Common Law - Elements of Criminal Statutes
Components of a Criminal Statute
1. In general crime contains two components:
a. Actus reus
i. Physical or external part of the crime
b. Mens rea
i. Mental or internal ingredient
2. Elements of Criminal Offenses
a. Mens Rea
b. Actus Reus
i. Voluntary Act (or Omission)
ii. Social Harm (conduct, result, attendant circumstances)
iii. Causation
1. Actual Cause (“Factual” Cause)
2. Proximate Cause (“Legal” Cause)
Contents
1. Breaking Down a Criminal Statute: Analysis
a. Page 7
2. Actus Reus
a. Page 8
3. Causation
a. Page 8-10
4. Mens Rea
a. Page 11-14
Breaking Down a Criminal Statute: Analysis
1. Mens Rea
a. General or Specific Intent
i. Rules of Thumb
1. If you see phrase “with the intent to” it is specific intent (NOT just “intentional” or “intentionally”)
2. “Known” or “known to be” is specific intent (NOT “knowingly”)
3. If a statute contains no mens rea terms, then the entire offense is either a general intent offense or a strict liability offense
2. Actus Reus
a. Conduct
i. Tend to be verbs.
b. Result
i. Tend to be verbs
c. Attendant Circumstance
i. Non-verbs
Examples:
Statute: Common law burglary is defined as “breaking and entering a dwelling house of another at nighttime with the intent to commit a felony therein.”
1. Mens Rea
a. “With the intent to commit a felony therein.”
i. Specific intent, “with the intent to”
2. Actus Reus
a. Conduct/Result
i. “breaking and entering”
b. Attendant Circumstances
i. “A dwelling house”
ii. “Of another”
iii. “At nighttime”
Statute: “Knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person.”
1. Mens Rea:
a. “Knowingly”
i. General intent
2. Actus Reus
a. Conduct
i. “Transfers, possesses or uses”
b. Attendant Circumstances
i. “Without lawful authority”
ii. “A means of identification”
iii. “Of another person”
Actus Reus
1. Actus Reus Elements
a. Result Crime: Defined in terms of prohibited result.
i. Example: Criminal Homicide
b. Conduct Crime: Prohibit specific conduct, without requiring any particular result.
i. Example: Driving Under the Influence
c. Some offenses can have both conduct and result elements
i. Example: “Operating a vehicle in a reckless or culpably negligent manner, causing the death of another person.”
1. Conduct: Operating a vehicle
2. Result: Causing the death of another person
d. Attendant Circumstance: A fact or condition that must be present when the actor performs the prohibited conduct or causes the prohibited result.
i. Example: The house of another
2. Voluntary Act
a. Implied element of all criminal statutes that a voluntary act is required
i. A voluntary act must be a willed movement or the omission of a possible and legally required performance.
ii. Part of actus reus, not mens rea
b. Voluntary Act vs. Mens Rea
i. “Mens rea” signifies the actor’s state of mind regarding the social harm of the offense.
ii. Voluntariness applies to the act that caused the social harm.
iii. Even when an offense does not contain a mens rea component, a voluntary act is still required for conviction.
3. Omissions: “Negative Acts”
a. General Rule: A person has no criminal law duty to act to prevent harm to another even if they can do so with no risk to themselves
b. Exceptions - A person can be criminally liable for failing to act where:
i. A statute imposes a duty;
ii. The person stands in a certain status relationship to another (i.e. parent/child);
iii. The person has assumed a contractual duty to care for another;
iv. The person has voluntarily assumed the care of another and secluded the helpless person as to prevent others from rendering aid; or
v. The person created a risk of harm to another.
c. Acts vs. Omissions
i. Barber v. Superior Court, California CoA 1983
1. Cessation of heroic life support measures is not an affirmative act but a withdrawal and omission of further treatment.
Actus Reus: Causation (Common Law)
1. Causation is an implicit element of ALL CRIMES.
a. Link between the voluntary act and the social harm.
2. Actual Cause
a. But/For Test
i. But for the defendant’s voluntary act or omission, would the social harm have occurred when it did?
