Public drunkenness is an offense; being an alcoholic cannot be.
Robinson v. California (U.S. Sup. Ct., 1962)
The Court declared unconstitutional a California statute that made it an offense for a person “to be addicted to the use of narcotics.”
The Court said: “We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment.”
Ordinance Invalidated in Papachristou v. City of Jacksonville (1972)
“ Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants.…”
Possession as a Criminal Act
carrying a concealed weapon
possession of contraband
possession of burglar’s tools
Actual and Constructive Possession
Actual possession exists when a person has something under his or her direct physical control.
A person who has the power and intention to control something either directly or through another person is said to be in constructive possession.
The law normally requires criminal intent because we don’t normally punish people for accidents.
The California Supreme Court observed in In re Hayes (1968), “an essential element of every orthodox crime is a wrongful or blameworthy mental state of some kind.”
General and Specific Intent
At common law, crimes were classified as requiring either general intent or specific intent; American courts followed that tradition.
General intent is the intent to do an act but not necessarily to cause the results that occur from that act.
Specific intent refers to an actor’s mental purpose to accomplish a particular result beyond the act itself.
General Intent Statutes
Statutory words such as “willfully” or “intentionally” generally indicate that the offender must have only intended to do the act and not to accomplish any particular result.
A statute making it the crime of arson to “willfully and unlawfully” set fire to a building is generally viewed as defining a general-intent crime.
Specific Intent Statutes
A statute making it an offense for any person “to willfully and with the intent to injure or defraud an insurance company set fire to any building.”
A statute defining burglary as “the unauthorized entry of a dwelling by a person with the intent to commit theft therein.”
When an offense is defined in a manner that a specific result must occur, the concept of causation becomes important.
Sometimes lawyers refer to legal causation as proximate cause, defined as “a cause that in a natural, continuous sequence, unbroken by any intervening causes, produces the consequences that occur.”
Sometimes the “but for” test is employed here, meaning that “but for” the accused’s actions, the harm would not have occurred.
Common Mens Rea Terms
Model Penal Code Approach to Mens Rea
Four “culpable mental states”
Purposely or Intentionally
“ Purposefully” or “Intentionally”
A person acts intentionally with respect to a result or to conduct described by a statute defining an offense, when his purpose is to cause that result or to engage in that conduct.
A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of that nature or that the circumstance exists.
A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists.
A person acts with criminal negligence with respect to a result or to a circumstance which is defined by statute as an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists.
Mens Rea Elements of Criminal Homicide in Tennessee
First-degree murder: “the premeditated and intentional killing of another”
Second-degree murder: “a knowing killing of another”
Voluntary manslaughter: “the intentional or knowing killing of another in a state of passion produced by adequate provocation…”
Reckless homicide: the “ reckless killing of another”
Criminally negligent homicide: “criminally negligent conduct which results in death”
Strict Liability Offenses
Legislative bodies have the power to dispense with the necessity for the mental element and authorize punishment of particular acts without regard to the actor’s intent.
Strict liability offenses now constitute a substantial part of the criminal law.
Many mala prohibita crimes are strict liability offenses
These include “regulatory” or “public welfare” types of offenses, which often are tailored to address public safety, environmental, and public health concerns.
Examples of strict liability laws today include mostly traffic regulations, food and drug laws, and laws prohibiting the sale of liquor and cigarettes to minors.
Statutory Rape a Strict Liability Crime
In later stages of the English law, it became a statutory offense for a man to have carnal knowledge of a female child less than ten years of age with or without the child’s consent. This offense came to be known as statutory rape.
Statutory rape laws are now gender-neutral in most states, and some impose penalties only if there is at least a two to five-year disparity between the ages of the perpetrator and the underage party.
Statutory Rape (cont.)
A few states have allowed a defendant to defend against a charge of statutory rape on the basis that he or she was mistaken about the victim’s age, but most hold the defendant strictly liable even if he or she made a reasonable inquiry in good faith to determine the victim’s age.
Morissette v. United States (U.S. Sup. Ct., 1952)
The defendant was convicted of violating federal law by taking some old bomb casings from a government bombing range.
At trial, the district court refused to instruct the jury on the issue of intent, in effect holding that the government was required to prove only the defendant’s act, not his intent, because the statute required proof of only the prohibited act.
Morissette v. U.S. (cont.)
The Supreme Court reversed Morissette’s conviction.
The Court held that the crime for which he was prosecuted was a variant of the common-law offense of larceny and that failure to include the intent requirement in the statute did not eliminate the element of intent.
Parties to Crimes
At common law, a person directly involved in committing a felony was classified as a principal .
A person whose conduct did not involve direct participation was classified as an accessory .
Principals at Common Law
A person who directly or through the acts of an innocent agent actually committed the crime was a principal in the first degree .
A principal in the second degree was a person not directly involved but actually or constructively present at the commission of the crime who aided and abetted the perpetrator.
Accessories at Common Law
An accessory before the fact was one who procured or counseled another to commit a felony but who was not actually or constructively present at the commission of the offense.
An accessory after the fact was one who, with knowledge of the other’s guilt, rendered assistance to a felon in an effort to hinder the felon’s arrest or punishment.
The Modern American Approach
The American approach has been to abolish both the substantive and procedural distinctions between principals and accessories before the fact.
For example, federal law provides that “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal….”
18 U.S.C.A. § 2(a).
The Modern American Approach (cont.)
The common-law distinction between principals and accessories before the fact has been largely abolished, but the concept of accessory after the fact as a separate offense has been retained by many jurisdictions.
Modern statutes view an accessory after the fact as less culpable than someone who plans, assists, or commits a crime.
Thus, statutes generally define being an accessory after the fact as a separate offense and provide for a less severe punishment.
Mississippi Code § 97-1-3. Accessories before the fact.
“ Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not.”
Mississippi Code § 97-1-5. Accessories after the fact.
“ Every person who shall be convicted of having concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that such person had committed a felony, with intent to enable such felon to escape or to avoid arrest, trial, conviction or punishment, after the commission of such felony, on conviction thereof shall be imprisoned in the penitentiary not exceeding five years, or in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both… ”
T.C.A. § 39-11-411 Accessory after the fact.
(a) A person is an accessory after the fact who, after the commission of a felony, with knowledge or reasonable ground to believe that the offender has committed the felony, and with the intent to hinder the arrest, trial, conviction or punishment of the offender:
(1) Harbors or conceals the offender;
(2) Provides or aids in providing the offender with any means of avoiding arrest, trial, conviction or punishment; or
(3) Warns the offender of impending apprehension or discovery. …