Place your order today at a 20% discount

 
The following discussion comes from your week 1-3 readings. Outside research to address these issues is encouraged. I would suggest using the online library for additional sources of information and research.  In addition, I would recommend utilizing the legal studies program guide. 
Proving intent can be challenging. What kind of crimes require specific intent and how difficult is that to prove? Which crimes might be easier to prove intent than others? What kinds of proof might be used for certain crimes than others?

Source: Image courtesy of Tara Storm.

federalism

A system of government in
which power is divided
between a national, federal
government and several state
governments.

commerce clause

A clause in the Constitution
that allows Congress to
regulate commerce
(economic activity) that
crosses state lines.

necessary and proper
clause

A clause in the Constitution
that allows Congress to make
laws necessary to carry out all
powers listed in the
Constitution.

C H A P T E R 2
The Legal System in the
United States
The requirement of proof beyond a reasonable doubt has this vital role in our criminal

procedure for cogent reasons. The accused, during a criminal prosecution, has at stake

interests of immense importance, both because of the possibility that he may lose his liberty

upon conviction and because of the certainty that he would be stigmatized by the

conviction.

– In re: Winship, cited in Section 4

1. FEDERALISM

L E A R N I N G O B J E C T I V E S

1. Define federalism.
2. Ascertain the sections of the Constitution that give Congress regulatory authority.
3. Ascertain the basis for Congress’s authority to enact criminal laws.
4. Compare federal regulatory authority with state regulatory authority.
5. Compare federal criminal laws with state criminal laws.
6. Define federal supremacy.

The United States’ system of government is called federalism. Federalism, as set forth in the US Con-
stitution, divides governmental power between the federal government and each of the states. This pre-
vents a concentrated source of governmental power in one individual or small group of individuals. Be-
cause of federalism, the United States has one federal legal system, and each state has its own state legal
system. Thus in the United States, a plethora of legal systems all operate harmoniously at the same
time.

1.1 The Scope of Federal Law
The government’s power to regulate comes from the US Constitution. The federal government derives
its authority to create law from Article I, § 8, which discusses federal Congress’s exclusive or delegated
powers. These include the power to regulate currency and coin, establish a post office, promote science
and art by regulating the rights to discoveries and writings, declare war and raise armies, conduct for-
eign affairs, regulate interstate and foreign commerce, and make laws necessary and proper to execute
other powers expressly granted in the Constitution. Courts have interpreted the last two powers men-
tioned in the commerce clause and the necessary and proper clause to be the broadest sources of
federal regulatory authority.

To simplify and summarize precedent defining federal regulatory authority, federal laws are meant
to regulate in two areas. First, federal laws regulate issues that concern the country, rather than just one
city, county, or state. The federal government regulates in the area of foreign affairs, for example, be-
cause this affects the United States of America, not just one particular region. Second, federal laws reg-
ulate commerce, which is economic activity, that crosses from state to state. Some common examples
are television broadcasts, the Internet, and any form of transportation such as the airlines.

Federal Criminal Laws

The original intent was for the federal government to be a limited government, with the bulk of regulat-
ory authority residing in the states. The only crimes Congress is specifically authorized to punish are
piracies and felonies on the high seas, counterfeiting, and treason; however, case precedent has expan-
ded the federal government’s power to enact criminal laws based on the commerce clause and the ne-
cessary and proper clause.[1] Still, there must be some connection to an issue of national character and
interstate commerce, or the federal government will overstep its authority. In general, federal criminal
laws target conduct that occurs on federal property or conduct involving federal employees, currency,
coin, treason, national security, rights secured by the Constitution, or commerce that crosses state
lines. Currently, over five hundred crimes are listed in Part I, Title 18 of the United States Code, which
codifies criminal laws for the federal government.

F I G U R E 2 . 1 Diagram of Federal Laws

1.2 The Scope of State Law
The US Constitution designates the states as the primary regulatory authority. This is clarified in the
Tenth Amendment, which reads, “The powers not delegated to the United States by the Constitution,
nor prohibited to it by the States, are reserved to the States respectively, or the people.” State laws are
also supposed to regulate in two areas. First, state laws regulate issues of a local character or concern. A

32 CRIMINAL LAW

police power

The states’ power to regulate
for citizens’ health, safety, and
welfare, as set forth in the
Tenth Amendment to the
Constitution.

state may regulate, for example, its water ownership and use because water can be scarce and is not
generally provided to other states. Second, state laws regulate issues or things that remain within a
state’s border. A state generally regulates, for example, the operation of a small business whose
products are only sold locally and not shipped out of the state.

Federal laws are the same in every state, but state laws differ from state to state. Something that is
legal in one state may be illegal in another state. This inconsistency makes our system of federalism
complicated for students (and lawyers). However, with a country as large and varied as the United
States, it is sensible to allow each state to choose for itself which laws will be most suitable.

State Criminal Laws

The power to enact criminal laws belongs almost exclusively to the states. This is because of the Tenth
Amendment, which vests in states a police power to provide for the health, safety, and welfare of state
citizens. Approximately 90 percent of all criminal laws are state, rather than federal. Often, federal
crimes are also state crimes and can be prosecuted and punished by both the state and federal govern-
ment without violating the principle of double jeopardy.

Example of the Diversity of State Laws

In Nevada, prostitution is legal under certain circumstances.[2] An individual who engages in prostitu-
tion inside a licensed “house of prostitution” in Nevada is not exposed to criminal liability. However, if
the same individual engages in prostitution in a different state, he or she may be subject to a criminal
prosecution. Prostitution will be discussed in detail in Chapter 12.

F I G U R E 2 . 2 Crack the Code

CHAPTER 2 THE LEGAL SYSTEM IN THE UNITED STATES 33

federal supremacy

If there is a conflict between
federal and state law, courts
must follow the federal law.

1.3 Federal Supremacy
Our legal system is divided up to conform to the principle of federalism, so a potential exists for con-
flict between federal law and state law. A federal law may make something illegal; a state law may insist
that it is legal. Whenever a conflict occurs between federal and state law, courts must follow the federal
law. This is called federal supremacy. As the Supremacy Clause of Article VI of the federal Constitu-
tion states, “This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall
be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.”

Example of Federal Supremacy

In Washington and several other states, an individual may possess and use marijuana for medicinal
purposes with a prescription.[3] Federal law prohibits possession and use of marijuana under any cir-
cumstances.[4] Technically, this could be a conflict that violates federal supremacy. Until the courts ad-
dress the federal supremacy issue, however, medical marijuana statutes can continue to stay in effect.
Read about a recent ruling regarding the constitutionality of Michigan’s medicinal marijuana law un-
der the Supremacy Clause: http://www.pressandguide.com/articles/2011/04/09/news/
doc4d9f557b8ab37805648033.txt.

F I G U R E 2 . 3 Diagram of State Laws

34 CRIMINAL LAW

L A W A N D E T H I C S : T H E A R I Z O N A I M M I G R A T I O N L A W

Can a State Regulate Immigration?

Arizona passed a comprehensive immigration law designed to seek out and deport illegal immigrants. This
law created a national furor, and its detractors insisted it would lead to unethical racial profiling. The federal
government attacked the law in Federal District Court.[5] Judge Susan Bolton issued a preliminary injunction
that stopped enforcement of the sections of the law that required state law enforcement to check an immig-
rant’s status while enforcing other laws and that required immigrants to prove they were in the country legally
or risk state charges.[6] Read the District Court’s preliminary injunction ruling, which is available at this link:
http://graphics8.nytimes.com/packages/pdf/national/20100729_ARIZONA_DOC.pdf.

1. What is the basis for Judge Bolton’s decision? Check your answer using the answer key at the end of the
chapter.

Read about the most recent ruling on Arizona’s immigration law by the US Court of Appeals for the Ninth Cir-
cuit: http://latindispatch.com/2011/05/10/
arizonas-jan-brewer-to-appeal-immigration-law-to-u-s-supreme-court/.

Read about Utah’s immigration law: http://articles.cnn.com/2011-05-11/politics/
utah.immigration.bill_1_utah-law-gary-herbert-utah-gov?_s=PM:POLITICS.

Read about Alabama’s immigration law: http://www.reuters.com/article/2011/06/10/
tagblogsfindlawcom2011-freeenterprise-idUS123058502120110610.

U.S. v. State of Arizona Video

10-16645 U.S. v. State of Arizona

This video is the Arizona governor’s appeal of the district court preliminary injunction:

View the video online at: http://www.youtube.com/v/ClSk_OrHSIM

CHAPTER 2 THE LEGAL SYSTEM IN THE UNITED STATES 35

K E Y T A K E A W A Y S

< Federalism is a system of government in which power is divided between one national, federal
government and several independent state governments.

< Congress gets its regulatory authority from Article I § 8 of the federal Constitution. This includes several
delegated powers, the commerce clause, and the necessary and proper clause.

< The commerce clause gives Congress the power to regulate commerce that crosses state lines.

< The necessary and proper clause gives Congress the power to regulate if necessary to carry out all
other powers listed in the Constitution.

< The Constitution specifically authorizes Congress to punish piracies and felonies on the high seas,
counterfeiting, and treason. Case precedent has also expanded the federal government’s power to enact
criminal laws based on the commerce clause and the necessary and proper clause.

< The federal government is intended to be limited, with the bulk of regulatory authority residing in the
states. The federal government is restricted to regulating in the areas designated in Article I § 8 of the
federal Constitution. The states can regulate for the health, safety, and welfare of citizens pursuant to their
police power, which is set forth in the Tenth Amendment of the federal Constitution.

< Federal criminal laws criminalize conduct that occurs on federal property or involves federal employees,
currency, coin, treason, national security, rights secured by the Constitution, or commerce that crosses
state lines. State criminal laws make up 90 percent of all criminal laws, are designed to protect state
citizens’ health, safety, and welfare, and often criminalize the same conduct as federal criminal laws.

< Federal supremacy, which is set forth in the Supremacy Clause of the federal Constitution, requires courts
to follow federal laws if there is a conflict between a federal and state law.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Congress passes a law criminalizing the posting of child pornography on the Internet. Where does
Congress get the authority to pass this criminal law? If a state has a criminal law criminalizing the same
conduct, can both the state and federal government prosecute a defendant for one act of downloading
child pornography?

2. Read U.S. v. Morrison, 529 U.S. 518 (2000). Which part(s) of the Constitution did the US Supreme Court rely
on when it held that 42 U.S.C. § 13981 is unconstitutional? The case is available at this link:
http://www.law.cornell.edu/supct/html/99-5.ZS.html.

3. Read Pennsylvania v. Nelson, 350 U.S. 497 (1956). Why did the US Supreme Court invalidate the
Pennsylvania Sedition Act? The case is available at this link: http://supreme.justia.com/us/350/497/
case.html.

36 CRIMINAL LAW

legislative branch

The branch of government
responsible for creating
statutory law.

executive branch

The branch of government
responsible for enforcing
statutory law.

judicial branch

The branch of government
responsible for interpreting
statutory and constitutional
law(s).

separation of powers

Each government branch
must act only within the
scope set forth in the
Constitution.

bicameral

Made up of two houses.

Senate

The house of Congress
responsible for representing
each state.

House of Representatives

The house of Congress
responsible for representing
each citizen of the United
States.

2. THE BRANCHES OF GOVERNMENT

L E A R N I N G O B J E C T I V E S

1. Identify the three branches of government.
2. Ascertain the head of the federal and state legislative branches of government.
3. Compare the Senate and the House of Representatives.
4. Ascertain the head of the federal and state executive branches of government.
5. Ascertain the head of the federal and state judicial branches of government.

The federal Constitution was written to ensure that government power is distributed and never con-
centrated in one or more areas. This philosophy is served by federalism, where the federal government
shares power with the states. It is also further served by dividing the government into three branches,
all responsible for different government duties and all checking and balancing each other. The three
branches of government are detailed in Articles I–III of the federal Constitution and are the legislative
branch, the executive branch, and the judicial branch. While the federal Constitution identifies
only the federal branches of government, the principle of checks and balances applies to the states as
well. Most states identify the three state branches of government in their state constitution.

Each branch of government has a distinct authority. When one branch encroaches on the duties of
another, this is called a violation of separation of powers. The courts decide whether a government
branch has overstepped its boundaries because courts interpret the Constitution, which describes each
branch’s sphere of influence. Thus the judicial branch, which consists of all the courts, retains the bal-
ance of power.

2.1 The Legislative Branch
The legislative branch is responsible for creating statutory laws. Citizens of a state can vote for some
state statutes by ballot, but the federal legislative branch enacts all federal statutes. In the federal gov-
ernment, the legislative branch is headed by Congress. States’ legislative branches are headed by a state
legislature. Congress is bicameral, which means it is made up of two houses. This system provides
equal representation among the several states and by citizens of the United States. States are represen-
ted by the Senate. Every state, no matter how large or small, gets two senators. Citizens are represented
by the House of Representatives. Membership in the House of Representatives is based on popula-
tion. A heavily populated state, like California, has more representatives than a sparsely populated
state, like Alaska. States’ legislatures are generally bicameral and have a similar structure to the federal
system.

CHAPTER 2 THE LEGAL SYSTEM IN THE UNITED STATES 37

F I G U R E 2 . 4 Diagram of the Legislative Branch

Examples of Legislative Branch Checks and Balances

The legislative branch can check and balance both the executive branch and the judicial branch. Con-
gress can impeach the president of the United States, which is the first step toward removal from office.
Congress can also enact statutes that supersede judicial opinions, as discussed in Chapter 1. Similarly,
state legislature can also impeach a governor or enact a state statute that supersedes a state case law.

2.2 The Executive Branch
The executive branch is responsible for enforcing the statutes enacted by the legislative branch. In the
federal government, the executive branch is headed by the president of the United States. States’ exec-
utive branches are headed by the governor of the state.

38 CRIMINAL LAW

F I G U R E 2 . 5 Diagram of the Executive Branch

Examples of Executive Branch Checks and Balances

The executive branch can check and balance both the legislative branch and the judicial branch. The
president of the United States can veto statutes proposed by Congress. The president also has the au-
thority to nominate federal justices and judges, who thereafter serve for life. State executive branches
have similar check and balancing authority; a governor can generally veto statutes proposed by state le-
gislature and can appoint some state justices and judges.

2.3 The Judicial Branch
The judicial branch is responsible for interpreting all laws, including statutes, codes, ordinances, and
the federal and state constitutions. This power is all encompassing and is the basis for judicial review,
referenced in Chapter 1. It allows the judicial branch to invalidate any unconstitutional law in the stat-
utory source of law and also to change the federal and state constitutions by interpretation. For ex-
ample, when a court creates an exception to an amendment to the constitution, it has made an inform-
al change without the necessity of a national or state consensus. The federal judicial branch is headed
by the US Supreme Court. Each state’s judicial branch is headed by the highest-level state appellate
court. Members of the judicial branch include all judges and justices of every federal and state court in
the court system, which is discussed shortly.

CHAPTER 2 THE LEGAL SYSTEM IN THE UNITED STATES 39

F I G U R E 2 . 6 Diagram of the Judicial Branch

Examples of Judicial Branch Checks and Balances

The judicial branch can check and balance both the legislative branch and the executive branch. The US
Supreme Court can invalidate statutes enacted by Congress if they conflict with the Constitution. The
US Supreme Court can also prevent the president from taking action if that action violates separation
of powers. The state courts can likewise nullify unconstitutional statutes passed by the state legislature
and void other executive branch actions that are unconstitutional.

T A B L E 2 . 1 The Most Prominent Checks and Balances between the Branches

Government
Branch

Duty or Authority Check and Balance Government Branch
Checking and Balancing

Legislative Create statutes President can veto Executive

Executive Enforce statutes Congress can override presidential veto by 2/3
majority

Legislative

Judicial Interpret statutes
and Constitution

President nominates federal judges and justices Executive

Executive Enforce statutes Senate can confirm or reject presidential
nomination of federal judges and justices

Legislative

Executive Enforce statutes Congress can impeach the president Legislative

Legislative Create statutes Courts can invalidate unconstitutional statutes Judicial

Executive Enforce statutes Courts can invalidate unconstitutional
executive action

Judicial

Judicial Interpret statutes
and Constitution

Statutes can supersede case law Legislative

40 CRIMINAL LAW

K E Y T A K E A W A Y S

< The three branches of government are the legislative branch, the executive branch, and the judicial
branch.

< The head of the federal legislative branch of government is Congress. The head of the state legislative
branch of government is the state legislature.

< The Senate represents every state equally because each state has two senators. The House of
Representatives represents each citizen equally because states are assigned representatives based on their
population.

< The head of the federal executive branch of government is the president. The head of each state executive
branch of government is the governor.

< The head of the federal judicial branch of government is the US Supreme Court. The head of each state
judicial branch of government is the highest-level state appellate court.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. A mayor enacts a policy that prohibits police officers in his city from enforcing a state law prohibiting the
possession and use of marijuana. The mayor’s policy specifically states that within the city limits, marijuana
is legal to possess and use. Which constitutional principle is the mayor violating? Which branch of
government should check and balance the mayor’s behavior in this matter?

2. Read Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In Youngstown, President Truman seized
control of steel mills to avert a strike, using his authority as commander in chief of the armed forces.
President Truman wanted to ensure steel production during the Korean War. Did the US Supreme Court
uphold President Truman’s action? Why or why not? The case is available at this link:
http://supreme.justia.com/us/343/579/.

