ESSENTIAL ELEMENTS OF A CRIME

Question 1

ELEMENTS OF A CRIME

Answer 1

• A crime almost always requires proof of:
  (1) Physical act (actus reus)
  (2) Mental state (mens rea), and
  (3) Concurrence of act & mental state
• Crime may also require proof that act caused harmful result

Question 2

PHYSICAL ACT

Answer 2

• D must have either performed a voluntary physical act/failed to act when there was legal duty to do so.
• Act is bodily movement.
• Ex. of bodily movements that do not qualify for criminal liability include:
  (1) Conduct not of person’s own will
  (2) Reflexive/convulsive act
  (3) Act performed while unconscious/asleep

Question 3

Tip

Answer 3

Act must be voluntary. In the past, bar examiners have set up very unlikely scenarios to test this—ex. they have an unconscious person shoot a victim. Don’t be fooled by these odd facts; if facts tell you that D was unconscious, act was not voluntary & D cannot be convicted of a crime based on act. (Only exception to this rule would be if D knew they were likely to become unconscious & commit the act, but this situation would have to be presented in facts.)

Question 4

Omission as an “Act”

Answer 4

Failure to act gives rise to liability only if:
(1) There is legal duty to act
(2) D knows the facts creating duty; and
(3) Reasonably possible to perform duty

Legal duty to act can arise from one of 5 circumstances:
(1) By statute (ex. requirement to file a tax return)
(2) By K (ex. lifeguard/nurse has legal duty to act)
(3) Relationship between parties (ex. parent/spouse has duty to protect child/spouse from harm)
(4) D’s voluntary assumption of care by D for victim
(5) D created peril for victim

Question 5

Tip

Answer 5

For an omission to be a criminal act, there must be a duty to act. There is no general Good Samaritan law requiring people to help others in trouble. Thus, D is not liable for failure to help/rescue another person unless he has a duty to do so—no matter how easy it would have been to render help. Your moral outrage is not enough for criminal conviction

Question 6

Possession as an “Act”

Answer 6

• Criminal statutes that penalize possession of contraband generally require only that D have control of item long enough for them to have opportunity to dispossess.
• Possession does not need to be exclusive to one person
• Possession may be “constructive (actual physical control not needed when contraband is in area w/in D’s “dominion & control.”)

Question 7

State of Mind Requirement

Answer 7

• Absent statutory SOM req, D must be aware of their possession, but not of its illegality.
• Many statutes add SOM element (ex. “knowingly”) to possession crimes.
• Under the statutes, D ordinarily must know identity/nature of item possessed.
• D may not consciously avoid learning true nature of item possessed
• Knowledge may be inferred from combo of suspicion & indifference to truth

Question 8

Specific Intent

Answer 8

• Crime may require not only doing of an act, but also doing of it w/ specific intent/objective.
• Manner in which crime was committed may be circumstantial evidence of intent.
• Specific intent crimes will qualify for additional defenses
• Major specific intent crimes & intents
  (1) Solicitation: Intent to have person solicited commit crime
  (2) Conspiracy: Intent to complete crime
  (3) Attempt: Intent to complete crime
  (4) First degree premeditated murder: Premeditated intent to kill
  (5) Assault: Intent to commit battery
  (6) Larceny: Intent to permanently deprive other of their interest in property taken
  (7) Embezzlement: Intent to defraud
  (8) False pretenses: Intent to defraud
  (9) Robbery: Intent to permanently deprive other of their interest in property taken
  (10) Burglary: Intent to commit felony in dwelling
  (11) Forgery: Intent to defraud
• Specific intent crimes mnemonic: Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts.

Question 9

TIP

Answer 9

Never forget that attempt is a specific intent
crime—even when crime attempted is not.
Thus, although CL murder does not require a specific intent to kill (recklessly disregarding a high risk to human life would be enough), attempted CL murder requires specific intent to kill. W/o intent, D is not guilty of attempted murder.
Examples: 1) D intends to kill V but only wounds him. D had requisite specific intent ( intent to kill) and is guilty of attempted murder.
2) D intends to scare V by shooting V’s hat off his head. If D’s shot kills V, D is guilty of murder; but if V is merely wounded, D is not guilty of attempted murder. (D may, of course, be guilty of battery.)

Question 10

Malice—Common Law Murder and Arson

Answer 10

• Intent for malice crimes (CL murder & arson) requires reckless disregard of obvious/high risk the particular harmful result will occur.
• Defenses to specific intent crimes (such as voluntary intoxication) do not apply to malice crimes.

