CRIM LAW I CH 2 - ACTUS REUS AND MENS REA

MENS REA - General vs. specific intent: "General intent" --Example of general intent crime:

--Battery is usually a "general intent" crime. The actus reus is a physical injury to or offensive touching of another. --So long as D intends to touch another in an offensive way, he has the "general intent" that is all that is needed for battery. --(Thus if D touches V with a knife, intending merely to graze his skin and frighten him, this will be all the (general) intent needed for battery, since D intended the touching, --and no other intent (such as the intent to cause injury) is required.

MENS REA - General vs. specific intent: "General intent":

A crime requiring merely "general intent" is a crime --for which it must merely be shown that D desired to commit the act which served as the actus reus.

MENS REA - "Purposely" as mental state: Definition of "purposely":

A person acts "purposely" with respect to a particular element if --it is his "conscious object" to engage in the particular conduct in question, --or to cause the particular result in question.

MENS REA - "Recklessly":

A person acts "recklessly" if he "consciously disregards a substantial and unjustifiable risk...." --MPC §2.02(2). The idea is that D has behaved in a way that represents a gross deviation from the conduct of a law-abiding person.

MENS REA - "Knowingly":: Presumption of knowledge:

A statutory or judge-made presumption may be used to help prove that D acted "knowingly." --(Example: In many statutes governing receipt of stolen property, D's unexplained possession of property which is in fact stolen gives rise to a presumption that D knew the property was stolen.)

I. GENERAL - Four elements:

All crimes have several basic common elements: (1) a voluntary act ("actus reus"); (2) a culpable intent ("mens rea"); (3) "concurrence" between the mens rea and the actus reus; and (4) causation of harm.

CONCURRENCE - Concurrence between mind and act: Mental state must cause act:

Also, the mental state must cause the act. --Example: D intends to kill V. --While driving to the store to buy a gun to carry out his intent, D accidentally runs over V and kills him. --D is not guilty of murder, even though the intent to kill V existed at the time the act (driving the car over V) took place. --This is because D's intent to kill did not "cause" the act (driving the car over V).

Exam Tips on ACTUS REUS AND MENS REA - Statutory language (as to both actus reus and mens rea): Tips on statutory interpretation - Ambiguous elements

Ambiguous elements: If it's unclear from wording whether knowledge is a requirement, --argue both ways Identify the specific conduct prohibited, and make sure that the conduct in question qualifies

ACTUS REUS - Act must be voluntary:

An act cannot satisfy the actus reus requirement unless it is voluntary.

ACTUS REUS - Act must be voluntary: Reflex or convulsion:

An act consisting of a reflex or convulsion does not give rise to criminal liability. --Example: D, while walking down the street, is stricken by epileptic convulsions. His arm jerks back, and he strikes X in the face. The striking of X is not a voluntary act, so D cannot be held criminally liable. --But if D had known beforehand that he was subject to such seizures, and unreasonably put himself in a position where he was likely to harm others — for instance, by driving a car — this initial act might subject him to criminal liability.

ACTUS REUS - Act must be voluntary: Unconsciousness:

An act performed during a state of "unconsciousness" does not meet the actus reus requirement. --But D will be found to have acted "unconsciously" only in rare situations. --Example: If D can show that at the time of the crime he was on "automatic pilot," and was completely unconscious of what he was doing, his act will be involuntary. --(But the mere fact that D has amnesia concerning the period of the crime will not be a defense.)

MENS REA - Mistake: Mistake of law - Generally no defense:

As a general rule, "mistake of law is no defense." --More precisely, this means that the fact that D mistakenly believes that no statute makes his conduct a crime does not furnish a defense. --Example: D, who is retarded, does not realize that unconsented-to intercourse is a crime. --D has unconsented-to intercourse with V. --D's ignorance that unconsented-to intercourse is a crime will not be a defense; --so long as D intended the act of intercourse while knowing that V did not consent, he is guilty.

CONCURRENCE - Concurrence between mind and act: Omission to act - EXAMPLE

At dinner one night, Wife accidentally drops a knife that lands on Husband's thigh, making a small gash. Because Husband is a hemophiliac (as Wife knows), Husband bleeds a lot, and quickly goes into shock and unconsciousness. Wife does not call 911 (which she could have easily done), and Husband bleeds to death. Had Wife called promptly, Husband would have been saved. Wife declined to call because she decided (with an intent formed only after the knife-dropping accident) that she would be better off with Husband dead. --Wife is guilty of murder. Since there was at least one moment in which Wife both --(1) actively desired Husband's death and --(2) simultaneously had the obligation to render Husband assistance (since she brought about the danger, however innocently) but didn't, the required concurrence between mental state (intent to bring about death) and actus reus (here, failure to act while having a duty to act) is satisfied. The fact that Wife didn't have the "desire to kill" intent at the moment she dropped the knife doesn't matter.