3. Read Hamdi v. Rumsfeld, 542 U.S. 507 (2004). In Hamdi, the US Supreme Court reviewed the US Court of
Appeals for the Fourth Circuit’s decision prohibiting the release of a US citizen who was held as an enemy
combatant in Virginia during the Afghanistan War. The citizen’s detention was based on a federal statute
that deprived him of the opportunity to consult with an attorney or have a trial. Did the US Supreme Court
defer to the federal statute? Why or why not? The case is available at this link: http://scholar.google.com/
scholar_case?case=6173897153146757813&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

3. THE COURT SYSTEM

L E A R N I N G O B J E C T I V E S

1. Compare federal and state courts.
2. Define jurisdiction.
3. Compare original and appellate jurisdiction.
4. Identify the federal courts and determine each court’s jurisdiction.
5. Identify the state courts and determine each court’s jurisdiction.

Every state has two court systems: the federal court system, which is the same in all fifty states, and the
state court system, which varies slightly in each state. Federal courts are fewer in number than state
courts. Because of the Tenth Amendment, discussed earlier in Section 1, most laws are state laws and
therefore most legal disputes go through the state court system.

Federal courts are exclusive; they adjudicate only federal matters. This means that a case can go
through the federal court system only if it is based on a federal statute or the federal Constitution. One
exception is called diversity of citizenship.[7] If citizens from different states are involved in a civil law-
suit and the amount in controversy exceeds $75,000, the lawsuit can take place in federal court. All fed-
eral criminal prosecutions take place in federal courts.

State courts are nonexclusive; they can adjudicate state or federal matters. Thus an individual who
wants to sue civilly for a federal matter has the option of proceeding in state or federal court. In addi-
tion, someone involved in a lawsuit based on a federal statute or the federal Constitution can remove a
lawsuit filed in state court to federal court.[8] All state criminal prosecutions take place in state courts.

CHAPTER 2 THE LEGAL SYSTEM IN THE UNITED STATES 41

jurisdiction

Either a court’s power to hear
a case or a court’s authority
over a geographic area.

original jurisdiction

A court’s power to hear a trial
and accept evidence.

trier of fact

The decision maker at trial;
could be a judge or jury.

appellate jurisdiction

A court’s power to hear an
appeal and review a trial for
error.

affirm

An appellate court’s power to
uphold a lower court
decision.

reverse

An appellate court’s power to
change a lower court
decision.

remand

An appellate court’s power to
send a case back to the trial
court, with instructions.

appeal of right

A party is guaranteed an
appeal if grounds are present.

acquittal

A not-guilty verdict.

3.1 Jurisdiction
Determining which court is appropriate for a particular lawsuit depends on the concept of jurisdic-
tion. Jurisdiction has two meanings. A court’s jurisdiction is the power or authority to hear the case in
front of it. If a court does not have jurisdiction, it cannot hear the case. Jurisdiction can also be a geo-
graphic area over which the court’s authority extends.

There are two prominent types of court jurisdiction. Original jurisdiction means that the court
has the power to hear a trial. Usually, only one opportunity exists for a trial, although some actions res-
ult in both a criminal and a civil trial, discussed previously in Chapter 1. During the trial, evidence is
presented to a trier of fact, which can be either a judge or a jury. The trier of fact determines the facts
of a dispute and decides which party prevails at trial by applying the law to those facts. Once the trial
has concluded, the next step is an appeal. During an appeal, no evidence is presented; the appellate court
simply reviews what took place at trial and determines whether or not any major errors occurred.

The power to hear an appeal is called appellate jurisdiction. Courts that have appellate jurisdic-
tion review the trial record for error. The trial record includes a court reporter’s transcript, which is
typed notes of the words spoken during the trial and pretrial hearings. In general, with exceptions, ap-
pellate courts cannot review a trial record until the trial has ended with a final judgment. Once the ap-
pellate court has made its review, it has the ability to take three actions. If it finds no compelling or pre-
judicial errors, it can affirm the judgment of the trial court, which means that the judgment remains
the same. If it finds a significant error, it can reverse the judgment of the trial court, which means that
the judgment becomes the opposite (the winner loses, the loser wins). It can also remand, which
means send the case back to the trial court, with instructions. After remand, the trial court can take ac-
tion that the appellate court cannot, such as adjust a sentence or order a new trial.

Some courts have only original jurisdiction, but most courts have a little of original and appellate
jurisdiction. The US Supreme Court, for example, is primarily an appellate court with appellate juris-
diction. However, it also has original jurisdiction in some cases, as stated in the Constitution, Article
III, § 2, clause 2: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in
which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases
before mentioned, the supreme Court shall have appellate jurisdiction.”

Example of Original and Appellate Jurisdiction

Paulina is prosecuted for the attempted murder of Ariana. Paulina is represented by public defender
Pedro. At Paulina’s trial, in spite of Pedro’s objections, the judge rules that Paulina’s polygraph exam-
ination results are admissible, but prohibits the admission of certain witness testimony. Paulina is
found guilty and appeals, based on the judge’s evidentiary rulings. While Pedro is writing the appellate
brief, he discovers case precedent barring the admission of polygraph examination results. Pedro can
include the case precedent in his appellate brief but not the prohibited witness testimony. The appellate
court has the jurisdiction to hold that the objection was improperly overruled by the trial court, but is
limited to reviewing the trial record for error. The appellate court lacks the jurisdiction to admit new
evidence not included in the trial record.

3.2 The Federal Courts
For the purpose of this book, the focus is the federal trial court and the intermediate and highest level
appellate courts because these courts are most frequently encountered in a criminal prosecution. Other
federal specialty courts do exist but are not discussed, such as bankruptcy court, tax court, and the
court of military appeals.

The federal trial court is called the United States District Court. Large states like California have
more than one district court, while smaller states may have only one. District courts hear all the federal
trials, including civil and criminal trials. As stated previously, a dispute that involves only state law, or a
state criminal trial, cannot proceed in district court. The exception to this rule is the diversity of cit-
izenship exception for civil lawsuits.

After a trial in district court, the loser gets one appeal of right. This means that the intermediate
appellate federal court must hear an appeal of the district court trial if there are sufficient …

Source: Image courtesy of Tara Storm.

element

Part of a crime.

criminal act

The illegal bodily movement
or possession described in a
criminal statute, or in a case
in jurisdictions that allow
common-law crimes.

conduct

The criminal act and its
accompanying state of mind.

C H A P T E R 4
The Elements of a Crime
Thus, an Olympic swimmer may be deemed by the community as a shameful coward, or

worse, for not rescuing a drowning child in the neighbor’s pool, but she is not a criminal.

– State ex rel. Kuntz v. Thirteenth Jud. Dist., cited in Section 1

1. CRIMINAL ELEMENTS

L E A R N I N G O B J E C T I V E S

1. List the elements of a crime.
2. Define the criminal act element.
3. Identify three requirements of criminal act.
4. Describe an exception to the criminal act element.
5. Ascertain three situations where an omission to act could be criminal.
6. Distinguish between actual and constructive possession.
7. Identify the criminal intent element required when possession is the criminal act.

Crimes can be broken down into elements, which the prosecution must prove beyond a reasonable
doubt. Criminal elements are set forth in criminal statutes, or cases in jurisdictions that allow for
common-law crimes. With exceptions, every crime has at least three elements: a criminal act, also
called actus reus; a criminal intent, also called mens rea; and concurrence of the two. The term con-
duct is often used to reflect the criminal act and intent elements. As the Model Penal Code explains,
“‘conduct’ means an action or omission and its accompanying state of mind” (Model Penal Code
§ 1.13(5)).

attendant circumstances

Factors that must be present
when the crime is
committed, such as the
crime’s methodology,
location and setting, or victim
characteristics, among others.

F I G U R E 4 . 1 Criminal Code of Georgia

Recall from Chapter 1 that not all crimes require a bad result. If a crime does require a bad result, the
prosecution must also prove the additional elements of causation and harm.

Another requirement of some crimes is attendant circumstances. Attendant circumstances are
specified factors that must be present when the crime is committed. These could include the crime’s
methodology, location or setting, and victim characteristics, among others.

This chapter analyzes the elements of every crime. Chapter 7 through Chapter 13 analyze the ele-
ments of specific crimes, using a general overview of most states’ laws, the Model Penal Code, and fed-
eral law when appropriate.

1.1 Example of a Crime That Has Only 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. When Conrad strides over to the car, she
starts the engine, puts the car into drive, and tries to run him down. It is dark and difficult for Janine to
see, so Conrad easily gets out of her way and is unharmed. However, Janine is thereafter arrested and
charged with attempted murder. In this case, the prosecution has to prove the elements of criminal act,
criminal intent, and concurrence for attempted murder. The prosecution does not have to prove caus-
ation or that Conrad was harmed because attempt crimes, including attempted murder, do not have a
bad result requirement. Attempt and other incomplete or inchoate crimes are discussed in Chapter 8.

1.2 Criminal Act
Criminal act, or actus reus, is generally defined as an unlawful bodily movement.[1] The criminal stat-
ute, or case in jurisdictions that allow common-law crimes, describes the criminal act element.

88 CRIMINAL LAW

F I G U R E 4 . 2 Alabama Criminal Code

The Requirement of Voluntariness

One requirement of criminal act is that the defendant perform it voluntarily. In other words, the de-
fendant must control the act. It would not serve the policy of specific deterrence to punish the defend-
ant for irrepressible acts. The Model Penal Code gives the following examples of acts that are not vol-
untary and, therefore, not criminal: reflexes, convulsions, bodily movements during unconsciousness
or sleep, conduct during hypnosis or resulting from hypnotic suggestion, or a bodily movement that
otherwise is not a product of the effort or determination of the actor, either conscious or habitual
(Model Penal Code § 2.01 (2)). One voluntary act is enough to fulfill the voluntary act requirement.
Thus if a voluntary act is followed by an involuntary one, the court may still impose criminal liability
depending on the circumstances.[2]

Example of an Involuntary and Noncriminal Act
Perry is hypnotized at the local county fair. The hypnotist directs Perry to smash a banana cream pie
into his girlfriend Shelley’s face. Smashing a pie into a person’s face is probably battery in most states,
but Perry did not commit the act voluntarily, so he should not be convicted of a crime. Punishing Perry
for battery would not specifically deter Perry from performing the act again while hypnotized because
he is not in control of his behavior when experiencing this mental state.

CHAPTER 4 THE ELEMENTS OF A CRIME 89

Example of a Voluntary Act Followed by a Nonvoluntary Act
Timothy attends a party at a friend’s house and consumes several glasses of red wine. Timothy then at-
tempts to drive his vehicle home. While driving, Timothy passes out at the wheel and hits another
vehicle, killing its occupant. Timothy can probably be convicted of one or more crimes in this situ-
ation. Timothy’s acts of drinking several glasses of wine and then driving a vehicle are voluntary. Thus
even though Timothy got into a car accident while unconscious, his involuntary act was preceded by
conscious, controllable, and voluntary action. A punishment in this instance could specifically deter
Timothy from drinking and driving on another occasion and is appropriate based on the
circumstances.

1.3 Status as a Criminal Act
Generally, a defendant’s status in society is not a criminal act. Status is who the defendant is, not what
the defendant does. Similar to punishment for an involuntary act, when the government punishes an
individual for status, it is essentially targeting that individual for circumstances that are outside his or
her control. This punishment may be cruel and unusual pursuant to the Eighth Amendment if it is dis-
proportionate to the defendant’s behavior.

In Robinson v. California, 370 U.S. 660 (1962), the US Supreme Court held that it is unconstitu-
tional as cruel and unusual punishment pursuant to the Eighth Amendment to punish an individual
for the status of being a drug addict—even if the drugs to which the defendant is addicted are illegal.
The Court compared drug addiction to an illness, such as leprosy or venereal disease. Punishing a de-
fendant for being sick not only is inhumane but also does not specifically deter, similar to a punishment
for an involuntary act.

If the defendant can control the actions at issue in spite of his or her status, the defendant’s con-
duct can be constitutionally criminalized and punished pursuant to the Eighth Amendment. In Powell
v. Texas, 392 U.S. 514 (1968), the US Supreme Court upheld the defendant’s conviction for “drunk in
public,” in spite of the defendant’s status as an alcoholic. The Court held that it is difficult but not im-
possible for an alcoholic to resist the urge to drink, so the behavior the statute criminalized was volun-
tary. Also, the Court ruled that the state has an interest in treating alcoholism and preventing alcohol-
related crimes that could injure the defendant and others. Pursuant to Powell, statutes that criminalize
voluntary acts that arise from status are constitutional under the Eighth Amendment.

Example of a Constitutional Statute Related to Status

Refer to the example in Section 1, where Timothy drives under the influence of alcohol and kills anoth-
er. A state statute that criminalizes killing another person while driving under the influence is constitu-
tional as applied to Timothy, even if Timothy is an alcoholic. The state has an interest in treating alco-
holism and preventing alcohol-related crimes that could injure or kill Timothy or another person.
Timothy’s act of driving while intoxicated is voluntary, even if his status as an alcoholic makes it more
difficult for Timothy to control his drinking. Thus Timothy and other alcoholic defendants can be pro-
secuted and punished for killing another person while driving under the influence without violating the
Eighth Amendment.

1.4 Thoughts as Criminal Acts
Thoughts are a part of criminal intent, not criminal act. Thoughts cannot be criminalized.

Example of Noncriminal Thoughts

Brianna, a housecleaner, fantasizes about killing her elderly client Phoebe and stealing all her jewelry.
Brianna writes her thoughts in a diary, documenting how she intends to rig the gas line so that gas is
pumped into the house all night while Phoebe is sleeping. Brianna includes the date that she wants to
kill Phoebe in her most recent diary entry. As Brianna leaves Phoebe’s house, her diary accidentally
falls out of her purse. Later, Phoebe finds the diary on the floor and reads it. Phoebe calls the police,
gives them Brianna’s diary, and insists they arrest Brianna for attempted murder. Although Brianna’s
murder plot is sinister and is documented in her diary, an arrest is improper in this case. Brianna can-
not be punished for her thoughts alone. If Brianna took substantial steps toward killing Phoebe, an at-
tempted murder charge might be appropriate. However, at this stage, Brianna is only planning a crime,
not committing a crime. Phoebe may be able to go to court and get a restraining order against Brianna
to prevent her from carrying out her murder plot, but Brianna cannot be incapacitated by arrest and
prosecution for attempted murder in this case.

90 CRIMINAL LAW

omission to act

An exception to the criminal
act element; omission to act
can only be criminal if there is
a legal duty to act.

1.5 Omission to Act
An exception to the requirement of a criminal act element is omission to act. Criminal prosecution
for a failure to act is rare because the government is reluctant to compel individuals to put themselves
in harm’s way. However, under certain specific circumstances, omission to act can be criminalized.

An omission to act can only be criminal when the law imposes a duty to act.[3] This legal duty to
act becomes an element of the crime, and the prosecution must prove it beyond a reasonable doubt,
along with proving the defendant’s inaction under the circumstances. Failure or omission to act is only
criminal in three situations: (1) when there is a statute that creates a legal duty to act, (2) when there is
a contract that creates a legal duty to act, or (3) when there is a special relationship between the
parties that creates a legal duty to act. Legal duties to act vary from state to state and from state to
federal.

Duty to Act Based on a Statute

When a duty to act is statutory, it usually concerns a government interest that is paramount. Some
common examples of statutory duties to act are the duty to file state or federal tax returns,[4] the duty of
health-care personnel to report gunshot wounds,[5] and the duty to report child abuse.[6]

F I G U R E 4 . 3 Kentucky Revised Statutes

CHAPTER 4 THE ELEMENTS OF A CRIME 91

Good Samaritan statute

A statute compelling an
individual to assist another
under certain specified
circumstances.

At common law, it was not criminal to stand by and refuse to help someone in danger. Some states su-
persede the common law by enacting Good Samaritan statutes that create a duty to assist those in-
volved in an accident or emergency situation. Good Samaritan statutes typically contain provisions that
insulate the actor from liability exposure when providing assistance.[7]

F I G U R E 4 . 4 Minnesota Good Samaritan Law

92 CRIMINAL LAW

Good Samaritan Law Video

Good Samaritan Sued after Rescuing Woman in an Accident

This video is a news story on a California Supreme Court case regarding the civil liability of a Good Samaritan:

Duty to Act Based on a Contract

A duty to act can be based on a contract between the defendant and another party. The most prevalent
examples would be a physician’s contractual duty to help a patient or a lifeguard’s duty to save
someone who is drowning. Keep in mind that experts who are not contractually bound can ignore an
individual’s pleas for help without committing a crime, no matter how morally abhorrent that may
seem. For example, an expert swimmer can watch someone drown if there is no statute, contract, or
special relationship that creates a legal duty to act.

Duty to Act Based on a Special Relationship

A special relationship may also be the basis of a legal duty to act. The most common special relation-
ships are parent-child, spouse-spouse, and employer-employee. Often, the rationale for creating a legal
duty to act when people are in a special relationship is the dependence of one individual on another. A
parent has the obligation by law to provide food, clothing, shelter, and medical care for his or her chil-
dren, because children are dependent on their parents and do not have the ability to procure these
items themselves. In addition, if someone puts another person in peril, there may be a duty to rescue
that person.[8] Although this is not exactly a special relationship, the victim may be dependent on the
person who created the dangerous situation because he or she may be the only one present and able to
render aid. On a related note, some jurisdictions also impose a duty to continue to provide aid, once aid
or assistance has started.[9] Similar to the duty to rescue a victim the defendant has put in peril, the duty
to continue to provide aid is rooted in the victim’s dependence on the defendant and the unlikely
chance that another person may come along to help once the defendant has begun providing
assistance.

