Chapter 4 The Elements of a Crime

The Requirement of Voluntariness

One requirement of criminal act is that the defendant perform it voluntarily. In other words, the defendant must control the act. It would not serve the policy of specific deterrence to punish the defendant for irrepressible acts. The Model Penal Code gives the following examples of acts that are not voluntary and, therefore, not criminal: reflexes, convulsions, bodily movements during unconsciousness or sleep, conduct during hypnosis or resulting from hypnotic suggestion, or a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual (Model Penal Code § 2.01 (2)). One voluntary act is enough to fulfill the voluntary act requirement. Thus if a voluntary act is followed by an involuntary one, the court may still impose criminal liability depending on the circumstances.Govt. of Virgin Islands v. Smith, 278 F.2d 169 (1960), accessed October 26, 2010, http://openjurist.org/278/f2d/169/government-of-the-virgin-islands-v-smith.

Example of a Constitutional Statute Related to Status

Refer to the example in Section 4 "Example of a Voluntary Act Followed by a Nonvoluntary Act", where Timothy drives under the influence of alcohol and kills another. A state statute that criminalizes killing another person while driving under the influence is constitutional as applied to Timothy, even if Timothy is an alcoholic. The state has an interest in treating alcoholism and preventing alcohol-related crimes that could injure or kill Timothy or another person. Timothy’s act of driving while intoxicated is voluntary, even if his status as an alcoholic makes it more difficult for Timothy to control his drinking. Thus Timothy and other alcoholic defendants can be prosecuted and punished for killing another person while driving under the influence without violating the Eighth Amendment.

Example of Noncriminal Thoughts

Brianna, a housecleaner, fantasizes about killing her elderly client Phoebe and stealing all her jewelry. Brianna writes her thoughts in a diary, documenting how she intends to rig the gas line so that gas is pumped into the house all night while Phoebe is sleeping. Brianna includes the date that she wants to kill Phoebe in her most recent diary entry. As Brianna leaves Phoebe’s house, her diary accidentally falls out of her purse. Later, Phoebe finds the diary on the floor and reads it. Phoebe calls the police, gives them Brianna’s diary, and insists they arrest Brianna for attempted murder. Although Brianna’s murder plot is sinister and is documented in her diary, an arrest is improper in this case. Brianna cannot be punished for her thoughts alone. If Brianna took substantial steps toward killing Phoebe, an attempted murder charge might be appropriate. However, at this stage, Brianna is only planning a crime, not committing a crime. Phoebe may be able to go to court and get a restraining order against Brianna to prevent her from carrying out her murder plot, but Brianna cannot be incapacitated by arrest and prosecution for attempted murder in this case.

Duty to Act Based on a Statute

When a duty to act is statutory, it usually concerns a government interest that is paramount. Some common examples of statutory duties to act are the duty to file state or federal tax returns,26 U.S.C. § 7203, accessed October 25, 2010, http://www.law.cornell.edu/uscode/26/usc_sec_26_00007203----000-.html. the duty of health-care personnel to report gunshot wounds,Fla. Stat. Ann. § 790.24, accessed October 25, 2010, http://law.onecle.com/florida/crimes/790.24.html. and the duty to report child abuse.Ky. Rev. Stat. Ann. § 620.030, accessed October 25, 2010, http://www.lrc.ky.gov/krs/620-00/030.pdf.

Figure 4.3 Kentucky Revised Statutes

At common law, it was not criminal to stand by and refuse to help someone in danger. Some states supersede the common law by enacting Good Samaritan statutesA statute compelling an individual to assist another under certain specified circumstances. that create a duty to assist those involved in an accident or emergency situation. Good Samaritan statutes typically contain provisions that insulate the actor from liability exposure when providing assistance.Minnesota Code § 604A.01, accessed October 25, 2010, http://law.justia.com/minnesota/codes/2005/595/604a-s01.html.

