Ch 4 Elements and Parties

1. Scheb and Scheb, Scheb and Scheb,
Criminal Law and ProcedureCriminal Law and Procedure
77
thth
edition edition
Chapter 4:
Elements of Crimes and
Parties to Crimes

2. Basic Elements of a CrimeBasic Elements of a Crime
 actus reusactus reus
wrongful act wrongful act
 mens reamens rea
criminal intentcriminal intent

3. Actus Reus Actus Reus
The term The term actus reus actus reus means “the act of a means “the act of a
criminal.” criminal.”
The rationale for the The rationale for the actus reus actus reus
requirement is to prevent a person from requirement is to prevent a person from
being guilty of an offense based on being guilty of an offense based on
thoughts or intent alone. thoughts or intent alone.

4. Model Penal CodeModel Penal Code
defines “act” as a “bodily movement defines “act” as a “bodily movement
whether voluntary or involuntary”; whether voluntary or involuntary”;
states that “a person is not guilty of an states that “a person is not guilty of an
offense unless his liability is based on offense unless his liability is based on
conduct that includes a voluntary act or conduct that includes a voluntary act or
the omission to perform an act of which the omission to perform an act of which
he is capable.”he is capable.”

5. When Does Failure to Act When Does Failure to Act
Constitute an Act?Constitute an Act?
To be guilty of a crime for failure to act, To be guilty of a crime for failure to act,
there must have been a legal duty to act in there must have been a legal duty to act in
the first place. the first place.
Such a duty can arise in one of three ways: Such a duty can arise in one of three ways:
(1) by relationship of the actor to the victim(1) by relationship of the actor to the victim
(2) by a statutory duty; (2) by a statutory duty;
(3) by contract between the actor and the (3) by contract between the actor and the
victim.victim.

6. Hypothetical ProblemHypothetical Problem
Mark, an expert swimmer, is lying on the Mark, an expert swimmer, is lying on the
beach and sees a young girl, unrelated to beach and sees a young girl, unrelated to
him, struggling to stay afloat and crying him, struggling to stay afloat and crying
for help. Mark disregards her cries, and for help. Mark disregards her cries, and
she drowns. Is Mark criminally liable? The she drowns. Is Mark criminally liable? The
answer is no, for although we might agree answer is no, for although we might agree
that Mark had a strong moral obligation to that Mark had a strong moral obligation to
attempt to save the child, there was no attempt to save the child, there was no
legal obligation to do so.legal obligation to do so.

7. Status as a Criminal Act?Status as a Criminal Act?
““Status” refers to a person’s state of Status” refers to a person’s state of
being, and ordinarily the state cannot being, and ordinarily the state cannot
criminalize a person’s status.criminalize a person’s status.
Theft is a crime; being a thief is not.Theft is a crime; being a thief is not.
Gambling may be a crime; being a gambler Gambling may be a crime; being a gambler
is not.is not.
Public drunkenness is an offense; being an Public drunkenness is an offense; being an
alcoholic cannot be.alcoholic cannot be.

8. Robinson v. California Robinson v. California
(U.S. Sup. Ct., 1962)(U.S. Sup. Ct., 1962)
The Court declared unconstitutional a California The Court declared unconstitutional a California
statute that made it an offense for a person “to statute that made it an offense for a person “to
be addicted to the use of narcotics.” be addicted to the use of narcotics.”
The Court said: “We hold that a state law which The Court said: “We hold that a state law which
imprisons a person thus afflicted as a criminal, imprisons a person thus afflicted as a criminal,
even though he has never touched any narcotic even though he has never touched any narcotic
drug within the State or been guilty of any drug within the State or been guilty of any
irregular behavior there, inflicts a cruel and irregular behavior there, inflicts a cruel and
unusual punishment in violation of the unusual punishment in violation of the
Fourteenth Amendment.” Fourteenth Amendment.”