Question 11

General Intent—Awareness of Factors Constituting Crime

Answer 11

• General intent: D has awareness of all factors constituting crime
• D does not have to be certain that all circumstances exist; it is sufficient they are aware of high likelihood they will occur.

Question 12

Inference of Intent from Act

Answer 12

• Jury may infer required general intent merely from doing of act.

Question 13

Strict Liability Offenses

Answer 13

• Strict liability/public welfare offense is one that does not require awareness of all of factors constituting crime
• D can be found guilty just b/c they committed the act.
• Common strict liability offenses: selling liquor to minors & statutory rape.
• Strict liability: defenses that negate SOM, such as mistake of fact, not available.

Question 14

Tip

Answer 14

If crime is in administrative, regulatory, or
morality area & there are no adverbs in statute such as “knowingly,” “willfully,” or “intentionally,” then statute is meant to be a no intent crime of strict liability.

Question 15

Purposely, Knowingly, or Recklessly

Answer 15

When statute requires D to act purposely, knowingly, or recklessly, subjective standard is used.

Question 16

Purposely

Answer 16

Person acts purposely when their conscious object is to engage in certain conduct/cause certain result.

Question 17

Knowingly

Answer 17

• Person acts knowingly when they are aware their conduct is of a particular nature/ that certain circumstances exist.
• Person is deemed to be aware of these circumstances when they are aware of a high probability they exist & deliberately avoid learning the truth.
• Person acts knowingly when they know that their conduct will/very likely will cause particular result.

Question 18

Recklessly

Answer 18

• Person acts recklessly when they consciously disregard substantial & unjustifiable risk that circumstances exist/ that a prohibited result will follow, & this disregard is a gross deviation from SOC a reasonable person would use in that situation.
• Recklessness involves both objective (“unjustifiable risk”) & subjective (“awareness”) elements.

Question 19

tip

Answer 19

A criminal law question often asks you to interpret
a statute. Check statutory language carefully for mental state required for each material element of crime, b/c whether D is guilty often turns on mental state. Ex. if statute requires D to act “knowingly” (ex. “knowingly selling guns to felon”), D will be guilty only if they had that knowledge (ex. D knew, or was aware of high probability & deliberately avoided the truth, that purchaser was a felon).

Question 20

Negligence

Answer 20

• Person acts negligently when they fail to be aware of substantial & unjustifiable risk, and failure is a substantial deviation from SOC.
• Not just the reasonable person standard that is used in torts.
• D must have taken a very unreasonable risk.

Question 21

Vicarious Liability Offenses

Answer 21

• Vicarious liability offense: person w/o personal fault may still be liable for criminal conduct of another (usually employee).
• Trend: limit vicarious liability to regulatory crimes & limit punishment to fines.

Question 22

Enterprise Liability—Liability of Corporations
and Associations

Answer 22

• At CL, a corporation does not have capacity to
  commit crimes.
• Under modern statutes, corporations may be
  held liable for an act performed by:
  (1) agent of corporation acting w/in scope of their office/ employment; or
  (2) corporate agent high enough in hierarchy to presume their acts reflect corporate policy.

Question 23

Transferred Intent

Answer 23

• D can be liable under doctrine of transferred intent when they intend the harm that is actually caused, but to different victim/object.
• Defenses & mitigating circumstances may also usually be transferred.
• DTI applies to homicide, battery, & arson.
• Not to attempt.

Question 24

Tip

Answer 24

A person found guilty of a crime on basis of
transferred intent is usually guilty of 2 crimes:
completed crime against actual victim & attempt against intended victim. Thus, if D intends to shoot & kill X, but instead shoots & kills V, D can be guilty of murder of V (under transferred intent doctrine) & attempted murder of X.

Question 25

CONCURRENCE OF MENTAL FAULT WITH
PHYSICAL ACT

Answer 25

• D must have had the intent necessary for
  the crime at time they committed the crime, and intent must have prompted act.
• Ex. if D is driving to V’s house to kill him, D will lack necessary concurrence for murder if D accidentally runs V over b/f reaching the house.

Question 26

CAUSATION

Answer 26

• Some crimes (such as homicide) require result & causation.
• Thus, when a crime is defined to require not merely conduct but also a specified result (ex. death), D’s conduct must be both cause-in-fact & proximate cause of specified result