CONCURRENCE - Concurrence between mind and act: Mental state must cause act - Any action that is legal cause of harm: Destruction or concealment of a "body":

Because of this rule, D will be guilty if he attempts to kill his victim, --believes the victim to be dead, and --then destroys or conceals the "body," killing the victim for real. --(Example: D strikes V over the head, and thinking V is dead, pushes him over a cliff to destroy the body. The autopsy shows that the blows did not kill V and probably would not have killed him. --V really died from the fall off the cliff. --Most courts would find D guilty, probably on the theory that the blows to the head were a cause of harm, and the guilty intent (to kill V) caused the blows. [Thabo Meli v. Regina, 1 All E.R. 373 (Eng. 1954)])

CONCURRENCE - Concurrence between mind and result: Same harm but different degree: Actual result more serious than intended - Exceptions in homicide cases: .

But again, we have two exceptions to this rule when death results. --First, under the misdemeanor-manslaughter rule, if --D's minor attack on V unexpectedly causes V to die, D is guilty of manslaughter (as he would be on the facts of the above example if V unexpectedly bled to death). --Second, if D intended to seriously injure V but not kill him, in most states he will be guilty of murder if V dies from the attack, --because most states have a form of murder as to which the mental state is intent-to-grievously-injure. --Example: D intends to beat V to a pulp, but not to kill him; V dies unexpectedly. In a state defining murder to include a mental state of intent-to-grievously-injure, D is liable for murder.

ACTUS REUS - Omissions: Existence of legal duty:

But there are some "special situations" where courts deem D to have a special legal duty to act. --Where this occurs, D's omission may be punished under a statute that speaks in terms of positive acts.

CONCURRENCE - Concurrence between mind and result: Felony-murder and misdemeanor-manslaughter rules:

But this general principle that there is no liability for a resulting harm which is substantially different from that intended or risked by D --is subject to two very important exceptions, both relating to homicide:

CONCURRENCE - Concurrence between mind and act: Omission to act:

Cases involving D's omission to act can also pose a concurrence issue. --Where D has failed to act in circumstances imposing a duty on her to act, --the concurrence-of-timing requirement is met as long as D had the the required mental state at any single moment when D had a duty to act and failed to act.

Exam Tips on ACTUS REUS AND MENS REA - Concurrence of mens rea and actus reus

Concurrence between mens rea and actus reus is sometimes tested. --When it is, the situation often involves a crime defined in terms of result (e.g., murder), and --the hook is that what's required is concurrence --between mental state and act, --not between mental state and result.

MENS REA - Vicarious liability: Constitutionality:

Constitutionality: Generally, the imposition of vicarious liability does not violate D's due process rights. However, there are exceptions:

MENS REA - General vs. specific intent:

Court traditionally classify the mens rea requirements of various crimes into three groups: (1) crimes requiring merely "general intent"; (2) crimes requiring "specific intent"; and (3) crimes requiring merely recklessness or negligence. --(Strict liability crimes form a fourth category, as to which there is no culpable mental state required at all.)

ACTUS REUS - Act must be voluntary: Hypnosis:

Courts are split about whether acts performed under hypnosis are sufficiently "involuntary" that they do not give rise to liability. --The Model Penal Code (MPC) treats conduct under hypnosis as being involuntary.

Exam Tips on ACTUS REUS AND MENS REA - Concurrence of mens rea and actus reus, cont;d

D is not saved from being guilty of murder because of any lack of concurrence. --The required concurrence was between mens rea and actus reus (D's voluntary act). --D's culpable mental state (intent to kill) coincided with his act (placing the bomb), --so the requirement of concurrence was satisfied. The fact that D's intent to kill did not coincide with the bad result (death) is irrelevant for the concurrence requirement.

MENS REA - Mistake: Mistake of law - Mistake of law as to collateral fact: EXAMPLE 2

D reasonably believes that he has been divorced from W, his first wife, --but in fact the "divorce" is an invalid foreign decree, which is not recognized under local law. --D then marries V. --D's "mistake of law" about the enforceability of the prior divorce will negative the intent needed for bigamy (intent to have two spouses at once).

MENS REA - Mistake: Mistake of law - Mistake of law as to collateral fact: EXAMPLE 1

D's car has been repossessed by Finance Co. --D finds the car, breaks in, and takes it back. --D's belief that the car is still legally his will absolve him, --because it prevents him from having the requisite mental state for theft (intent to take property which one knows or believes to belong to another). --(But if D had taken his neighbor's car, his ignorance that there is a statute making it a crime to take one's neighbor's property would not be a defense.)