1. If yes, the defendant is not the actual cause of the harm
2. If no, the defendant is the actual cause of the harm
ii. But/For Theories
1. Acceleration Theory:
a. Where the are two injuries/harmful conduct
b. But for the infliction of the second injury, would the victim have died when he died?
i. Contribution or aggravation without acceleration is not sufficient to establish causation.
2. Omission Theory
a. If there is an obligation to act and defendant fails to act, resulting in the social harm, they are the but/for cause
b. Substantial Factor Test
i. When two defendants, acting independently and not in concert with one another, commit two separate acts, each of which alone is sufficient to bring about the prohibited result.
ii. Defendant’s conduct is a cause-in-fact of a prohibited result if the subject conduct was a “substantial factor” in bringing about the said result.
3. Proximate Cause
a. “Proximate” or “legal” causation serves the purpose of determining who or what events among those that satisfy the but-for standard should be held accountable for the resulting harm.
b. In Cases of Intervening Causes:
i. When is the intervening conduct of a third party, the victim, or a natural force sufficiently out of the ordinary that it no longer seems fair to conclude the social harm was “caused” by the defendant’s conduct?
ii. Superseding cause is an intervening cause that breaks the causal chain.
c. Proximate Cause Factors Test
i. Foreseeability of the intervening cause
1. Responsive Intervening Cause
a. An act that occurs as a reaction to the defendant’s wrongful conduct
b. A responsive intervening cause does not relieve the defendant of criminal liability, unless the response was unforeseeable AND highly abnormal
2. Coincidental intervening cause
a. Does not occur in response to the defendant’s conduct but only places the victim in the “wrong place at the wrong time”
b. A coincidental intervening cause relieves the defendant of criminal liability unless the intervention was foreseeable.
ii. Apparent Safety Doctrine
1. When a defendant's “active force” has come to rest in a position of apparent safety, the court will follow it no longer
2. If the defendant’s “active force” has come to rest, but in a dangerous position creating a new or increasing an existing risk of loss, then the defendant may be held liable.
iii. Free, Deliberate, Informed Human Intervention
1. A defendant is more likely to be relieved of criminal responsibility in the case of a voluntary, knowing and intelligent, human agent than in the case of an intervention of a natural force or involuntary human actions.
iv. De Minimis Causes
1. Very minor but-for cause of harm is generally not legally responsible when there is a far more substantial cause to whom responsibility can be attached.
v. Omissions
1. Omissions rarely supersede an earlier wrongful act
vi. Intended-consequences doctrine
1. If an intentional wrongdoer gets what they wanted, they get the result the wanted in the general manner they wanted it, they should not escape criminal liability even if an unforeseeable event intervened.
Mens Rea: Common Law
1. “A guilty mind; a guilty or wrongful purpose; a criminal intent.”
a. Broad Meaning: A defendant is guilty of a crime if she commits the social harm of the offense with any morally blameworthy state of mind.
b. Narrow Meaning: A defendant is not guilty of an offense, even if she has a morally blameworthy state of mind, if she lacks the mental state specified in the definition of the crime.
2. General vs. Specific Intent
a. General intent: A crime with a mental state element that relates solely to the prohibited conduct or result.
i. Example: battery defined as “an intentional application of force upon another.”
ii. If a statute contains no mens rea terms, then the entire offense is either a general intent offense or a strict liability offense
b. Specific Intent: EITHER
i. Includes an intent or purpose to do some future act or to achieve some future consequence beyond the prohibited conduct/result under the actus reus of the offense.
1. Example: possession of marijuana with the intent to sell.
ii. Provides that the actor must be aware of an attendant circumstance.
1. Example: Intentional sale of obscene literature to a person known to be under the age of 18 years.
c. Rules of Thumb
i. If you see phrase “with the intent to” it is specific intent (NOT just “intentional” or “intentionally”)
ii. “Known” or “known to be” is specific intent (NOT “knowingly”)
3. Malice
a. Regina v. Cunningham, Court of Criminal Appeal, 1957
i. Malice is
1. An actual intention to do the particular kind of harm that in fact was done, or
2. Recklessness as to whether such harm should occur or not.
a. Does not require any ill-will towards the injured person
b. Subjectively aware of the risk of harm, and disregarded it
4. Intentionally
a. People v. Conley, Illinois Appellate Court 1989
i. “Intentionally or knowingly”
ii. It’s necessary for intent to cause the prohibited result, not just an intent to act.