9. Ordinance Invalidated in Ordinance Invalidated in Papachristou v. Papachristou v.
City of Jacksonville City of Jacksonville (1972)(1972)
““Rogues and vagabonds, or dissolute persons who go about Rogues and vagabonds, or dissolute persons who go about
begging, common gamblers, persons who use juggling or begging, common gamblers, persons who use juggling or
unlawful games or plays, common drunkards, common night unlawful games or plays, common drunkards, common night
walkers, thieves, pilferers or pickpockets, traders in stolen walkers, thieves, pilferers or pickpockets, traders in stolen
property, lewd, wanton and lascivious persons, keepers of property, lewd, wanton and lascivious persons, keepers of
gambling places, common railers and brawlers, persons gambling places, common railers and brawlers, persons
wandering or strolling around from place to place without wandering or strolling around from place to place without
any lawful purpose or object, habitual loafers, disorderly any lawful purpose or object, habitual loafers, disorderly
persons, persons neglecting all lawful business and persons, persons neglecting all lawful business and
habitually spending their time by frequenting houses of ill habitually spending their time by frequenting houses of ill
fame, gaming houses, or places where alcoholic beverages fame, gaming houses, or places where alcoholic beverages
are sold or served, persons able to work but habitually living are sold or served, persons able to work but habitually living
upon the earnings of their wives or minor children shall be upon the earnings of their wives or minor children shall be
deemed vagrants.…”deemed vagrants.…”

10. Possession as a Criminal ActPossession as a Criminal Act
carrying a concealed weaponcarrying a concealed weapon
possession of contrabandpossession of contraband
possession of burglar’s toolspossession of burglar’s tools

11. Actual and Constructive PossessionActual and Constructive Possession
Actual possession exists when a person Actual possession exists when a person
has something under his or her direct has something under his or her direct
physical control. physical control.
A person who has the power and intention A person who has the power and intention
to control something either directly or to control something either directly or
through another person is said to be in through another person is said to be in
constructive possession. constructive possession.

12. Mens ReaMens Rea
The law normally requires criminal intent The law normally requires criminal intent
because we don’t normally punish people because we don’t normally punish people
for accidents.for accidents.
The California Supreme Court observed in The California Supreme Court observed in
In re Hayes In re Hayes (1968), “an essential element (1968), “an essential element
of every orthodox crime is a wrongful or of every orthodox crime is a wrongful or
blameworthy mental state of some kind.”blameworthy mental state of some kind.”

13. General and Specific IntentGeneral and Specific Intent
At common law, crimes were classified as At common law, crimes were classified as
requiring either general intent or specific requiring either general intent or specific
intent; American courts followed that intent; American courts followed that
tradition. tradition.
General intent is the intent to do an act General intent is the intent to do an act
but not necessarily to cause the results but not necessarily to cause the results
that occur from that act.that occur from that act.
Specific intent refers to an actor’s mental Specific intent refers to an actor’s mental
purpose to accomplish a particular result purpose to accomplish a particular result
beyond the act itself. beyond the act itself.

14. General Intent StatutesGeneral Intent Statutes
Statutory words such as “willfully” or Statutory words such as “willfully” or
“intentionally” generally indicate that the “intentionally” generally indicate that the
offender must have only intended to do offender must have only intended to do
the act and not to accomplish any the act and not to accomplish any
particular result. particular result.
A statute making it the crime of arson to A statute making it the crime of arson to
“willfully and unlawfully” set fire to a “willfully and unlawfully” set fire to a
building is generally viewed as defining a building is generally viewed as defining a
general-intent crime. general-intent crime.

15. Specific Intent StatutesSpecific Intent Statutes
A statute making it an offense for any A statute making it an offense for any
person “to willfully and with the intent to person “to willfully and with the intent to
injure or defraud an insurance company injure or defraud an insurance company
set fire to any building.” set fire to any building.”
A statute defining burglary as “the A statute defining burglary as “the
unauthorized entry of a dwelling by a unauthorized entry of a dwelling by a
person with the intent to commit theft person with the intent to commit theft
therein.” therein.”