MENS REA - Mistake: Crimes of "general intent":

D's mistake is least likely to assist him where the crime is a "general intent" crime --(i.e., one for which the most general kind of culpable intent will suffice). --Example: Murder is often thought of as a "general intent" crime in the sense that it will be enough that D either --intends to kill, --intends to commit grievous bodily injury, --is recklessly indifferent to the value of human life or --intends to commit any of certain non-homicide felonies. --Suppose D shoots a gun at V, intending to hit V in the arm and thus create a painful but not serious flesh wound. --D mistakenly believes that V is in ordinary health, when in fact he is a hemophiliac. --D's mistake will not help him, --because even had the facts been as D supposed them to be, --D would have had a requisite mental state, the intent to commit grievous bodily injury.

MENS REA - Mistake: "Lesser crime" theory:

D's mistake will almost never help him if, had the facts been as D mistakenly supposed them to be, --his acts would still have been a crime, though a lesser one. --This is the "lesser crime" theory. --Example: D steals a necklace from a costume jewelry store. The necklace is made of diamonds, and is worth $10,000, but --D mistakenly believes it to be costume jewelry worth less than $500. --In the jurisdiction, theft of something worth less than $500 is a misdemeanor, and theft of something worth more than that is a felony. --D is guilty of a crime — a felony in most states — because even had the facts been as he supposed them to be, he still would have been guilty of some crime. --(But some states, and the Model Penal Code, would scale his crime back to the crime that he would have committed had the facts been as he supposed, in this case, a misdemeanor.)

MENS REA - "Purposely" as mental state: Motive:

D's motive will usually be irrelevant in determining whether he acted "purposely" or "intentionally." --Example: D, in an act of euthanasia, kills V, his wife, who has terminal cancer. D will be held to have "purposely" or "intentionally" killed V, even though he did it for ostensibly "good" motives.

MENS REA - Mistake:

Defendants raise the defense of mistake when they have been mistaken --either about the facts or the law. --Do not think of "mistake" as being a separate "doctrine." Instead, --look at the effect of the particular mistake on D's mental state, and --examine whether he was thereby prevented from having the mental state required for the crime. --Example: Assume that the requisite mental intent for larceny is the intent to take property which one knows or believes to belong to another. --D takes V's umbrella from a restaurant, thinking that it is his own. --D's factual mistake — his belief about who owns the umbrella — is a defense to the theft charge, --because it negates the requisite mental state (intent to take the property which one knows or believes belongs to another).

Exam Tips on ACTUS REUS AND MENS REA - Duty to act

Duty-to-act is tested with some frequency on exams, because it calls for the close analysis of a fact pattern. --Look for a party who fails to help another party in distress. --Remember that a party is criminally liable for an omission only if there exists a duty for her to act. --Trap: Profs will try to distract you by presenting a very callous witness to an accident: --one who fails to render aid. --Don't be swayed by unsympathetic feelings toward the bystander. --Instead, concentrate on whether she had a duty to act. --The ordinary bystander, who has no previous involvement with the peril, has no duty to act. --Example: A lifeguard at a public swimming pool leaves work early with the permission of her employer. While the pool is unattended a child falls in, striking her head against the edge of the pool. A bystander, B, witnesses the child's fall, but fails to act, despite her knowledge that there is no lifeguard on duty and the fact that she is a strong swimmer. --B had no duty to act and cannot be found guilty of any common-law crime.

Exam Tips on ACTUS REUS AND MENS REA - Statutory language (as to both actus reus and mens rea): Ignorance of law - EXCEPTIONS

EXCEPTIONS: There are some (modern) crimes that are expressly defined so as to require D know of the statutory prohibition. --Arson: when arson is involved, element-of-the-crime issues abound --At common law, arson could be committed only on another's dwelling, but many modern statutes extend the definition to buildings other than dwellings. --Civil statutory violation as evidence of mens rea --Fact patterns often involve violations of civil (as opposed to criminal) statutes; although violation of a civil statute may be evidence of negligence or recklessness, --a civil statutory violation alone does not automatically satisfy the mens rea requirement for negligence or recklessness.

ACTUS REUS - Omissions: Existence of legal duty - Undertaking

Finally, D may come under a duty to render assistance if he undertakes to give assistance. --This is especially true where D leaves V worse off than he was before, or --effectively dissuades other rescuers who believe that D is taking care of the problem. --Example: V is drowning, while D and three others are on shore. --D says, "I'll swim out to save V." --The others agree, and leave, thinking that D is taking care of the situation. --Now, D will be criminally liable if he does not make reasonable efforts to save V.