Example of a Failure to Act That Is Noncriminal

Recall the example from Chapter 1, Section 2, where Clara and Linda are shopping together and Clara
stands by and watches as Linda shoplifts a bra. In this example, Clara does not have a duty to report
Linda for shoplifting. Clara does not have a contractual duty to report a crime in this situation because
she is not a law enforcement officer or security guard obligated by an employment contract. Nor does
she have a special relationship with the store mandating such a report. Unless a statute or ordinance ex-
ists to force individuals to report crimes committed in their presence, which is extremely unlikely,
Clara can legally observe Linda’s shoplifting without reporting it. Of course, if Clara assists Linda with
the shoplifting, she has then performed a criminal act or actus reus, and a criminal prosecution is
appropriate.

Example of a Failure to Act That Is Criminal

Penelope stands on the shore at a public beach and watches as a child drowns. If Penelope’s state has a
Good Samaritan law, she may have a duty to help the child based on a statute. If Penelope is the life-
guard, she may have a duty to save the child based on a contract. If Penelope is the child’s mother, she
may have a duty to provide assistance based on their special relationship. If Penelope threw the child in
the ocean, she may have a duty to rescue the child she put in peril. If Penelope is just a bystander, and

View the video online at: http://www.youtube.com/v/prXU9Ejm36Q

CHAPTER 4 THE ELEMENTS OF A CRIME 93

actual possession

The defendant has an item
on or very near his or her
person.

constructive possession

The defendant has an item
within his or her area of
control.

no Good Samaritan law is in force, she has no duty to act and cannot be criminally prosecuted if the
child suffers harm or drowns.

1.6 Possession as a Criminal Act
Although it is passive rather than active, possession is still considered a criminal act. The most com-
mon objects that are criminal to possess are illegal contraband, drugs, and weapons. There are two
types of possession: actual possession and constructive possession. Actual possession indicates
that the defendant has the item on or very near his or her person. Constructive possession indicates
that the item is not on the defendant’s person, but is within the defendant’s area of control, such as in-
side a house or automobile with the defendant.[10] More than one defendant can be in possession of an
object, although this would clearly be a constructive possession for at least one of them.

Because it is passive, possession should be knowing, meaning the defendant is aware that he or she
possesses the item.[11] As the Model Penal Code states in § 2.01(4), “[p]ossession is an act, within the
meaning of this Section, if the possessor knowingly procured or received the thing possessed or was
aware of his control thereof for a sufficient period to have been able to terminate his possession.” In the
vast majority of states, a statute permitting a conviction for possession without this knowledge or
awareness lacks the criminal intent element and would be unenforceable.

Example of an Unenforceable Possession Statute

A state has a criminal statute that prohibits “being within 100 feet of any quantity of marijuana.” Ri-
cardo sits next to Jean on the subway. A law enforcement officer smells marijuana and does a pat-down
search of Jean. He discovers that Jean has a large baggie of marijuana in his jacket pocket and arrests
Jean and Ricardo for marijuana possession. Ricardo was within one hundred feet of marijuana as pro-
hibited by the statute, but Ricardo should not be prosecuted for marijuana possession. No evidence ex-
ists to indicate that Ricardo knew Jean, or knew that Jean possessed marijuana. Thus Ricardo does not
have the criminal intent or mens rea for possession, and the state’s possession statute should not be en-
forced against him.

K E Y T A K E A W A Y S

< The elements of a crime are criminal act, criminal intent, concurrence, causation, harm, and attendant
circumstances. Only crimes that specify a bad result have the elements of causation and harm.

< Criminal act is usually an unlawful bodily movement that is defined in a statute, or a case in jurisdictions
that allow common-law crimes.

< 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 omission to act.

< Omission to act could be criminal if there is a statute, contract, 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.

< In most states, the defendant must be aware that he or she possesses the item to be convicted of
possession.

94 CRIMINAL LAW

criminal intent

The mental state required for
a crime; also called mens rea.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Jacqueline is diagnosed with epilepsy two years after receiving her driver’s license. While driving to a
concert, Jacqueline suffers an epileptic seizure and crashes into another vehicle, injuring both of its
occupants. Can Jacqueline be convicted of a crime in this situation? Why or why not?

2. Read Oler v. State, 998 S.W.2d 363 (1999). In Oler, the defendant was convicted of possession of a controlled
substance by misrepresentation. The defendant solicited and received prescriptions for Dilaudid, a
controlled substance, from four different physicians without informing them that he already had a
prescription for Dilaudid. The defendant appealed, arguing that he had no legal duty to disclose his
previous receipt of the drug to the physicians, and was therefore unlawfully punished for an omission to
act. Did the Texas Court of Appeals uphold the defendant’s conviction? Why or why not? The case is
available at this link: http://scholar.google.com/scholar_case?case=460187562193844690&q=
998+S.W.2d+363&hl=en&as_sdt=10000000000002.

3. Read Staples v. U.S., 511 U.S. 600 (1994). In Staples, the defendant was convicted of possession of an
unregistered automatic weapon in violation of the National Firearms Act. The defendant claimed the
conviction was improper because the prosecution did not prove that he knew the weapon was automatic,
and the prosecution must prove this knowledge to convict under the statute. Did the US Supreme Court
reverse the defendant’s conviction? Why or why not? The case is available at this link:
http://www.law.cornell.edu/supct/html/92-1441.ZO.html.

2. CRIMINAL INTENT

L E A R N I N G O B J E C T I V E S

1. Describe one important function of criminal intent.
2. List the three common-law criminal intents, ranking them in order of culpability.
3. Compare specific and general intent.
4. Describe an inference that makes it easier for the prosecution to prove a general intent crime.
5. Differentiate between motive and criminal intent.
6. List and define the Model Penal Code mental states, ranking them in order of culpability.
7. Identify an exception to the requirement that every crime contain a criminal intent element.
8. Explain how transferred intent promotes justice.
9. Describe the circumstances that give rise to vicarious criminal liability.

10. Define concurrence of criminal act and intent.

Although there are exceptions that are discussed shortly, criminal intent or mens rea is an essential
element of most crimes. Under the common law, all crimes consisted of an act carried out with a guilty
mind. In modern society, criminal intent can be the basis for fault, and punishment according to intent
is a core premise of criminal justice. As stated in Chapter 1, grading is often related to the criminal in-
tent element. Crimes that have an “evil” intent are malum in se and subject the defendant to the most
severe punishment. Crimes that lack the intent element are less common and are usually graded lower,
as either misdemeanors or infractions.

CHAPTER 4 THE ELEMENTS OF A CRIME 95

malice aforethought

Intent to kill, which is the
common-law intent for
murder.

specific intent

The common-law intent to
cause a specific result, do
something other than the
criminal act, or scienter.

general intent

The common-law intent to
perform the criminal act.

scienter

The intent to do an unlawful
act.

F I G U R E 4 . 5 New York Penal Law

States and the federal government vary in their approach to defining criminal intent, and each jurisdic-
tion describes the criminal intent element in a criminal statute, or case, in jurisdictions that allow
common-law crimes. In this section, common-law definitions of criminal intent are explored, along
with definitions of the criminal mental states in the Model Penal Code.

2.1 Common-Law Criminal Intent
The common-law criminal intents ranked in order of culpability are malice aforethought, specific
intent, and general intent. Statutes and cases use different words to indicate the appropriate level of
intent for the criminal offense, so what follows is a basic description of the intent definitions adopted
by many jurisdictions.

Malice Aforethought

Malice aforethought is a special common-law intent designated for only one crime: murder. The defin-
ition of malice aforethought is “intent to kill.” Society considers intent to kill the most evil of all intents,
so malice aforethought crimes such as first- and second-degree murder generally mandate the most
severe of punishments, including the death penalty in jurisdictions that allow for it. Malice afore-
thought and criminal homicide are discussed in detail in Chapter 9.

Specific Intent

Specific intent is the intent with the highest level of culpability for crimes other than murder. Unfortu-
nately, criminal statutes rarely describe their intent element as “specific” or “general,” and a judge may
be required to define the level of intent using the common law or a dictionary to explain a word’s or-
dinary meaning. Typically, specific intent means that the defendant acts with a more sophisticated level
of awareness.[12] Crimes that require specific intent usually fall into one of three categories: either the
defendant intends to cause a certain bad result, the defendant intends to do something more than com-
mit the criminal act, or the defendant acts with knowledge that his or her conduct is illegal, which is
called scienter.

96 CRIMINAL LAW

Example of Specific Intent to Bring about a Bad Result
A state statute defines mayhem as “physical contact with another, inflicted with the intent to maim, dis-
figure, or scar.” This statute describes a specific intent crime. To be guilty of mayhem under the statute,
the defendant must inflict the physical contact with the intent of causing the bad result of maiming,
disfigurement, or scarring. If the prosecution cannot prove this high-level intent, the defendant may be
acquitted (or charged and convicted of a lower-level intent crime like battery).

So if Pauline says, “It’s time to permanently mess up that pretty face,” and thereafter takes out a
razor and slices Peter’s cheek with it, Pauline might be found guilty of mayhem. On the other hand, if
Pauline slaps Peter while he is shaving without making the comment, and the razor bites into his cheek,
it is more challenging to prove that she intended a scarring, and Pauline might be found guilty only of
battery.

Example of Specific Intent to Do More than the Criminal Act
A state statute defines theft as “a permanent taking of property belonging to another.” This statute de-
scribes a specific intent crime. To be guilty of theft under the statute, the defendant must intend to do
more than “take the property of another,” which is the criminal act. The defendant must also intend to
keep the property permanently.

So if Pauline borrows Peter’s razor to shave her legs, she has “taken the property of another,” but
she has not committed theft for the simple reason that she intends to return the property after use.

Example of Scienter
Although the terms mens rea and scienter are sometimes used interchangeably, many jurisdictions
define scienter as knowledge that an act is illegal. Scienter can be the basis of specific intent in some
statutes. So a statute that makes it a crime to “willfully file a false tax return” may require knowledge
that the tax return includes false information and that it will be unlawful to file it.[13] If the prosecution
fails to prove beyond a reasonable doubt that the defendant knew his or her conduct was illegal, this
could nullify scienter, and the prosecution cannot prove specific intent.

General Intent

General intent is less sophisticated than specific intent. Thus general intent crimes are easier to prove
and can also result in a less severe punishment. A basic definition of general intent is the intent to per-
form the criminal act or actus reus. If the defendant acts intentionally but without the additional desire
to bring about a certain result, or do anything other than the criminal act itself, the defendant has acted
with general intent.[14]

Inference of General Intent
Intent is a notoriously difficult element to prove because it is locked inside the defendant’s mind.
Ordinarily, the only direct evidence of intent is a defendant’s confession, which the government cannot
forcibly obtain because of the Fifth Amendment privilege against self-incrimination. Witnesses who
hear the defendant express intent are often unable to testify about it because of evidentiary rules pro-
hibiting hearsay. However, many jurisdictions allow an inference of general intent based on the crim-
inal act.[15] In essence, if the jury accepts the inference, the prosecution does not have the burden of
proving intent for a general intent crime.

Example of a General Intent Crime and an Inference of Intent
A state statute defines battery as “intentional harmful or offensive physical contact with another.” This
statute describes a general intent crime. To be guilty of battery under the statute, the defendant must
only intend the harmful or offensive contact. The defendant does not have to desire that the contact
produces a specific result, such as scarring, or death; nor does the defendant need scienter, or aware-
ness that the physical contact is illegal.

If Addie balls up her fist and punches Eddie in the jaw after Eddie calls her a “stupid idiot,” Addie
has probably committed battery under the statute. A prosecutor could prove that Addie committed the
act of harmful or offensive contact using Eddie’s testimony and a physician’s report. The jury could
thereafter be instructed to “infer intent from proof of the act.” If the jury accepts the inference and de-
termines that Addie committed the criminal act, the jury could find Addie guilty of battery without ad-
ditional evidence of intent.

CHAPTER 4 THE ELEMENTS OF A CRIME 97

motive

The reason the defendant
performs the criminal act.

F I G U R E 4 . 6 Common Law Intents

Motive

Intent should not be confused with …

Source: Image courtesy of Tara Storm.

common-law defense

A defense created by a court.

statutory defense

A defense created by a state
or federal legislature.

denial or failure of proof
defense

The defendant denies that an
element of the offense exists
and prevents the prosecution
from meeting its burden of
proof.

affirmative defense

A defense that raises an issue
separate from the elements
of a crime.

C H A P T E R 5
Criminal Defenses, Part 1
A person who unlawfully and by force enters or attempts to enter a person’s dwelling,

residence, or occupied vehicle is presumed to be doing so with the intent to commit an

unlawful act involving force or violence…

– Fla. Stat. Ann. §776.013(4), cited in Section 3

1. CRIMINAL DEFENSES

L E A R N I N G O B J E C T I V E S

1. Distinguish between a denial or failure of proof defense and an affirmative defense.
2. Distinguish between imperfect and perfect defenses.
3. Distinguish between factual and legal defenses.
4. Give examples of factual and legal defenses.
5. Distinguish between defenses based on justification and excuse.

A plethora of criminal defenses exist. Defenses may completely exonerate the criminal
defendant, resulting in an acquittal, or reduce the severity of the offense. Chapter 3 dis-
cussed defenses based on the federal Constitution. This chapter reviews the categoriza-
tion of nonconstitutional criminal defenses, along with the elements of various defenses
sanctioning the use of force.

1.1 Categorization of Defenses
Defenses can be categorized as denial or failure of proof, affirmative, imperfect, or perfect. Defenses
can also be categorized as factual, legal, based on justification, or excuse. Lastly, defenses can be created
by a court (common law), or created by a state or federal legislature (statutory).

Definition of Denial or Failure of Proof and Affirmative Defenses

As stated in Chapter 2, a criminal defendant will be acquitted if the prosecution cannot prove every ele-
ment of the offense beyond a reasonable doubt. In certain cases, the defendant can either deny that a
criminal element(s) exists or simply sit back and wait for the prosecution to fail in meeting its burden
of proof. This legal strategy is sometimes referred to as either a denial or failure of proof defense.

An affirmative defense is not connected to the prosecution’s burden of proof. When the defend-
ant asserts an affirmative defense, the defendant raises a new issue that must be proven to a certain
evidentiary standard. State statutes often specify whether a defense is affirmative. The Model Penal
Code defines an affirmative defense as a defense that is deemed affirmative in the Code or a separate
statute, or that “involves a matter of excuse or justification peculiarly within the knowledge of the de-
fendant” (Model Penal Code § 1.12 (3) (c)). Procedurally, the defendant must assert any affirmative de-
fense before or during the trial, or the defense cannot be used as grounds for an appeal.

Example of an Affirmative Defense
A fight breaks out at a party, and Juan is severely injured. Jasmine and Jerome are arrested and charged
for battering Juan. Jerome claims that he did not touch Juan; someone else battered him. Jasmine claims
that she did not batter Juan because she was legally defending herself against Juan’s attack. Jerome’s
claim focuses on the elements of battery and asserts that these elements cannot be proven beyond a
reasonable doubt. Technically, Jerome can do nothing and be acquitted if the prosecution fails to prove

that he was the criminal actor. Jasmine’s self-defense claim is an affirmative defense. Jasmine must do
something to be acquitted: she must prove that Juan attacked her to a certain evidentiary standard.

F I G U R E 5 . 1 Denial and Affirmative Defenses

Burden of Proof for Affirmative Defenses
As stated in Chapter 2, states vary as to their requirements for the defendant’s burden of proof when
asserting an affirmative defense.[1] Different defenses also have different burdens of proof. Some states
require the defendant to meet the burden of production, but require the prosecution to thereafter meet
the burden of persuasion, disproving the defense to a preponderance of evidence, or in some states,
beyond a reasonable doubt. Other states require the defendant to meet the burden of production and
the burden of persuasion. In such states, the defendant’s evidentiary standard is preponderance of evid-
ence, not beyond a reasonable doubt. In the example given in Section 1, for Jasmine’s self-defense
claim, Jasmine must prove she was defending herself by meeting either the burden of production or the
burden of production and persuasion to a preponderance of evidence, depending on the jurisdiction.

116 CRIMINAL LAW

imperfect defense

A defense that reduces the
severity of the offense.

perfect defense

A defense that results in an
acquittal if successful.

F I G U R E 5 . 2 Diagram of the Criminal Burden of Proof

Definition of Imperfect and Perfect Defenses

As stated previously, a defense can reduce the severity of the offense, or completely exonerate the de-
fendant from criminal responsibility. If a defense reduces the severity of the offense, it is called an im-
perfect defense. If a defense results in an acquittal, it is called a perfect defense. The difference
between the two is significant. A defendant who is successful with an imperfect defense is still guilty of
a crime; a defendant who is successful with a perfect defense is innocent.

Example of Imperfect and Perfect Defenses
LuLu flies into a rage and kills her sister Lola after she catches Lola sleeping with her fiancé. LuLu is
thereafter charged with first-degree murder. LuLu decides to pursue two defenses. First, LuLu claims
that the killing should be manslaughter rather than first-degree murder because she honestly but un-
reasonably believed Lola was going to attack her, so she thought she was acting in self-defense. Second,
LuLu claims she was insane at the time the killing occurred. The claim of manslaughter is an imperfect
defense that will reduce LuLu’s sentence, but will not acquit her of criminal homicide. The claim of in-
sanity is a perfect defense that will result in an acquittal.

CHAPTER 5 CRIMINAL DEFENSES, PART 1 117

factual defense

A defense based on an issue
of fact.

legal defense

A defense based on an issue
of law.

alibi defense

A factual defense that claims
the defendant was
somewhere else when the
crime occurred.

expiration of the statute of
limitations

A legal defense that claims
too much time has elapsed
since the defendant
committed the crime, so the
prosecution can no longer
legally prosecute the
defendant.

justification

The basis for an affirmative
defense that claims criminal
conduct is justified under the
circumstances.

excuse

The basis for an affirmative
defense that claims the
defendant should be excused
for his or her conduct.