Figure 4.4 Minnesota Good Samaritan Law

Duty to Act Based on a Contract

A duty to act can be based on a contract between the defendant and another party. The most prevalent examples would be a physician’s contractual duty to help a patient or a lifeguard’s duty to save someone who is drowning. Keep in mind that experts who are not contractually bound can ignore an individual’s pleas for help without committing a crime, no matter how morally abhorrent that may seem. For example, an expert swimmer can watch someone drown if there is no statute, contract, or special relationship that creates a legal duty to act.

Duty to Act Based on a Special Relationship

A special relationship may also be the basis of a legal duty to act. The most common special relationships are parent-child, spouse-spouse, and employer-employee. Often, the rationale for creating a legal duty to act when people are in a special relationship is the dependence of one individual on another. A parent has the obligation by law to provide food, clothing, shelter, and medical care for his or her children, because children are dependent on their parents and do not have the ability to procure these items themselves. In addition, if someone puts another person in peril, there may be a duty to rescue that person.State ex rel. Kuntz v. Thirteenth Jud. Dist., 995 P.2d 951 (2000), accessed October 25, 2010, http://caselaw.findlaw.com/mt-supreme-court/1434948.html. Although this is not exactly a special relationship, the victim may be dependent on the person who created the dangerous situation because he or she may be the only one present and able to render aid. On a related note, some jurisdictions also impose a duty to continue to provide aid, once aid or assistance has started.Jones v. U.S., 308 F.2d 307 (1962), accessed October 25, 2010, http://scholar.google.com/scholar_case?case=14703438613582917232&hl=en&as_sdt=2002&as_vis=1. Similar to the duty to rescue a victim the defendant has put in peril, the duty to continue to provide aid is rooted in the victim’s dependence on the defendant and the unlikely chance that another person may come along to help once the defendant has begun providing assistance.

Example of a Failure to Act That Is Noncriminal

Recall the example from Chapter 1 "Introduction to Criminal Law", Section 1.2.1 "Example of Criminal Law Issues", where Clara and Linda are shopping together and Clara stands by and watches as Linda shoplifts a bra. In this example, Clara does not have a duty to report Linda for shoplifting. Clara does not have a contractual duty to report a crime in this situation because she is not a law enforcement officer or security guard obligated by an employment contract. Nor does she have a special relationship with the store mandating such a report. Unless a statute or ordinance exists to force individuals to report crimes committed in their presence, which is extremely unlikely, Clara can legally observe Linda’s shoplifting without reporting it. Of course, if Clara assists Linda with the shoplifting, she has then performed a criminal act or actus reus, and a criminal prosecution is appropriate.

Example of a Failure to Act That Is Criminal

Penelope stands on the shore at a public beach and watches as a child drowns. If Penelope’s state has a Good Samaritan law, she may have a duty to help the child based on a statute. If Penelope is the lifeguard, she may have a duty to save the child based on a contract. If Penelope is the child’s mother, she may have a duty to provide assistance based on their special relationship. If Penelope threw the child in the ocean, she may have a duty to rescue the child she put in peril. If Penelope is just a bystander, and no Good Samaritan law is in force, she has no duty to act and cannot be criminally prosecuted if the child suffers harm or drowns.

Example of an Unenforceable Possession Statute

A state has a criminal statute that prohibits “being within 100 feet of any quantity of marijuana.” Ricardo sits next to Jean on the subway. A law enforcement officer smells marijuana and does a pat-down search of Jean. He discovers that Jean has a large baggie of marijuana in his jacket pocket and arrests Jean and Ricardo for marijuana possession. Ricardo was within one hundred feet of marijuana as prohibited by the statute, but Ricardo should not be prosecuted for marijuana possession. No evidence exists to indicate that Ricardo knew Jean, or knew that Jean possessed marijuana. Thus Ricardo does not have the criminal intent or mens rea for possession, and the state’s possession statute should not be enforced against him.

Malice Aforethought

Malice aforethought is a special common-law intent designated for only one crime: murder. The definition of malice aforethought is “intent to kill.” Society considers intent to kill the most evil of all intents, so malice aforethought crimes such as first- and second-degree murder generally mandate the most severe of punishments, including the death penalty in jurisdictions that allow for it. Malice aforethought and criminal homicide are discussed in detail in Chapter 9 "Criminal Homicide".