iii. Because the offense is defined in terms of result, the State has the burden of proving beyond a reasonable doubt that the defendant either:
1. Had a conscious objective to achieve the harm defined (intent) OR
2. Was consciously aware that the harm defined was practically certain to be caused by his conduct (knowledge).
iv. Ordinary presumption that one intends the natural and probable consequences of his actions.
b. Transferred Intent
i. When a defendant intends to cause harm to one person but accidentally causes it to another, courts typically assert what has come to be known as the “transferred intent” doctrine. Only used for “intentionally” or “knowingly,” not “recklessly” or “negligently”.
1. The transferred intent doctrine transfers the defendant’s intent from the intended victim to the unintended victim
2. The doctrine does not transfer the intent to cause one type of social harm to another.
5. Knowingly and “Willful Blindness”
a. Willful blindness: “the case of the actor who is aware of the probable existence of a material fact but does not satisfy himself that it does not in fact exist.”
i. The inference of knowledge of an existing fact is usually drawn from proof of notice of substantial probability of its existence, unless the defendant establishes an honest contrary belief.
b. SCOTUS:
i. The defendant must subjectively believe there is a high probability that a fact exists, and
ii. The defendant must take deliberate actions to avoid learning of that fact.
6. Problems in Statutory Interpretation
a. Flores-Figueroa v. United States, SCOTUS 2009
i. The mens rea term at the beginning of a statute “goes all the way down” the statute and applies to all of the actus reus elements.
ii. Mens rea only applies to what comes after it in the statute, not before it.
b. Not all courts follow SCOTUS’s lead on modifying what comes after an intent. Some state courts consider punctuation as indicating what is modified.
7. Strict Liability
a. Staples v. United States, SCOTUS 1994
i. Presumption against strict liability unless clear intent otherwise
1. General assumption that all statutes require mens rea, unless clearly otherwise as shown by express or implied congressional intent.
a. Silence does not inherently mean Congress intended to dispense with any mens rea requirement.
b. Severe penalty is a factor which suggests Congress did not intend to omit a mens rea requirement
ii. Presumption may be overcome where offense is a Public Welfare Offense
1. Offenses that involve “potentially harmful or injurious items” and “as long as a defendant knows he is dealing with a dangerous device” “he should be alerted to the probability of strict regulation.”
2. Guns in general are not “potentially harmful or injurious items”
8. Mistake of Fact
a. A mistake of fact may exculpate a defendant by negating her mens rea.
b. Burden of Proof
i. Defendant has initial burden of producing some evidence that he was mistaken as to a fact that negates mens rea.
ii. Then burden shifts to prosecution to prove either:
1. Defendant was not mistaken or
2. The defendant’s mistake did not negate the mens rea
c. Analysis
i. Step #1: Identify the offense as general intent, specific intent, or strict liability.
ii. Step #2A: For strict liability offenses, mistake is never a defense.
iii. Step #2B: For specific intent offenses, ask: Does the mistake negate the specific intent portion of the crime?
1. If yes, the defendant must be acquitted, even if the defendant’s mistake was unreasonable.
iv. Step #2C: For general intent offenses, ask: Does the mistake negate the mens rea of the offense?
1. If yes, the defendant must be acquitted, but only if the mistake was reasonable.
9. Mistake of Law
a. Analysis
i. General rule: Ignorance of the law is not an excuse.
ii. Exception #1:
1. Reasonable reliance on an official statement of the law, later determined to be wrong, contained in
a. A statute later declared invalid;
b. A judicial decision of the highest court in the jurisdiction, later determined to be erroneous; or
c. An official, but erroneous, interpretation of the law, secured from a public official in charge of its interpretation or enforcement.
2. No defense:
a. Reliance on one’s own interpretation of the law, even if the interpretation is reasonable.
b. Reliance on erroneous advice provided by a private attorney.
iii. Exception #2:
1. A mistake of law, whether reasonable or unreasonable, is a defense in the prosecution of a specific intent offense if the mistake negates the specific intent in the offense.
2. No defense:
a. A mistake of law, whether reasonable or unreasonable, is not a defense to a general intent crime or a strict liability crime.
