Circumstances as Crime Elements

Circumstances as Crime Elements:
- Criminal statutes often include “circumstances” as additional elements of a crime. These are
based on policy decisions about the ppl / activities / situations we want to protect (ex. “at night”
in burglary, we want ppl to be safe when sleeping).
- Generally, the more circumstances in the statute, the fewer ppl who’re likely to violate it.
- Commonwealth v. Noel (PA Sup Ct, 2004): D was riding a horse drunk, collided with a pickup
truck. The statute forbade operation of a vehicle while intoxicated. Held that where a drunk
driving statute is vague in its applicability to animal riders, it cannot be properly applied to
an intoxicated horse-rider.
Causation as a Crime Element:
- “But for” causation: A universal limit on crim responsibility that D can only be convicted if he
actually caused the harm required in the statute. Requires a link b/t D’s acts or omissions and the
harm. Remains even if there’s another contributing agency. Some jurisdictions require only this,
but many also require prox cause.
- Proximate (aka policy-based, legal) causation: considers whether it’s fair to hold D criminally
accountable for the result. Such issues often arise when D does an act and another person does a
2nd act contributing to the result (intervening cause):
o Dissent: DP just requires statutes contain standards so RP understands what’s forbidden.
o Independent intervening cause: one that’s not intended, or reasonably foreseeable.
Breaks the chain of causation, alleviating D of liability for the final result.
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o Dependent intervening cause: sufficiently related to D’s conduct to merit holding D
responsible for the harm, foreseeable to D, so he’s still liable.
o D must take V as he is, so D’s still liable even if V’s pre-existing condition was involved.
- Doctrine of concurrent causation: where each D’s conduct would’ve been sufficient to result in
the harm, each D can be prosecuted. D’s conduct need only be a cause, not the cause. See Rivera.
- The MPC adds a probability component.
- Many crim statutes require the offender to have caused a particular harm or result (ex.
murder : death, assault : fear).
- Sometimes statutes use gradations of harm (ex. aggravated assault : serious bodily injury, assault
: bodily injury).
- Sometimes, however, crim statutes depend instead on risk of harm (v. actual harm), ex. reckless
endangerment, punishing those who act so as to make certain harm a possibility
- Some harms require no proof of harm or specific risk, usually due to regulatory concerns or b/c
the conduct itself is so risky (ex. drunk driving).
- Rationale for causation: notion that it’s unfair to hold someone criminally responsible for harm
that occurred in a way unrelated to his conduct..
- Causation is seldom contested in crim cases, b/c it’s usually obvious.
- Most cts hold D liable despite V’s unusual vulnerability.
- Most cases hold D responsible even when the immediate result is to a large extent the product of
the victim’s own choice about care (see Klinger v. State re: blood transfusion / Jehovah’s
witness). Same if family makes the decision (see State v. Pelham), V commits suicide (see
Stephenson v. State).
- Where the result was intended or foreseeable, but occurred in a different manner than expected
or likely, courts generally still hold D responsible (ex. People v. Kibbe).
- MPC 2.03: Causal Relationship b/t Conduct and Result; Divergence b/t Result Designed or
Contemplated and Actual Result or b/t Probable and Actual Result. Retains the “but for”
approach of the common law, but also adds a different, specific kind of prox cause approach.
o Conduct is the direct cause when there’s both but for cause and any additional causal
requirements.
o When purpose or knowledge of causing a specific result is an element of a crime, this
isn’t established if the actual result isn’t w/in the actor’s purpose / contemplation unless
the actual result is less serious or extensive than, or similarly injurious to the injury
contemplated.
o When recklessness or negligence of causing a particular result is an element, it’s not
established it the actor wasn’t aware of this risk or, re: negligence, shouldn’t have been
aware, the actual result is less serious or extensive than, or similarly injurious to the
injury contemplated.
o When causation of a particular result is a material element of an offense for which
absolute liability is imposed by law, the element isn’t established unless the actual result
is a probable consequence of the actor’s conduct.