Definition of Factual and Legal Defenses

A defense must be based on specific grounds. If a defense is based on an issue of fact, it is a factual de-
fense. If a defense is based on an issue of law, it is a legal defense.

Example of Factual and Legal Defenses
Armando is charged with the burglary of Roman’s residence. Armando decides to pursue two defenses.
First, Armando claims that he was with Phil on the date and time of the burglary. This is called an alibi
defense. Second, Armando claims that it is too late to prosecute him for burglary because of the ex-
piration of the statute of limitations. Armando’s alibi defense is a factual defense; it is based on the
fact that Armando could not have committed the burglary because he was somewhere else at the time it
occurred. Armando’s statute of limitations defense is a legal defense because it is based on a statute that
limits the amount of time the government has to prosecute Armando for burglary.

Definition of Justification and Excuse

With the exception of alibi, most affirmative defenses are based on either justification or excuse.
Typically, justification and excuse defenses admit that the defendant committed the criminal act with
the requisite intent, but insist that the conduct should not be criminal.

A defense based on justification focuses on the offense. A justification defense claims that the de-
fendant’s conduct should be legal rather than criminal because it supports a principle valued by society.
A defense based on excuse focuses on the defendant. An excuse defense claims that even though the de-
fendant committed the criminal act with criminal intent, the defendant should not be responsible for
his or her behavior.

Example of Justification and Excuse
Review the examples of affirmative, imperfect, and perfect defenses given in Section 1. Jasmine’s self-
defense claim is based on justification. Society believes that individuals should be able to protect them-
selves from harm, so actions taken in self-defense are justified and noncriminal. Note that a self-de-
fense claim focuses on the offense (battery) in light of the circumstances (to prevent imminent harm).
LuLu’s insanity claim is based on excuse. Although LuLu killed Lola with criminal intent, if LuLu is
truly insane it is not be fair or just to punish her for her behavior. Note that an insanity claim focuses
on the defendant (a legally insane individual) and whether he or she should be criminally responsible
for his or her conduct.

T A B L E 5 . 1 Categorization of Defenses

Defense Type Characteristics

Common-law Created by a court

Statutory Created by a state or federal legislature

Denial or failure of proof Creates doubt in one or more elements of the offense and prevents the prosecution
from meeting its burden of proof

Affirmative Raises an issue separate from the elements of the offense

Imperfect Reduces the severity of the offense

Perfect Results in an acquittal

Factual Based on an issue of fact

Legal Based on an issue of law

Alibi Asserts that the defendant was somewhere else when the crime was committed

Expiration of the statute of
limitations

Asserts that it is too late for the government to prosecute the defendant for the
crime

Justification Claims that the criminal conduct is justified under the circumstances

Excuse Claims that the defendant should be excused for his or her conduct

118 CRIMINAL LAW

self-defense

A defense based on
justification that allows a
defendant to use a
reasonable degree of force to
defend against an imminent
attack.

K E Y T A K E A W A Y S

< A denial or failure of proof defense focuses on the elements of the crime and prevents the prosecution
from meeting its burden of proof. An affirmative defense is a defense that raises an issue separate from the
elements of the crime. Most affirmative defenses are based on justification or excuse and must be raised
before or during the trial to preserve the issue for appeal.

< An imperfect defense reduces the severity of the offense; a perfect defense results in an acquittal.

< If the basis for a defense is an issue of fact, it is called a factual defense. If the basis for a defense is an issue
of law, it is called a legal defense.

< An example of a factual defense is an alibi defense, which asserts that the defendant could not have
committed the crime because he or she was somewhere else when the crime occurred. An example of a
legal defense is a claim that the statute of limitations has expired, which asserts that it is too late for the
government to prosecute the defendant for the crime.

< An affirmative defense is based on justification when it claims that criminal conduct is justified under the
circumstances. An affirmative defense is based on excuse when it claims that the criminal defendant
should be excused for his or her conduct.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Carol is on trial for battery, a general intent crime. Carol puts on a defense that proves her conduct was
accidental, not intentional. Is this an affirmative defense? Why or why not?

2. Read State v. Burkhart, 565 S.E.2d 298 (2002). In Burkhart, the defendant was convicted of three counts of
murder. The defendant claimed he acted in self-defense. The jury instruction given during the defendant’s
trial stated that the prosecution had the burden of disproving self-defense. However, the instruction did
not state that the prosecution’s burden of disproving self-defense was beyond a reasonable doubt. Did the
Supreme Court of South Carolina uphold the defendant’s conviction for the murders? The case is available
at this link: http://scholar.google.com/
scholar_case?case=1066148868024499763&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

3. Read Hoagland v. State, 240 P.3d 1043 (2010). In Hoagland, the defendant wanted to assert a necessity
defense to the crime of driving while under the influence. The Nevada Legislature had never addressed or
mentioned a necessity defense. Did the Supreme Court of Nevada allow the defendant to present the
necessity defense? The case is available at this link: http://scholar.google.com/
scholar_case?case=8002120339805439441&q= Hoagland+v.+State&hl=en&as_sdt=2,5&as_ylo=2009.

2. SELF-DEFENSE

L E A R N I N G O B J E C T I V E S

1. Define self-defense.
2. Define deadly force.
3. Ascertain the four elements required for self-defense.
4. Ascertain two exceptions to the unprovoked attack requirement.
5. Define the battered wife defense, and explain its justification under the imminence

requirement.
6. Analyze when it is appropriate to use deadly force in self-defense.
7. Distinguish between the duty to retreat and stand-your-ground doctrines.
8. Define imperfect self-defense.

As stated previously, self-defense is a defense based on justification. Self-defense can be a defense to
assault, battery, and criminal homicide because it always involves the use of force. In the majority of
states, self-defense is a statutory defense.[2] However, it can be modified or expanded by courts on a
case-by-case basis.

CHAPTER 5 CRIMINAL DEFENSES, PART 1 119

deadly force

Force that can produce
death.

Most states have special requirements when the defendant uses deadly force in self-defense.
Deadly force is defined as any force that could potentially kill. An individual does not have to actually
die for the force to be considered deadly. Examples of deadly force are the use of a knife, gun, vehicle,
or even bare hands when there is a disparity in size between two individuals.

Self-defense can operate as a perfect or imperfect defense, depending on the circumstances. De-
fendants who commit criminal homicide justified by self-defense can be acquitted, or have a murder
charge reduced from first to second or third degree, or have a charge reduced from murder to man-
slaughter. Criminal homicide is discussed in detail in Chapter 9.

To successfully claim self-defense, the defendant must prove four elements. First, with exceptions,
the defendant must prove that he or she was confronted with an unprovoked attack. Second, the de-
fendant must prove that the threat of injury or death was imminent. Third, the defendant must prove
that the degree of force used in self-defense was objectively reasonable under the circumstances.
Fourth, the defendant must prove that he or she had an objectively reasonable fear that he or she was
going to be injured or killed unless he or she used self-defense. The Model Penal Code defines self-de-
fense in § 3.04(1) as “justifiable when the actor believes that such force is immediately necessary for the
purpose of protecting himself against the use of unlawful force by such other person on the present
occasion.”

2.1 Provocation
In general, if the defendant initiates an attack against another, the defendant cannot claim self-de-
fense.[3] This rule has two exceptions. The defendant can be the initial aggressor and still raise a self-de-
fense claim if the attacked individual responds with excessive force under the circumstances, or if the
defendant withdraws from the attack and the attacked individual persists.

Excessive Force Exception

In some jurisdictions, an individual cannot respond to the defendant’s attack using excessive force un-
der the circumstances.[4] For example, an individual cannot use deadly force when the defendant initi-
ates an attack using nondeadly force. If an individual does resort to deadly force with a nondeadly
force attack, the defendant can use reasonable force in self-defense.

Example of the Excessive Force Exception
Patty and Paige get into an argument over a loan Patty made to Paige. Paige calls Patty a spoiled brat
who always gets her way. Patty slaps Paige across the face. Paige grabs a carving knife from the kitchen
counter and tries to stab Patty. Patty wrestles the knife away and stabs Paige in the chest, killing her. In
this example, Patty provoked the attack by slapping Paige across the face. However, the slap is non-
deadly force. In many jurisdictions, Paige cannot respond to nondeadly force with deadly force, like a
knife. Paige used excessive force in her response to Patty’s slap, so Patty can use deadly force to defend
herself and may not be responsible for criminal homicide under these circumstances.

Withdrawal Exception

In some jurisdictions, the defendant can be the initial aggressor and still use force in self-defense if the
defendant withdraws from the attack, and communicates this withdrawal to the attacked individual.[5]
If the attacked individual persists in using force against the defendant after the defendant’s withdrawal,
rather than notifying law enforcement or retreating, the defendant is justified in using force under the
circumstances.

Example of Withdrawal
Change the excessive force exception example in Section 2. Imagine that after Patty slaps Paige across
the face, Paige begins pounding Patty with her fists. Patty manages to escape and runs into the garage.
She huddles against the garage wall. Paige chases Patty into the garage. Patty says, “Please, please don’t
hurt me. I’m sorry I slapped you.” Paige kicks Patty in the back. Patty turns around and karate chops
Paige in the neck, rendering her unconscious. In many jurisdictions, Patty’s karate chop is lawful under
a theory of self-defense because she completely withdrew from the attack. Thus Patty is probably not
criminally responsible for battery, based on the karate chop to the neck. However, Patty could be crim-
inally responsible for battery based on the slap to Paige’s face because this physical contact was unpro-
voked and not defensive under the circumstances.

120 CRIMINAL LAW

F I G U R E 5 . 3 New York Penal Law

2.2 Imminence
The defendant cannot use any degree of force in self-defense unless the defendant is faced with an im-
minent attack.[6] Imminent means the attack is immediate and not something that will occur in the fu-
ture. If the defendant is threatened with a future attack, the appropriate response is to inform law en-
forcement, so that they can incapacitate the threatening individual by arrest or prosecution. Another
situation where imminence is lacking is when the attack occurred in the past. When the defendant uses

CHAPTER 5 CRIMINAL DEFENSES, PART 1 121

battered wife defense

A defense that allows a wife
who is a victim of spousal
abuse to use force in
self-defense under certain
circumstances even if an
attack is not imminent.

force to remedy a previous attack, this is retaliatory, and a self-defense claim is not appropriate. The
legal response is to inform law enforcement so that they can incapacitate the attacker by arrest or
prosecution.

Some state courts have expanded the imminence requirement to include situations where a hus-
band in a domestic violence situation uses force or violence regularly against the defendant, a battered
wife, therefore creating a threat of imminent harm every day.[7] If a jurisdiction recognizes the
battered wife defense, the defendant—the battered wife—can legally use force against her abusive
husband in self-defense in situations where harm is not necessarily immediate.

Example of an Attack That Is Not Imminent

Vinny tells Fiona that if she does not pay him the $1,000 she owes him, he will put out a contract on
her life. Fiona pulls out a loaded gun and shoots Vinny. Fiona cannot successfully argue self-defense in
this case. Vinny’s threat was a threat of future harm, not imminent harm. Thus Fiona had plenty of
time to contact law enforcement to help protect her safety.

Example of an Attack That Is Retaliatory

Dwight and Abel get into a fist fight. Dwight knocks Abel unconscious. Dwight observes Abel for a few
minutes, and then he picks up a large rock and crushes Abel’s skull with it, killing him. Dwight cannot
claim self-defense in this situation. Once Dwight realized that Abel was unconscious, he did not need
to continue to defend himself against an imminent attack. Dwight’s conduct appears retaliatory and is
not justified under these circumstances.

Example of an Imminent Attack under the Battered Wife Defense

Spike severely beats and injures his wife Veronica every couple of days. Spike’s beatings have become
more violent, and Veronica starts to fear for her life. One night, Veronica shoots and kills Spike while
he is sleeping. In states that have expanded self-defense to include the battered wife defense, Veronica
may be successful on a theory of self-defense.

Mary Winkler Defense Video

Dr. Alan J. Lipman Catherine Crier on Winkler Spousal Abuse Murder Trial

Mary Winkler claimed the battered wife defense as an imperfect defense to the murder of her husband, a pas-
tor.[8]

2.3 Proportionality
The defendant cannot claim self-defense unless the degree of force used is objectively reasonable un-
der the circumstances. This requirement primarily focuses on the use of deadly force and when it is
legally justified. In general, deadly force can by employed in self-defense when a reasonable person feels
threatened with imminent death, serious bodily injury, and, in some jurisdictions, a serious felony.[9]
Serious bodily injury and serious felony are technical terms that are defined in a statute or case, de-
pending on the jurisdiction. The Model Penal Code states that deadly force is not justifiable “unless the
actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnap-
ping or sexual intercourse compelled by force or threat” (Model Penal Code § 3.04(2)(b)).

View the video online at: http://www.youtube.com/v/KFSwTAINxnM

122 CRIMINAL LAW

retreat to the wall

A common-law doctrine that
requires a defendant to
retreat if it is safe to do so,
before using deadly force in
self-defense.

stand your ground

A doctrine that allows a
defendant to use deadly
force in self-defense if
appropriate, rather than
retreating.

imperfect self-defense

An imperfect defense
available when the defendant
has an honest but
unreasonable belief that
force is necessary to defend
against injury or death.

Example of Appropriate Deadly Force

Nicholas, an intruder, pins Wanda to the floor of her garage and begins to forcibly remove her cloth-
ing. Wanda feels around the floor with her hand and finds a screwdriver. She plunges the screwdriver
into Nicholas’s neck, killing him. Wanda has used appropriate force and can claim self-defense in most
jurisdictions. A reasonable person in Wanda’s situation would feel deadly force is necessary to repel
Nicholas’s sexual assault. Nicholas’s attack is a serious felony that could result in serious bodily injury
or death. Thus the use of deadly force is legally justified under these circumstances.

Duty to Retreat

Early common law stated that the defendant had a duty to retreat to the wall before using deadly
force against an attacker. The majority of states have rejected this doctrine and instead allow the de-
fendant to stand his or her ground if the defendant is not the initial aggressor in the confronta-
tion.[10] In jurisdictions that still follow the retreat doctrine, the defendant must retreat if there is an
objectively reasonable belief that the attacker will cause death or serious bodily injury, and a retreat
won’t unreasonably increase the likelihood of death or serious bodily injury.[11] The Model Penal Code
defines the duty to retreat by stating that the use of deadly force is not justifiable if “the actor knows
that he can avoid the necessity of using such force with complete safety by retreating” (Model Penal
Code § 3.04 (2) (b) (ii)). An established exception to the retreat doctrine in jurisdictions that follow it is
the defense of the home, which is called the castle doctrine. The castle doctrine is discussed shortly.

Example of the Duty to Retreat
Sandy and Sue have an argument in the park. Sue pulls a knife out of a sheath that is strapped to her leg
and begins to advance toward Sandy. Sandy also has a knife in her pocket. In a state that follows the re-
treat doctrine, Sandy must attempt to escape, if she can do so safely. In a state that follows the stand-
your-ground doctrine, Sandy can defend herself using her own knife and claim lawful self-defense.
Note that Sandy was not the initial aggressor in this situation. If Sandy pulled a knife first, she could not
use the knife and claim self-defense, whether the state follows the stand-your-ground doctrine or the
duty to retreat doctrine.

2.4 Objectively Reasonable Fear of Injury or Death
The defendant cannot claim self-defense unless a reasonable person in the defendant’s situation would
believe that self-defense is necessary to avoid injury or death. If the defendant honestly but unreason-
ably believes self-defense is necessary under the circumstances, a claim of imperfect self-defense
may reduce the severity of the offense.[12] However, the defendant is still guilty of a crime, albeit a less
serious crime.

Example of Unjustified Conduct

Justin, who weighs over two hundred pounds and is six feet tall, accidentally bumps into Wanda, a
slender ten-year-old child. Wanda spins around and shakes her fist at Justin. Justin responds by shov-
ing Wanda so hard that she crashes into a telephone pole and is killed. Justin probably cannot claim
self-defense under these circumstances. A reasonable person would not believe Wanda is about to seri-
ously injure or kill Justin. Thus Justin’s response is unnecessary and unjustified in this case.

Example of Imperfect Self-Defense

Change the unjustified conduct example given in Section 2. Imagine that a slender, female ten-year-old
severely abused Justin when he was younger. Since the abusive incident, Justin has an unreasonable
fear of female children and honestly believes that they can and will hurt him if provoked. If the trier of
fact determines that Justin honestly but unreasonably believed that Wanda was about to inflict serious
bodily injury or kill him, any charge of murder could be reduced to manslaughter on a theory of
imperfect self-defense.

CHAPTER 5 CRIMINAL DEFENSES, PART 1 123

K E Y T A K E A W A Y S

< Self-defense is a defense based on justification that allows a defendant to use physical force to protect
himself or herself from injury or death.

< Deadly force is any force that can produce death. An individual does not have to die for the force to be
deemed deadly.

< Four elements are required for self-defense: (1) an unprovoked attack, (2) which threatens imminent injury
or death, and (3) an objectively reasonable degree of force, used in response to (4) an objectively
reasonable fear of injury or death.

< Two exceptions to the unprovoked attack rule are an individual’s use of excessive force in response to an
initial attack and the defendant’s withdrawal from the initial attack.

< The battered wife defense asserts that a woman who is a victim of spousal abuse may use force in self-
defense under certain circumstances, even when the threat of harm is not immediate. The battered wife
defense is justified with respect to the imminence requirement: because the abuse is so constant, the
battered wife faces an imminent threat every day.

< Deadly force is appropriate in self-defense when the attacker threatens death, serious bodily injury, and, in
some jurisdictions, a serious felony.

