Chap. 3 - Two Essential Elements

Question 1

What are the two essential elements of every crime?

Answer 1

1. Mental (mens rea)

2. Physical (actus rea)

Question 2

Under some circumstances, can accidental action be a crime?

Answer 2

Yes, under negligent and reckless behavior.

Question 3

Define Mens Rea.

Answer 3

It is the guilty state of mind that is required for an action to become criminal. “Guilty Mind”. “Evil purpose, willfull, intentional, purposeful, malicious, specific intent, knowing”.

Question 4

Was it a principle under common law that there should be no crime if there was no act accompanied by a guilty mind?

Answer 4

Yes. “acts non facit reum nisi mens sit rea.” “Only conscious wrongdoing constitutes crime”.

Question 5

What is specific intent exactly?

Answer 5

The defendant had a desire or purpose to cause the result of the act.

Question 6

What is general intent?

Answer 6

The defendant intended only the act, not the result of the act. It is simply the desire to act. Shooting a gun in the air and killing someone. No desire to cause a particular circumstance is required.

Question 7

T/F, so long as a defendant intends to cause the result, it is irrelevant that the means used to achieve the result are likely to fail?

Answer 7

Yes.

Question 8

Is the fact that the act is unlikely to be successful a defense?

Answer 8

No.

Question 9

Can specific intent be proved if the defendant possessed knowledge of a particular fact or illegality.

Answer 9

Yes. It is known as Scienter. Scienter often does not require proof of subjective knowledge (what was actually in the defendant’s mind) but can be established if the prosecution can prove that the defendant should have known the fact in question. I.e., possession of burglary tools and obstruction of justice.

Question 10

Without Scienter, no crime exists to punish?

Answer 10

That’s often correct.

Question 11

What is constructive intent?

Answer 11

Although the defendant does not intend to cause the result, it is so likely to occur that the law treats the act as one of specific intent. If you aim at their leg, but kill them, it is a specific intent crime of first-degree, even though he intended only to injure her. (Inferred, implied, or presumed from the circumstances).

Question 12

How much probability is required to prove constructive intent?

Answer 12

Only practical or substantial probability is required, not absolute.

Question 13

Can specific intent be found whenever a defendant intends a result beyond the act taken (like failed rape)?

Answer 13

Yes.

Question 14

What is it when a crime is inherently evil?

Answer 14

Malum in se. Murder, Rape, Arson.

Question 15

What is it called when a crime is not evil in itself, but is only criminal because it is declared so by a legislature?

Answer 15

Malum Prohibitum. Failure to file quarterly tax report, proper building permits.

Question 16

What is the importance of the distinction between malum in se and malum prohibitum?

Answer 16

Intent. Crimes malum in se are treated as requiring an evil intent. And also determines which crime may be charged.

Question 17

What issue revolves around foreseeability of harm?

Answer 17

Whether an act is malum prohibitum or in se.

Question 18

What exactly is transferred intent?

Answer 18

Whenever a person intends to harm, but because of bad aim or other cause, the intended harm befalls another, the intent is transferred from the intended victim to the unintended victim.

Question 19

What are the limits on the doctrine of transferred intent?

Answer 19

1. First, the harm that actually results must be similar to the intended harm.
2. If the harms are substantially different, then the intent does not transfer.
3. The transfer cannot increase the defendant’s liability.

Question 20

What is strict liability?

Answer 20

No particular mental state has to be proved at all, if the act was simply committed. (Liability without fault).

Question 21

What are strict liability crimes?

Answer 21

Crimes that are usually minor violations, punished by fines and not incarceration. However, strict liability is permitted for felonies and may be punished with incarceration. (running a red light, speeding)

Question 22

Legislative History

Answer 22

The background documents and records of hearings related to the enactment of a bill.

Question 23

What is statutory construction?

Answer 23

Guidelines employed by judges in the interpretation of statutes that have developed and evolved over hundreds of years.

1. Whenever a statute can be construed as either constitutional or unconstitutional, it must be read as constitutional.
2. If a criminal statute does not impose strict liability, then the court is to impose a mens rea requirement. `

Question 24

Canon: Narrow construction.