CONCURRENCE - Concurrence between mind and result: Felony-murder and misdemeanor-manslaughter rules - Felony-murder:

First, if D is engaged in the commission of certain dangerous felonies, --he will be liable for certain deaths which occur, --even if he did not intend the deaths. --This is the "felony-murder" rule.

MENS REA - General vs. specific intent: "Specific intent": --Example of specific intent crime:

For common-law burglary, on the other hand, it must be shown that --D not only intended to break and enter the dwelling of another, --but that he also intended to commit a felony once inside the dwelling. --This latter intent is a "specific intent" — it is an intent other than the one associated with the actus reus (the breaking and entering).

MENS REA - Strict liability: Constitutionality:

Generally there is no constitutional problem with punishing a defendant without regard to his mental state.

MENS REA - Strict liability: Interpretation - Factors:

Here are some factors that would make a court more likely to conclude that the legislature intended strict liability: [1] the violation is in the nature of neglect or inaction, rather than positive aggression; [2] the statute has a regulatory flavor; [3] there is no necessary direct injury to any person or property, but simply a danger of such, and it is this danger that the statute seeks to curtail; [4] the penalty prescribed is small; [5] conviction does not do grave damage to the defendant's reputation; and [6] it was relatively easy for the defendant to find out the true facts before she acted, making it not unfair to punish her without regard to fault.

MENS REA - General vs. specific intent: Abandonment of distinction:

However, many modern codes, --and the Model Penal Code, --have abandoned the general/specific distinction, and --instead set forth the precise mental state required for each element of each crime.

ACTUS REUS - Thoughts, words, possession and status: Possession as criminal act:

However, mere possession of an object may sometimes constitute the necessary criminal act. --(Example: Possession of narcotics frequently constitutes a crime in itself.)

MENS REA - Vicarious liability: Constitutionality - Exceptions: D has no control over offender:

If D did not have any ability to control the person who performed the actual actus reus, --his conviction is probably unconstitutional. --Example: X steals D's car, and exceeds the speed limit. --It is probably unconstitutional for the state to impose criminal sanctions upon D, since he had no ability to control X's conduct.

MENS REA - Vicarious liability: Constitutionality - Exceptions: Imprisonment:

If D has been sentenced to imprisonment (or even if he is convicted of a crime for which imprisonment is authorized), --some courts hold that his due process rights are violated --unless he is shown to have at least known of the violation. --Example: D is a tavern owner whose employee served a minor. --If D did not know of this act, or in any way acquiesce in its commission, --some courts would hold that D may not constitutionally be imprisoned for it.

ACTUS REUS - Omissions: Existence of legal duty - D caused danger:

If the danger was caused (even innocently) by D himself, --D generally has an affirmative duty to then save V. --Example: D digs a hole in the sidewalk in front of his house, acting legally under a building permit. --D sees V about to step into the hole, but says nothing. --V falls in and dies. --D can be held criminally liable for manslaughter, because he created the condition --even though he did so innocently — --and thus had an affirmative duty to protect those he knew to be in danger.

CONCURRENCE - Concurrence between mind and result: Same harm but different degree:

If the harm which results is of the same general type as D intended, --but of a more or less serious degree, --D gets the benefit of the rules on concurrence.

Exam Tips on ACTUS REUS AND MENS REA - Statutory language (as to both actus reus and mens rea): Ignorance of law

Ignorance of law: Watch for indication that a defendant was unaware of or did not understand statute; --Because all people are conclusively presumed to know the law, this is not a general defense

ACTUS REUS - Act must be voluntary: Self-induced state:

In all cases involving allegedly involuntary acts, D's earlier voluntary act may deprive D of the "involuntary" defense. --Tendency to get seizures: For instance, if a driver who knows that he is subject to epileptic seizures nonetheless drives, --and causes a fatal accident while having one, --he might well be convicted of negligent homicide.

MENS REA - "Purposely" as mental state: Not the same as "knowingly":

In modern statutes, "purposely" is not the same as "knowingly." --If D does not desire a particular result, --but is aware that the conduct or result is certain to follow, this is not "purposely." --Example: D consciously desires to kill A, and does so by putting a bomb on board a plane that contains both A and B. --Although D knew B's death was certain, a modern court would probably not hold that D "purposely" killed B, --(although D might nonetheless be guilty of murder on the grounds that he acted with a "depraved heart").