< The duty to retreat doctrine is a common-law rule requiring a defendant to retreat if it is safe to do so,
instead of using deadly force in self-defense. The stand-your-ground doctrine is a rule allowing the
defendant to use deadly force if appropriate in self-defense, rather than retreating.

< Imperfect self-defense is a defense available when the defendant has an honest but unreasonable belief
that force is necessary to defend against injury or death. Imperfect self-defense reduces the severity of the
offense, but does not result in acquittal.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Scott’s wife Diane constantly physically abuses him. One night while Diane is sleeping, Scott places a
pillow over her face and smothers her. Can Scott defend against a charge of criminal homicide by claiming
self-defense? Why or why not?

2. Read Rodriguez v. State, 212 S.W.3d 819 (2006). In Rodriguez, the defendant was convicted of murder and
attempted murder. The defendant appealed his convictions on the ground that the jury did not
unanimously reject each element of self-defense. Did the …

Source: Image courtesy of Jane F. Kardashian, MD.

complicity

Working together with a
common criminal purpose
and design.

C H A P T E R 7
Parties to Crime
Congress can impute to a corporation the commission of certain criminal offenses and

subject it to criminal prosecution therefor.

– New York Central R. Co. v. U.S., cited in Section 2

1. PARTIES TO CRIME

L E A R N I N G O B J E C T I V E S

1. Identify the four parties to crime at early common law.
2. Identify the parties to crime in modern times.
3. Define the criminal act element required for accomplice liability.
4. Define the criminal intent element required for accomplice liability.
5. Define the natural and probable consequences doctrine.
6. Discuss the consequences of accomplice liability.
7. Determine whether an accomplice can be prosecuted when the principal is not prosecuted or

acquitted.

Often more than one criminal defendant plays a role in the commission of a crime. Defendants work-
ing together with a common criminal purpose or design are acting with complicity. When the parti-
cipation and criminal conduct varies among the defendants, an issue arises as to who is responsible for
which crime and to what degree. This chapter analyzes different parties to crime, along with their ac-
companying criminal liability. Chapter 8 examines crimes that necessarily involve more than one per-
son such as conspiracy and solicitation, as well as another inchoate or incomplete crime, attempt.

principal in the first degree

At early common law, a
defendant who committed a
crime with the help of other
defendants.

principal in the second
degree

At early common law, a
defendant who was present
at the crime scene and
helped a principal in the first
degree commit a crime.

accessory before the fact

At early common law, a
defendant who was not
present at the crime scene
and helped a principal in the
first degree prepare to
commit a crime.

accessory after the fact

At early common law, a
defendant who helped a
principal escape or avoid
arrest, prosecution for, or
conviction of a crime.

principal

A defendant who commits a
crime with the complicity of
other defendants.

accomplice

A defendant who helps a
principal commit a crime.

1.1 Accomplice Liability
At early common law, parties to crime were divided into four categories. A principal in the first de-
gree actually committed the crime. A principal in the second degree was present at the scene of the
crime and assisted in its commission. An accessory before the fact was not present at the scene of
the crime, but helped prepare for its commission. An accessory after the fact helped a party to the
crime after its commission by providing comfort, aid, and assistance in escaping or avoiding arrest and
prosecution or conviction.

In modern times, most states and the federal government divide parties to crime into two categor-
ies: principals[1] and their accomplices, and accessories.[2] The criminal actor is referred to as the
principal, although all accomplices have equal criminal responsibility as is discussed in Section 1.

1.2 Accomplice Elements
An accomplice under most state and federal statutes is responsible for the same crime as the criminal
actor or principal.[3] However, accomplice liability is derivative; the accomplice does not actually have
to commit the crime to be responsible for it. The policy supporting accomplice liability is the idea that
an individual who willingly participates in furthering criminal conduct should be accountable for it to
the same extent as the criminal actor. The degree of participation is often difficult to quantify, so stat-
utes and cases attempt to segregate blameworthy accomplices based on the criminal act and intent ele-
ments, as is discussed in Section 1.

Accomplice Act

In the majority of states and federally, an accomplice must voluntarily act in some manner to assist in
the commission of the offense. Some common descriptors of the criminal act element required for ac-
complice liability are aid, abet, assist, counsel, command, induce, or procure.[4] Examples of actions
that qualify as the accomplice criminal act are helping plan the crime, driving a getaway vehicle after
the crime’s commission, and luring a victim to the scene of the crime. The Model Penal Code defines
the accomplice criminal act element as “aids…or attempts to aid such other person in planning or
committing [the offense]” (Model Penal Code § 2.06(3) (a) (ii)).

In many states, words are enough to constitute the criminal act element required for accomplice li-
ability.[5] On the other hand, mere presence at the scene of the crime, even presence at the scene com-
bined with flight, is not sufficient to convert a bystander into an accomplice.[6] However, if there is a
legal duty to act, a defendant who is present at the scene of a crime without preventing its occurrence
could be liable as an accomplice in many jurisdictions.[7] As the Model Penal Code provides, “[a] per-
son is an accomplice of another person in the commission of an offense if…having a legal duty to pre-
vent the commission of the offense, fails to make proper effect so to do” (Model Penal Code
§ 2.06(3)(a)(iii)).

Example of a Case Lacking Accomplice Act
Review the criminal law issues example in Chapter 1, Section 2. In that example, Clara and Linda go on
a shopping spree. Linda insists that they browse an expensive department store. After they enter the
lingerie department, Linda surreptitiously places a bra into her purse. Clara watches, horrified, but
does not say anything, even though a security guard is standing nearby. As Linda and Clara leave the
store, an alarm is activated. Linda and Clara run away with the security guard in pursuit. In this case,
Clara has probably not committed the criminal act element required for accomplice liability. Although
Clara was present at the scene of the crime and did not alert the security guard, mere presence at the
scene is not sufficient to constitute the accomplice criminal act. Clara fled the scene when the alarm
went off, but presence at the scene of a crime combined with flight is still not enough to comprise the
accomplice criminal act. Thus Clara has probably not committed theft as an accomplice, and only
Linda is subject to a criminal prosecution for this offense.

Example of Accomplice Act
Phoebe, the parent of a two-year-old named Eliza, watches silently as her live-in boyfriend Ricky beats
Eliza. In Phoebe’s state, parents have a duty to come to the aid of their children if their safety is
threatened. Ricky severely injures Eliza, and both Phoebe and Ricky are arrested and charged with bat-
tery and child endangerment. Phoebe probably has committed the criminal act element required for
accomplice liability in many jurisdictions. Phoebe does not personally act to physically harm her child.
However, her presence at the scene combined with a legal duty to act could be enough to make her an
accomplice. Thus Phoebe has most likely committed battery and child endangerment as an accomplice,
and both she and Ricky are subject to a criminal prosecution for these offenses.

174 CRIMINAL LAW

natural and probable
consequences doctrine

A doctrine that some
jurisdictions follow holding
an accomplice criminally
responsible for all crimes the
principal commits that are
foreseeable when the
accomplice assists the
principal.

Accomplice Intent

The criminal intent element required for accomplice liability varies, depending on the jurisdiction. In
many jurisdictions, the accomplice must act with specific intent or purposely when aiding or assisting
the principal.[8] Specific intent or purposely means the accomplice desires the principal to commit the
crime. The Model Penal Code follows this approach and requires the accomplice to act “with the pur-
pose of promoting or facilitating the commission of the offense” (Model Penal Code § 2.06(3) (a)). In
other jurisdictions, if the crime is serious and the accomplice acts with general intent or knowingly or
has awareness that the principal will commit the crime with his or her assistance, intent to further the
crime’s commission could be inferred.[9] In a minority of jurisdictions, only general intent or acting
knowingly that the crime will be promoted or facilitated is required, regardless of the crime’s serious-
ness.[10]

Example of Accomplice Intent
Joullian, a hotel owner, rents a hotel room to Winnifred, a prostitute. In a state that requires an accom-
plice to act with specific intent or purposely, Joullian must desire Winnifred to commit prostitution in
the rented room to be Winnifred’s accomplice. Evidence that Joullian stands to benefit from Winni-
fred’s prostitution, such as evidence that he will receive a portion of the prostitution proceeds, could
help prove this intent. If Joullian’s state allows for an inference of specific intent or purposely with seri-
ous crimes when an accomplice acts with general intent or knowingly, it is unlikely that prostitution is
a felony that would give rise to the inference. If Joullian’s state requires only general intent or know-
ingly for accomplice liability regardless of the crime’s seriousness, to be deemed an accomplice Joullian
must simply be aware that renting Winnifred the room will promote or facilitate the act of
prostitution.

The Natural and Probable Consequences Doctrine
Accomplice liability should be imputed only to blameworthy, deserving defendants. However, in some
jurisdictions, if the crime the defendant intentionally furthers is related to the crime the principal actu-
ally commits, the defendant is deemed an accomplice. As with legal causation, discussed in Chapter 4,
foreseeability is the standard. Under the natural and probable consequences doctrine, if the de-
fendant assists the principal with the intent to further a specific crime’s commission, and the principal
commits a different crime that is foreseeable at the time of the defendant’s assistance, the defendant
could be liable as an accomplice.[11] Several jurisdictions have rejected this doctrine as an overly harsh
extension of accomplice liability.[12]

Example of the Natural and Probable Consequences Doctrine
José shows up drunk and unruly at his friend Abel’s house and tells Abel he wants to “beat the hell” out
of his girlfriend Maria. José asks Abel to drive him to Maria’s house, and Abel promptly agrees. Abel
drives José to Maria’s house and waits in the car with the engine running. José forces his way into
Maria’s house and then beats and thereafter rapes her. If José and Abel are in a jurisdiction that recog-
nizes the natural and probable consequences doctrine, the trier of fact could find that Abel is an accom-
plice to the battery, burglary, and rape of Maria. Abel appears to have the criminal intent required to be
an accomplice to battery because he assisted José in his quest to beat Maria. If burglary and rape were
foreseeable when Abel drove a drunk and angry José to Maria’s house, the natural and probable con-
sequences doctrine would extend Abel’s accomplice liability to these crimes. If Abel is not in a natural
and probable consequences jurisdiction, the trier of fact must separately determine that Abel had the
criminal intent required to be an accomplice to battery, burglary, and rape; Abel’s intent will be ascer-
tained according to the jurisdiction’s accomplice intent requirement—either specific intent or pur-
posely or general intent or knowingly.

CHAPTER 7 PARTIES TO CRIME 175

F I G U R E 7 . 1 Diagram of Accomplice Liability

1.3 Consequences of Accomplice Liability
An accomplice is criminally responsible for the crime(s) the principal commits. Although the senten-
cing may vary based on a defendant-accomplice’s criminal record or other extenuating circumstances
related to sentencing, such as prior strikes, in theory, the accomplice is liable to the same degree as the
principal. So if accomplice liability is established in the examples given in Section 1; Phoebe is crimin-
ally responsible for battery and child endangerment, Joullian is criminally responsible for prostitution,
and Abel is criminally responsible for battery and possibly burglary and rape. The principal should also
be criminally responsible for his or her own actions. However, occasionally a situation arises where the
principal is not prosecuted or acquitted because of a procedural technicality, evidentiary problems, or a
plea bargain, as is discussed in Section 1.

Prosecution of an Accomplice When the Principal Is Not Prosecuted or Is Acquitted

Although accomplice liability is derivative, in many jurisdictions the trier of fact can determine that a
defendant is an accomplice even if the criminal actor or principal is not prosecuted or has been tried
and acquitted for the offense.[13] Thus a defendant can be liable for a crime even though he or she did
not commit it and the defendant who did was spared prosecution or found not guilty. While this situ-
ation appears anomalous, if a defendant helps another commit a crime with the intent to further the
crime’s commission, punishment for the completed crime is appropriate. As the Model Penal Code
states, “[a]n accomplice may be convicted on proof of the commission of the offense and of his compli-
city therein, though the person claimed to have committed the offense has not been prosecuted or con-
victed or has been convicted of a different offense or degree of offense…or has been acquitted” (Model
Penal Code § 2.06(7)).

Example of Prosecution of an Accomplice When the Principal Is Not Prosecuted
Review the example in Section 1 with José and Abel. Assume that after José burglarizes, beats, and
rapes Maria, local police arrest José and Abel. The police transport José and Abel to the police station
and take them to separate rooms for interrogation. The police officer who interrogates José is a rookie
and forgets to read José his Miranda rights. Thereafter, the police contact Maria, but she refuses to co-
operate with the investigation because she fears reprisal from José. The district attorney decides not to
prosecute José because of the tainted interrogation. In this case, Abel could still be prosecuted for bat-
tery and possibly rape and burglary as an accomplice in some jurisdictions. Although José is the prin-
cipal and actually committed the crimes, it is not necessary for José to suffer the same criminal prosec-
ution and punishment as Abel. If the elements required for accomplice liability are present, Abel can be
fully responsible for the crimes committed by José, whether or not José is prosecuted for or convicted of
these offenses.

176 CRIMINAL LAW

Garrido Sentencing Video

Attorney: Nancy Garrido in Tears during Sentencing

Phillip Garrido, with his wife Nancy’s help, kidnapped Jaycee Dugard, an eleven-year-old girl, and held her cap-
tive for eighteen years. During that time, Dugard was repeatedly raped, became pregnant twice, and gave
birth to two children. Phillip Garrido pleaded guilty to multiple charges of rape and kidnapping and received a
sentence of four hundred years to life in prison. Nancy was prosecuted as an accomplice, pleaded guilty and
received a sentence of thirty-six years to life in prison.[14] Nancy Garrido’s attorney discusses her sentencing as
an accomplice in this video:

Ghailani Verdict Video

Ghailani Guilty of One Count

Ahmed Ghailani, an alleged terrorist, was transferred from a military prison in Guantanamo Bay and tried as a
civilian in a federal district court in New York. Ghailani was indicted for accomplice liability and conspiracy for
the deaths of hundreds of citizens killed during Al Qaeda bombings of US embassies in Nairobi, Kenya, and
Tanzania. At trial, the prosecution failed to convince the jury that Ghailani had the criminal intent required for
accomplice liability. He was acquitted of the murders and attempted murders as an accomplice and convicted
of one conspiracy charge. However, he received a sentence of life in prison without the possibility of parole for
the conspiracy charge, the same sentence he would have received if convicted of all the murder and attemp-
ted murder charges.[15] A news story on the conviction of Ghailani is shown in this video:

View the video online at: http://www.youtube.com/v/YfCFAmILBQo

View the video online at: http://www.youtube.com/v/ZUVRzJHA_tk

CHAPTER 7 PARTIES TO CRIME 177

K E Y T A K E A W A Y S

< The four parties to crime at early common law were principals in the first degree, principals in the second
degree, accessories before the fact, and accessories after the fact. These designations signified the
following:

< Principals in the first degree committed the crime.

< Principals in the second degree were present at the crime scene and assisted in the crime’s
commission.

< Accessories before the fact were not present at the crime scene, but assisted in preparing for the
crime’s commission.

< Accessories after the fact helped a party to the crime avoid detection and escape prosecution or
conviction.

< In modern times, the parties to crime are principals and their accomplices, and accessories.

< The criminal act element required for accomplice liability is aiding, abetting, or assisting in the commission
of a crime. In many jurisdictions, words are enough to constitute the accomplice criminal act element,
while mere presence at the scene without a legal duty to act is not enough.

< The criminal intent element required for accomplice liability is either specific intent or purposely or general
intent or knowingly.

< The natural and probable consequences doctrine holds an accomplice criminally responsible if the crime
the principal commits is foreseeable when the accomplice assists the principal.

< The consequences of accomplice liability are that the accomplice is criminally responsible for the crimes
the principal commits.

< In many jurisdictions, an accomplice can be prosecuted for an offense even if the principal is not
prosecuted or is tried and acquitted.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Justin asks his girlfriend Penelope, a bank teller, to let him know what time the security guard takes his
lunch break so that he can successfully rob the bank. Penelope tells Justin the security guard takes his
break at 1:00. The next day, which is Penelope’s day off, Justin successfully robs the bank at 1:15. Has
Penelope committed robbery? Why or why not?

2. Read State v. Ulvinen, 313 N.W.2d 425 (1981). In Ulvinen, the defendant sat guard and then helped her son
clean up and dispose of evidence after he strangled and dismembered his wife. Thereafter, the defendant
was convicted of murder as an accomplice. The defendant was asleep when the killing occurred, but
before the killing her son told her that he planned to kill the victim. The defendant reacted with passive
acquiescence by demurring and expressing disbelief that he would go through with his plans. Did the
Supreme Court of Minnesota uphold the defendant’s murder conviction? The case is available at this link:
http://scholar.google.com/
scholar_case?case=5558442148317816782&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

3. Read Joubert v. State, 235 SW 3d 729 (2007). In Joubert, the defendant was convicted and sentenced to
death based on his participation in an armed robbery that resulted in the death of a police officer and
employee. The jury convicted the defendant after hearing testimony from his accomplice and reviewing a
video of the defendant confessing to the offense. The defendant appealed the conviction because in
Texas, accomplice testimony must be corroborated by other evidence, and the defendant claimed that
the other corroborating evidence was lacking in this case. Did the Court of Criminal Appeals of Texas
uphold the defendant’s conviction? Why or why not? The case is available at this link:
http://scholar.google.com/
scholar_case?case=10119211983865864217&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

178 CRIMINAL LAW

vicarious liability

The transfer of a defendant’s
liability based upon a special
relationship.

corporate liability

The vicarious liability of a
corporation.

2. VICARIOUS LIABILITY

L E A R N I N G O B J E C T I V E S

1. Distinguish between accomplice liability and vicarious liability.
2. Distinguish between corporate criminal vicarious liability and individual criminal vicarious

liability.

