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CHAPTER 3- The Two Essential Elements

MENS REA
- A state of mind which produces a crime
o State of mind required to be criminally liable for a certain act
o Sometimes no intent is required to be guilty
o Inconsistent and lack of uniformity b/w statutes and judicial decisions
- Mens Rea and Common Law
o In common law, there is no crime if there was no guilty mind
o Many words to describe the mental state required to prove guilt
- Intent
o General intent: intent to commit some crime or merely a generally guilty mind
No desire to cause a particular consequence required
Ex: firing a gun w/no desire to kill anyone, but it does kill someone
Some jurisdictions require more than a desire to act, so some negligence
must be proven
o Specific intent: intent to commit the exact crime charged
Specific is also defined by the intent to cause the result of the act
Many statutes require specific intent for higher-level crimes
Sometimes can be proved by showing defendant possessed knowledge of a
particular fact
Scienter: knowingly, with guilty knowledge
If in certain jurisdictions, person commits activity they thought
was legal, but breaks law, they have general intent
Constructive intent: at common law, when defendant does not intend to
cause the result, but it is so likely that it will occur, that law treats the act
as one of specific intent
Practical or substantial probability required, not absolute
Also found when defendant intends a result beyond the act like when
criminal act is uncompleted
Ex: assault with intent to rape
- Malum In Se: inherently evil, ex rape and murder
- Malum prohibitum: crime isnt evil itself, but only criminal because declared so by a
legislature ex. Failure to file taxes
o Malum in se and prohibitum are only used in some jurisdictions
- Transferred Intent: if an unintended illegal act results from the intent to commit a crime,
that act is also a crime. Ex: trying to shoot someone, missing, and killing someone else
o Actual harm must be similar to intended harm
o Cannot increase defendants liability
A tries to kill B in self defense, but kills C, A has not committed a crime
- Strict Liability: aka liability w/out fault, guilt of a criminal offense even if you had no
mens rea
o Not used in all jurisdictions

Strict liability crimes: usually minor violations and punished by fines, not
incarceration
Traffic violations, statutory rape in most states
Malum prohibitum crimes usually strict liability
Known as public or regulatory offenses b/c the prohibition was
established by an administrative agency or is part of a regulatory
scheme of a legislature
o Strict Liability and Statutory Construction
What is mens rea requirement when a statute doesnt provide for such?
Legal history, or background docs and records of hearing related to
the enactment of a bill, can indicate is a crime was intended to
have a mens rea requirement
Seriousness of harm to the public, mens rea requirements for
related crimes, proposed punishment, burden of prosecution
The more dangerous to the public, the harder it is to prove mens
rea, and more likely strict liability will be imposed
Statutory construction: determining the meaning of a statute, certain rules
must be followed
o Vicarious Liability: legal responsibility for the acts of another person b/c of some
relationship with that person
By definition, no mens rea requirement or requirement of an act by the
defendant
Occurs most b/w employers and employees
o Corporate Liability: form of vicarious liability, liability of corporations for the
acts of its directors, officers, shareholders, agents, and employees.
Employee must be acting within scope of his employment and the corp
had a duty to take some act
Fines usually imposed or injunctions: a judges order to a person to do or
to refrain from doing a particular thing
Agent or employee can still be held criminally liable
Current Approaches to Mens Rea
- Model Penal Code and States of Mind
o Purposely: intentionally or knowingly, defendant must have a desire to cause
result
o Knowingly: with full knowledge and intentionally, defendant is aware of nature of
the act and be practically certain his conduct with cause a particular result.
Defendant is certain that the result will occur, but is not taking that act
o Recklessness: indifference to consequences and safety of others, or disregards a
substantial risk that the result will occur
o Negligence: substantial and unjustifiable risk, but there is no conscious awareness
of the risk when there should have been
- Elemental Analysis
o Parts of the crime
o Prosecution must prove all elements of a crime beyond a reasonable doubt