MENS REA - Mistake: Mistake of law - Generally no defense: Reasonable mistake:

In this core "D mistakenly believes that no statute makes his conduct a crime" situation, --even a reasonable mistake about the meaning of the statute will usually not protect D. --In other words, so long as the crime is not itself defined in a way that makes D's guilty knowledge a prerequisite, there is usually no "reasonable mistake" exception to the core "mistake of law is no defense" rule.

MENS REA - General vs. specific intent: Significance - Intoxication:

Intoxication rarely negates a crime of general intent, --but may sometimes negate the specific intent for a particular crime. --(Example: D breaks and enters, but is too drunk to have any intent to commit larceny or any other felony inside; --D probably is not guilty of burglary.)

MENS REA - Mistake: Mistake of law:

It is especially hard for D to prevail with a defense based on "mistake of law."

MENS REA - Mistake: Mistake of law - Mistake of law as to collateral fact:

It is important to remember that the oft-stated "rule," "ignorance of the law is no excuse," really only means --"ignorance that a statute makes one's conduct a crime is no excuse." --A mistake of law as to some collateral fact may negative the required mental state, just as a mistake of fact may do so.

Exam Tips on ACTUS REUS AND MENS REA - Statutory language (as to both actus reus and mens rea): Tips on statutory interpretation - Knowledge

Knowledge: look for words "knowledge" or "knowing" --often is clue that required element is missing

MENS REA - "Purposely" as mental state:

Many crimes are defined to be committed only where a person acts "purposely" with respect to a particular element of a crime. --Other crimes are defined to require the similar, but not identical, mental state of "intentionally."

ACTUS REUS - Thoughts, words, possession and status:

Mere thoughts are never punishable as crimes. --(Example: D writes in his diary, "I intend to kill V." This statement alone is not enough to constitute any crime, even attempted murder.)

MENS REA - "Knowingly":

Modern statutes, and the Model Penal Code, define some crimes to require that D "knowingly" take an act or produce a result. --The biggest distinction between "purposely" and "knowingly" relates to D's awareness of the consequences of his act: if the crime is defined with respect to a certain result of D's conduct, --D has acted knowingly (but not "purposely") if he was "aware that it is practically certain that his conduct will cause that result." --Example: On the facts of our earlier "bomb on the airplane" example, D will have "knowingly" killed B, but not "purposely" killed B, because he was aware that it was practically certain that his conduct would cause B's death.

MENS REA - "Recklessly": Must be aware of risk:

Most courts, and the Model Penal Code, hold that D is reckless only --if he was aware of the high risk of harm stemming from his conduct. This is a "subjective" standard for recklessness. --But a substantial minority of courts and statutes hold that D can be reckless if --he behaves extremely unreasonably even though he was unaware of the risk.

CONCURRENCE - Concurrence between mind and act: Mental state must cause act - Any action that is legal cause of harm:

Most crimes are defined in terms of harmful results (e.g., homicide is the wrongful taking of a life). --Where D takes several acts which together lead to the harmful result, --the concurrence requirement is met --if the mental state concurs with any act that suffices as a legal cause of the harm.

MENS REA - Meaning: Not necessarily state of mind:

Most crimes require a true "mens rea," that is, a state of mind that is truly guilty. --But other crimes are defined to require merely "negligence" or "recklessness," which is not really a state of mind at all. --Nonetheless, the term "mens rea" is sometimes used for these crimes as well: --thus one can say that "for manslaughter, the mens rea is recklessness." --There are also a few crimes defined so as to require no mens rea at all, the so called "strict liability" crimes.

MENS REA - "Negligently": Awareness not required:

Most modern statutes, and the Model Penal Code, allow a finding of criminal negligence -- even if D was not aware of the risk imposed by his conduct (as in the above night-club fire example).

MENS REA - Mistake: Mistake of law - Mistake of law defense built in:

Of course, it's always possible for the legislature to write a statute in such a way that --a mistake of law will constitute a defense (or so that awareness of the criminality of the conduct is an element of the offense). --For instance, the legislature might do this by defining the crime to consist of a "willful violation" — the use of the word "willful" would probably be interpreted to require knowledge by the defendant that his act was prohibited by law.

MENS REA - Mistake: Mistake need not be "reasonable":

Older cases often impose the rule that a mistake cannot be a defense unless it was "reasonable." --But the modern view, and the view of the MPC, is that even an unreasonable mistake will block conviction if --the mistake prevented D from having the requisite intent or knowledge. --Example: D checks his attache case at a restaurant, then gets drunk. --D then sees V leave the restaurant carrying an attache case that D believes is D's. D wrestles the attache case away from V, takes it home, then (when sober) realizes that the case really was V's all along. --Assume that D's mistake was an unreasonable one, and was due to D's being drunk. Under the modern (and MPC) view, D is not guilty of larceny. --Although his mistake about the ownership of the case was unreasonable, that mistake prevented D from having the requisite intent for larceny (intent to take the property of another).

