4.5: End-of-Chapter Material

Summary

All criminal offenses are made up of multiple parts, often referred to as elements. The essential criminal elements of the majority of criminal laws are (1) actus reus (voluntary act), (2) mens rea (culpable mental state), (3) concurrence, (4) causation, and (5) harm. Inchoate offenses, also known as anticipatory crimes, do not contain a causation or harm element.

The criminal act must be voluntary or controllable and cannot consist solely of the defendant’s status or thoughts. Just one voluntary act is needed for a crime, so if a voluntary act is followed by an involuntary act, the defendant can still be criminally responsible. A person may be held criminally responsible for failing to act if there is a duty to act based on a statute, contract, special relationship, or assumption of the duty. Possession may be passive, but it is still a criminal act. Possession can be actual, constructive, sole, or joint. Fleeting possession may not be criminal if the possession is momentary and with the intent to surrender.

Culpable mental state is an important element because it is often one factor considered in the grading of criminal offenses. Motive should not be confused with or replace intent. Motive is the reason the defendant develops criminal intent. At common-law, there were three criminal intents: malice aforethought, specific intent, and general intent. Malice aforethought is acting with an intent to kill. Specific intent is the intent to bring about a particular result. General intent is the intent to do the act and can often give rise to an inference of criminal intent from proof of the criminal act. Alaska law describes five criminal states of mind, which are intentionally, knowingly, extreme recklessness, recklessly, and criminal negligence. Intention is having a conscious objective to cause a particular result. Knowingly is the awareness that results are practically certain to occur. Extreme Recklessness is having an extreme indifference to the value of human life. Extreme recklessness is not defined by statute, but instead as a creature of case law. Recklessly is a subjective awareness of a risk of harm and an unjustified disregard of that risk. Criminal negligence is not being aware of a substantial risk of harm when a reasonable person would be. Offense elements, including specified attendant circumstances, may require different mental states. If so, the prosecution must prove each mental state for every element beyond a reasonable doubt.

Strict liability crimes do not require an intent element and are generally regulatory or public welfare offenses, with less severe punishment.

Concurrence is also a criminal element that requires the criminal act and criminal intent exist close in time.

The defendant must cause the resulting harm to be criminally responsible. The defendant must be the factual and legal cause. Factual cause means actual cause – that is, the defendant started the chain of events that leads to the bad result. Legal or proximate cause means that the resulting harm was reasonably foreseeable when the defendant committed the criminal act. The defendant need not be the sole factor in the victim’s harm, but must be a substantial factor in the resulting harm. An intervening or superseding cause breaks the chain of events started by the defendant’s criminal act and insulates the defendant from criminal liability. A negative act by the victim or third party (e.g. the failure of a third party to save a victim) can never be an intervening cause.

Key Takeaways

• The elements of a crime are actus reas, mens rea, concurrence, causation, and harm. Some criminal offenses have attendant circumstances. Inchoate offenses do not have the elements of causation and harm.
• The actus reas is a criminal act usually involving an unlawful bodily movement that is defined in a statute.
• The criminal act must be voluntary and cannot be based solely on the status of the defendant or the defendant’s thoughts.
• An exception to the criminal act element is an omission to act.
• Omission to act could be criminal if there is a statute, contract, assumption of duty, or special relationship that creates a legal duty to act in the defendant’s situation.
• Actual possession means that the item is on or very near the defendant’s person. Constructive possession means that the item is within the defendant’s control, such as inside a house or vehicle with the defendant.
• One important function of intent is the determination of punishment. In general, the more evil the intent, the more severe the punishment.
• The three common-law criminal intents ranked in order of culpability are malice aforethought, specific intent, and general intent.
• Specific intent is the criminal intent to bring about a certain result. General intent is simply the intent to perform the criminal act.
• Motive is the reason the defendant commits the criminal act. Motive standing alone is not enough to prove criminal intent.
• There are five mental states ranked in order of culpability: intentionally, knowingly, extreme recklessness, recklessly, and criminally negligence. Intentionally is similar to specific intent to cause a particular result. Knowingly is the awareness that results are practically certain to occur. Extreme recklessness is the extreme indifference to the value of human life. Recklessly is a subjective awareness of a risk of harm, and an objective and unjustified disregard of that risk. Criminally negligence is not being aware of a substantial risk of harm when a reasonable person would be.
• The exception to the requirement that every crime contain a criminal intent element is strict liability.
• Concurrence requires that act and intent exist close in time.
• Factual cause means that the defendant started the chain of events leading to the harm. Legal cause means that the defendant is held criminally responsible for the harm because the harm is a foreseeable result of the defendant’s criminal act.
• An intervening or superseding cause breaks the chain of events started by the defendant’s act and cuts the defendant off from criminal responsibility.

Answer to You Be the Judge …

Punishing a person for being homeless is the equivalent of punishing someone for being an addict. If a city does not have adequate shelter for the homeless community, sleeping on public property is not voluntary – it is involuntary just like eating or breathing. In Martin v. City of Boise, 920 F.3d 584, 615 (9th Cir. 2019), the Ninth Circuit found that the Eighth Amendment prohibited the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter. The City of Boise’s criminal ordinances could not be enforced against individuals that had no alternative but to sleep on the street. However, sitting, sleeping, or lying on public property is an act that can be prohibited provided that it is voluntary. Read Martin v. City of Boise, 920 F.3d at 617 n. 8, for an explanation of when a city can prosecute a person for sleeping in public.

Answers to Exercises

From “Criminal Elements”

1. Jacqueline can be convicted of a crime in this situation. Although an epileptic seizure is not a voluntary act, Jacqueline’s conduct in driving while aware that she has epilepsy is. Only one voluntary act is required for a crime, and Jacqueline was able to control her decision making in this instance. Punishing Jacqueline for driving with epilepsy could specifically deter Jacqueline from driving on another occasion and is appropriate under the circumstances. See e.g., People v. Decina, 138 N.E.2d 799 (N.Y. 1956) (finding a voluntary act when the defendant, knowing he might, at any time, be subject to epileptic attacks and seizures, drove an automobile with nobody accompanying him, suffered a seizure, and caused a fatal collision). This is sometimes referred to as the defense of “automatism”. The automatism defense is a failure-of-proof defense and excludes responsibility where a defendant “acts” during reflexive or convulsive movements, movements during sleep, unconsciousness, hypnosis, or seizures. See e.g., Palmer v. State, 379 P.3d 981, 989 (Alaska App. 2016) (noting that Alaska courts have yet to define the contours of “automatism” under Alaska law).

From “Causation and Harm”

1. Phillipa’s act is the factual and legal cause of Fred’s death. Phillipa’s act of jumping out of the bushes and screaming caused Fred to run onto the highway, so Phillipa’s act is the factual cause of Fred’s death. In addition, a reasonable person could foresee that frightening someone next to a major highway might result in them trying to escape onto the highway, where a vehicle traveling at a high rate of speed could hit them. Thus Phillipa’s act is also the legal cause of Fred’s death.