Vicarious liability, a concept discussed in Chapter 4, also transfers liability from one defendant to
another. However, vicarious liability should not be confused with accomplice liability. Accomplice liab-
ility is based on the defendant’s participation in a criminal enterprise and complicity with the criminal
actor or principal, but vicarious liability transfers a defendant’s criminal responsibility for the crime to
a different defendant because of a special relationship. With vicarious liability, the acting defendant also
is criminally responsible for his or her conduct. Similar to the civil law concept of respondeat superior
discussed in Chapter 1, vicarious liability in criminal law is common between employers and employ-
ees. It is also the basis of corporate liability, which is discussed in Section 2.

2.1 Corporate Liability
At early common law, corporations were not criminally prosecutable as separate entities, which was
most likely because in England, corporations were owned and operated by the government. In modern
times, American corporations are private enterprises whose actions can seriously injure other individu-
als and the economy. Thus a corporation can be criminally responsible for conduct apart from its own-
ers, agents, or employees.[16] In general, this is a vicarious liability, transferring criminal responsibility
for an offense from an agent or employee of the corporation to the corporation itself, based on the em-
ployment relationship. Of course, the agent or employee also is responsible for the crime he or she
commits.

A corporation is vicariously liable only if an agent or employee commits a crime during the agent
or employee’s scope of employment.[17] As the Model Penal Code states, “[a] corporation may be con-
victed of the commission of an offense if…the conduct is performed by an agent of the corporation act-
ing in behalf of the corporation within the scope of his office or employment” (Model Penal Code
§ 2.07(1)(a)). The criminal punishment for a corporation is generally payment of a fine.

Example of Corporate Liability

Harry, an employee of Burger King Corporation, shreds corporate documents in his office when Bur-
ger King is sued civilly for sexual harassment in a multimillion-dollar class action suit. Under modern
theories of corporate liability, both Harry and Burger King could be criminally prosecuted for obstruc-
tion of justice. Note that Burger King’s liability is vicarious and depends on its relationship with Harry
as an employer and the fact that Harry is acting within the scope of employment. Vicarious liability is
distinguishable from accomplice liability, where the accomplice must be complicit with the criminal
actor. The owners of Burger King, who are the corporate shareholders, did not actively participate in
Harry’s conduct, although they will share in the punishment if the corporation is fined.

CHAPTER 7 PARTIES TO CRIME 179

F I G U R E 7 . 2 Vicarious and Corporate Liability

2.2 Individual Criminal Vicarious Liability
Generally speaking, criminal law disfavors criminal vicarious liability, the exception being corporate
liability discussed in Section 2. Criminal vicarious liability violates the basic precept that individuals
should be criminally accountable for their own conduct, not the conduct of others.[18] Although ac-
complice liability appears to hold an accomplice responsible for principals’ conduct, in reality the ac-
complice is committing a criminal act supported by criminal intent and is punished accordingly. In ad-
dition, other statutes that appear to impose criminal liability vicariously are actually holding individu-
als responsible for their own criminal conduct. Some examples are statutes holding parents criminally
responsible when their children commit crimes that involve weapons belonging to the parents, and
offenses criminalizing contributing to the delinquency of a minor. In both of these examples, the par-
ents are held accountable for their conduct, such as allowing children to access their guns or be truant
from school. The law is evolving in this area because the incidence of juveniles committing crimes is
becoming increasingly prevalent.

K E Y T A K E A W A Y S

< Accomplice liability holds an accomplice accountable when he or she is complicit with the principal;
vicarious liability imposes criminal responsibility on a defendant because of a special relationship with the
criminal actor.

< In many jurisdictions, corporations are vicariously liable for crimes committed by employees or agents
acting within the scope of employment. Individual criminal vicarious liability is frowned on, but the law in
this area is evolving as the incidence of juveniles committing crimes increases.

180 CRIMINAL LAW

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Brad, the president and CEO of ABC Corporation, recklessly hits and kills a pedestrian as he is driving home
from work. Could ABC Corporation be held vicariously liable for criminal homicide? Why or why not?

2. Read People v. Premier House, Inc., 662 N.Y.S 2d 1006 (1997). In Premier House, the defendant, a housing
cooperative that was incorporated, and members of the housing cooperative board of directors were
ordered to stand trial for violating a New York law requiring that window guards be installed on apartment
buildings. A child died after falling out of one of the windows. The members of the board of directors
appealed on the basis that their positions were merely honorary, and they had no personal involvement in
the crime. Did the Criminal Court of the City of New York uphold the order as to the members of the board
of directors? Why or why not? The case is available at this link: http://scholar.google.com/
scholar_case?case=6854365622778516089&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

3. Read Connecticut General Statute § 53a-8(b), which criminalizes the sale or provision of a firearm to
another for the purpose of committing a crime. The statute is available at this link: http://law.justia.com/
connecticut/codes/2005/title53a/sec53a-8.html. Does this statute create accomplice liability or
vicarious liability? Read the Connecticut Criminal Jury Instruction 3.1-4 for an explanation of the statute.
The jury instruction is available at this link: http://www.jud.ct.gov/ji/criminal/part3/3.1-4.htm.

L A W A N D E T H I C S : L I F E C A R E C E N T E R S O F A M E R I C A ,
I N C .

Is a Corporation Criminally Accountable When Its Employees Are Not?

Read Commonwealth v. Life Care Centers of America, Inc., 456 Mass. 826 (2010). The case is available at this link:
http://scholar.google.com/
scholar_case?case=12168070317136071651&hl=en&as_sdt=2&as_vis=1&oi=scholarr. In Life Care Centers, a res-
ident of the Life Care Center nursing home died in 2004 from injuries sustained when she fell down the front
stairs while attempting to leave the facility in her wheelchair. The resident could try to leave the facility be-
cause she was not wearing a prescribed security bracelet that both set off an alarm and temporarily locked
the front doors if a resident approached within a certain distance of those doors. The defendant, Life Care
Centers of America, Inc., a corporation that operates the nursing home, was indicted for involuntary man-
slaughter and criminal neglect.[19] The criminal intent element required for involuntary manslaughter and
criminal neglect in Massachusetts is reckless intent. The evidence indicated that the order requiring the vic-
tim to wear a security bracelet was negligently edited out of the victim’s treatment sheet, based on the actions
of more than one employee. The individual employee who left the victim near the stairs without the security
bracelet relied on the orders that did not indicate a need for the bracelet. There was no evidence that any indi-
vidual employee of Life Care Centers of America, Inc. was reckless. The prosecution introduced a theory of
“collective knowledge” of the actions or failure to act of the corporation’s employees. The prosecution’s
premise was that the several individual instances of negligent conduct combined to create reckless conduct
that could be imputed to the corporation vicariously. The Massachusetts Supreme Court unanimously held
that the corporation could not be held criminally responsible unless one individual employee could be held
criminally responsible.[20]

1. Do you think it is ethical to allow a corporation to escape criminal responsibility for reckless involuntary
manslaughter and criminal neglect when several employees’ negligent conduct caused the death, rather
than one employee’s reckless conduct? Why or why not?

Check your answer using the answer key at the end of the chapter.

CHAPTER 7 PARTIES TO …

Source: Image courtesy of Tara Storm.

insanity defense

A defense that excuses a
legally insane defendant’s
criminal conduct.

C H A P T E R 6
Criminal Defenses, Part 2
The use of drugs or controlled substances, dependence on drugs or controlled substances or

voluntary intoxication shall not, as such, constitute a defense to a criminal charge…

– Or. Rev. Stat. § 161.125(1), cited in Section 2

1. THE INSANITY DEFENSE

L E A R N I N G O B J E C T I V E S

1. Identify four states that do not recognize an insanity defense.
2. Identify four versions of the insanity defense.
3. Ascertain the two elements required for the M’Naghten insanity defense.
4. Ascertain the two elements required for the irresistible impulse insanity defense.
5. Compare the M’Naghten, irresistible impulse, and substantial capacity tests.
6. Ascertain the basis of the Durham insanity defense.
7. Identify the various burdens of proof for the insanity defense.
8. Distinguish between diminished capacity and the insanity defense.
9. Compare the insanity defense with mental competence to stand trial.

10. Compare the insanity defense with the guilty but mentally ill verdict.
11. Compare different commitment procedures for an insane criminal defendant.
12. Distinguish temporary from permanent insanity.

With the exception of alibi and the expiration of the statute of limitations, Chapter 5 explored criminal
defenses based on justification. This chapter reviews criminal defenses based on excuse, including the
insanity defense. Remember that defenses based on excuse focus on the defendant and claim that the
defendant should be excused from criminal responsibility for his or her conduct under the
circumstances.

Although controversial, most states and the federal government recognize an insanity defense.[1]
Montana, Utah, Kansas, and Idaho are the only states that do not.[2] The insanity defense is the subject
of much debate because it excuses even the most evil and abhorrent conduct, and in many jurisdic-
tions, legal insanity functions as a perfect defense resulting in acquittal. However, the insanity defense
is rarely used and hardly ever successful. This is generally because of the difficulty in proving legal
insanity.

Many criminal defendants suffer from mental illness and can produce evidence of this illness such
as psychiatric or layperson testimony. Often, mental disturbance is apparent from the defendant’s con-
duct under the circumstances. However, legal insanity differs from medical insanity and is generally
much more difficult to establish. The rationale behind creating a different standard for legal insanity is
the goal of a criminal prosecution discussed in Chapter 1. Criminal prosecution should deter as well as
incapacitate. While the purpose of a medical diagnosis is to eventually cure the defendant’s disorder,
the purpose of criminal law is to punish the defendant. Thus the defendant’s conduct is not excused if
the defendant or society can benefit from punishment.

The policy supporting the insanity defense is twofold. First, an insane defendant does not have
control over his or her conduct. This is similar to a defendant who is hypnotized, or sleepwalking. Se-
cond, an insane defendant does not have the ability to form criminal intent. Without the ability to con-
trol conduct, or the understanding that conduct is evil or wrong by society’s standards, an insane de-
fendant presumably will commit crimes again and again. Thus no deterrent effect is served by punish-
ment, and treatment for the mental defect is the appropriate remedy.

Four variations of the insanity defense currently exist: M’Naghten, irresistible impulse, substantial
capacity, and Durham.

M’Naghten insanity
defense

An insanity defense that
excuses criminal conduct
when a mental defect or
disease caused the defendant
not to know the nature or
quality of the criminal act, or
that the act was wrong. Also
called the right-wrong test.

deific defense

The defendant claims God
commanded him or her to
commit the crime.

1.1 M’Naghten Insanity Defense
The M’Naghten insanity defense, also called the right-wrong test, is the most common insanity de-
fense in the United States. It is also the oldest and was created in England in 1843. The defense is
named after Daniel M’Naghten. M’Naghten was under the paranoid delusion that the Prime Minister
of England, Sir Robert Peel, was trying to kill him. When he tried to shoot Sir Peel from behind, he in-
advertently shot Sir Peel’s Secretary, Edward Drummond, who thereafter died. M’Naghten was put on
trial for murder and, to the shock of the nation, the jury found him not guilty by reason of insanity.[3]
After a public outcry at this verdict, the British House of Lords developed a test for insanity that re-
mains relatively intact today.

The M’Naghten insanity defense is cognitive and focuses on the defendant’s awareness, rather than
the ability to control conduct. The defense requires two elements. First, the defendant must be suffering
from a mental defect at the time he or she commits the criminal act. The mental defect can be called a
“defect of reason” or a “disease of the mind,” depending on the jurisdiction.[4] Second, the trier of fact
must find that because of the mental defect, the defendant did not know either the nature and quality
of the criminal act or that the act was wrong.

The terms “defect of reason” and “disease of the mind” can be defined in different ways, but in
general, the defendant must be cognitively impaired to the level of not knowing the nature and quality
of the criminal act, or that the act is wrong. Some common examples of mental defects and diseases are
psychosis, schizophrenia, and paranoia.

Jurisdictions vary as to the level of awareness the defendant must possess. Some jurisdictions use
the term “know,” or “understand,”[5] while others use the term “appreciate.”[6] If know or understand is
the standard, the trier of fact must ascertain a basic level of awareness under the attendant circum-
stances. If appreciate is the standard, the trier of fact must analyze the defendant’s emotional state, and
evidence of the defendant’s character or personality may be relevant and admissible.

A defendant does not know the nature and quality of a criminal act if the defendant is completely
oblivious to what he or she is doing. This is quite rare, so most defendants claiming insanity choose to
assert that they did not know their act was wrong. However, jurisdictions differ as to the meaning of
“wrong.” Some jurisdictions define wrong as “legally wrong,” meaning the defendant must be unaware
that the act is against the law.[7] Others define wrong as “legally and morally wrong,” meaning the de-
fendant must also be unaware that the act is condemned by society.[8] Generally, the only instance
where the defendant must be “morally wrong,” standing alone, is when the defendant claims that the
conduct was performed at the command of God, which is called the deific defense.[9] Whether the
standard is legally wrong or morally wrong, if there is any evidence of a cover-up or an attempt to hide
or escape, it is apparent that the defendant knew the difference between right and wrong, defeating the
claim of insanity under M’Naghten.

Example of a Case Inappropriate for the M’Naghten Insanity Defense

Susan wants to marry a single man, but he does not want the responsibility of caring for her children.
Susan decides to kill her children. She drives her two sons, aged three and five, out to the lake. She puts
the car in park, gets out, and then puts it in gear, watching as it drives into the water. Both of her sons
drown. Later that day, Susan files a police report stating that a stranger kidnapped her children at gun-
point. While searching the area for the kidnapper, the police discover the children’s bodies and evid-
ence indicating that Susan killed them.

Susan recants her kidnapping story and admits she killed her children. However, she claims she is
not guilty by reason of insanity. Susan’s claim will probably not be successful if she killed her children
in a jurisdiction that recognizes the M’Naghten insanity defense. Susan tried to mislead the police,
demonstrating her awareness that she had done something wrong. Thus although Susan’s behavior ap-
pears mentally imbalanced, she clearly knew the difference between right and wrong, and her conduct is
not excusable under M’Naghten’s rigid requirements.

Example of a Case Appropriate for the M’Naghten Insanity Defense

Andrea, a diagnosed schizophrenic, drowns five of her young children in the bathtub. Andrea
promptly phones 911 and tells the operator that her children are dead. The operator dispatches an
emergency call to law enforcement. When law enforcement officers arrive at Andrea’s house, she in-
forms them that she killed her children so that they could leave this earth and enter heaven.

Andrea thereafter claims she is not guilty for killing her children by reason of insanity. Andrea
could be successful if the jurisdiction in which she killed her children recognizes the M’Naghten insan-
ity defense. Andrea suffers from a mental defect, schizophrenia. In addition, there is no evidence indic-
ating Andrea knew her conduct was wrong, such as an attempted escape, or cover-up. In fact, Andrea
herself contacted law enforcement and immediately told them about her criminal acts. Thus both of the

146 CRIMINAL LAW

irresistible impulse defense

An insanity defense that
excuses criminal conduct
when a mental defect or
disease caused the defendant
to lose the ability to control
his or her conduct or
conform his or her conduct
to the law.

M’Naghten elements appear to be present, and Andrea’s conduct may be excusable under the
circumstances.

F I G U R E 6 . 1 M’Naghten Insanity Defense

1.2 Irresistible Impulse Insanity Defense
Another variation of the insanity defense is the irresistible impulse defense. This defense has lost
popularity over the years and is rejected by most of the states and the federal government.[10] In some
cases, the irresistible impulse insanity defense is easier to prove than the M’Naghten insanity defense,
resulting in the acquittal of more mentally disturbed defendants.

The irresistible impulse insanity defense generally supplements M’Naghten, so the focus is on the
defendant’s awareness (cognitive) and the defendant’s will (ability to control conduct). In jurisdictions
that recognize the irresistible impulse insanity defense, the first element is the same as M’Naghten; the
defendant must suffer from a mental defect or disease of the mind. However, the second element adds
the concept of volition, or free choice. If the defendant cannot control his or her conduct because of
the mental defect or disease, the defendant’s conduct is excused even if the defendant understands that
the conduct is wrong.[11] This is a softer stance than M’Naghten, which does not exonerate a defendant
who is aware conduct is wrong. The challenge for the trier of fact in an irresistible impulse jurisdiction
is distinguishing between conduct that can be controlled and conduct that cannot.

Example of a Case Inappropriate for the Irresistible Impulse Insanity Defense

Jolene, who has been diagnosed with paranoia, decides she must cut off all her sorority sisters’ hair be-
cause they are “out to get her.” She drives to the sorority house with a Taser and scissors in her back-
pack. Her plan is to subdue each sister with the stun gun and then hack off her hair. As she arrives at
the house, she sees Agnes, one of her sorority sisters, trip and fall in the parking lot, ripping her
cashmere sweater and scraping her chin. Feeling a stab of pity, Jolene ignores Agnes and walks hur-
riedly toward the building. As she enters, Ashley, another sorority sister, turns, scowls at Jolene, and
barks, “What in the world are you wearing? You look like you just rolled out of bed!” Jolene pulls the
stun gun out of her backpack and shoots Ashley. While Ashley is lying on the floor, Jolene takes out the
scissors and cuts Ashley’s hair off at the scalp.

CHAPTER 6 CRIMINAL DEFENSES, PART 2 147

substantial capacity test

An insanity defense that
excuses criminal conduct
when a mental disease or
defect caused the defendant
to lose the substantial
capacity to appreciate the
criminality of conduct, or to
control conduct or conform
conduct to the law. Also
called the Model Penal Code
or ALI insanity defense.