MENS REA - Mistake: "Lesser crime" theory - Moral wrong:

Older decisions extend this principle to --deny D of the defense of mistake if, under the facts as D believed them to be, --his conduct and intent would have been "immoral." --But modern statutes reject this view.

MENS REA - "Knowingly":: D need not know of illegality:

On the other hand, a statute that forbids "knowingly" doing X does not require the prosecution to prove that D knew that doing X was illegal. --In other words, the use of the word "knowingly" does not change the traditional rule that "ignorance of the law is no excuse," i.e., --that ignorance of the fact that the law forbids a particular type of conduct is no defense. (See infra, p. C-67.)

CONCURRENCE - Concurrence between mind and act: Same time - Concurrence with act, not with later result:

On the other hand, the concurrence principle requires --merely that there be temporal concurrence between the mens rea and the actus reus, --not concurrence between mens rea and the bad result (in the case of a crime defined in terms of bad result).

CONCURRENCE - Concurrence between mind and result: Felony-murder and misdemeanor-manslaughter rules - Misdemeanor-manslaughter:

Second, if D was engaged in a malum in se misdemeanor (a misdemeanor that is immoral, not just regulatory), and --a death occurs, --D may be liable for involuntary manslaughter, --even though his conduct imposed very little risk of that death and the death was a freak accident. --This is the "misdemeanor-manslaughter" rule.

ACTUS REUS - Omissions: Existence of legal duty - Contract:

Similarly, a legal duty may arise out of a contract --(Example: Lifeguard is hired by City to guard a beach. --Lifeguard intentionally fails to save Victim from drowning, even though he could easily do so. --Lifeguard will probably be criminally liable despite the fact that his conduct was an omission rather than an act; his contract with City imposed a duty to take affirmative action.)

MENS REA - General vs. specific intent: Significance - Mistake:

Similarly, a mistake of fact is more likely to be enough to negate the required specific intent. --Example: D breaks and enters, in an attempt to carry away something which he mistakenly thinks belongs to him; --D will probably be acquitted of burglary, where mistake will generally not negate a general intent (e.g., the intent to commit the breaking and entering by itself).

Exam Tips on ACTUS REUS AND MENS REA - Concurrence of mens rea and actus reus

So beware of cases where --D changes his mind but can't avoid the bad result --lack of concurrence won't save D. --Example: D puts a bomb in V's car, set to explode when the car is started. --D has a change of heart, --is afraid to disarm the bomb himself, and --puts a sign on the windshield of the car saying "Do not start car — call the bomb squad." --The sign blows away, so V doesn't see it. --She starts the car and is blown away.

ACTUS REUS - Omissions: Existence of legal duty: Special relationship - Permitting child abuse:

Some courts have applied this theory to hold one parent liable for child abuse for failing to intervene to stop affirmative abuse by the other parent.

MENS REA - Strict liability:

Some offenses are "strict liability." --That is, no culpable mental state at all must be shown --it is enough that D performed the act in question, regardless of his mental state. --Examples of strict liability crimes: The following are often defined as strict liability offenses: --Statutory rape (D is generally guilty if he has intercourse with a girl below the prescribed age, regardless of whether he knew or should have known her true age); --mislabelling of drugs; --polluting of water or air; --concealment of a dangerous weapon while boarding an aircraft.

MENS REA - "Negligently":

Some statutes make it a crime to behave "negligently" if certain results follow. --For instance, the crime of "vehicular homicide" is sometimes defined to require a mens rea of "criminal negligence"

MENS REA - "Purposely" as mental state: Conditional intent - D requires V to comply with condition:

Sometimes the condition is one with which D requires V to comply: --"I'll do [something bad] to you unless you do [something I don't have the right to make you do]." --Here, the modern approach — exemplified by a Supreme Court decision, Holloway v. U.S. — is that the condition doesn't negative the intent. Example: D points a gun at V and says, "Give me your car keys." --D intends to use the gun against V if and only if V doesn't give the keys. --V gives the keys. --Is D guilty of "carjacking" if the crime is defined as "taking a car with intent to cause death or serious bodily injury? --Held, (by the U.S. Supreme Court), --D is guilty, because despite the condition D acted with intent to cause serious bodily injury. "A defendant may not negate a proscribed intent by --requiring the victim to comply with a condition the defendant has no right to impose." Holloway v. U.S.

