Criminal Law

The Basic Elements

In general, for a person to have committed a crime, he or she must have satisfied two basic elements while the illegal result was being produced:

1) The defendant must have committed some kind of volitional act (called an actus reus, or “guilty act”) that led to the commission of the crime. The reason for this is that we do not punish people simply for their thoughts or intentions. Further, by virtue of the Eighth Amendment Ban on Cruel and Unusual Punishment we do not define crimes in terms of status either. In other words, it is unconstitutional to punish someone for being something (e.g., addicted to narcotics). A person can only be punished for doing something (e.g., possessing or ingesting illegal narcotics).

An exception to this rule is that a person can sometimes be punished for failing to act where that person has a duty to act. A person generally has no responsibility to come to the aid of others and cannot be prosecuted for failing to do so. However, there are certain circumstances where the law imposes a duty to rescue. Examples include:

• the duty to come to the rescue of a close family member, such as a child
• the duty to come to the rescue of someone for whom you are contractually obligated to aid (e.g., a babysitter must come to the aid of a charge) 
• a scenario where the defendant put the victim in harm’s way in the first place (then the defendant has a duty to rescue the victim)

2) The defendant must have formed some level of criminal intent (mens rea, or “guilty mind”) to be guilty of a crime. There are four levels of intent. In order of highest level of guilty intent to lowest level, they are:

• Specific intent: This means that the defendant had the actual desire, while committing the act, that the illegal results take place.
• General intent: This means that the defendant knew that the illegal result would take place as a consequence of his acts, even if he did not want those results to occur.
• Recklessness: This is a level of extreme negligence; it connotes that the defendant was aware of a substantial risk that the illegal result would occur and consciously failed to avoid that risk.
• Criminal Negligence: This means that the defendant was negligent in failing to adequately account for the chance that the illegal result would occur.

Different crimes require different levels of mens rea for a person to be convicted of those crimes. Some crimes require specific intent, such as theft. Some crimes, such as arson, require general intent. Still other crimes, such as involuntary manslaughter, require only recklessness, etc.

There are exceptions to the general rule that a defendant must have a mens rea to be convicted of a crime. Some crimes require no mens rea. These are known as “strict liability” crimes. Strict liability crimes are the crimes for which a defendant can be convicted even if he did not have any mens rea at all when he was committing the crime. Statutory rape and bigamy are the two popular examples of strict liability crimes. Many minor crimes, such as traffic offenses, are also strict liability crimes.

Inchoate Crimes

An inchoate crime is a crime that does not require the actual completion of a criminal result for a person to be guilty of that crime. There are two basic inchoate crimes that we will discuss: attempt and conspiracy.

Attempt
Under the common law it is a crime to attempt to commit any misdemeanor or felony. The basic components of attempt are:

1. a specific intent to commit a crime and
2. an act that takes a step toward completing the crime. 

Most jurisdictions hold that there is no such thing as attempt to commit crimes that require a mens rea less than intent (ex., crimes committed through recklessness) for the simple reason that, by definition, you cannot attempt to be reckless. For example:

Luckless, upset over the fact that he has just been laid off, closes his eyes and throws a knife onto a crowded sidewalk. Luckily, the knife misses all the people on the sidewalk and lands harmlessly on the pavement. Had the knife injured or killed someone, Luckless could have been charged with homicide or assault because his action was clearly reckless. However, he cannot be charged with attempted homicide or attempted assault because he did not specifically intend to hurt or kill anyone.

Even if the victim does sustain an injury through the defendant's reckless actions, there cannot be an attempted murder charge unless the defendant intended for the victim's death to result.

As far as the actus reus element of attempt is concerned, what is required is the commission of an act that represents a step toward the committing of the crime. However, this step must be something beyond simple "preparation." 

Conspiracy 
In its most basic sense, a conspiracy is simply an agreement between two or more people to commit a crime. However, there are several requirements that must be met in order for a defendant to have actually committed the crime of conspiracy. The first requirement is the mens rea requirement, which actually has two prongs. The first prong is that the defendant must have actually intended to agree to commit a crime. The second prong is that the defendant must have intended to accomplish the objective of the conspiracy when he entered into the agreement. In other words, in order for the mens rea requirement to be satisfied, the defendant must intend to form an agreement with others to commit a crime and, at the time the defendant made the agreement, he must have intended to do what he would need to do in order to bring about the objective of the conspiracy (i.e., the commission of the crime) as well. For example:

Rubin asks Clay if he will work with Rubin to rob the First National Bank of Hollywood. Clay agrees to help Rubin but, in his mind, Clay plans on turning Rubin in to the police before the robbery actually takes place. In this situation, Clay is not guilty of conspiracy because, although he intended to agree with Rubin, he did not intend to accomplish the objective of the conspiracy when he made the agreement.

Most jurisdictions now also require that one of the conspirators take at least one overt act in furtherance of the conspiracy. This overt act need not take place at the time or location of the conspiracy. For example:

Fred and Barney agree to rob the First National Bank of Bedrock. Without more than just an agreement, most jurisdictions today would not hold Fred or Barney liable for conspiracy. However, if Fred drives the getaway car to the bank and parks it outside the bank so that Barney will have a means of escape, both Fred and Barney would immediately be guilty of conspiracy. (Fred's overt act crystallizes the conspiracy and thus makes Barney guilty as well.) Even if the crime is planned for Wednesday night and on Monday, Fred goes out and buys a gun for Barney to use during the robbery, this would be considered an overt act and both parties would immediately be guilty of conspiracy.