Jolene claims she is not guilty for assault and battery of Ashley by reason of insanity. If Jolene at-
tacked Ashley in a jurisdiction that recognizes the irresistible impulse insanity defense, she probably
will not be successful with her claim. Jolene has been diagnosed with paranoia, which is a mental defect
or disease. However, Jolene seems aware that shooting someone with a stun gun and cutting off her
hair is wrong because she spared Agnes based on pity. In addition, Jolene’s choice not to attack Agnes
indicates she has control over her conduct. Thus Jolene is cognitive of the difference between right and
wrong and has the will to suppress criminal behavior, defeating any claim of insanity under the irresist-
ible impulse insanity defense.

F I G U R E 6 . 2 Irresistible Impulse Insanity Defense

1.3 The Substantial Capacity Test
The substantial capacity test is the insanity defense created by the Model Penal Code. The Model
Penal Code was completed in 1962. By 1980, approximately half of the states and the federal govern-
ment adopted the substantial capacity test (also called the Model Penal Code or ALI defense).[12]
However, in 1982, John Hinckley successfully claimed insanity using the substantial capacity test in his
federal trial for the attempted murder of then-President Ronald Reagan. Public indignation at this not-
guilty verdict caused many states and the federal government to switch from the substantial capacity
test to the more inflexible M’Naghten standard.[13] In addition, jurisdictions that switched to
M’Naghten also shifted the burden of proving insanity to the defendant.[14] The defendant’s burden of
proof for the insanity defense is discussed shortly.

The substantial capacity test is as follows: “A person is not responsible for criminal conduct if at
the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to
appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements
of law” (Model Penal Code § 4.01(1)). The defense has two elements. The first element requires the de-
fendant to have a mental disease or defect, like the M’Naghten and irresistible impulse insanity de-
fenses. The second element combines the cognitive standard with volitional, like the irresistible im-
pulse insanity defense supplementing the M’Naghten insanity defense.

In general, it is easier to establish insanity under the substantial capacity test because both the cog-
nitive and volitional requirements are scaled down to more flexible standards. Unlike the M’Naghten

148 CRIMINAL LAW

insanity defense, the substantial capacity test relaxes the requirement for complete inability to under-
stand or know the difference between right and wrong. Instead, the defendant must lack substantial,
not total, capacity. The “wrong” in the substantial capacity test is “criminality,” which is a legal rather
than moral wrong. In addition, unlike the irresistible impulse insanity defense, the defendant must lack
substantial, not total, ability to conform conduct to the requirements of the law. Another difference in
the substantial capacity test is the use of the word “appreciate” rather than “know.” As stated previ-
ously, appreciate incorporates an emotional quality, which means that evidence of the defendant’s
character or personality is relevant and most likely admissible to support the defense.

Example of the Substantial Capacity Test

Loreen has been diagnosed with psychosis and spent most of her life in a mental hospital. While at the
mental hospital, Loreen made friends with many of the patients and health-care personnel. From time
to time, Loreen would play jokes on these friends. Most of these “jokes” consisted of putting her antide-
pressants into their food. Loreen was always reprimanded and often sternly punished for these es-
capades. After her release from the mental hospital at age twenty-one, Loreen falls in love with Aidan, a
man who works in a bookstore near her apartment. Loreen decides to make Aidan fall in love with her
by feeding him a magic potion, which she concocts out of a mixture of her antidepressants. Loreen
buys a book from Aidan and casually asks if he would like her to buy him a coffee. Aidan shrugs and
says, “Sure, but I don’t have a break for another two hours.” Loreen offers to bring him the coffee. Be-
fore bringing the drink to Aidan, she puts her “magic potion” in it. While Aidan is sipping the coffee,
Loreen declares her love for him. She then states, “I know I shouldn’t have, but I put a love potion in
your coffee. I hope it doesn’t hurt you.” Aidan becomes seriously ill after drinking the coffee and is
hospitalized.

Loreen claims she is not guilty for battering Aidan by reason of insanity. If Loreen is in a jurisdic-
tion that recognizes the substantial capacity test, she may be successful with her claim. Loreen has a
mental disease or defect, psychosis. Loreen’s statement to Aidan indicates that she lacks the substantial
capacity to appreciate the criminality of her conduct. Note that if Loreen were in a M’Naghten jurisdic-
tion, her statement “I know I shouldn’t have” could prove her awareness that her conduct was wrong,
defeating her claim. In addition, Loreen’s behavior at the mental hospital indicates that she lacks the
substantial capacity to conform or control her conduct. Even after a lifetime of being punished over
and over for mixing her meds together and putting them in other people’s food or drink, Loreen still
does it. Lastly, in a substantial capacity jurisdiction, testimony from Loreen’s friends at the mental hos-
pital may be admissible to support her claim of insanity, and her lack of ability to “appreciate” the
criminality of her conduct.

CHAPTER 6 CRIMINAL DEFENSES, PART 2 149

Durham insanity defense

An insanity defense that
excuses criminal conduct
when it is caused by a mental
disease or defect. Also called
the product test.

F I G U R E 6 . 3 Substantial Capacity Insanity Defense

1.4 The Durham Insanity Defense
The Durham insanity defense is used only in New Hampshire and has been the established insanity
defense in New Hampshire since the late 1800s. The Durham defense, also called the Durham rule or
the product test, was adopted by the Circuit Court of Appeals for the District of Columbia in the case
of Durham v. U.S., 214 F.2d 862 (1954). The defense set forth in that case is as follows: “[A]n accused is
not criminally responsible if his unlawful act was the product of mental disease or mental defect.”[15]
However, the court failed to give definitions for product, mental disease, or mental defect. Thus the
Durham insanity defense is extremely difficult to apply, and the D.C. Circuit rejected it in 1972 in the
case of U.S. v. Brawner, 471 F.2d 969 (1972), which was later superseded by federal statute.[16]

In general, the Durham insanity defense relies on ordinary principles of proximate causation. The
defense has two elements. First, the defendant must have a mental disease or defect. Although these
terms are not specifically defined in the Durham case, the language of the judicial opinion indicates an
attempt to rely more on objective, psychological standards, rather than focusing on the defendant’s
subjective cognition. The second element has to do with causation. If the criminal conduct is “caused”
by the mental disease or defect, then the conduct should be excused under the circumstances.

Example of the Durham Insanity Defense

Arianna has been diagnosed with paranoia. Most psychiatric experts agree that individuals afflicted
with paranoia unreasonably believe that the human population is “out to get them.” Arianna works un-
der the direct supervision of Nora, who has a physical condition called “walleye.” Nora’s walleye makes
it appear that she is looking to the side when she addresses people. Arianna gradually becomes con-
vinced that Nora is communicating secret messages to their coworkers when she is speaking to Ari-
anna. Arianna is genuinely frightened that Nora is telling their coworkers to kill her, and she decides
she needs to defend herself. Arianna brings a gun to work one day, and when Nora begins talking to
her about her tendency to take overlong lunches, Arianna pulls the gun out of her cubicle and shoots
and kills Nora.

Arianna claims she is not guilty for killing Nora by reason of insanity. If Arianna killed Nora in
New Hampshire, she might be successful with her claim. Arianna has a mental disease or defect,

150 CRIMINAL LAW

paranoia. Arianna can probably produce evidence, such as psychiatric expert testimony, that her para-
noia “caused” or “produced” her criminal conduct, which was shooting Nora. Thus a trier of fact could
acquit Arianna on the grounds that her conduct is excusable under these circumstances.

F I G U R E 6 . 4 Durham Insanity Defense

1.5 Proving Insanity
There is generally a presumption that criminal defendants are sane, just as there is a presumption that
they are innocent. Therefore, at a minimum, a defendant claiming insanity must produce evidence that
rebuts this presumption. Some states require the prosecution to thereafter prove sanity beyond a reas-
onable doubt or to a preponderance of evidence.[17]

Post-Hinckley, many states have converted the insanity defense into an affirmative defense. Thus
as discussed in Chapter 5, the defendant may also have the burden of persuading the trier of fact that
he or she is insane to a preponderance of evidence.[18] The federal government and some other states
require the defendant to prove insanity by clear and convincing evidence, which is a higher standard
than preponderance of evidence.[19]

CHAPTER 6 CRIMINAL DEFENSES, PART 2 151

diminished capacity
defense

An imperfect failure of proof
defense that reduces
first-degree murder to
second-degree murder or
manslaughter if the
defendant did not have the
mental capacity to form
first-degree murder criminal
intent.

syndrome defense

A failure of proof defense that
claims a syndrome prevented
the defendant from forming
the requisite intent for the
crime.

mental competence to
stand trial

The defendant cannot be put
on trial if the defendant is
incapable of understanding
the proceedings against him
or her or assisting in his or her
defense because of mental
incompetence.

guilty but mentally ill
verdict

A verdict that deems the
criminal defendant mentally
ill and orders the criminal
defendant to mental health
treatment while incarcerated.

1.6 Diminished Capacity
A claim of diminished capacity differs from the insanity defense. Diminished capacity is an imper-
fect failure of proof defense recognized in a minority of jurisdictions. Diminished capacity could re-
duce a first-degree murder charge to second-degree murder or manslaughter if the defendant lacks the
mental capacity to form the appropriate criminal intent for first-degree murder.

In California, diminished capacity was abolished as an affirmative defense after San Francisco Su-
pervisor Dan White used it successfully in his trial for the murder of fellow Supervisor Harvey Milk. A
jury convicted White of voluntary manslaughter rather than first-degree premeditated murder after re-
viewing evidence that proved his diet of junk food (Twinkies) created a chemical imbalance in his
brain. In the aftermath of this highly publicized trial, California passed legislation eliminating the di-
minished capacity defense and limiting the admissibility of evidence of diminished capacity only to
sentencing proceedings.[20]

Similar to diminished capacity is the syndrome defense. A syndrome that negates the requisite
intent for the crime could function as a failure of proof defense in a minority of jurisdictions. Some
common examples of syndromes the American Psychiatric Association recognizes in the Diagnostic
and Statistical Manual of Mental Disorders, fourth edition (DSM-IV), are antisocial personality dis-
order, posttraumatic stress disorder, and intermittent explosive disorder. Some common examples of
syndromes identified but not recognized in DSM-IV are battered woman or battered wife syndrome
(discussed in Chapter 5) and caffeine withdrawal. Although successful use of the syndrome defense is
rare, at least one case has excused a defendant’s drunken driving and assault and battery against a po-
lice officer because of premenstrual syndrome (PMS).[21]

1.7 Mental Competence to Stand Trial
The insanity defense is different from mental competence to stand trial. The insanity defense per-
tains to the defendant’s mental state when he or she commits the crime. If the insanity defense is suc-
cessful, it exonerates the defendant from guilt. Mental competence to stand trial is analyzed at the time
the trial is to take place. If the defendant is mentally incompetent to stand trial, the trial is delayed until
the defendant regains competency. Although a detailed discussion of mental competence to stand trial
is beyond the scope of this book, in general, a criminal defendant must be able to understand the
charges against him or her, and be able to assist in his or her defense. As the Model Penal Code
provides, “[n]o person who as a result of mental disease or defect lacks capacity to understand the pro-
ceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the com-
mission of an offense so long as such incapacity endures” (Model Penal Code § 4.04). A defendant who
is mentally incompetent at the time of trial is subject to mental health treatment or even involuntary
medication until competence is regained.

1.8 Guilty but Mentally Ill
Post-Hinckley, some states adopted the guilty but mentally ill verdict. A defendant who is found
guilty but mentally ill is not acquitted but punished and treated for mental health simultaneously while
in prison. Typically, the guilty but mentally ill verdict is available only when the defendant fails to
prove legal insanity, and requires the defendant to prove mental illness at the time of the crime to a
preponderance of evidence.[22]

Example of Guilty but Mentally Ill

Review the example with Jolene in Section 1. In this example, Jolene has been diagnosed with paranoia,
but shows an ability to control and understand the wrongfulness of her conduct, so she probably will
not be successful with an irresistible impulse insanity defense. If Jolene is in a state that offers a guilty
but mentally ill verdict, Jolene may be an appropriate candidate because she was mentally ill at the time
she assaulted and battered her sorority sister. If Jolene is found guilty but mentally ill, she will be
treated for her mental health simultaneously while serving any prison sentence.

152 CRIMINAL LAW

F I G U R E 6 . 5 Effects (Circular Diagram) of Mental Competency Claims

CHAPTER 6 CRIMINAL DEFENSES, PART 2 153

F I G U R E 6 . 6 Diagram of the Insanity Defense

154 CRIMINAL LAW

temporary insanity

The defendant was insane
when the crime was
committed, but later
regained sanity.

Hasan Fort Hood Shooting Video

Does Hasan Have an Insanity Defense? The Judge Rules!

In this news story on the legal implications of the Fort Hood shootings, Judge Napolitano discusses the up-
coming prosecution of Nidal Hasan and the possibility of an insanity defense.[23]

1.9 Disposition of the Legally Insane
The not guilty by reason of insanity verdict means that the defendant is absolved from criminal re-
sponsibility and devoid of any criminal record for the offense. However, it does not mean that the de-
fendant is free to return to society.

In several states and federally, a defendant who is found not guilty by reason of insanity is auto-
matically committed to a treatment facility until there is a determination that mental health has been
restored.[24] This is also the Model Penal Code approach. As the Model Penal Code states in § 4.08(1),
“[w]hen a defendant is acquitted on the ground of mental disease or defect excluding responsibility, the
Court shall order him to be committed to the custody of the Commissioner of Mental Hygiene [Public
Health] to be placed in an appropriate institution for custody, care and treatment.”

Other states have a hearing on sanity after the judgment or verdict of not guilty by reason of insan-
ity is returned. If the defendant is deemed mentally competent at the hearing, he or she is released. If
the defendant is found mentally ill at the hearing, he or she is committed to the appropriate treatment
facility.[25]

1.10 Temporary Insanity
Many states also …

Source: Image courtesy of Tara Storm.

crime

An act committed in violation
of a law prohibiting it or
omitted in violation of a law
ordering it.

C H A P T E R 1
Introduction to Criminal
Law
Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a

person receive fair notice not only of the conduct that will subject him to punishment but

also of the severity of the penalty that a State may impose.

– BMW of North America, Inc. v. Gore, cited in Section 3

1. INTRODUCTION

L E A R N I N G O B J E C T I V E

1. Define a crime.

This textbook introduces you to our legal system in the United States, the basic elements of a crime, the
specific elements of commonly encountered crimes, and most criminal defenses. Criminal law always
involves the government and government action, so you will also review the pertinent sections of the
United States Constitution and its principles as they apply to criminal law. By the end of the book, you
will be comfortable with the legal framework that governs the careers of criminal justice professionals.

1.1 Definition of a Crime
Let’s begin at the beginning by defining a crime. The most basic definition of a crime is “an act com-
mitted in violation of a law prohibiting it, or omitted in violation of a law ordering it.”[1] You learn
about criminal act and omission to act in Chapter 4. For now, it is important to understand that crim-
inal act, omission to act, and criminal intent are elements or parts of every crime. Illegality is also an
element of every crime. Generally, the government must enact a criminal law specifying a crime and its
elements before it can punish an individual for criminal behavior. Criminal laws are the primary focus
of this book. As you slowly start to build your knowledge and understanding of criminal law, you will
notice some unique characteristics of the United States’ legal system.

Laws differ significantly from state to state. Throughout the United States, each state and the feder-
al government criminalize different behaviors. Although this plethora of laws makes American legal
studies more complicated for teachers and students, the size, cultural makeup, and geographic variety
of our country demand this type of legal system.

Laws in a democratic society, unlike laws of nature, are created by people and are founded in reli-
gious, cultural, and historical value systems. People from varying backgrounds live in different regions
of this country. Thus you will see that different people enact distinct laws that best suit their needs. This
book is intended for use in all states. However, the bulk of any criminal law overview is an examination
of different crimes and their elements. To be accurate and representative, this book focuses on general
principles that many states follow and provides frequent references to specific state laws for illustrative
purposes. Always check the most current version of your state’s law because it may vary from the law
presented in this book.

Laws are not static. As society changes, so do the laws that govern behavior. Evolving value sys-
tems naturally lead to new laws and regulations supporting modern beliefs. Although a certain stability
is essential to the enforcement of rules, occasionally the rules must change.

criminal law

A body of law defining the
rights and obligations of
individuals in society.

criminal procedure

A body of law relating to the
enforcement of individuals’
rights during the criminal
process.

Try to maintain an open mind when reviewing the different and often contradictory laws set forth
in this book. Law is not exact, like science or math. Also try to become comfortable with the gray area,
rather than viewing situations as black or white.

K E Y T A K E A W A Y

< A crime is an act committed in violation of a law prohibiting it or omitted in violation of a law ordering it. In
general, the criminal law must be enacted before the crime is committed.

E X E R C I S E

Answer the following question. Check your answer using the answer key at the end of the chapter.

1. Read Gonzales v. Oregon, 546 U.S. 243 (2006). Did the US Supreme Court preserve Oregon’s right to legalize
physician-assisted suicide? The case is available at this link: http://www.law.cornell.edu/supct/html/
04-623.ZS.html.

2. CRIMINAL LAW AND CRIMINAL PROCEDURE

L E A R N I N G O B J E C T I V E

1. Compare criminal law and criminal procedure.

This book focuses on criminal law, but it occasionally touches on issues of criminal procedure, so it
is important to differentiate between the two.

Criminal law generally defines the rights and obligations of individuals in society. Some common
issues in criminal law are the elements of specific crimes and the elements of various criminal defenses.
Criminal procedure generally concerns the enforcement of individuals’ rights during the criminal pro-
cess. Examples of procedural issues are individuals’ rights during law enforcement investigation, arrest,
filing of charges, trial, and appeal.