MENS REA - "Purposely" as mental state: Motive - Relevant to defenses

Special motives may, however, be relevant to the existence of a defense (e.g., the defense of self-defense or necessity).

p65- MENS REA - Vicarious liability:

Statutes sometimes impose upon one person liability for the act of another; --this is commonly called "vicarious liability." --In essence, the requirement of an act (actus reus) has been dispensed with, --not the requirement of the wrongful intent. --Example: Statutes frequently make an automobile owner liable for certain acts committed by those to whom he lends his car, --even without a showing of culpable mental state on the part of the owner.

MENS REA - "Purposely" as mental state: Conditional intent:

Suppose D intends to commit act X only if a particular condition should be satisfied. --Does D "intend" to commit act X? --Usually, the answer will be "yes."

ACTUS REUS - Omissions:

The actus reus requirement means that --in most situations, there is no criminal liability for an omission to act (as distinguished from an affirmative act). --Example: D sees V, a stranger, drowning in front of him. D could easily rescue V. D will normally not be criminally liable for failing to attempt to rescue V, because there is no general liability for omissions as distinguished from affirmative acts.

II. ACTUS REUS - Significance of concept:

The defendant must have committed a voluntary act, or "actus reus." --Look for an actus reus problem anytime you have one of the following situations: (1) D has not committed physical acts, but has "guilty" thoughts, words, states of possession or status; (2) D does an involuntary act; and (3) D has an omission, or failure to act.

MENS REA - General vs. specific intent: Significance:

The general / specific intent distinction usually matters in two situations: (1) where D is intoxicated; and (2) where D makes a mistake of law or fact.

MENS REA - Strict liability: Interpretation:

The mere fact that the statute does not specify a mental state does not mean that the crime is a strict liability one --judges must determine whether a particular mental state was intended by the legislature.

Exam Tips on ACTUS REUS AND MENS REA

The most common issues that arise on exams regarding the requirements of an "actus reus" and a "mens rea" are the following:

CONCURRENCE - Concurrence between mind and result: Recklessly- or negligently-caused result:

The same rule applies where D has negligently or recklessly acted with respect to the risk of a particular result, and --a very different result occurs. --Example: D recklessly takes target practice with his rifle in a crowded area; --what makes his conduct reckless is the high risk that D will injure or kill a person. --One of D's shots hits a gas tank, and causes a large fire. --Assuming that the danger of causing a fire was not large, --D will not be convicted of arson (even if arson is defined to include reckless burning), --since his conduct was reckless only with respect to the risk of bodily harm, not the risk of burning.

III. MENS REA - Meaning:

The term "mens rea" symbolizes the requirement that there be a "culpable state of mind."

p68 - IV. CONCURRENCE - Two types of concurrence required:

There are two ways in which there must be "concurrence" involving the mens rea: (1) there must be concurrence between D's mental state and the act; and (2) there must be concurrence between D's mental state and the harmful result, if the crime is one defined in terms of bad results.

CONCURRENCE - Concurrence between mind and result:

There must also be a correlation between the mental state and the harmful result, --if the crime is one defined in terms of bad results (such as homicide, rape, larceny, etc.) --In the case of crimes that require intent, this aspect of concurrence means that --the intended result must match up reasonably well with the actual result. --So if what actually occurred is too far removed from what was intended, --there will be no concurrence and thus no liability.

CONCURRENCE - Concurrence between mind and act:

There must be concurrence between the mental state and the act. 1. Same time: This requirement is not met if, at the time of the act, --the required mental state does not exist --Example: Common-law larceny is defined as the taking of another's property with intent to deprive him of it. --D takes V's umbrella from a restaurant, thinking that it is his own. --Five minutes later, he realizes that it belongs to V, and decides to keep it. --D has not committed larceny, because at the time he committed the act (the taking), --he did not have the requisite mental intent (the intent to deprive another of his property). --The fact that D later acquired the requisite intent is irrelevant.

CONCURRENCE - Concurrence between mind and act: Same time - Concurrence with act, not with later result: Change of mind:

This means that if D does an act with an intent to achieve a certain result, --the fact that he later changes his mind and doesn't desire that result --will not nullify the crime, --if the result occurs due to his act and --the crime is defined in terms of intentionally causing that result. --Example: D puts a bomb in V's car, which is set to blow up when the car is started. --D later changes his mind, but can't warn V in time. --V starts the car, and is blown to bits. --The requisite concurrence between act and intent existed (since the act was the placing of the bomb, which D did with intent to kill). --The fact that there was no concurrence between mental state and result (V's death) is irrelevant, and --D is guilty of intent-to-kill murder.

