4.1: Criminal Elements

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All crimes can be broken down into discrete elements. The prosecution must prove each essential element beyond a reasonable doubt. Criminal elements are set forth in criminal statutes or in case law, depending on the jurisdiction.

With few exceptions, every crime has five elements:

a criminal act or omission, also called actus reus;
a culpable mental state, also called the mens rea;
the concurrence of the two;
causation; and
a resulting harm.

If a person engages in conduct that is lacking one of the above essential elements, the person has not committed a criminal offense. There is one big exception to this general rule: inchoate offenses, also known as anticipatory offenses. Inchoate offenses do not have causation and harm elements. We will explore anticipatory offenses in more detail in Chapter 6 “Inchoate Offenses.”

Example of a Crime That Only Has Three Elements

Janine gets into a fight with her boyfriend Conrad after the senior prom. She grabs Conrad’s car keys out of his hand, jumps into his car, and locks all the doors. As Conrad runs towards the car, Janine yells out the window, “I’m going to kill you!” Janine starts the car, puts it into drive, and tries to run Conrad over. It is dark and difficult for Janine to see, so Conrad easily jumps out of the way and is unharmed. Shortly thereafter, Janine is arrested and charged with attempted murder. In this case, the prosecution only has to prove three elements: (1) criminal act, (2) culpable mental state, and (3) concurrence. Attempted murder is an inchoate offense and only has three elements. The prosecution does not have to prove causation or that Conrad was harmed because attempt crimes, including attempted murder, do not require a resulting harm. Incomplete crimes, like attempt, are referred to as inchoate crimes.

Nearly every state codifies the minimum requirements of criminal liability. Take a look at Alaska Statute 11.81.600.

Figure 4.1 Alaska Criminal Code

11.81.600. General requirement of culpability. (a) The minimal requirement for criminal liability is the performance by a person of conduct that includes a voluntary act or the omission to perform an act that the person is capable of performing. (b) A person is not guilty of an offense unless the person acts with a culpable mental state [...]
Notice that the statute omits causation and harm from the minimum requirements of criminal liability. Also, the term conduct is used to reflect concurrence: the combination of the criminal act and criminal intent elements. As the statute explains, “‘conduct’ means an action or omission and its accompanying state of mind.” See AS 11.81.900(b)(7).

Another requirement of some crimes is the existence or non-existence of an attendant circumstance. Attendant circumstances are specific factors that must be present when the crime is committed to constitute the enumerated crime. These circumstances could include the crime’s instrumentality, its methodology, location, or victim characteristics. A crime’s attendant circumstances will always be included in the criminal statute and is often used as a basis for grading a particular family of offenses. An example of grading is Alaska’s robbery statutes. Alaska law grades first-degree robbery as a more serious offense than second-degree robbery. Compare AS 11.41.500 and 11.41.510. First-degree robbery is a class A felony, whereas second-degree robbery is a class B felony. The applicable punishment range between the two is significant.

Example of a Crime with an Attendant Circumstance

Sally is low on money and decides to rob her local bank. To ensure success, she arms herself with a handgun. Sally walks into the bank, approaches the nearest teller, and points the gun at the teller. Sally demands all of the bank’s money. Unbeknownst to Sally, the bank teller activated the silent alarm. Sally is arrested by the police as she walks out. Sally is charged with Robbery in the Frist Degree, which requires the government to prove that she obtained property of another through the threat of force while armed with a deadly weapon. Sally’s pistol (a deadly weapon) is an attendant circumstance for purposes of the robbery statute. A person who commits a robbery without a deadly weapon is only guilty of Robbery in the Second Degree, a lesser offense.

This chapter analyzes the five essential elements contained within every crime. Subsequent chapters will analyze the elements of specific crimes.