16. CausationCausation
When an offense is defined in a manner that a When an offense is defined in a manner that a
specific result must occur, the concept of specific result must occur, the concept of
causation becomes important.causation becomes important.
Sometimes lawyers refer to legal causation as Sometimes lawyers refer to legal causation as
proximate cause, defined as “a cause that in a proximate cause, defined as “a cause that in a
natural, continuous sequence, unbroken by any natural, continuous sequence, unbroken by any
intervening causes, produces the consequences intervening causes, produces the consequences
that occur.” that occur.”
Sometimes the “but for” test is employed here, Sometimes the “but for” test is employed here,
meaning that “but for” the accused’s actions, the meaning that “but for” the accused’s actions, the
harm would not have occurred. harm would not have occurred.

17. Common Common Mens Rea Mens Rea TermsTerms
IntentionallyIntentionally
KnowinglyKnowingly
WillfullyWillfully
MaliciouslyMaliciously
DeliberatelyDeliberately
PurposefullyPurposefully
UnlawfullyUnlawfully
WrongfullyWrongfully
FeloniouslyFeloniously
DeliberatelyDeliberately
RecklesslyRecklessly
NegligentlyNegligently

18. Model Penal Code Approach to Model Penal Code Approach to
Mens ReaMens Rea
Four “culpable mental states”Four “culpable mental states”
Purposely or IntentionallyPurposely or Intentionally
KnowinglyKnowingly
RecklesslyRecklessly
NegligentlyNegligently

19. ““Purposefully” or “Intentionally”Purposefully” or “Intentionally”
A person acts intentionally with respect to A person acts intentionally with respect to
a result or to conduct described by a a result or to conduct described by a
statute defining an offense, when his statute defining an offense, when his
purpose is to cause that result or to purpose is to cause that result or to
engage in that conduct.engage in that conduct.

20. ““Knowingly”Knowingly”
A person acts knowingly with respect to A person acts knowingly with respect to
conduct or to a circumstance described by conduct or to a circumstance described by
a statute defining an offense when he is a statute defining an offense when he is
aware that his conduct is of that nature or aware that his conduct is of that nature or
that the circumstance exists.that the circumstance exists.

21. ““Recklessly”Recklessly”
A person acts recklessly with respect to a A person acts recklessly with respect to a
result or to a circumstance described by a result or to a circumstance described by a
statute defining an offense when he is statute defining an offense when he is
aware of and consciously disregards a aware of and consciously disregards a
substantial and unjustifiable risk that the substantial and unjustifiable risk that the
result will occur or that the circumstance result will occur or that the circumstance
exists. exists.

22. Criminal Negligence Criminal Negligence
A person acts with criminal negligence A person acts with criminal negligence
with respect to a result or to a with respect to a result or to a
circumstance which is defined by statute circumstance which is defined by statute
as an offense when he fails to perceive a as an offense when he fails to perceive a
substantial and unjustifiable risk that the substantial and unjustifiable risk that the
result will occur or that the circumstance result will occur or that the circumstance
exists.exists.

23. Mens Rea Elements of Criminal Mens Rea Elements of Criminal
Homicide in TennesseeHomicide in Tennessee
First-degree murder: “the First-degree murder: “the premeditatedpremeditated and and
intentionalintentional killing of another” killing of another”
Second-degree murder: “a Second-degree murder: “a knowingknowing killing of killing of
another” another”
Voluntary manslaughter: “the Voluntary manslaughter: “the intentionalintentional or or
knowing knowing killing of another in a state of passion killing of another in a state of passion
produced by adequate provocation…” produced by adequate provocation…”
Reckless homicide: the “Reckless homicide: the “recklessreckless killing of another” killing of another”
Criminally negligent homicide: “criminally Criminally negligent homicide: “criminally
negligentnegligent conduct which results in death” conduct which results in death”

24. Strict Liability OffensesStrict Liability Offenses
Legislative bodies have the power to Legislative bodies have the power to
dispense with the necessity for the mental dispense with the necessity for the mental
element and authorize punishment of element and authorize punishment of
particular acts without regard to the particular acts without regard to the
actor’s intent.actor’s intent.
Strict liability offenses now constitute a Strict liability offenses now constitute a
substantial part of the criminal law.substantial part of the criminal law.