CONCURRENCE - Concurrence between mind and result: Same harm but different degree: Actual result more serious than intended:

Thus if the actual harm is greater, and related to, the intended result, --D is generally not liable for the greater harm. --Example: Assume simple battery is defined as the intentional causing of minor bodily harm, and aggravated battery is defined as the intentional causing of grievous bodily harm. D gets into a minor scuffle with V, intending merely to hit him lightly on the chin. But V turns out to have a "glass jaw," which is fractured by the blow. D will not be held guilty of aggravated battery, just simple battery, since his intent was only to produce that lesser degree of injury required for simple battery.

CONCURRENCE - Concurrence between mind and result: Different crime:

Thus if the harm which actually occurs is of a completely different type from what D intended, --D will generally not be guilty of the other crime. --In other words, the intent for one crime may not usually be linked with a result associated with a different crime. --Example: D attempts to shoot V to death while V is leaving his house. --The shot misses and ruptures V's stove, causing V's house to burn down. --Assuming that arson is defined so as to require an intent to burn, --D will not be guilty of arson, because --the intent for one crime (murder) cannot be matched with --the result for another crime (burning) to produce guilt for the latter crime.

MENS REA - "Purposely" as mental state: Conditional intent - MPC view:

Thus the MPC holds that the existence of the condition doesn't prevent the intent from existing "unless the condition negatives the harm or evil sought to be prevented by the law defining the offense." --Example: D breaks into a house, intending to steal something only if no one is home. Under the MPC, the condition (steal only if no one's home) won't block D from having the intent to steal (and thus the intent for burglary, i.e., intent to commit a felony within), --because the evil sought to be prevented by laws against burglary (breaking and entering) is present despite the condition.

Exam Tips on ACTUS REUS AND MENS REA - Duty to act: EXCEPTIONS

Two kinds of situations: exceptions if which there will be a duty to assist: (1) Contractual obligation to act; Example: --apartment house landlord receives repeated complaints about malfunctioning heating system and fails to respond. --Lease says landlord will maintain furnace --Furnace explodes and causes fire, V dies --failure to fix furnace met actus reus requirement (2) A party undertakes to give assistance and fails to follow through; Example: --heart surgeon agrees to perform operation, then fails to show up (undertook to do operation, and incurred obligation) --Failure to perform duty supplies actus reus needed for criminal liability in death

MENS REA - Strict liability: Interpretation - MPC:

Under the MPC, the only offenses that are strict liability are ones called "violations." --These are minor offenses that do not constitute a "crime" and that may be punished only by fine or forfeiture.

MENS REA - "Negligently": "Gross" negligence required:

Usually, criminal negligence is "gross" negligence. --That is, the deviation from ordinary care must be greater than that which would be required for civil negligence.

ACTUS REUS - Thoughts, words, possession and status: Possession as criminal act - Knowledge:

When mere possession is made a crime, --the act of "possession" is almost always construed so as to include only conscious possession. --(Example: If the prosecution fails to prove that D knew he had narcotics on his person, there can be no conviction.)

Exam Tips on ACTUS REUS AND MENS REA - Statutory language (as to both actus reus and mens rea)

Whenever question asks to contemplate party's violation of a jurisdiction's statute, pay close attention to the statute's wording --This is true whether focusing on actus reus or mens rea. --Trap: profs will try to fool you be drafting a statute differently than the rule prevalent in most jurisdictions or different than the common law --Remember to distinguish between --strict liability statutes and --those requiring intent

ACTUS REUS - Omissions: Existence of legal duty - Special relationship:

Where D and V have a special relationship — most notably a close blood relationship --D will be criminally liable for a failure to act. --(Example: Parent fails to give food or water to Child, and Child dies. --Even if there is no general statute dealing with child abuse, --Parent can be held liable for murder or manslaughter, because the close relationship is construed to impose on Parent an affirmative duty to furnish necessities and thereby prevent death.)

MENS REA - General vs. specific intent: "Specific intent":

Where a crime requires "specific intent" or "special intent," this means that D, in addition to desiring to bring about the actus reus, must have desired to do something further.

MENS REA - "Knowingly":: Knowledge of attendant circumstances:

Where a statute specifies that D must act "knowingly," and --the statute then specifies various attendant circumstances which the definition of the crime makes important, --usually the requirement of knowledge is held applicable to all these attendant circumstances. Example: The federal crime of "aggravated identity theft" applies where the defendant, in connection with the commission of some other crime, "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." --D, a Mexican citizen, presents his U.S. employer with a counterfeit Social Security card. The card contains an SS number that happens to be assigned to someone else. --D claims that the prosecution has to prove that the statute's use of the word "knowingly" applies to the phrase "identification of another person."