Answer 24

Criminal statutes are to be narrowly construed by courts.

Question 25

Canon: Ambiguous language.

Answer 25

Ambiguous language in a statute is to be construed in the defendant’s favor or, if too ambiguous, the statute is void.

Question 26

Canon: Legislative Prerogative.

Answer 26

Courts are to be mindful that the source of penal law should be legislatures, not courts. Criminal statutes are to be narrowly construed. This is also known as the Rule of Lenity.

Question 27

Canon: Constitutionality Presumption.

Answer 27

Statutes are presumed constitutional, and if a court can construe a statute as constitutional or unconstitutional without causing unfairness to the defendant, the statute is to be construed as constitutional.

Question 28

Canon: Plain Meaning.

Answer 28

The plain meaning of a statute shall be enforced unless the result is absurd. If absurd, the court may turn to other evidence (e.g., legislative intent) to assist in interpreting the statute.

Question 29

Vicarious Liability.

Answer 29

Refers to situations in which one person is held accountable for the actions of another. There is no mens era requirement and there is no requirement for an act.

The person who is liable for the actions of another need not act, encourage another to act, or intend any harm at all. Most common between employers and employees.

Question 30

Corporate Liability.

Answer 30

It is a form of vicarious liability. Under the common law, corporations could not be convicted of crimes. However, this is no longer the law. They can be held criminally liable under respondent superior.

1. The agent must be acting within the scope of the company.
2. It must be shown the company had a duty to act.
3. It was recklessly tolerated by the board of directors or other high management.

Question 31

Today, can companies be held liable for any act that is criminal for a natural person?

Answer 31

Yes and includes: rape, crimes against a person, murder, and battery. Most common crimes are property and regulatory crimes.

Question 32

What is an injunction?

Answer 32

A judge’s order to a person to do or to refrain from doing a particular thing.

Question 33

What are some punishments for companies?

Answer 33

1. Injunctions.
2. Company’s status may be altered, suspended, or terminated.
3. The agent or employee remains criminally liable for his/her act.

Question 34

What are the 4 states of mind in the Model Penal Code?

Answer 34

1. Purposeful
2. Knowing
3. Reckless
4. Negligent

Question 35

What does it mean to act purposefully?

Answer 35

A defendant must have a desire to cause the result. Purposefully most closely equates with what the common law called specific intent.

Question 36

What does it mean to act knowingly?

Answer 36

A defendant must be aware of the nature of the act and be practically certain that his or her conduct will cause a particular result, which is not the defendant’s objective.

To act knowingly, the defendant must be practically certain (nearly 100 percent positive) that the result will occur, but the defendant is not taking the act to cause the result.

Question 37

Under the Model Penal Code, what is recklessness?

Answer 37

A person acts recklessly when he or she consciously disregards a substantial and unjustifiable risk that the result will occur.

The difference between a knowing act and a reckless act is in the degree of risk.

“A person acts ‘knowingly’ with respect to a result if he is nearly certain that his conduct will cause the result. If he is aware only of a substantial risk, he acts ‘recklessly’ with respect to the result.

“The risk taken must be one that involves a ‘gross deviation from the standard of conduct that a law abiding person would observe in the actor’s situation.’

Question 38

Under the Model Penal Code, what is negligence?

Answer 38

There must be ‘susbtantial and unjustifiable risk’ taken by the defendant. However, a person acts negligently when there is no conscious awareness of the risk, when there should have been.

One must take a risk that amounts to a “gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”

She has failed to perceive (be aware of) the risk altogether, and that failure is a gross deviation from a law-abiding person’s standard.

Question 39

What are elements?

Answer 39

The parts of a crime. The prosecution must prove all the elements of a crime beyond a reasonable doubt to gain a conviction. If the prosecution fails to prove any element, the defendant must be acquitted.

Question 40

What is subjective intent?

Answer 40

It is a defendant’s actual intent. It refers to the motives, intentions, and desires that were in the defendant’s mind at the time the act took place.

Question 41

What is objective intent?