25. Many Many mala prohibita mala prohibita crimes are strict crimes are strict
liability offensesliability offenses
These include “regulatory” or “public welfare” These include “regulatory” or “public welfare”
types of offenses, which often are tailored to types of offenses, which often are tailored to
address public safety, environmental, and public address public safety, environmental, and public
health concerns. health concerns.
Examples of strict liability laws today include Examples of strict liability laws today include
mostly traffic regulations, food and drug laws, mostly traffic regulations, food and drug laws,
and laws prohibiting the sale of liquor and and laws prohibiting the sale of liquor and
cigarettes to minors. cigarettes to minors.

26. Statutory Rape a Strict Liability CrimeStatutory Rape a Strict Liability Crime
In later stages of the English law, it became a In later stages of the English law, it became a
statutory offense for a man to have carnal statutory offense for a man to have carnal
knowledge of a female child less than ten years of knowledge of a female child less than ten years of
age with or without the child’s consent. This age with or without the child’s consent. This
offense came to be known as statutory rape.offense came to be known as statutory rape.
Statutory rape laws are now gender-neutral in Statutory rape laws are now gender-neutral in
most states, and some impose penalties only if most states, and some impose penalties only if
there is at least a two to five-year disparity there is at least a two to five-year disparity
between the ages of the perpetrator and the between the ages of the perpetrator and the
underage party.underage party.

27. Statutory Rape (cont.)Statutory Rape (cont.)
A few states have allowed a defendant to defend A few states have allowed a defendant to defend
against a charge of statutory rape on the basis against a charge of statutory rape on the basis
that he or she was mistaken about the victim’s that he or she was mistaken about the victim’s
age, but most hold the defendant strictly liable age, but most hold the defendant strictly liable
even if he or she made a reasonable inquiry in even if he or she made a reasonable inquiry in
good faith to determine the victim’s age. good faith to determine the victim’s age.

28. Morissette v. United States Morissette v. United States
(U.S. Sup. Ct., 1952)(U.S. Sup. Ct., 1952)
The defendant was convicted of violating federal The defendant was convicted of violating federal
law by taking some old bomb casings from a law by taking some old bomb casings from a
government bombing range. government bombing range.
At trial, the district court refused to instruct the At trial, the district court refused to instruct the
jury on the issue of intent, in effect holding that jury on the issue of intent, in effect holding that
the government was required to prove only the the government was required to prove only the
defendant’s act, not his intent, because the defendant’s act, not his intent, because the
statute required proof of only the prohibited act. statute required proof of only the prohibited act.

29. Morissette v. U.S. Morissette v. U.S. (cont.) (cont.)
The Supreme Court reversed Morissette’s The Supreme Court reversed Morissette’s
conviction. conviction.
The Court held that the crime for which he was The Court held that the crime for which he was
prosecuted was a variant of the common-law prosecuted was a variant of the common-law
offense of larceny and that failure to include the offense of larceny and that failure to include the
intent requirement in the statute did not intent requirement in the statute did not
eliminate the element of intent.eliminate the element of intent.

30. Parties to CrimesParties to Crimes
At common law, a person directly involved At common law, a person directly involved
in committing a felony was classified as a in committing a felony was classified as a
principalprincipal..
A person whose conduct did not involve A person whose conduct did not involve
direct participation was classified as an direct participation was classified as an
accessoryaccessory. .

31. Principals at Common LawPrincipals at Common Law
A person who directly or through the acts of an A person who directly or through the acts of an
innocent agent actually committed the crime innocent agent actually committed the crime
was a was a principal in the first degreeprincipal in the first degree. .
A A principal in the second degree principal in the second degree was a was a
person not directly involved but actually or person not directly involved but actually or
constructively present at the commission of the constructively present at the commission of the
crime who aided and abetted the perpetrator. crime who aided and abetted the perpetrator.

32. Accessories at Common LawAccessories at Common Law
An An accessory before the fact accessory before the fact was one who was one who
procured or counseled another to commit a felony procured or counseled another to commit a felony
but who was not actually or constructively present but who was not actually or constructively present
at the commission of the offense. at the commission of the offense.
An An accessory after the fact accessory after the fact was one who, with was one who, with
knowledge of the other’s guilt, rendered assistance knowledge of the other’s guilt, rendered assistance
to a felon in an effort to hinder the felon’s arrest or to a felon in an effort to hinder the felon’s arrest or
punishment.punishment.