- Commonwealth v. McCloskey (PA Sup Ct, 2003): D was charged w/involuntary MS for kids
who died in drunk driving accident after leaving a party her kid hosted in their basement w/her
knowledge. Involuntary MS requires 1) a mental state of either recklessness or gross negligence,
2) a causal link b/t D’s conduct and V’s death. Here, D’s recklessness was sufficient. Rule: V’s
contributory negligence isn’t a defense to a criminal charge; where D’s furnishing of alcohol
to minors started the chain of causation leading to their death, D is liable for involuntary MS.
o But for causation + prox cause not interrupted by intervening cause = crim liability.
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- Commonwealth v. Root: held that a surviving drag racer was not prox cause of his deceased
opponent’s death b/c the deceased was supervening cause of his own death. More direct
causation is necessary for criminal (v. tort) liability.
o PA statute later reversed this outcome, providing that one is legally responsible for the
conduct of his accomplice.
o Most modern decisions disagree w/Root, holding the surviving racer responsible for the
other’s death (see People v. Tims).



Mens Rea:
- General mens rea (aka general intent): requires proof that D intended to perform the physical
act proscribed by the statute; D needn’t have intended the consequences of that act. Not used in
many modern jurisdictions and criticized for being meaningless.
- Specific mens rea: either the mens rea required by the crim statute or, more narrowly, to a
statutory mens rea requiring specific intent (ex. intent to kill).
- Transferred intent: just like in tort law. Doctrine that one is guilty of intentionally killing another,
even if he meant to hit someone else or had no idea the victim was even there. Applies also to
crimes like arson. The rule is ordinarily applied by judicial decision, but some states incorporate
it in specific statutes. Applies whether D intended to kill a certain person or an unspecified
individual or group. Some decisions, however, have refused to apply it to attempted murder. May
be used by the defense in the case of self-defense.
- Recklessness: requires both a subjective awareness of risk and an objective notion that the risk
was substantial and unjustified.
- Crim negligence: almost entirely objective, convicting if D should have known of a risk (but did
not necessarily). Both require an objectively gross deviation from the standard of care of a
reasonable person. These categories may seem clear cut, but can blur into each other in real life.
- Ostrich instruction: speaks to knowledge. See Jewell.
- Strict liability crimes: don’t require proof of any particular mens rea b/c the actus reus is
blameworthy enough. Usually for regulatory (not so serious) or public welfare offenses (can be
serious, ex. DUI, statutory rape).
- Cts might read mens rea into a statute, especially if it’s based on common law. Also, where:
o There’s statutory role of construction (see MPC 2.202(3)).
o It would otherwise violate DP, though this is rare (see Lambert).
o D may be morally innocent.
ƒ These aren’t hard and fast rules (ex. for statutory rape, knowledge isn’t needed).
- In cases of criminal negligence and recklessness, the factfinder sets the standard as well as
decides whether that standard was violated.
- Recklessness, crim negligence, and civil negligence all apply to ppl who’re careless.
- Theoretically underpinned by the idea that crim law was to implement concepts of moral
blameworthiness.
- Has evolved over time, becoming more precise, defined mental elements for certain crimes.
- Has significant policy implications re: statutes’ reach.
- Sometimes statutes’ aren’t clear re: the mens rea required. Sometimes the prove mental elements
w/o defining what they mean, which physical elements they target.
- B/c crim laws were adopted piecemeal, over time, there are many varieties of mens rea elements.
- Sometimes a statute describes a single mens rea element, but others may contain more than one.
- The MPC adopts purposefulness as its highest mental element, though many states opt
instead for intent. The MPC refers to the result or harm as the actor’s conscious object.
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- Sometimes intent or purpose can be difficult to prove, however, if D was aware of the
consequences, but just didn’t care. Thus, many states do not limit murder to intentional killings,
allowing knowledge to suffice. This may be a further problem, however, because “knowingly”
can be difficult to define, as well.
- In recognizing the mental states of recklessness and crim negligence, the MPC endorses the idea
that crim law shouldn’t cover conduct that involves ordinary carelessness v. serious misconduct.
- Many courts will allow an inference of intent or purposefulness from the probable consequences
of the conduct to suffice.
