THE ELEMENTS OF CRIMES – MENS REA AND ACTUS REUS

THE ELEMENTS OF CRIMES – MENS REA AND ACTUS REUS:
- Element: a component that, when combined w/other elements, defines a crime. These are set out
in the charging instrument (ex. indictment) and the ct’s charge to the jury. Language determined
by policy decisions that’s used to fine-tune statutes’ reach, excluding some actions / actors, while
including others. Sometimes blur into each other, not all are always present:
o A voluntary act (actus reus): the physical part of a crime; what D must do (or omitted to
do when he had a duty to do so). Ex. murder requires D killed, arson requires he set fire
to something. This act must also have been voluntary.
ƒ Prevents punishment of thought crime or a person’s physical condition. Also
ƒ MPC lists acts that are involuntary and therefore not criminal:
prevents police from creating a crime (ex. putting a drunk in public).
• A reflex / convulsion
• A bodily mov’t during unconsciousness or sleep
• Conduct under hypnosis
• A bodily mov’t not a product of D’s effort or determination, either
conscious or habitual.
ƒ Include acts done under coercion or duress (but severe duress may be a defense)
o Circumstances: many crimes occur only in specifically described situations (ex. bribery
of a juror, person must’ve been a juror).
o Harm or Result: many crim laws require a specific harm to have occurred before the
statute applies. Ex. M: a person killed, arson: a structure burned, perjury: a lie told.
o Causation: requires D’s act actually cause that harm.
o Mens rea: the mental requirement (loose since some elements have little to do w/D’s
actual mental functioning). Generally broken down into:
ƒ Intentionally
ƒ Knowingly
ƒ Recklessly
ƒ With Criminal Negligence
- Direct evidence: proves a specific element w/o needing any significant inferences (ex.
eyewitness).
- Circumstantial evidence: inferences must be drawn. Ex. seeing someone pick something up and
throw it at a window and then hearing the sound of a window breaking.
- Crimes must be stated w/specificity. Now, virtually all are contained in statutes or admin
regulations. Each essentially applies to a small part of human activity and is constructed to
minimize intrusion into activities that aren’t disapproved. Statutes accomplish specificity by
listing elements of the offense (b/t 3-12).
- Each element narrows a statute’s reach. The more elements the gov’t must prove, most likely
there will be fewer ppl who can be convicted of the offense.
- The Prosecution has the burden of proving the existence of each element of a crime BARD.
This is a heavy burden and distinguishes crim law from civil law. The Prosecution must:
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o Statutes requiring the state to prove a negative are difficult to prove.
- Other unusual aspects of crim law:
- How crime elements influence P’s charging decision:
o Target each specific element
o Rigorously est. each according to the highest standard recognized in the law. Involves
breaking down and numbering the elements (ex. intent, act, target, any other qualifiers).
ƒ D’s identity, the date, and jurisdiction are unexpressed elements in every case.
o Prove ALL elements. If any element is omitted, there will be an acquittal.
o Search for the weakest link, hardest element to prove (the defense will be).
o Media presentations and fiction blur many ppl’s understanding of crimes.
o “Knowing” that the elements are present isn’t the same as supplying proof beyond
reasonable doubt of each.
o D’s knowledge can’t be used as proof of any element, due to 5th.
o Some statutes may seem sensible when written but are meaningless b/c an essential
element can’t be proven beyond a reasonable doubt.
o The DA has discretion re: which, if any, crim charges to bring against D.
o Ct’s rarely 2nd guess this decision, unless D can establish it was based on some
impermissible criterion (ex. race, gender, assertion of a const right).
o Comparing the elements to the elements: one of the key factors determining which
charges to pursue is whether there is / isn’t sufficient proof to meet the BARD standard
for each element.
o The prosecutor is both an advocate and minister of justice, has a duty to refrain from
prosecuting charges he knows aren’t supported by probable cause, meaning he has actual
knowledge of the fact in ?.
- See earmarked page in written notebook for crime/criminal/V stats.
- Commonwealth v. Milo M. (Mass, 2001): upheld the determination of delinquency for a minor
who threatened his teacher by drawing and presenting to her a picture of himself shooting her,
b/c the statute required only an expression combined with ability and justified apprehension (no
actual harm). Mens rea also was present.
- State v. Sowry (OH COA, 2004): D was arrested for disorderly conduct, resisting arrest. Initial
pat down revealed nothing and D said he didn’t have drugs on him after being brought to jail, but
another search revealed pot in his pocket. Rule: the conduct a prohibited act involves must be
voluntary for criminal liability to attach. Where D’s brought to jail under arrest w/drugs on
him, he can’t be criminally liable for knowingly conveying drugs into jail (even if he lies about
it).
- People v. Decina (1956): D who knows he’s prone to seizures that render him unconscious but
keeps driving anyways can’t escape liability for killing ppl when he blacks out b/c the voluntary
act is driving w/such knowledge (the unconsciousness and involuntariness of his later homicidal
result is irrelevant).
Omission as Actus Reus:
- Omission as actus reus is only punishable when failure to act breaches a legal duty to
perform that act (ex. parent doesn’t feed baby who then starves to death). Such duty is
generally imposed by statute. Usually also requires physical capability to act. An exception to the
general rule in American law that imposes no affirmative duty to care or rescue.
o For liability, one must have knowledge of the need for action (see People v. Pollack, D’s
mom wasn’t liable to prevent abuse to her kid by her BF b/c she wasn’t aware of it).
o Criminal responsibility may reach the failure to stop actions of 3rd parties (see People v.