33. The Modern American ApproachThe Modern American Approach
The American approach has been to abolish both The American approach has been to abolish both
the substantive and procedural distinctions the substantive and procedural distinctions
between principals and accessories before the between principals and accessories before the
fact. fact.
For example, federal law provides that For example, federal law provides that
“[w]hoever commits an offense against the “[w]hoever commits an offense against the
United States or aids, abets, counsels, United States or aids, abets, counsels,
commands, induces, or procures its commission, commands, induces, or procures its commission,
is punishable as a principal….” is punishable as a principal….”
18 U.S.C.A. § 2(a). 18 U.S.C.A. § 2(a).

34. The Modern American Approach (cont.)The Modern American Approach (cont.)
The common-law distinction between principals The common-law distinction between principals
and accessories before the fact has been largely and accessories before the fact has been largely
abolished, but the concept of accessory after the abolished, but the concept of accessory after the
fact as a separate offense has been retained by fact as a separate offense has been retained by
many jurisdictions. many jurisdictions.
Modern statutes view an accessory after the fact Modern statutes view an accessory after the fact
as less culpable than someone who plans, as less culpable than someone who plans,
assists, or commits a crime. assists, or commits a crime.
Thus, statutes generally define being an Thus, statutes generally define being an
accessory after the fact as a separate offense accessory after the fact as a separate offense
and provide for a less severe punishment. and provide for a less severe punishment.

35. Mississippi Code § 97-1-3. Mississippi Code § 97-1-3.
Accessories before the fact.Accessories before the fact.
““Every person who shall be an accessory Every person who shall be an accessory
to any felony, before the fact, shall be to any felony, before the fact, shall be
deemed and considered a principal, and deemed and considered a principal, and
shall be indicted and punished as such; shall be indicted and punished as such;
and this whether the principal have been and this whether the principal have been
previously convicted or not.”previously convicted or not.”

36. Mississippi Code § 97-1-5. Mississippi Code § 97-1-5.
Accessories after the fact.Accessories after the fact.
““Every person who shall be convicted of having Every person who shall be convicted of having
concealed, received, or relieved any felon, or concealed, received, or relieved any felon, or
having aided or assisted any felon, knowing that having aided or assisted any felon, knowing that
such person had committed a felony, with intent to such person had committed a felony, with intent to
enable such felon to escape or to avoid arrest, trial, enable such felon to escape or to avoid arrest, trial,
conviction or punishment, after the commission of conviction or punishment, after the commission of
such felony, on conviction thereof shall be such felony, on conviction thereof shall be
imprisoned in the penitentiary not exceeding five imprisoned in the penitentiary not exceeding five
years, or in the county jail not exceeding one year, years, or in the county jail not exceeding one year,
or by fine not exceeding one thousand dollars, or or by fine not exceeding one thousand dollars, or
by both…by both…””

37. T.C.A. § 39-11-411T.C.A. § 39-11-411
Accessory after the fact.Accessory after the fact.
(a) A person is an accessory after the fact who, after (a) A person is an accessory after the fact who, after
the commission of a felony, with knowledge or the commission of a felony, with knowledge or
reasonable ground to believe that the offender has reasonable ground to believe that the offender has
committed the felony, and with the intent to hinder the committed the felony, and with the intent to hinder the
arrest, trial, conviction or punishment of the offender:arrest, trial, conviction or punishment of the offender:
 (1) Harbors or conceals the offender;(1) Harbors or conceals the offender;
 (2) Provides or aids in providing the offender with (2) Provides or aids in providing the offender with
any means of avoiding arrest, trial, conviction or any means of avoiding arrest, trial, conviction or
punishment; orpunishment; or
 (3) Warns the offender of impending apprehension (3) Warns the offender of impending apprehension
or discovery. …or discovery. …
(c) Accessory after the fact is a Class E felony.(c) Accessory after the fact is a Class E felony.