Answer 41

It is not the defendant’s actual intent: it is a legal imposition upon the defendant of what he or she should have known or believed at the time the act occurred.

Generally, the law imposes a reasonable person standard. That means that the defendant is expected to have known or believed what a reasonable person would have known at the time of the act.

Question 42

What is easier to prove subjective intent or objective intent?

Answer 42

Objective. The prosecution does not have to probe directly into a defendant’s mind to prove that an intent to harm existed; rather, all that has to be shown is that the defendant should have known that the harm would result.

Question 43

What is inference?

Answer 43

A fact (or proposition) that is probably true because a true fact (or proposition) leads you to believe that the inferred fact (or proposition) is also true.

It is a conclusion that a judge or jury is permitted to make after considering the facts of a case.

Question 44

What is presumption?

Answer 44

It is a conclusion that must be made by a judge or jury. It is an automatic assumption required by law that whenever a certain set of facts shows up, a court must automatically draw certain legal conclusions.

Question 45

What is a rebuttable presumption?

Answer 45

They are conclusions that must be made by a judge or jury, unless disproven by the facts. They are conclusions that must be made by the judge or jury and cannot be disproved.

Regardless what the evidence shows, an irrebuttable presumption stands as a fact.

Question 46

What is a motive?

Answer 46

It is the reason a person commits a crime. More specifically, it is the reason that leads a person to a desired result or particular action.

Question 47

How is motive different than mens rea?

Answer 47

Movtive leads to mens rea. Motive is concerned with why people act. Mens Rea, in contrast, is concerned with whether a person intended to act.

The robber’s mens rea (intent) is used to satisfy his or her motive (greed).

Question 48

Is motive an element of crimes?

Answer 48

No. However, the trier of fact will want to know why the defendant committed the alleged crime. However, motive does play a role at sentencing. A good motive may justify a mitigation of sentence, whereas a bad motive may act in the reverse.

In some cases, a good motive may prevent charges from being filed at all. Prosecutors do not pursue some case, even though a crime has been committed, when a person acted with good intentions.

Question 49

What is Actus Reus?

Answer 49

It is the physical part of the crime. An act is a physical movement.

“A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act.”

Question 50

For an act to be criminally liable, must those actions be voluntary? And what constitutes voluntary?

Answer 50

Yes.

1. An act must occur as a result of the actor’s conscious choice.
2. Must have acted freely.
3. No liability attaches.

Question 51

What are some involuntary actions?

Answer 51

1. Reflexes and convlusions
2. Bodily movements in unconscious sleep
3. Conduct during hypnosis, resulting from hypnotic suggestion
4. Other movements that are not a product of the effort or determination of the actor.

Question 52

What is required to have an act?

Answer 52

It is a choice by the defendant to act.

Question 53

Is evil intent required to have an act?

Answer 53

No.

Question 54

Are thoughts alone acts that can be made criminal?

Answer 54

No.

Question 55

May people think evil thoughts?

Answer 55

Yes. If there is no act furthering such a thought, there is no crime.

Question 56

What are the limits to free speech?

Answer 56

1. Inciting riots.
2. Treason
3. Solicitation
4. Conspiracy
5. Causing imminent harm
   6.

Question 57

Can a person’s personal status be declared criminal?

Answer 57

No. Illness, financial status, race, sex, and religion are examples of human conditions. Also,

1. being addicted to illegal narcotics is a condition that cannot be punished.
2. Vagrancy

Question 58

Is Possession a Criminal Act?

Answer 58

Yes. Possession of certain items, such as narcotics, burglary tools, may be made criminal. Possession of deadly weapons are both federal and state crime.

Question 59

What is constructive possession?

Answer 59

It is used to extend criminal liability to those who never exercised actual possession, but had dominion and control over the contraband. A person who is the owner and driver of a car may never possess the cocaine that his passenger is using, but the law says that the driver is in constructive possession because the dominion and control over the auto belong to the driver.

In essence, the law imposes a duty on people to remove illegal items from the area over which they have dominion and control. Failure to comply with such a duty is treated as an act and can lead to criminal liability.