Components of a Criminal Statute
1. In general crime contains two components:
a. Actus reus
i. Physical or external part of the crime
b. Mens rea
i. Mental or internal ingredient
2. Elements of Criminal Offenses
a. Mens Rea
b. Actus Reus
i. Voluntary Act (or Omission)
ii. Social Harm (conduct, result, attendant circumstances)
iii. Causation
1. Actual Cause (“Factual” Cause)
2. Proximate Cause (“Legal” Cause)
Contents
1. Breaking Down a Criminal Statute: Analysis
a. Page 7
2. Actus Reus
a. Page 8
3. Causation
a. Page 8-10
4. Mens Rea
a. Page 11-14
Breaking Down a Criminal Statute: Analysis
1. Mens Rea
a. General or Specific Intent
i. Rules of Thumb
1. If you see phrase “with the intent to” it is specific intent (NOT just “intentional” or “intentionally”)
2. “Known” or “known to be” is specific intent (NOT “knowingly”)
3. If a statute contains no mens rea terms, then the entire offense is either a general intent offense or a strict liability offense
2. Actus Reus
a. Conduct
i. Tend to be verbs.
b. Result
i. Tend to be verbs
c. Attendant Circumstance
i. Non-verbs
Examples:
Statute: Common law burglary is defined as “breaking and entering a dwelling house of another at nighttime with the intent to commit a felony therein.”
1. Mens Rea
a. “With the intent to commit a felony therein.”
i. Specific intent, “with the intent to”
2. Actus Reus
a. Conduct/Result
i. “breaking and entering”
b. Attendant Circumstances
i. “A dwelling house”
ii. “Of another”
iii. “At nighttime”
Statute: “Knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person.”
1. Mens Rea:
a. “Knowingly”
i. General intent
2. Actus Reus
a. Conduct
i. “Transfers, possesses or uses”
b. Attendant Circumstances
i. “Without lawful authority”
ii. “A means of identification”
iii. “Of another person”
Actus Reus
1. Actus Reus Elements
a. Result Crime: Defined in terms of prohibited result.
i. Example: Criminal Homicide
b. Conduct Crime: Prohibit specific conduct, without requiring any particular result.
i. Example: Driving Under the Influence
c. Some offenses can have both conduct and result elements
i. Example: “Operating a vehicle in a reckless or culpably negligent manner, causing the death of another person.”
1. Conduct: Operating a vehicle
2. Result: Causing the death of another person
d. Attendant Circumstance: A fact or condition that must be present when the actor performs the prohibited conduct or causes the prohibited result.
i. Example: The house of another
2. Voluntary Act
a. Implied element of all criminal statutes that a voluntary act is required
i. A voluntary act must be a willed movement or the omission of a possible and legally required performance.
ii. Part of actus reus, not mens rea
b. Voluntary Act vs. Mens Rea
i. “Mens rea” signifies the actor’s state of mind regarding the social harm of the offense.
ii. Voluntariness applies to the act that caused the social harm.
iii. Even when an offense does not contain a mens rea component, a voluntary act is still required for conviction.
3. Omissions: “Negative Acts”
a. General Rule: A person has no criminal law duty to act to prevent harm to another even if they can do so with no risk to themselves
b. Exceptions - A person can be criminally liable for failing to act where:
i. A statute imposes a duty;
ii. The person stands in a certain status relationship to another (i.e. parent/child);
iii. The person has assumed a contractual duty to care for another;
iv. The person has voluntarily assumed the care of another and secluded the helpless person as to prevent others from rendering aid; or
v. The person created a risk of harm to another.
c. Acts vs. Omissions
i. Barber v. Superior Court, California CoA 1983
1. Cessation of heroic life support measures is not an affirmative act but a withdrawal and omission of further treatment.
Actus Reus: Causation (Common Law)
1. Causation is an implicit element of ALL CRIMES.
a. Link between the voluntary act and the social harm.
2. Actual Cause
a. But/For Test
i. But for the defendant’s voluntary act or omission, would the social harm have occurred when it did?