Defendant is acquitted if one is not proven

Proving Mens Rea


- Prosecution must show that the defendant possessed the required mental state when act
was committed
o Subjective intent: defendants actual intent, the motives, intentions, and desires in
their head at time of the act
o Objective intent: legal imposition upon defendant of what he should have known
at the time of act
Easier for prosecution to prove that defendant should have known that
harm would result than to prove they had bad subjective intent
o Conviction cant be made if intent is required and suspect only confesses to act
Use inferences: a fact that is probably true that a judge or jury can
conclude about after considering facts of case
Presumption: a conclusion required by law that a judge or jury must make.
Rebuttable presumption: must be made by judge or jury unless
disproven by the facts (innocent until proven guilty)
Irrebuttable presumptions: must be made by judge or jury and cant
be disproved
o Motive
The reason why a person does something
Why a person acted, mens rea is whether a person intended it act
Not an element of crime
Doesnt have to be proved and wont affect outcome
Can play a role at sentencing and whether charges are pressed
ACTUS REUS
- The physical act of a crime
- Voluntariness
o Action must be voluntary: accused must have acted freely, or no liability attaches
o Model Penal Code list of involuntary acts
Reflexes and convulsions, bodily movements during unconsciousness or
sleep, conduct during hypnosis or resulting from hypnotic suggestion, and
other movts that are not a product of effort by the actor
- Thoughts and Statements as Acts
o A thought is not a crime
o Spoken word is not a crime, except riots, treason, solicitation, conspiracy and
causing imminent harm to others
- Personal Status as an Act
o Conditions such as illness, financial status, race, sex, religion are not crimes, nor
is being addicted to illegal drugs
o However, it can be subject to regulatory authority
- Possession
o Not strictly an act, but can be made criminal

o Differs b/w jurisdictions. Some require actual possession, others just constructive
possession: item is in the area they have dominion and control over
If constructive, possessor must know about item long enough to have
gotten rid of the possession
o Gets complicated when there are multiple possessors but only some know of the
possession
Omissions: a failure to act when required to do so by law
- To be liable for not acting, a person must have a duty
- Legal duty is different from moral duty, which is not withheld by law
- Duty Imposed by Statute
o Duty imposed by criminal statutes: not filing certain documents or taxes, not
stopping if involved in an accident
o May impose liability for failure to assist someone in danger
- Duty by Relationship: duty created by existence of a personal relationship, usually
parent-child and spouse-spouse
o More dependence=more likely a duty is created
o Also a when a joint enterprise occurs
- Duty by Contract: such as a doctor or lifeguard watching someone die without attempting
to save them
- Assumption of Duty: people normally dont have duty to strangers, but assumption if
expressed orally or in writing
o You can change your mind, but if it prevents others from saving a person, you are
at fault
- Creating Danger: a person has a duty to save a stranger if the person creates a
circumstance that endangers the stranger
Causation
- Some acts are criminal even if prohibited result doesnt occur
- For crimes that require result, the criminal act must be the cause of the result
o 2 kinds, if 1 is missing, there is defense as to the intent
- Cause of fact: if the result would not have occurred unless the act occurred
- Legal Cause (proximate cause): defendant will be legal cause if the intended result is
close enough to the actual result and the intended manner used to bring the result is close
enough to the actual manner used to bring the result
o Forseeability: the degree to which the consequences of an action should have been
anticipated, recognized, and considered beforehand by a reasonable person
o Much harder to prove legal causation than factual causation
o Intervening cause: a happening that occurs after the initial act and changes the
outcome stemming from that act, removes blame from the wrongdoer who
originally set events in motion
If victim suffers intended injury while attempting to avoid the injury, the
defendant is liable, ex: running away from someone intending to strike
you and getting hit by a bus
There must be some nexus b/w unintended manner and the act, ex: not
liable if you get killed by a falling piano while avoiding being struck

If 2 events happen at the same time, both are treated as the legal cause if it
cant be determined which caused the outcome,
even if only 1 caused the outcome
Under Model Penal Code, element is not established unless the actual result is a
probably consequence of the actors conduct.
o Crime is not proven if the actual result is different from the defendants purpose,
unless the resulting harm is the same however it occurred to the wrong person or
thing, the actual harm is not as great or serious as intended, the actual harm
involves the same kind of injury or harm intended
Year and a Day: a person cant be charged with murder if the victim did not die within 1
year + 1 day after the act too place
o Debatable and abolished in many states
Concurrence: joining of mens rea and the act, mens rea is the reason the act was taken
o Ex: Doug hates Andy and wants him dead, hits him with a car and kills him, and
is happy after
o Must be a connection, cant hate someone and kill them a year later and say there
was concurrence