Specific Intent

Specific intent is the intent with the highest level of culpability for crimes other than murder. Unfortunately, criminal statutes rarely describe their intent element as “specific” or “general,” and a judge may be required to define the level of intent using the common law or a dictionary to explain a word’s ordinary meaning. Typically, specific intent means that the defendant acts with a more sophisticated level of awareness.Connecticut Jury Instructions No. 2.3-1, accessed February 14, 2011, http://www.jud.ct.gov/ji/criminal/part2/2.3-1.htm. Crimes that require specific intent usually fall into one of three categories: either the defendant intends to cause a certain bad result, the defendant intends to do something more than commit the criminal act, or the defendant acts with knowledge that his or her conduct is illegal, which is called scienterThe intent to do an unlawful act..

General Intent

General intent is less sophisticated than specific intent. Thus general intent crimes are easier to prove and can also result in a less severe punishment. A basic definition of general intent is the intent to perform the criminal act or actus reus. If the defendant acts intentionally but without the additional desire to bring about a certain result, or do anything other than the criminal act itself, the defendant has acted with general intent.People v. McDaniel, 597 P.2d 124 (1979), accessed February 14, 2011, http://scholar.google.com/scholar_case?case=8266915507346002022&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

Example of a General Intent Crime and an Inference of Intent

A state statute defines battery as “intentional harmful or offensive physical contact with another.” This statute describes a general intent crime. To be guilty of battery under the statute, the defendant must only intend the harmful or offensive contact. The defendant does not have to desire that the contact produces a specific result, such as scarring, or death; nor does the defendant need scienter, or awareness that the physical contact is illegal.

If Addie balls up her fist and punches Eddie in the jaw after Eddie calls her a “stupid idiot,” Addie has probably committed battery under the statute. A prosecutor could prove that Addie committed the act of harmful or offensive contact using Eddie’s testimony and a physician’s report. The jury could thereafter be instructed to “infer intent from proof of the act.” If the jury accepts the inference and determines that Addie committed the criminal act, the jury could find Addie guilty of battery without additional evidence of intent.

Figure 4.6 Common Law Intents

Motive

Intent should not be confused with motiveThe reason the defendant performs the criminal act., which is the reason the defendant commits the criminal act or actus reus. Motive can generate intent, support a defense, and be used to determine sentencing. However, motive alone does not constitute mens rea and does not act as a substitute for criminal intent.

Purposely

A defendant who acts purposely intends to engage in conduct of that nature and intends to cause a certain result.N.H. Rev. Stat. Ann. § 626:2(II)(a), accessed February 14, 2011, http://www.gencourt.state.nh.us/rsa/html/LXII/626/626-2.htm. Purposeful criminal intent resembles specific intent to cause harm, which was discussed previously. As the Model Penal Code states, “[a] person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result” (Model Penal Code § 2.02 (2) (a)).

Knowingly

Knowingly indicates that the defendant is aware of the nature of the act and its probable consequences.Utah Code Ann. § 76-2-103(2), accessed February 14, 2011, http://le.utah.gov/~code/TITLE76/htm/76_02_010300.htm. Knowingly differs from purposely in that the defendant is not acting to cause a certain result but is acting with the awareness that the result is practically certain to occur.State v. Huff, 469 A.2d 1251 (1984), accessed February 14, 2011, http://scholar.google.com/scholar_case?case=4287195880403875631&hl=en&as_sdt=2&as_vis=1&oi=scholarr. The Model Penal Code describes knowingly as follows: “A person acts knowingly with respect to a material element of an offense when…he is aware that his conduct is of that nature…if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result” (Model Penal Code in § 2.02(2) (b)).

