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1. Define mens rea and in then in detail what that means to you.2. The Modern Penal Code contains four types of states of mind concerning mens rea. Define each one and give an example of each one.3. In detail, define actus resus and what that means to you. What is the difference between actus resus and mens rea?4. In detail, define the two forms of causation that exist in criminal law.All questions must be Cited in APA format and referenced in APA format with a 250 minimum word count

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Chapter 3: The Two Essential Elements    57
• apply and compare the historic and modern law
of mens rea and actus reus to real life scenarios.
• read and identify the major elements of a judicial
• define and apply element analysis to statutory
definitions of crimes.
• identify the major elements of a case brief.
Mens Rea
Nearly every crime consists of two essential elements: the mental and the physical.
This chapter begins by addressing the mental element and concludes by examining the
physical element.
It is common to distinguish between acts that are intentional and those that occur
accidentally. Everyone has caused injury to another person or another person’s property
accidentally. That the injury was accidental (not intended) often leads to a statement such
Msituations, people often feel a social
as, “I’m sorry. I didn’t mean to hurt you.” In these
obligation to pay for any injuries they have caused,
I or to assist the injured party in other
ways, but they probably do not expect to be punished criminally. As the late Supreme
T between being stumbled over and
Court Justice Holmes stated, “Even a dog distinguishes
being kicked.” As this statement implies, to makeH
such a distinction between accidental
and intentional acts that injure others appears to be natural. For humans, it is consistent
with common notions of fairness. Indeed many of the earliest laws known to humanity, dating back thousands of years, distinguish intentional from intentional behavior,
treating the latter as less serious. Modern criminalJlaw follows this model; that is, people
are often held accountable for intentional behavior and not for accidental, even though
the consequences may be the same. However, thisO
is not always so. Under some circumstances, accidental behavior (negligent or reckless)Smay be the basis of criminal liability.
Mens rea is the mental part, the state of mind required to be criminally liable. It is
often defined as “a guilty mind” or possessing a criminal intent. It is best defined as the
state of mind required to be criminally liable forU
a certain act. It is sometimes the case
that no intent whatsoever is required to be guilty
Aof a crime, although most criminal
laws require intent to some degree before criminal liability attaches to an act.
Mens rea is an important concept in criminal law. It is also a confusing one, largely
because of the inconsistency and lack of uniformity
6 between criminal statutes and judicial decisions. One author found 79 words and phrases in the U.S. Criminal Code used
to describe mens rea.1 Often, when courts or legislatures use the same term, they do so
9 reason, the drafters of the Model
assuming different meanings for the term. For this
Penal Code attempted to establish uniform terms0and definitions for those terms. The
Model Penal Code approach is examined later. First, you will learn how mens rea was
defined at the common law.
Mens Rea and the Common Law
mens rea
■ (Latin) A state of mind
that produces a crime.
One principle under the common law was that there should be no crime if there was no
act accompanied by a guilty mind. The Latin phrase that states this principle is: “actus
non facit reum nisi mens sit rea.” Today, under some statutes, no intent is required
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
58   Part I Criminal Law
to be guilty of a crime. Despite this, the principle that “only conscious wrongdoing
constitutes crime is deeply rooted in our legal system and remains the rule, rather than
the exception.”2
Many terms have been used to describe a guilty mind. Malicious, mischievous,
purposeful, unlawful, intentional, with specific intent, knowing, fraudulent, with an
evil purpose, careless, willful, negligent, and reckless are examples of terms and phrases
used to describe the mental state required to prove guilt.
General, Specific, and Constructive Intent
general intent
■ The desire to commit a
prohibited act but not the
outcome of that act.
specific intent
■ An intent to commit the
exact crime charged or the
precise outcome of the
act, not merely an intent
to commit the act without
an intention to cause the
■ (Latin) Knowingly;
with guilty knowledge.
[pronounce: si-en-ter]
One common law distinction is between general intent and specific intent. The distinction turns on whether the defendant intended to cause the consequences of the act. If
the defendant had a desire
S or purpose to cause the result of the act, then the defendant
possessed specific intent. If the defendant intended only the act, and not the result of that
Mpossessed general intent. For example, Don Defendant throws
act, then the defendant
a large rock at Victoria
I Victim, inflicting a fatal wound. If Defendant only intended
to injure Victim, not kill her, then he possessed general intent. However, if Defendant
threw the rock hoping it would kill Victim, then he possessed specific intent. The disH and specific intent is often an important one, as many statutes
tinction between general
require specific intent for
, a higher-level crime and general intent for a lower crime. In this
example, many state statues would allow Defendant to be responsible to be charged with
first-degree murder if he intended to kill Victim, but with second-degree murder if he
only intended to injureJVictim under many contemporary state statutes.
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. For example, assume Defendant desires to
S One day, while walking down a street, Defendant notices
cause the death of Victim.
Victim far away. Defendant
H picks up a rock and hurls it toward Victim, hoping it will
strike Victim and kill her, although because of the distance, he does not expect the rock
to strike its intended U
target. However, all of those afternoons practicing his baseball
pitch paid off, and theArock hits Victim in the head, killing her instantly. The fact that
Defendant threw the rock with an intent to kill is enough to establish Defendant’s specific intent. The fact that the act is unlikely to be successful is no defense.
6 also be proved, in some jurisdictions, by showing that the
Specific intent may
defendant possessed knowledge
of a particular fact or illegality. This requirement of
knowledge is known as scienter. Although scienter and mens rea are commonly treated
as synonyms, they are9 not. Scienter is a specific form of mens rea. If an individual
commits a crime with0 a scienter element while believing that the act engaged in is
lawful or without the specific knowledge required, then specific intent is lacking, and
only general intent can be proven.3 Scienter often does not require proof of subjective
knowledge (what wasU
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.
For example, assume that Abina recently emigrated to the United States. In her home
country uniforms are common. Security guards, cab drivers, and hotel employees all
wear uniforms that are difficult to distinguish from police. Not fully acclimated to the
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 3: The Two Essential Elements    59
United States, she ignored the warning of a police officer to not cross a street against
a red pedestrian light. She didn’t give the office much thought because she was accustomed to ignoring people in uniform. The officer approached her, threatened to arrest
her, and she struck the officer in the face. She was arrested and charged with battery of a
peace officer, a felony. A jury Returning to our police officer example, a jury could find
that a reasonable person should have known that the individual was an officer because
heshe was wearing a police uniform, for example, and find the defendant guilty of assault on a police officer, even if the jury believes that the defendant didn’t subjectively