However, possession is such an act if, “Possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.”

Question 60

Can only 1 person be in possession of items?

Answer 60

No. More than 1 can be in possession, such as multiple owners of a home.

Question 61

What is omission?

Answer 61

Generally, only acts are prohibited by criminal law. However, in some situations people have a duty to act, and failure to act is criminal. Usually, people do not have a legal duty to assist one another, unless they have a duty to do so.

Question 62

What are duties imposed by Statute?

Answer 62

Criminal statutes may impose a duty to act.

1. business that store or dispose of toxic materials.
2. Filing of tax returns.
3. Stopping if you were involved in an accident.

Question 63

What is duty by relationship?

Answer 63

1. Duties formed by child to parent and spouse to spouse.
2. Generally, any time a joint enterprise is undertaken by two or more parties, it can be assumed that a duty to assist one another during that enterprise is created.

Question 64

What are the ways a duty can be created?

Answer 64

1. Duty by statute
2. Duty by relationship
3. Duty by Contract
4. Assumption of Duty
5. They create danger

Question 65

What is duty created by contract?

Answer 65

1. Physicians are hired to care for their patients.

Question 66

What is assumption of duty?

Answer 66

The assumption is expressed if it is stated orally or in writing. Assumptions are gratuitous.

Question 67

What is duty when creating danger?

Answer 67

Any time a person creates a circumstance that endagers a stranger, a duty to save the stranger is created. Whether it was caused intentionally or negligently. If an arsonist creates a fire and does not save the people inside, also a murderer.

Question 68

Are some acts criminal even thought the prohibited result does not occur?

Answer 68

Yes. It is a crime to lie when testifying in court. For crimes that do not require a particular result, the act must be the “cause” of the result.

Question 69

What are the two forms of causation?

Answer 69

Factual and Legal.

Question 70

What is a ‘cause in fact’ act?

Answer 70

It is an act if the result would not have occurred unless the act occurred. It is known as the sine qua non test. “But for” the conduct the harm would not have resulted.

Question 71

What is sine qua non test?

Answer 71

“but for” the conduct the harm would not have resulted.

Question 72

What is legal cause?

Answer 72

Legal causation focuses on the degree of similarity between the defendant’s intended result and the actual result. It also examines the similarity between the intended manner used to bring about a result and the actual manner that caused the result.

Generally, the greater the similarity between the purpose and the result, and the manner intended and the manner that actually caused the result, the more likely the defendant is the legal cause. It is also commonly referred to as proximate cause.

Question 73

What is proximate cause?

Answer 73

The legal cause of an accident or injury (which may have several actual causes). It is not necessarily the closest thing in time or space to the injury and not necessarily the event that set things in motion because ‘proximate cause’ is a legal, not a physical concept.

The result must be a consequence of the act, not a coincidence.

Question 74

What is forgeability?

Answer 74

A happening is proximately caused by an act if a reasonable person would have foreseen and expected the result.

Question 75

What is factual causation?

Answer 75

If the defendant had not acted, would the result happened? If the answer is no, then the defendant is the factual cause.

Question 76

What is an intervening cause?

Answer 76

An intervening cause is a happening that occurs after the initial act and changes the outcome. They function to block the connection between an act and the result, because the intervening cause changes what would have been the result if the result had flowed freely from the act.

Question 77

Model Penal Code requires that the conduct in question be the actual result or cause of the result, unless:

Answer 77

The Model Penal Code requires that the conduct in question be the actual result or cause of the result, unless:

1. The resulting harm is the same, however it occurred to the wrong person or thing (transferred intent).
2. The actual harm is not as great or serious as intended.
3. The actual harm involves the same kind of injury or harm as intended and is not too remote or accidental in its occurrence to have a bearing on the actor’s liability.

Question 78

What is the ‘year-and-a-day’ rule?

Answer 78

Under common law, a person could not be charged with murder if the victim did not die within one year and one day after the act took place.

Question 79

What is Concurrence?

Answer 79

It is the joining of mens rea and the act and is necessary to prove in a criminal act.