1. If yes, the defendant is not the actual cause of the harm
2. If no, the defendant is the actual cause of the harm
ii. But/For Theories
1. Acceleration Theory:
a. Where the are two injuries/harmful conduct
b. But for the infliction of the second injury, would the victim have died when he died?
i. Contribution or aggravation without acceleration is not sufficient to establish causation.
2. Omission Theory
a. If there is an obligation to act and defendant fails to act, resulting in the social harm, they are the but/for cause
b. Substantial Factor Test
i. When two defendants, acting independently and not in concert with one another, commit two separate acts, each of which alone is sufficient to bring about the prohibited result.
ii. Defendant’s conduct is a cause-in-fact of a prohibited result if the subject conduct was a “substantial factor” in bringing about the said result.
3. Proximate Cause
a. “Proximate” or “legal” causation serves the purpose of determining who or what events among those that satisfy the but-for standard should be held accountable for the resulting harm.
b. In Cases of Intervening Causes:
i. When is the intervening conduct of a third party, the victim, or a natural force sufficiently out of the ordinary that it no longer seems fair to conclude the social harm was “caused” by the defendant’s conduct?
ii. Superseding cause is an intervening cause that breaks the causal chain.
c. Proximate Cause Factors Test
i. Foreseeability of the intervening cause
1. Responsive Intervening Cause
a. An act that occurs as a reaction to the defendant’s wrongful conduct
b. A responsive intervening cause does not relieve the defendant of criminal liability, unless the response was unforeseeable AND highly abnormal
2. Coincidental intervening cause
a. Does not occur in response to the defendant’s conduct but only places the victim in the “wrong place at the wrong time”
b. A coincidental intervening cause relieves the defendant of criminal liability unless the intervention was foreseeable.
ii. Apparent Safety Doctrine
1. When a defendant's “active force” has come to rest in a position of apparent safety, the court will follow it no longer
2. If the defendant’s “active force” has come to rest, but in a dangerous position creating a new or increasing an existing risk of loss, then the defendant may be held liable.
iii. Free, Deliberate, Informed Human Intervention
1. A defendant is more likely to be relieved of criminal responsibility in the case of a voluntary, knowing and intelligent, human agent than in the case of an intervention of a natural force or involuntary human actions.
iv. De Minimis Causes
1. Very minor but-for cause of harm is generally not legally responsible when there is a far more substantial cause to whom responsibility can be attached.
v. Omissions
1. Omissions rarely supersede an earlier wrongful act
vi. Intended-consequences doctrine
1. If an intentional wrongdoer gets what they wanted, they get the result the wanted in the general manner they wanted it, they should not escape criminal liability even if an unforeseeable event intervened.
Mens Rea: Common Law
1. “A guilty mind; a guilty or wrongful purpose; a criminal intent.”
a. Broad Meaning: A defendant is guilty of a crime if she commits the social harm of the offense with any morally blameworthy state of mind.
b. Narrow Meaning: A defendant is not guilty of an offense, even if she has a morally blameworthy state of mind, if she lacks the mental state specified in the definition of the crime.
2. General vs. Specific Intent
a. General intent: A crime with a mental state element that relates solely to the prohibited conduct or result.
i. Example: battery defined as “an intentional application of force upon another.”
ii. If a statute contains no mens rea terms, then the entire offense is either a general intent offense or a strict liability offense
b. Specific Intent: EITHER
i. Includes an intent or purpose to do some future act or to achieve some future consequence beyond the prohibited conduct/result under the actus reus of the offense.
1. Example: possession of marijuana with the intent to sell.
ii. Provides that the actor must be aware of an attendant circumstance.
1. Example: Intentional sale of obscene literature to a person known to be under the age of 18 years.
c. Rules of Thumb
i. If you see phrase “with the intent to” it is specific intent (NOT just “intentional” or “intentionally”)
ii. “Known” or “known to be” is specific intent (NOT “knowingly”)
3. Malice
a. Regina v. Cunningham, Court of Criminal Appeal, 1957
i. Malice is
1. An actual intention to do the particular kind of harm that in fact was done, or
2. Recklessness as to whether such harm should occur or not.
a. Does not require any ill-will towards the injured person
b. Subjectively aware of the risk of harm, and disregarded it
4. Intentionally
a. People v. Conley, Illinois Appellate Court 1989
i. “Intentionally or knowingly”
ii. It’s necessary for intent to cause the prohibited result, not just an intent to act.