REVIEW QUESTIONS
1. In criminal law, causation is broken down into 2 forms. Name and briefly describe each.
2. Can a person be prosecuted for failing to save a stranger from danger? Why or why not?
3. What is concurrence?
4. What is an omission?
5. The Model Penal Code recognizes 4 types of mens rea. Name and briefly describe each.
6. What is vicarious liability?
7. What is a rebuttable presumption? An irrebuttable presumption?
8. Can corporations and other associations be guilty of crimes?
9. Distinguish mens rea from motive.
REVIEW PROBLEMS
1-6.
Many prisoners in the state and federal correctional systems are held at minimum-security
farms. Only inmates considered not to be dangerous are housed at these facilities because of
the minimal security. IN fact, in many cases it is possible for inmates to simply walk off. Of
course, most do not leave the premises, because to do so results in an increased sentence (either
due to a conviction for escape or a decrease in good time) and a likelihood that the sentence
will be spent in prison rather than the more desirable farm. Despite this, prisoners of these
facilities do escape. What follows are several different sets of facts involving a ficticious inmate,
Spike Vincelli. Read each and discuss the defenses, if any, that Spike may have against a charge
of escape. Discuss each in light of the following 2 statutes:
Statue 1: It shall be unlawful for any person committed to any correctional facility to escape
from that facility. Escape is defined as passing beyond the borders of a facility with an intent
to never return or being lawfully beyond the borders of the facility and not returning when
required to do so with an intent to never return. Violation of this statute constitutes a felony.

Statute II: It shall be unlawful for any person committed to any correctional facility to leave the
premises of the facility. Leaving is defined as passing over the boundary lines of the facility.
Violation of this statute constitutes a misdemeanor.
1. On June 21, Vincelli received a telephone call from a hospital informing him that his
mother had been involved in a serious accident. That evening Spike left to see his mother,
intending to return in the morning.
2. On June 21, Spike had his first epileptic seizure. The seizure caused Spike to fall outside
the boundary line surrounding the facility.
3. On June 21, Spike decided that he was bored with living on the farm. That night he
walked off the premises and fled for a friends house 300 miles away, intending never to
return.
4. On June 21, Spike became involved in a fight with Ben Ichabod. In a fit of rage, Ben
picked Spike up and threw him over the fence surrounding the farm. Spike was caught
outside the fence by a guard before he had an opportunity to return.
5. In early April, Spike decided that he was going to escape. He developed a plan that called
for him to leave in July and meet his brother, who was passing through the are. As part of
the plan, Ben Ichabod, a fellow inmate, was enlisted to pick Spike up off the ground and
throw him over the fence that surrounded the facility. However, Ben, who is not very
bright, threw Spike over the fence on June 21.
6. On June 21, Spike became involved in a fight with Ben. Ben, in a fit of rage, picked
Spike up and threw him over the fence surround the facility. While outside the fence
Spike became overcome with a sense of freedom and ran from the facility.
7. Fred failed to show up for a date he had made with Penni. Penni, who was angered by
Freds actions, decided to vent her anger by cutting the tires of Freds car. However,
Penni did not know what make of car Fred drove and mistakenly cut the tires of a car
owned by Freds neighbor, Stacey. Penni is now charged with the purposeful destruction
of personal property. Penni claims that her act was not purposeful because she did not
intend to cut the tires of Staceys car. Discuss this defense.
8. William, an experienced canoeist, was hired by a Boy Scout troop to supervise a canoe
trip. While on the trip 2 boys fell out of their canoe and began to drown. William watched
as the boys drowned. Is William criminally liable for the deaths?
9. Sherri, who was near bankruptcy, decided to burn her house down and make an insurance
claim for the loss. Sherri started the fire, which spread to a neighbors house located 20 ft
from Sherris house. Unknown to Sherri, her neighbor was storing massive quantities of
dynamite in the home. The fire at the neighbors house spread to the room where the
explosives were being stored, and the resulting explosion caused such vibrations that a
construction worker 1 block away fell off a ladder and subsequently died from the fall.
Sherri is charged with arson and murder. She has pled guilty to arson, but maintains that
she is not liable for the death of the worker. Is she correct?
10. The following statute was enacted by State Legislature:
a. It shall be unlawful for any person to be a pedophile. Pedophilia is defined as a
condition where a person over the age of 17 possesses a sexual desire for a person
under the age of 8.
b. While attending a group therapy session, Jane admitted that she had a sexual
interest in boys under 8. A member of the group contacted the local police and

reported Janes statement. Jane was subsequently arrested and charged with
violating the quoted statute. Discuss her defenses, if any.

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