know the assaulted individual was a police officer.
Consider the crime of receiving stolen property. If an individual received stolen
property, but did so without knowledge that it was stolen, then no crime has been
committed. For some crimes that require scienter, the absence of scienter may leave a
general-intent crime. If a man strikes a person whom
S he believes is obstructing traffic, he has committed an assault. If he knew, or should have known, that the person
was a police officer attempting to direct traffic, then he may be accountable for the
higher crime of assault on a police officer. However,
if the police officer was not
wearing a uniform and did not announce himself
officer, then the defendant is
liable only for simple assault. Possession of burglary tools and obstruction of justice
H of the tools’ character and the
are also examples: the former requiring knowledge
latter requiring knowledge of obstruction.
At common law, specific intent could be found in a third type of situation, whenever
constructive intent could be proven. That is, although the defendant does not intend
to cause the result, it is so likely to occur that theJlaw treats the act as one of specific intent. If John fires a handgun at close range at Sally,Oaiming at her torso, and kills her as a
result, it is possible that he could be charged with the specific-intent crime of first-degree
murder, even though he only intended to injureS
her. This is because the possibility of
killing someone under those circumstances is significant.
H However, liability may not exist
if he had aimed at her leg and the weapon discharged improperly, causing the bullet to
strike her in the torso. This is because the likelihood of killing someone with a gunshot to
A body. The bullet entered the victim’s
the leg is much less than with a gunshot to the upper
torso as a result of the malfunction of the gun; it was not Defendant’s desire to shoot her
in the upper body. As to the amount of probability necessary to prove constructive intent,
6 not absolute.4
only “practical or substantial” probability is required,
Specific intent can be found in a fourth situation,
whenever a defendant intends
a result beyond the act taken. This refers to situations when a criminal act is uncom9
pleted. For example, if a man attacks a woman intending to rape her, but she is able to
free herself and escape, he may be charged with0assault with intent to rape. To prove
this charge, the prosecution must show that he B
assaulted the victim with the specific
intent of raping her. Proving that the defendant had a specific intent to assault her is
not enough to sustain the intent-to-rape charge, U
although it would justify a conviction
for assault, a lesser crime.
Another example is the crime of breaking and entering with the intent to burglarize. Again, the prosecution must prove that the defendant intended to steal from the
home after the entry and did not complete the burglary for some reason. Proving that
■ Inferred, implied,
or presumed from the
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
60   Part I Criminal Law
the defendant broke in and entered, but had no intent to steal, will support a conviction for breaking and entering, but not intent to commit burglary.
General intent is much easier to define, as it is simply the desire to act. In most
situations, if the prosecution can show that a defendant intended to take the act that
resulted in the prohibited outcome, then general intent is proved. Generally, no desire
to cause a particular consequence is required. So, if you fire a gun without a desire to
kill someone, but the bullet does kill a person, you possess a general intent and may be
prosecuted for a general-intent homicide.
Some jurisdictions require more than simply a desire to act to prove general intent. In
those states, some level of negligence must be proven. Consider the following two examples:
Rural Defendant has lived on a farm for more than 20 years. Defendant’s nearest neighbor is over three miles away, and Defendant routinely target shoots in his
backyard. He has never
Sencountered anyone in the area where he shoots, and everyone
who lives in the community knows of his practice. One day, while target shooting, he
accidentally shoots and kills a trespasser he did not know was on his property. In the
I Defendant likes to hunt on weekends. One weekend, Metro
second example, Metro
and his friend were hunting
T and Metro lost sight of his friend. Eager to capture his first
deer of the season, Metro fired into a bush in which he observed some movement. But
Metro’s friend was in H
the bush, and Metro’s gunshot inflicted a fatal wound.
In both examples,, the defendants had no desire to harm the individuals who were
shot, and both possessed the intent to fire the weapon. A strict construction of general
and specific intent results in both defendants committing a general-intent murder.
However, In some jurisdictions,
Rural may be free from liability because he appears to
have been less recklessOor negligent than Metro, who should have considered the possibility that it could have been his friend who was causing the disturbance in the bush.
S not exhausted the many definitions and distinctions that exist
This discussion has
for specific and general
Hintent. In the Carson case, it appears that the Court of Appeals
for the District of Columbia has created a hybrid general-specific intent for the crime
of cruelty to children.
556 A.2d 1076, 1989 D.C. App. LEXIS 57 (1989)
On June 4, 1985, Janet Carson arrived home from
eight-year-old Charmaine Schmidt—to her bed0
work at about 3:45 P.M. and was informed by one
room; each child denied knowing anything about
of her children that a fuse needed replacement.
the missing money. At that point she went downWhile looking for a fuse, appellant noticed U
stairs, and as she returned upstairs she picked up
eight dollars were missing from her dresser drawer.
She called her children—thirteen-year-old Cornell,
six-year-old Everett, five-year-old Angelica, and
an electrical cord; she later testified that she routinely used the cord to discipline the children. She
again asked the children about the missing money,
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 3: The Two Essential Elements    61
and they again denied any knowledge of the money’s disappearance. Appellant then whipped each of
the children several times.
The next day at the school attended by Everett,
Angelica, and Charmaine, school officials noticed
marks and bruises on the children. Detective Harmon of the Metropolitan Police Department went to
the school and took the three children to Children’s
Hospital. Everett’s abrasions were cleaned and bandaged; the other two children received no treatment.
Appellant was subsequently charged with three
M was
counts of cruelty to children. . . . [Ms. Carson
convicted and sentenced to thirty days on
I each
count, which was suspended to one year’s probaT
tion. She appealed the conviction and this is the
opinion of the appellate court.]
Before considering appellant’s claim that the
evidence was insufficient to support her conviction,
we must first determine the mens rea required for
conviction under D.C. Code § 22–901. We conclude
that the offense is a general intent crime, which also
requires a showing of malice. . . .
Any person who shall torture, cruelly beat, abuse, or
otherwise willfully maltreat any child under the
Uage of
18 years . . . shall be deemed guilty of a misdemeanor,
and, when convicted thereof, shall be subject to punSection 22–901 provides in pertinent part:
ishment by a fine of not more than $250, or by imprisonment for a term not exceeding 2 years, or both.
The [D.C. Jury Instructions] define the elements
of the offense as follows:
1. that the defendant tortured, cruelly beat,
abused or otherwise maltreated a child;
2. that at the time of the incident, the childB
under the age of 18 years; and
3. that the defendant acted willfully, that is, with
an evil intent or with bad purpose to maltreat
(c o nti nu e d)
the child. It is not enough that you find that the
defendant exercised bad judgement or acted
unreasonably. Rather, it is necessary that you
find that the defendant was motivated by an evil
intent or state of mind in committing the acts
which constitute the offense.