- United States v. Kimes (USCOA 6th Cir): ruled that where a law prohibiting assault on an officer
doesn’t specify general or specific intent, general intent will suffice for one to be charged with
assaulting a fed officer under the statute. Note: this issue has caused a confused split in the cts.
- United States v. Lynch (COA 9th Cir): D found and took a skull from what turned out to be the
remains of an Alaskan native village while deer hunting, admitted he knew it was old. Held that
D was not guilty of violating the Archeological Resources Protection Act b/c he didn’t know this
was an archaeological resource. Rule: the government must prove that D knows or has reason to
know the facts that make his conduct illegal in order to be convicted.
- People v. Hall (CO Sup Ct, 2000): D, a former ski racer, was slightly over the drinking limit, and
skiing out of control for thrills, hit and killed V (fractured V’s skull @ thickest part). Held that
given the circumstances, D consciously disregarded a substantial and unjustifiable risk that death
could result. Rule: for felony reckless MS, 4 elements must exist. D must have: consciously
disregarded; a substantial and; unjustifiable risk that he would; cause another’s death.
Any risk of death will meet the requirement that the actor, by his conduct, risks death to another.
- Jewell v. United States (9th Cir, 1975): approved the so-called ostrich instruction that
knowledge could be satisfied where D was aware of a high probability and her ignorance
was solely and entirely a result of her conscious effort to disregard the nature of what she
was doing, with a conscious purpose to avoid the truth. Dissent: proper instruction would
require awareness of high probability, and…
- United States v. Sanchez-Robles (9th Cir, 1991): D drove her daughters to MX for tacos using
friend’s van, which contained drugs and smelled like pot, but D denied any knowledge it was
there. Held that a Jewell instruction was not appropriate here. Rule: proof of deliberate
ignorance is required for one to be convicted of a crime that requires “knowledge.” W/o
suspicion of a high probability of criminal activity, the deliberate ignorance theory fails;
there’s no middle ground of conscious avoidance.
- Morisette v. United States (1952?): involved a prosecution for the knowing conversion of gov’t
property. Describes the history of strict liability, first noting the tradition of including culpable
mental states in criminal offenses. Held that Congress didn’t intend to omit a requirement of
criminal intent despite the absence of that language in the statute itself.
- Nix v. Whiteside: ruled that D’s 6th right to counsel isn’t violated when his atty threatens to
inform the ct if D perjures himself, and D then testifies truthfully.
THE BURDEN OF PROOF BEYOND A REASONABLE DOUBT:
- Defining BARD:
o Lowers gov’ts burden, thereby increasing risk of wrongful conviction.
o Even if the ct doesn’t define reasonable doubt for the jury, opposing counsel almost
always will. Emphasizing the burden of proof is one of D’s most important strategies.
ƒ The civil burden distinction: for civil cases, greater weight of evidence is enough,
ƒ The “touchdown” analogy: for civil cases, P just has to carry ball across 50 yd
but crim cases require proof BARD.
line, but w/crim, P must cross goal line and score a TD.
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ƒ Ps often tell juries they welcome the burden and intent to meet it. They may also
tell jurors that the burden applies only to the elements of the offense and that it’s
proof beyond a reasonable doubt, not ALL doubt, that’s required.
o Attys on both sides, and sometimes judges try to define the meaning of “reasonable
doubt” (often in jury instructions), though many cts have held that it’s better not to
define it, and there are cases holding that trial cts have committed reversible error by
giving a particular jury instruction. Generally, using #s, %s, and analogies is bad.
- Several cts have required or approved of definitions of reasonable doubt as “doubt that would
cause a reasonable person to hesitate” (see State v. Kuhn, State v. Webster).
- Unless D makes voluntary statements, P must provide BARD w/o using knowledge of or any
inadmissible statements made by D b/c he’s protected by 5th. This generally means that proof
BARD must be supplied solely by circumstantial evidence for key crime elements (ex. mens
rea, actus reus if there’s no eye-witness).
- An acquittal based on reasonable doubt isn’t the same as finding D factually innocent. It
can be based on a finding that the evidence is ambiguous, proving neither guilt or innocence.