iii. Because the offense is defined in terms of result, the State has the burden of proving beyond a reasonable doubt that the defendant either:
1. Had a conscious objective to achieve the harm defined (intent) OR
2. Was consciously aware that the harm defined was practically certain to be caused by his conduct (knowledge).
iv. Ordinary presumption that one intends the natural and probable consequences of his actions.
b. Transferred Intent
i. When a defendant intends to cause harm to one person but accidentally causes it to another, courts typically assert what has come to be known as the “transferred intent” doctrine. Only used for “intentionally” or “knowingly,” not “recklessly” or “negligently”.
1. The transferred intent doctrine transfers the defendant’s intent from the intended victim to the unintended victim
2. The doctrine does not transfer the intent to cause one type of social harm to another.
5. Knowingly and “Willful Blindness”
a. Willful blindness: “the case of the actor who is aware of the probable existence of a material fact but does not satisfy himself that it does not in fact exist.”
i. The inference of knowledge of an existing fact is usually drawn from proof of notice of substantial probability of its existence, unless the defendant establishes an honest contrary belief.
b. SCOTUS:
i. The defendant must subjectively believe there is a high probability that a fact exists, and
ii. The defendant must take deliberate actions to avoid learning of that fact.
6. Problems in Statutory Interpretation
a. Flores-Figueroa v. United States, SCOTUS 2009
i. The mens rea term at the beginning of a statute “goes all the way down” the statute and applies to all of the actus reus elements.
ii. Mens rea only applies to what comes after it in the statute, not before it.
b. Not all courts follow SCOTUS’s lead on modifying what comes after an intent. Some state courts consider punctuation as indicating what is modified.
7. Strict Liability
a. Staples v. United States, SCOTUS 1994
i. Presumption against strict liability unless clear intent otherwise
1. General assumption that all statutes require mens rea, unless clearly otherwise as shown by express or implied congressional intent.
a. Silence does not inherently mean Congress intended to dispense with any mens rea requirement.
b. Severe penalty is a factor which suggests Congress did not intend to omit a mens rea requirement
ii. Presumption may be overcome where offense is a Public Welfare Offense
1. Offenses that involve “potentially harmful or injurious items” and “as long as a defendant knows he is dealing with a dangerous device” “he should be alerted to the probability of strict regulation.”
2. Guns in general are not “potentially harmful or injurious items”
8. Mistake of Fact
a. A mistake of fact may exculpate a defendant by negating her mens rea.
b. Burden of Proof
i. Defendant has initial burden of producing some evidence that he was mistaken as to a fact that negates mens rea.
ii. Then burden shifts to prosecution to prove either:
1. Defendant was not mistaken or
2. The defendant’s mistake did not negate the mens rea
c. Analysis
i. Step #1: Identify the offense as general intent, specific intent, or strict liability.
ii. Step #2A: For strict liability offenses, mistake is never a defense.
iii. Step #2B: For specific intent offenses, ask: Does the mistake negate the specific intent portion of the crime?
1. If yes, the defendant must be acquitted, even if the defendant’s mistake was unreasonable.
iv. Step #2C: For general intent offenses, ask: Does the mistake negate the mens rea of the offense?
1. If yes, the defendant must be acquitted, but only if the mistake was reasonable.
9. Mistake of Law
a. Analysis
i. General rule: Ignorance of the law is not an excuse.
ii. Exception #1:
1. Reasonable reliance on an official statement of the law, later determined to be wrong, contained in
a. A statute later declared invalid;
b. A judicial decision of the highest court in the jurisdiction, later determined to be erroneous; or
c. An official, but erroneous, interpretation of the law, secured from a public official in charge of its interpretation or enforcement.
2. No defense:
a. Reliance on one’s own interpretation of the law, even if the interpretation is reasonable.
b. Reliance on erroneous advice provided by a private attorney.
iii. Exception #2:
1. A mistake of law, whether reasonable or unreasonable, is a defense in the prosecution of a specific intent offense if the mistake negates the specific intent in the offense.
2. No defense:
a. A mistake of law, whether reasonable or unreasonable, is not a defense to a general intent crime or a strict liability crime.
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