Example of Knowingly

Victor brags to his girlfriend Tanya that he can shoot into a densely packed crowd of people on the subway train without hitting any of them. Tanya dares Victor to try it. Victor removes a concealed weapon from his waistband and shoots, aiming at a group of people standing with their back to him. The shot kills Monica, who is standing the closest to Victor. In this case, Victor did not intend to shoot Monica. In fact, Victor’s goal was to shoot and miss all the standing subway passengers. However, Victor was aware that he was shooting a loaded gun (the nature of the act) and was also practically certain that shooting into a crowd would result in somebody getting hurt or killed. Thus Victor acted knowingly according to the Model Penal Code. If the state in which Victor shoots Monica defines murder intent as knowingly under the Model Penal Code, then Victor has most likely committed murder in this case.

Figure 4.7 Crack the Code

Recklessly

Recklessly is a lower level of culpability than knowingly, and reckless intent crimes are not as common as offenses criminalizing purposeful, knowing conduct. The degree of risk awareness is key to distinguishing a reckless intent crime from a knowing intent crime. A defendant acts recklessly if he or she consciously disregards a substantial and unjustifiable risk that the bad result or harm will occur.Colo. Rev. Stat. Ann. § 18-1-501(8), accessed February 14, 2011, http://www.michie.com/colorado/lpext.dll?f=templates&fn=main-h.htm&cp=. This is different from a knowing intent crime, where the defendant must be “practically certain” of the bad results. The reckless intent test is two pronged. First, the defendant must consciously disregard a substantial risk of harm. The standard is subjective; the defendant must know of the substantial risk. Second, the defendant must take an unjustifiable risk, meaning that no valid reason exists for the risk. The standard for this prong is objective; if a reasonable person would not take the risk, then the defendant’s action in taking it is reckless. As the Model Penal Code states, “[t]he risk must be of such a nature and degree that…its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation” (Model Penal Code § 2.02(2) (c)).

Negligently

Negligent intent crimes are less culpable than reckless intent crimes and are also less common. The difference between reckless and negligent intent is the defendant’s lack of awareness. While defendants committing negligent intent crimes are also faced with a substantial and unjustifiable risk, they are unaware of it, even though a reasonable person would be.Idaho Code Ann. § 18-101(2), accessed February 14, 2011, http://www.legislature.idaho.gov/idstat/Title18/T18CH1SECT18-101.htm. Thus the first prong of the reckless intent test is simply changed from a subjective to objective standard. As the Model Penal Code states, “[a] person acts negligently…when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct”(Model Penal Code § 2.02(2) (d)).

Example of Negligently

Review the example in Section 4 "Example of Knowingly", where Victor shoots into a crowd of subway travelers and kills Monica. Change the example, and imagine that the subway train has no passengers. Victor brags to Tanya that he can shoot a crumpled napkin on the floor. Tanya challenges him to try it. Victor shoots at the napkin and misses, and the bullet ricochets three times off three different seats, travels backward, and strikes Tanya in the forehead, killing her instantly. In this case, Victor may be unaware of the bullet’s potential to ricochet several times and actually travel backward. However, the trier of fact can determine that a “reasonable person” would be aware that shooting a gun inside a small subway train could result in injury or death. This would be a finding that Victor acted negligently, under the circumstances. If the state in which Victor shot Tanya criminalizes negligent killings, then Victor could be found guilty of criminal homicide in this case.

Figure 4.8 Model Penal Code Criminal Intents Ranked from Most Serious to Least Serious

Example of a Crime That Requires More Than One Criminal Intent

A state statute defines burglary as “breaking and entering into a residence at nighttime with the intent to commit a felony once inside.” In this statute, the elements are the following: (1) breaking, (2) and entering, (3) into a residence, (4) at nighttime. Breaking and entering are two criminal act elements. They must be committed with the specific intent, or purposely, to commit a felony once inside the residence. The elements of residence and nighttime are two attendant circumstances, which most likely have the lower level of general intent or knowingly. Thus this statute has four separate criminal intents that the prosecution must prove beyond a reasonable doubt for conviction.

Example of a Strict Liability Offense

A vehicle code provision makes it a crime to “travel in a vehicle over the posted speed limit.” This is a strict liability offense. So if a law enforcement officer captures radar information that indicates Susie was traveling in a vehicle five miles per hour over the posted speed limit, Susie can probably be convicted of speeding under the statute. Susie’s protests that she “didn’t know she was traveling at that speed,” are not a valid defense. Susie’s knowledge of the nature of the act is irrelevant. The prosecution only needs to prove the criminal act to convict Susie because this statute is strict liability and does not require proof of criminal intent.