- There are a few contexts in which Ds must prove and obtain findings of actual innocence. Ex.
some kinds of recovery for malicious prosecution, habeas corpus or clemency.
- The burden of proof affects the definition of crimes (their elements), can lead to odd results.
- The BARD dilemma: it means frequent non-prosecution of factually guilty ppl, but we don’t
want to punish those who might be innocent.
- In some states, the BARD requirement derives from common law, however many states and the
MPC explicitly require proof BARD.
- In Re Winship (1970): 12yo was alleged to have stolen $112 from a pocketbook, was tried using
a juvenile delinquency statute that only required a preponderance of the evidence. Rule: it’s a
Constitutional requirement that each element of a crime be proved beyond a reasonable
doubt in every state in every case. DP protects the accused against conviction except upon
proof BARD of every fact necessary to constitute the crime with which he’s charged, and this
applies equally to juvenile proceedings involving violation of crim law.
o Harlan’s concurrence: crim law reflects our society’s fundamental value determination
that it’s much worse to convict an innocent than let a guilty man go free.
- Mullaney v. Wilbur (1975): D alleged homosexual panic after killing V. ME law provided that
malice aforethought was an essential and indispensable element of murder, but could be rebutted
by proof of heat of passion from D by a preponderance of the evidence (thus malice aforethought
and heat of passion were inconsistent). Rule: you can’t shift the burden to the D to disprove
one of the elements. The state must prove every element of an offense BARD.
- Patterson v. New York (1977): D saw his estranged wife in a state of semi-undress w/another
man, who he promptly shot and killed, was charged w/2nd M, which included the elements of
intent to cause another’s death and actually causing such death. Malice aforethought wasn’t an
element, but D could raise the affirmative defense that he’d acted under the influence of extreme
emotional disturbance for which there was a reasonable explanation. Proof of this affirmative
defense would reduce it to MS. Rule: if an element of a crime is re-characterized as a defense,
the burden of proof can be shifted to D.
- Martin v. Ohio (1987): held that a State could define self-defense as an affirmative defense and
require D to bear the burden of proving it by a preponderance of the evidence.
- Together, Patterson suggests that a State may be able to change an element into a defense or
affirmative defense and Martin confirms that States have wide latitude in doing so.
- Leland v. Oregon (1952): Ds may be required to prove insanity.
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o Powell’s Dissent: this should’ve been governed by Mullaney.
- Victor v. Nebraska (1994): summarized the constitutional requirement re defining reasonable
doubt, upholding a charge that described it as “not a mere possible doubt,” but where after
considering all evidence, the jurors can’t say they “feel an abiding conviction, to a moral
certainty, of the truth of a charge.” Also, rejected an objection to contrasting reasonable doubt w/
a mere possible doubt.
- Cage v. Louisiana (1990): held that the court could not define reasonable doubt as giving rise “to
a grave uncertainty… an actual substantial doubt.” Note, however, that the Ct has never held this
language prohibited by use of counsel.
- State v. Walker (KS Sup Ct, 2003): in gang-violence case, the judge clarified reasonable doubt as
“such doubt as a juror is able to give a reason for.” Rule: a judge cannot instruct the jury that
reasonable doubt “is such doubt as a juror is able to give a reason for.”
- Paulson v. State (TX Crim. App. 2000): trial judge omitted giving a definition, despite then-
controlling decisional law requiring specific definition, instead to overruling that case (Geesa),
holding it was better practice to give no definition at all, thereby affirming Paulson’s conviction.
Also rejected a “hesitate” instruction b/c this would lead a conscientious juror to never convict.
The Risk of Error:
- Costs and benefits of BARD standard:
o Costs: wrongful acquittals; criminals go free and commit more crimes – risk to society.
o Benefits: fewer wrongful convictions; gov’t must thoroughly investigate.
- Problems w/crim adjudications: incompetence, corruption, laziness, racism, lack of resources.
- Reasons for wrongful conviction: eyewitness misidentification; unreliable or limited science;
false confessions; forensic science fraud or misconduct; informants/snitches; poor lawyering.