Judicial interpretation of D.C. Code § 22–901
has been limited . . . [T]he United States Court of
Appeals for the District of Columbia held that the
terms “abuse” and “willfully mistreat” as used in
the statute “call for something worse than good intentions coupled with bad judgment,” and incorporate “the requirement of an evil state of mind.” . . .
The cases would seem to teach that cruelty to children is something more than a general intent crime
and something less than a specific intent crime.

In other contexts, this court has equated the
terms “evil intent” and “malice.” This court has
noted that a showing of bad or evil purpose is “necessary to distinguish the mental state required for
malice-based offenses from that involved in crimes
the conviction for which demands proof no more
than general intent or criminal negligence.” Thus,
if cruelty to children requires proof of something
more than general intent, that something more
would seem to be malice.

Having determined the mens rea required for
conviction of cruelty to children, we must now determine whether the government’s proof was sufficient to establish the requisite mens rea in this
case. Appellant concedes that the record supports
the trial court’s finding of general intent. However,
she argues that the government failed to prove that
she acted with malice. She argues that, according
to her undisputed testimony, she was motivated not
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
62   Part I Criminal Law
by an evil intent but, rather, by a “concern for [her]
children’s welfare and upbringing.” At first blush,
the record supports her argument as to motivation.
The government argues, however, that to find
malice “all that is required [is] a conscious disregard
of a known and substantial risk of the harm. . . .”
Malice is a rather slippery concept, not amenable to precise definition. . . . Simply put, we believe
that a parent acts with malice when a parent acts out
of a desire to inflict pain rather than out of genuine
effort to correct the child, or when the parent, in a
genuine effort to correct the child, acts with a M
conscious disregard that serious harm will result. I

In this case, appellant’s testimony regarding her
motive was not directly contradicted. The government relied basically on the nature of the wounds
and the manner of the punishment to establish
malice. The government introduced pictures of the
injuries sustained by the children and also pointed
to the ages of the children, and the fact that appelO
lant used an electrical cord t …
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