Example of Transferred Intent

Billy and his brother Ronnie get into an argument at a crowded bar. Billy balls up his fist and swings, aiming for Ronnie’s face. Ronnie ducks and Billy punches Amanda in the face instead. Billy did not intend to batter Amanda. However, it is unjust to allow this protective action of Ronnie’s to excuse Billy’s conduct. Thus Billy’s intent to hit Ronnie transfers in some jurisdictions over to Amanda. Billy can also be charged with attempted battery, which is assault, of Ronnie, resulting in two crimes rather than one under the transferred intent doctrine.

Example of Vicarious Liability

Don hires James to work in his liquor store. James is specially trained to ask for the identification of any individual who appears to be under the age of thirty and attempts to buy alcohol. One night, James sells alcohol to Ashley and does not request identification because Ashley is attractive and James wants to ask her out on a date. Unfortunately, Ashley is underage and is participating in a sting operation with local law enforcement. Certain statutes could subject Don to criminal prosecution for selling alcohol to an underage person like Ashley, even though Don did not personally participate in the sale. Because Don is James’s employer, he may be vicariously liable for James’s on-the-job conduct in this instance.

Example of a Situation Lacking Concurrence

Sherree decides she wants to kill her husband using a handgun. As Sherree is driving to the local gun shop to purchase the handgun, her husband is distracted and steps in front of her car. Sherree slams on the brakes as a reflex, but unfortunately she is unable to avoid striking and killing her husband. Sherree cannot be prosecuted for criminal homicide in this case. Although Sherree had formulated the intent to kill, the intent to kill did not exist at the moment she committed the criminal act of hitting her husband with her vehicle. In fact, Sherree was trying to avoid hitting her husband at the moment he was killed. Thus this case lacks concurrence of act and intent, and Sherree is not guilty of criminal homicide.

Example of Factual Cause

Henry and Mary get into an argument over their child custody agreement. Henry gives Mary a hard shove. Mary staggers backward, is struck by lightning, and dies instantly. In this example, Henry’s act forced Mary to move into the area where the lighting happened to strike. However, it would be unjust to punish Henry for Mary’s death in this case because Henry could not have imagined the eventual result. Thus although Henry is the factual or but for cause of Mary’s death, he is probably not the legal causeThe defendant is criminally responsible for the harm because it is a foreseeable consequence of the defendant’s criminal act..

Example of Legal Causation

Imagine that Henry and Mary get into the same argument over their child custody agreement, but this time they are in their garage, which is crowded with furniture. Henry gives Mary a hard shove, even though she is standing directly in front of a large entertainment center filled with books and a heavy thirty-two-inch television set. Mary staggers backward into the entertainment center and it crashes down on top of her, killing her. In this situation, Henry is the factual cause of Mary’s death because he started the chain of events that led to her death with his push. In addition, it is foreseeable that Mary might suffer a serious injury or death when shoved directly into a large and heavy piece of furniture. Thus in this example, Henry could be the factual and legal cause of Mary’s death. It is up to the trier of fact to make this determination based on an assessment of objective foreseeability and the attendant circumstances.

Example of an Intervening Superseding Cause

Review the example with Henry and Mary in Section 4 "Example of Legal Causation". Change the example so that Henry pulls out a knife and chases Mary out of the garage. Mary escapes Henry and hides in an abandoned shed. Half an hour later, Wes, a homeless man living in the shed, returns from a day of panhandling. When he discovers Mary in the shed, he kills her and steals her money and jewelry. In this case, Henry is still the factual cause of Mary’s death, because he chased her into the shed where she was eventually killed. However, Wes is probably the intervening superseding cause of Mary’s death because he interrupted the chain of events started by Henry. Thus Wes is subject to prosecution for Mary’s death, and Henry may be prosecuted only for assault with a deadly weapon.