- Protections against erroneous conviction: BARD, P’s duty to furnish evidence to D that’s
inconsistent w/guilt; D’s right to cross-examine witnesses; that lineups or photo spreads can’t be
impermissibly suggestive; that accused has a right to counsel during a post-indictment lineup; the
jury’s observance of witnesses’ testimony; that witnesses must testify live; judges’ power to
grant a judgment of acquittal if the evidence is insufficient; appellate and habeas processes.
- Alexander Volokh, “n Guilty Men:” how many guilty people should be released to save one
innocent. Maybe our bias against punishment comes from the most famous of all judicial
miscarriages: Christ’s crucifixion. But it’s controversial whether there’s really any relationship
b/t high n values and high crime rates. It it’s better to let n guilty men go free than one innocent
be executed, the real ? is “better for whom?”
- Some argue that there’s a probability that setting n will lead to acquittal of n members of a
favored group due to ppl’s prejudices.
- Some argue that “only better is better” and we should thus strive for a criminal justice system
that reliably convicts the guilty and reliably acquits the innocent.
- Consider what happens when a jury erroneously acquits


Consider what happens when a jury erroneously acquits a violent killer who strikes again. What
is the total societal cost of erroneous acquittal?
- In some contexts, “reasonable” refers to a contextual balancing decision, in which all facts, risks,
and potential costs must be weighed.
- One argument against capital punishment is that the change of executing an innocent person is
unacceptably high. (ex. Anthony Porter, who was released two days prior to his scheduled
execution). Supporters of capital punishment, however, cite the extensive legal process required
before conviction or sentence, plus extensive appeals and habeas corpus proceedings, the sheer
amount of time (usually many yrs) b/t conviction and execution, the de facto higher burden of
proof of guilt that arises w/juror – even those who are “death qualified” to sit in capital cases.
- Many argue that erroneous conviction is worse than erroneous acquittal b/c it wrongfully
imposes the coercive power of the State on a person (image of state run amok, Nazi Germany).
But what about the state’s duty to prevent crime? Many criminals commit multiple crimes over
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time, meaning erroneous acquittals may increase crime. These two goals (avoiding erroneous
impositions of the State’s coercive power and the state’s duty to prevent crime) conflict.
- Erroneous conviction oppresses innocent individuals by affirmative conduct on the part of the
State, whereas erroneous acquittal oppresses other innocent ppl by inaction on the State’s part.
- A critical view of state inaction holds that state policy favoring erroneous acquittal results in
uneven protection of different classes of ppl, with favored groups disproportionately free of the
risks of either erroneous acquittal or conviction, and the costs of unredressed crime falling upon
disfavored classes. Ex. rules of evidence in sexual assaults of women have historically leaned to
admitting every inference favoring acquittal and excluding major categories of evidence
supporting guilt (this has now changed); the rules of evidence and trial processes designed to
protect the rights of adults increase the probability of erroneous acquittal for child abusers.
- In a jury-tried case, appellate review of the sufficiency of the evidence recognizes the role of the
jury. The standard of review is that the evidence is to be viewed in the light most favorable to the
underlying verdict, with inferences drawn how the jury could permissibly have drawn them. It’s
not whether the appellate ct itself would’ve ruled that way, but whether a reasonable jury could
have ruled that way. Thus, in order to overturn, an appellate ct must conclude that no reasonable
juror properly following the law could have ruled that way.
- Where the matter and means of the death are unknown, the practice is to state that this was the
case for the jury that returned the indictment, but that usually requires P call the presiding grand
juror as a witness.
- Stogsdill v. State (TX COA 1977): evidence against D included lug wrench, similar hairs, tire
tracks, previous Vs. Held that the circumstances amounted to only a strong suspicion and mere
probability of D’s participation in the gruesome offense charged couldn’t sustain a guilty
conviction. Rule: a conviction on circumstantial evidence can’t be sustained if the
circumstances don’t exclude every other reasonable hypothesis except that of the guilt of
the accused, and proof amount to only a strong suspicion or mere probability is
insufficient.