Swanson-Birabent, mom was convicted of committing a lewd act when she watched her
boyfriend molest her daughter).
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- No independent duty is necessary if liability is based on an act (v. an omission); rather, the
criminal law actually penalizes doing the act.
- Well-est. sources of duty on which a crime of omission (failure of duty to act) can be based:
o A relationship such as that of parent or guardian
o A statute defining the duty
o A contract providing for the duty
o A voluntary assumption of the duty
o Causing the peril that creates the need to act (ex. hit-and-run).
- Omission and duty are important in child abuse prosecutions b/c there are usually few witness to
such abuse, and in many cases they’re unusable (ex. young child, parent/ guardian, other parent).
- State v. Miranda (CT Sup Ct, 1998): 4 mo old V’s wounds, pain, and reduced food intake would
have been noticeable. Held that where one has established a familial relationship w/V’s mom
and kids and assumed the role of dad, considered himself V’s dad, he’s assumed under the
common law the same legal duty to protect V from abuse as if he were V’s guardian.
o Concurrence: there’s still a serious ? whether D had fair warning that his failure to act
could give rise to liability, but he’ll have the opportunity to raise a DP claim on remand.
o Dissent: the rule of law must be upheld even when confronted w/ horrific allegations. By
superimposing on the statutes a common-law duty on the part of a person to act in order
to protect a child from harm when that 3rd person voluntarily assumes responsibility for
her care, welfare, and considers himself to have been a stepfather to her, the majority has
improperly created a new crime, which is the legislature’s job.
- Lambert v. California (1958): struck down a conviction under a municipal ordinance requiring
convicted felons to register w/the L.A. police b/c absent proof that D had actual knowledge of a
duty to register or probability of such knowledge, DP bars convictions for such passive conduct.
o Note: Cases interpreting felon / sex offender registration laws generally hold that they
comply w/Lambert by imposing crim liability only if offender knew or should’ve known
of the legal duty to register (see Dailey).
Possession as Actus Reus:
- Constructive possession: when D exercises, or has the power to exercise, dominion and control
over the item (see Zandi).
- Many crimes punish possession of an item, but many statutes anticipate the potential issue of
omission by specifically providing that the owner commits an actus reus only if he knows about
the contraband and doesn’t get rid of it. Even where a drug possession statute doesn’t itself
require that D know about his possession, some cts have created a common law “unwitting”
defense for ppl who fall into that category.
- In certain situations the Constitution puts limits on legislatures’ capacity to define actus reus,
including re: status crimes (ex. drug addiction).
Status Crimes and Actus Reus:
- Status crimes: crimes of being, rather than doing (ex. homelessness, addiction, prostitution). Ds
aren’t caught in the act.
- There have been very few allegations that a particular offense is a status offense and therefore
unconstitutional, and almost all such allegations have been unsuccessful. Cts usually hold that D
stands convicted for an act rather than a status (United State v. Black re: pedophilia, United
States v. Herandez-Landaverde re: re-entry after deportation).
- Allegations of the unconstitutionality of habitual criminal statutes, which impose enhanced
sentences for repeat offenders, have also generally been rejected b/c the punishment is not for a
status but rather the sentence is merely enhanced for the most recent crime.
- Also unsuccessful have been appeals / defenses re: compulsive gambling (see United States v.
Davis) and alleging that drug addicts can’t be prosecuted for possession (see United States v.
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Moore). There have been a few successful addiction defense cases, though (see State ex rel.
Harper v. Zegeer re: drunk in public).
- Many states have now decriminalized public intoxication, but perhaps that has just led to
criminal law enforcement under another name.
- Robinson v. California (US Sup Ct, 1962): D exhibited physical characteristics of drug use,
admitted occasional drug use. Struck down CA law making it a crim offense for one to be
addicted to the use of narcotics. Rule: a law that imprisons persons for having an illness,
including drug addiction, is cruel and unusual punishment in violation of 8th. Criminal
penalties may be inflicted only if the accused has committed some act society has an interest in
preventing.
o Dicta: the state may properly punish the use and sale of drugs.
o Clark’s dissent: this law must be looked at in perspective. CA has a comprehensive,
enlightened program for the control of narcotism based on the overriding policy of
prevention and cure. Properly construed, the statute provides treatment, not punishment.
But even if it’s penal, brief incarceration isn’t unreasonable when applied to one who’s
voluntarily put himself in a condition posing a serious threat to the state.
- Powell v. Texas (US Sup Ct, 1968): shrink testified that D was a chronic alcoholic who, when
drunk, was unable to control his behavior and had an uncontrollable compulsion to drink, that
when D was sober he knew the difference b/t right and wrong and that his act in taking the first
drink when he was sober was voluntary and willful. Denied chronic alcoholism as a defense to
drunk in public charges. Held that such laws don’t constitute cruel and unusual punishment
b/c they require the actus reus of being drunk, in public, on a specific occasion.
o Perhaps this ruling was motivated by economic concerns about the alternative, whereby
o It may have also depended on the Justices’ view of alcoholics and alcoholism.
o Fortas’ dissent: while this is more than just a status crime, it has the same defect as
instead of arresting drunks the state would have to quarantine / treat them.
Robinson, b/c in both cases, the particular D was accused of being in a condition he had
no capacity to change or avoid.