Homicide

Homicide means the unlawful and unjustified killing of another human being. Under the common law and under the rules of most states today, homicide is broken up into several different levels. Following are the levels that most states apply to the various forms of homicide:

First Degree Murder: This crime describes an intentional murder (specific intent is required) with aggravating factors. The aggravating factors necessary for first degree murder vary from state to state. Some examples of aggravating factors are: 

• pre-meditation
• murder by torture
• murder by bombing
• murder of a police officer in the course of his duty

Second Degree Murder: Second degree murder means any homicide committed with “malice aforethought.” Malice in this sense does not mean with hate or spite or vengeance in mind. In this context, “malice” is a legal term of art that is used to describe any of 4 situations. A defendant can be convicted for murder if he or she had any of these states of mind when committing the act that caused a person to die:

• intent to kill
• intent to cause severe bodily injury
• intent to commit a violent felony (“this is the felony-murder” rule)
• acting with a “depraved indifference” (extreme recklessness) toward human life
  

Voluntary Manslaughter: This refers to intentional homicide with mitigating circumstances. The most popular mitigating circumstance is when the defendant was provoked by the victim to such an extent that a reasonable person would have lost control of his or her emotions.

Involuntary Manslaughter: This refers to a homicide committed through criminal recklessness. 

Criminally Negligent Homicide: This refers to a homicide committed through criminal negligence.

Other Crimes

Battery: A criminal battery is an unlawful use of force against another person. 

Assault: Criminal assault is divided into two categories: 

• The first is the attempt to commit a battery. 
• The second is the intentional placing of the victim in fear of a battery. 

Mayhem: The common law crime of mayhem is defined as an act of maliciously disabling or disfiguring the victim. 

Rape: At common law, rape was defined as sexual intercourse by a man, with a woman who was not his wife, without her consent. At common law, a husband could not be convicted of raping his wife. However, some modern statutes have defined rape in such a way that it can now be committed, in certain circumstances, by a husband against his wife. 

Consent obtained by fraud will be considered ineffective and the intercourse will be considered rape. Also, some people, such as minors, are considered incapable of giving consent. Thus, sexual intercourse with a minor is considered rape even if the minor agrees to the intercourse. This crime is known as “statutory rape”.

Kidnapping: Kidnapping is the unlawful confinement of a person plus an aggravating factor. Kidnapping is usually defined to include the forcible moving of a person from one place to another. There are different degrees of kidnapping, depending on the severity of the action and other factors, such as whether the victim was hurt, whether ransom money was demanded, etc.

Burglary: The common law definition of burglary was “the breaking and entering into the dwelling of another at night with the intent to commit a felony therein.” This was a very narrow definition of the crime. Modern rules generally widen the crime of burglary to include entering or remaining illegally on someone else’s property with the intent to commit any crime therein.

Arson: At common law, arson is defined as the malicious burning of the dwelling of another. Modern rules have widened this definition to include any structure, not just a building and include destroying by explosion under the definition of arson.

Theft: The modern crime of “theft” includes a host of common law crimes such as larceny, embezzlement, receiving stolen property, etc. Some jurisdictions still divide theft into several different crimes. The crimes related to theft all involve taking or keeping property that belongs to someone else with the intent of keeping it for oneself and not returning it. Theft is often divided into degrees, based on the value of the property involved. It should be noted that theft is a "specific intent crime". This means that in order to be guilty of theft, the defendant must have taken the property with the specific intent to deprive the true owner of that property.

Robbery: Robbery means the taking of personal property (such as money) by force or the threat of force or violence. Robbery is usually divided into degrees, based on factors such as whether a weapon was used and whether the victim was hurt in the incident.

Defenses to Criminal Charges

Whenever a person is charged with a crime, that person can fight the charge by asserting either that:

• he or she did not commit the crime; or
• he or she has an affirmative defense that can be used against the charge. An affirmative defense is a defense to a charge that says “even if I did commit the act, I should not be punished because of…” Some examples of affirmative defenses are described below:

Infancy: At common law, children were generally regarded as incapable of committing crimes. However, different presumptions have generally been applied, depending upon the age of the child. Generally, it is conclusively presumed that a child under the age of seven is unable to form a criminal mens rea and, therefore, a child that young cannot be convicted of a crime. Different states have different ways to deal with minors who commit crimes. Most states have an entirely separate criminal justice system and set of rules for dealing with juvenile delinquents.

Insanity: A defendant must be acquitted of a crime if, at the time he committed the crime, he was legally insane. An acquittal in these situations means that the defendant will have been found “not guilty by reason of insanity.” The definitions of legal insanity vary between different jurisdictions. Many jurisdictions subscribe to the rule that a person cannot be convicted of a crime if, at the time the crime was committed, the person was incapable of distinguishing between right and wrong because of a mental defect.

Mistake: A mistake of fact (a mistake as to the facts and circumstances surrounding a situation) can insulate a person from liability if it was a reasonable mistake and it serves to negate the person’s intent to commit the crime. Mistakes of law generally fall under the old adage, “Ignorance of the law is no excuse.” However, there are certain exceptions to that rule.

Consent: For crimes like forcible rape, where lack of consent is an essential element of the crime, consent is, of course, an absolute defense. For all other crimes, consent of the victim is usually not a defense. There are exceptions, however, for certain (usually minor) assaults and batteries. 

Self Defense and Defense of Others: A person may use reasonable force to protect herself or to protect others from another person’s unlawful use of force. However, it should be noted that:

• the threat of force that the person is trying to prevent must be immediate, not just threatened for some time in the future.
• the force used must be reasonable under the circumstances and cannot be more than is necessary to prevent the threat.

It should also be noted that deadly force cannot be used against an attacker unless the attacker is using or threatening to use deadly force.

Protection of Property: A person may use reasonable force to prevent his property from being stolen or to retrieve his property after it has been stolen. It should be noted that deadly force can never be used to protect or recover property.