DNA Evidence:
- DNA evidence sometimes can justify a high degree of confidence in the conclusion that both
samples came from the same person, circumstantially placing D at scene. DNA evidence
definitely resolves a small number of cases (ex. rape), but almost always by circumstantial
inference. It is not completely conclusive by itself, however. Some say that it’s better for
eliminating suspects than convicting them. Nonetheless, it remains powerful.
- There is danger that jurors may expect DNA proof routinely, even where it doesn’t exist (“the
CSI effect”) or won’t help solve the case.
- Presenting it can be expensive and time-consuming. It generally requires 3 expert witnesses:
- In presenting DNA evidence, Ps might employ the following probability methods:
o Collector of the unknown (and known) samples (technically doesn’t need to be expert,
but the jurors might expect him to be).
o Witness re: the biochemistry of DNA analysis to explain the process and result.
o Population statistician to estimate the probability of a match to a random member of the
population.
o The product rule: the probability of two independent events or characteristics coinciding
is the product of their separate probabilities.
o Bayes’ Theorem: involves an equation that can be used to update an initial probability
estimate in response to a new piece of evidence. Complicated but can be very powerful in
showing the cumulative weight of the evidence.
- There is a risk of lab error w/DNA evidence.
Eyewitness Testimony:
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- Eyewitness testimony: is necessary, b/c prosecution of many crimes depends on it, but it is also
risky b/c it’s vulnerable to error in ways that the crim justice system can’t effectively minimize;
eyewitness error is the largest single factor in wrongful convictions. Despite that, there’s
generally a systemic bias against circumstantial evidence and in favor of eyewitness testimony.
- It is possible that the police method of finding suspects who fit descriptions and placing them in
lineups maximizes the likelihood of causing a misidentifications. As a result, the Sup Ct has
decided several cases designed to reduce “impermissible suggestiveness” in lineups and photo
spreads. But Law enforcement continues to use the same basic method nonetheless.
- Despite the fact that psychologists can identify specific risks or factual variables that influence
(or don’t) accuracy of eyewitness IDs, cts have been reluctant to allow routine evidence on the
subject. They’ve typically limited it to cases in which specific circumstances give rise to
identifiable concerns within psychological competence for fear that such evidence might A) be
misleading or D) be difficult to limit to eyewitnesses, thereby requiring a psychologist to testify
after every witness to reflect on his/her credibility.
- Problems w/eyewitness testimony: memory and perception may be affected by:
o The retention interval (rate at which person’s memory declines over time)
o The assimilation factor (witness’ incorporation of info after event)
o The confidence-accuracy relationship
o Stress
o Violence of situation
o Selectivity of perception
o Expectancy
o Effect of repeated viewings
o Cross-racial IDs.
- On the other hand, these are social theories, not an absolute science, and the tests are generally
run in simulated, unrealistic environments, that may not translate to the real world of crime.
Also, expert testimony on eyewitness IDs can be unduly prejudicial when it’s framed as to
discredit the witness.
- Possibility that Ps will get their own experts to testify to the accuracy of eyewitness ID, which
would lead to battle of experts. Some argue for a middle ground where eyewitnesses are used
when they are most reliable, most needed, and ID is strongly established.
- United States v. Smithers (US COA 6th Cir. 2000): held that the dist ct abused its discretion in
excluding Dr. Fulero’s testimony about the accuracy of eyewitness testimony (in a bank robbery
case) w/o first conducting a hearing to determine the issues. Rule: in determining whether expert
testimony re: eyewitness testimony is admissible, the ct must determine whether it would be
helpful or confusing to the jury, whether such testimony touched on the “ultimate issue” in the
case and therefore usurped the jury’s role, whether the jury could more properly evaluate the
reliability of eyewitness testimony through cross.
o Dissent: the dist ct examined both sides’ briefs on the issue. The gov’t explained why the
testimony would be unhelpful and prejudicial in this case and why cross and jury
instructions were the better alternative here, and D didn’t appropriately counter this
charge. Further, it looked closely at the issue of relevance. This case presents very few of
the narrow circumstances identified by other cts in which such experts may be used (no
issue of cross-racial ID, time-lapse, etc…).