2.1 Example of Criminal Law Issues
Clara and Linda go on a shopping spree. Linda insists that they browse an expensive department store.
Moments after they enter the lingerie department, Linda surreptitiously places a bra in her purse. Clara
watches, horrified, but does not say anything, even though a security guard is standing nearby. This ex-
ample illustrates two issues of criminal law: (1) Which crime did Linda commit when she shoplifted the
bra? (2) Did Clara commit a crime when she failed to alert the security guard to Linda’s shoplifting?
You learn the answer to issue (1) in Chapter 11 and issue (2) in Chapter 4 and Chapter 7.

2.2 Example of Criminal Procedure Issues
Review the example in Section 2. Assume that Linda and Clara attempt to leave the store and an alarm
is activated. Linda begins sprinting down the street. Colin, a police officer, just happens to be driving by
with the window of his patrol car open. He hears the store alarm, sees Linda running, and begins
shooting at Linda from the car. Linda is shot in the leg and collapses. Linda is treated at the hospital for
her injury, and when she is released, Colin arrests her and transports her to the police station. He
brings her to an isolated room and leaves her there alone. Twelve hours later, he reenters the room and
begins questioning Linda. Linda immediately requests an attorney. Colin ignores this request and con-
tinues to question Linda about the reason the department store alarm went off. Whether Colin prop-
erly arrested and interrogated Linda are criminal procedure issues beyond the scope of this book.
However, this example does illustrate one criminal law issue: did Colin commit a crime when he shot
Linda in the leg? You learn the answer to this question in Chapter 5.

6 CRIMINAL LAW

civil litigation

A legal action between
individuals to resolve a civil
dispute.

tort

A civil litigation matter that
seeks to compensate a victim
for an injury.

F I G U R E 1 . 1 Criminal Law and Criminal Procedure

K E Y T A K E A W A Y

< Criminal law generally defines the rights and obligations of individuals in society. Criminal procedure
generally concerns the enforcement of individuals’ rights during the criminal process.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Paul, a law enforcement officer, arrests Barney for creating a disturbance at a subway station. While Barney
is handcuffed facedown on the ground, Paul shoots and kills him. Paul claims that he accidentally grabbed
his gun instead of his Taser. Is this an issue of criminal law or criminal procedure?

2. Read Payton v. New York, 445 U.S. 573 (1980). In Payton, the US Supreme Court held a New York statute
unconstitutional under the Fourth Amendment. Did the Payton ruling focus on criminal law or criminal
procedure? The case is available at this link: http://supreme.justia.com/us/445/573.

3. THE DIFFERENCE BETWEEN CIVIL AND CRIMINAL
LAW

L E A R N I N G O B J E C T I V E S

1. Compare civil and criminal law.
2. Ascertain the primary differences between civil litigation and a criminal prosecution.

Law can be classified in a variety of ways. One of the most general classifications divides law into civil
and criminal. A basic definition of civil law is “the body of law having to do with the private rights of
individuals.”[2] As this definition indicates, civil law is between individuals, not the government. Crim-
inal law involves regulations enacted and enforced by government action, while civil law provides a
remedy for individuals who need to enforce private rights against other individuals. Some examples of
civil law are family law, wills and trusts, and contract law. If individuals need to resolve a civil dispute,
this is called civil litigation, or a civil lawsuit. When the type of civil litigation involves an injury, the
injury action is called a tort.

CHAPTER 1 INTRODUCTION TO CRIMINAL LAW 7

criminal prosecution

A legal action where the
government prosecutes a
defendant to protect the
public.

plaintiff

The individual suing in a civil
litigation matter.

defendant

The alleged wrongdoer in a
civil litigation matter and a
criminal prosecution.

strict liability

Liability without intent.

vicarious liability

The transfer of a defendant’s
liability based upon a special
relationship.

respondeat superior

A doctrine that holds the
employer civilly liable for an
employee’s conduct while on
the job.

3.1 Characteristics of Civil Litigation
It is important to distinguish between civil litigation and criminal prosecution. Civil and criminal
cases share the same courts, but they have very different goals, purposes, and results. Sometimes, one
set of facts gives way to a civil lawsuit and a criminal prosecution. This does not violate double jeop-
ardy and is actually quite common.

Parties in Civil Litigation

In civil litigation, an injured party sues to receive a court-ordered remedy, such as money, property, or
some sort of performance. Anyone who is injured—an individual, corporation, or other business en-
tity—can sue civilly. In a civil litigation matter, the injured party that is suing is called the plaintiff. A
plaintiff must hire and pay for an attorney or represent himself or herself. Hiring an attorney is one of
the many costs of litigation and should be carefully contemplated before jumping into a lawsuit.

The alleged wrongdoer and the person or entity being sued are called the defendant. While the
term plaintiff is always associated with civil litigation, the wrongdoer is called a defendant in both civil
litigation and a criminal prosecution, so this can be confusing. The defendant can be any person or
thing that has caused harm, including an individual, corporation, or other business entity. A defendant
in a civil litigation matter must hire and pay for an attorney even if that defendant did nothing wrong.
The right to a free attorney does not apply in civil litigation, so a defendant who cannot afford an attor-
ney must represent himself or herself.

Goal of Civil Litigation

The goal of civil litigation is to compensate the plaintiff for any injuries and to put the plaintiff back in
the position that person held before the injury occurred. This goal produces interesting results. It occa-
sionally creates liability or an obligation to pay when there is no fault on behalf of the defendant. The
goal is to make the plaintiff whole, not to punish, so fault is not really an issue. If the defendant has the
resources to pay, sometimes the law requires the defendant to pay so that society does not bear the cost
of the plaintiff’s injury.

A defendant may be liable without fault in two situations. First, the law that the defendant violated
may not require fault. Usually, this is referred to as strict liability. Strict liability torts do not require
fault because they do not include an intent component. Strict liability and other intent issues are dis-
cussed in detail in Chapter 4. Another situation where the defendant may be liable without fault is if
the defendant did not actually commit any act but is associated with the acting defendant through a
special relationship. The policy of holding a separate entity or individual liable for the defendant’s ac-
tion is called vicarious liability. An example of vicarious liability is employer-employee liability, also
referred to as respondeat superior. If an employee injures a plaintiff while on the job, the employer
may be liable for the plaintiff’s injuries, whether or not the employer is at fault. Clearly, between the
employer and the employee, the employer generally has the better ability to pay.

Example of Respondeat Superior

Chris begins the first day at his new job as a cashier at a local McDonald’s restaurant. Chris attempts to
multitask and pour hot coffee while simultaneously handing out change. He loses his grip on the coffee
pot and spills steaming-hot coffee on his customer Geoff’s hand. In this case, Geoff can sue McDonald’s
and Chris if he sustains injuries. McDonald’s is not technically at fault, but it may be liable for Geoff’s
injuries under a theory of respondeat superior.

Harm Requirement

The goal of civil litigation is to compensate the plaintiff for injuries, so the plaintiff must be a bona fide
victim that can prove harm. If there is no evidence of harm, the plaintiff has no basis for the civil litiga-
tion matter. An example would be when a defendant rear-ends a plaintiff in an automobile accident
without causing damage to the vehicle (property damage) or physical injury. Even if the defendant is at
fault for the automobile accident, the plaintiff cannot sue because the plaintiff does not need compens-
ation for any injuries or losses.

8 CRIMINAL LAW

damages

Money the court awards the
plaintiff in a civil litigation
matter.

compensatory damages

Damages that compensate
the plaintiff for injury.

costs

Damages that reimburse the
plaintiff for money spent on
the civil lawsuit.

punitive damages

Damages designed to punish
the defendant.

United States Attorney

The attorney representing
the federal government in a
federal criminal prosecution.

state prosecutor

The attorney representing
the state government in a
state criminal prosecution.

public defender

A government attorney who
represents criminal
defendants who cannot
afford attorney’s fees and are
facing incarceration.

Damages

Often the plaintiff sues the defendant for money rather than a different, performance-oriented remedy.
In a civil litigation matter, any money the court awards to the plaintiff is called damages. Several kinds
of damages may be appropriate. The plaintiff can sue for compensatory damages, which compensate
for injuries, costs, which repay the lawsuit expenses, and in some cases, punitive damages. Punitive
damages, also referred to as exemplary damages, are not designed to compensate the plaintiff but in-
stead focus on punishing the defendant for causing the injury.[3]

3.2 Characteristics of a Criminal Prosecution
A criminal prosecution takes place after a defendant violates a federal or state criminal statute, or in
some jurisdictions, after a defendant commits a common-law crime. Statutes and common-law crimes
are discussed in Section 6.

Parties in a Criminal Prosecution

The government institutes the criminal prosecution, rather than an individual plaintiff. If the defend-
ant commits a federal crime, the United States of America pursues the criminal prosecution. If the de-
fendant commits a state crime, the state government, often called the People of the State pursues the
criminal prosecution. As in a civil lawsuit, the alleged wrongdoer is called the defendant and can be an
individual, corporation, or other business entity.

The attorney who represents the government controls the criminal prosecution. In a federal crim-
inal prosecution, this is the United States Attorney.[4] In a state criminal prosecution, this is gener-
ally a state prosecutor or a district attorney.[5] A state prosecutor works for the state but is typically
an elected official who represents the county where the defendant allegedly committed the crime.

Applicability of the Constitution in a Criminal Prosecution

The defendant in a criminal prosecution can be represented by a private attorney or a free attorney paid
for by the state or federal government if he or she is unable to afford attorney’s fees and facing incarcer-
ation.[6] Attorneys provided by the government are called public defenders.[7] This is a significant
difference from a civil litigation matter, where both the plaintiff and the defendant must hire and pay
for their own private attorneys. The court appoints a free attorney to represent the defendant in a crim-
inal prosecution because the Constitution is in effect in any criminal proceeding. The Constitution
provides for the assistance of counsel in the Sixth Amendment, so every criminal defendant facing in-
carceration has the right to legal representation, regardless of wealth.

The presence of the Constitution at every phase of a criminal prosecution changes the proceedings
significantly from the civil lawsuit. The criminal defendant receives many constitutional protections, in-
cluding the right to remain silent, the right to due process of law, the freedom from double jeopardy,
and the right to a jury trial, among others.

Goal of a Criminal Prosecution

Another substantial difference between civil litigation and criminal prosecution is the goal. Recall that
the goal of civil litigation is to compensate the plaintiff for injuries. In contrast, the goal of a criminal
prosecution is to punish the defendant.

One consequence of the goal of punishment in a criminal prosecution is that fault is almost always
an element in any criminal proceeding. This is unlike civil litigation, where the ability to pay is a prior-
ity consideration. Clearly, it is unfair to punish a defendant who did nothing wrong. This makes crim-
inal law justice oriented and very satisfying for most students.

Injury and a victim are not necessary components of a criminal prosecution because punishment is
the objective, and there is no plaintiff. Thus behavior can be criminal even if it is essentially harmless.
Society does not condone or pardon conduct simply because it fails to produce a tangible loss.

Examples of Victimless and Harmless Crimes

Steven is angry because his friend Bob broke his skateboard. Steven gets his gun, which has a silencer
on it, and puts it in the glove compartment of his car. He then begins driving to Bob’s house. While
Steven is driving, he exceeds the speed limit on three different occasions. Steven arrives at Bob’s house
and then he hides in the bushes by the mailbox and waits. After an hour, Bob opens the front door and
walks to the mailbox. Bob gets his mail, turns around, and begins walking back to the house. Steven
shoots at Bob three different times but misses, and the bullets end up landing in the dirt. Bob does not
notice the shots because of the silencer.

CHAPTER 1 INTRODUCTION TO CRIMINAL LAW 9

In this example, Steven has committed several crimes: (1) If Steven does not have a special permit
to carry a concealed weapon, putting the gun in his glove compartment is probably a crime in most
states. (2) If Steven does not have a special permit to own a silencer for his gun, this is probably a crime
in most states. (3) If Steven does not put the gun in a locked container when he transports it, this is
probably a crime in most states. (4) Steven committed a crime each time he exceeded the speed limit.
(5) Each time Steven shot at Bob and missed, he probably committed the crime of attempted murder or
assault with a deadly weapon in most states. Notice that none of the crimes Steven committed caused
any discernible harm. However, common sense dictates that Steven should be punished so he does not
commit a criminal act in the future that may result in harm.

T A B L E 1 . 1 Comparison of Criminal Prosecution and Civil Litigation

Feature Criminal Prosecution Civil Litigation

Victim No Yes. This is the plaintiff.

Harm No Yes. This is the basis for damages.

Initiator of lawsuit Federal or state government Plaintiff

Attorney for the initiator US Attorney or state prosecutor Private attorney

Attorney for the defendant Private attorney or public defender Private attorney

Constitutional protections Yes No

F I G U R E 1 . 2 Crack the Code

10 CRIMINAL LAW

L A W A N D E T H I C S : T H E O . J . S I M P S O N C A S E

Two Different Trials—Two Different Results

O. J. Simpson was prosecuted criminally and sued civilly for the murder and wrongful death of victims Ron
Goldman and his ex-wife, Nicole Brown Simpson. In the criminal prosecution, which came first, the US Consti-
tution provided O. J. Simpson with the right to a fair trial (due process) and the right to remain silent (privilege
against self-incrimination). Thus the burden of proof was beyond a reasonable doubt, and O. J. Simpson did
not have to testify. O. J. Simpson was acquitted, or found not guilty, in the criminal trial.[8]

In the subsequent civil lawsuit, the burden of proof was preponderance of evidence, which is 51–49 percent,
and O. J. Simpson was forced to testify. O. J. Simpson was found liable in the civil lawsuit. The jury awarded
$8.5 million in compensatory damages to Fred Goldman (Ron Goldman’s father) and his ex-wife Sharon Rufo.
A few days later, the jury awarded punitive damages of $25 million to be shared between Nicole Brown
Simpson’s children and Fred Goldman.[9]

1. Do you think it is ethical to give criminal defendants more legal protection than civil defendants? Why or
why not?

2. Why do you think the criminal trial of O. J. Simpson took place before the civil trial? Check your answers to
both questions using the answer key at the end of the chapter.

Johnny Cochran Video

Johnny Cochran: If the Gloves Don’t Fit…

This video presents defense attorney Johnny Cochran’s closing argument in the O. J. Simpson criminal
prosecution:

K E Y T A K E A W A Y S

< Civil law regulates the private rights of individuals. Criminal law regulates individuals’ conduct to protect
the public.

< Civil litigation is a legal action between individuals to resolve a civil dispute. Criminal prosecution is when
the government prosecutes a defendant to punish illegal conduct.

View the video online at: http://www.youtube.com/v/jRth45yU_2Q

CHAPTER 1 INTRODUCTION TO CRIMINAL LAW 11

grading

Classification of crimes by the
severity of punishment.

felonies

The most serious crimes,
which are graded the highest.

misdemeanors

Crimes that are graded lower
than felonies but higher than
infractions.

felony-misdemeanors

Crimes that can be
prosecuted as a felony or a
misdemeanor, depending on
the circumstances.

infractions

The least serious crimes,
which are graded the lowest.
Also called violations.

malum in se

Crimes that are evil in nature.

malum prohibitum

Crimes that are regulatory in
nature.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Jerry, a law enforcement officer, pulls Juanita over for speeding. When Jerry begins writing Juanita’s traffic
ticket, she starts to berate him and accuse him of racial profiling. Jerry surreptitiously reaches into his
pocket and activates a tape recorder. Juanita later calls the highway patrol where Jerry works and files a
false complaint against Jerry. Jerry sues Juanita for $500 in small claims court for filing the false report. He
uses the tape recording as evidence. Is this a civil litigation matter or a criminal prosecution?

2. Read Johnson v. Pearce, 148 N.C.App. 199 (2001). In this case, the plaintiff sued the defendant for criminal
conversation. Is this a civil litigation matter or a criminal prosecution? The case is available at this link:
http://scholar.google.com/scholar_case?case=10159013992593966605&q=
Johnson+v.+Pearce&hl=en&as_sdt=2,5.

4. CLASSIFICATION OF CRIMES

L E A R N I N G O B J E C T I V E S

1. Ascertain the basis for grading.
2. Compare malum in se and malum prohibitum crimes.
3. Compare the punishment options for felonies, misdemeanors, felony-misdemeanors, and

infractions.
4. Compare jail and prison.

Crimes can be classified in many ways. Crimes also can be grouped by subject matter. For example, a
crime like assault, battery, or rape tends to injure another person’s body, so it can be classified as a
“crime against the person.” If a crime tends to injure a person by depriving him or her of property or
by damaging property, it can be classified as a “crime against property.” These classifications are basic-
ally for convenience and are not imperative to the study of criminal law.

More important and substantive is the classification of crimes according to the severity of punish-
ment. This is called grading. Crimes are generally graded into four categories: felonies, misdemean-
ors, felony-misdemeanors, and infractions. Often the criminal intent element affects a crime’s
grading. Malum in se crimes, murder, for example, are evil in their nature and are generally graded
higher than malum prohibitum crimes, which are regulatory, like a failure to pay income taxes.

12 CRIMINAL LAW

prison

Incarceration facility
appropriate for felonies and
operated by the state or
federal government.

jail

Incarceration facility
appropriate for
misdemeanors and operated
by a city or county.

4.1 Felonies
Felonies are the most serious crimes. They are either supported by a heinous intent, like the intent to
kill, or accompanied by an extremely serious result, such as loss of life, grievous injury, or destruction
of property. Felonies are serious, so they are graded the highest, and all sentencing options are avail-
able. Depending on the jurisdiction and the crime, the sentence could be execution, prison time, a
fine, or alternative sentencing such as probation, rehabilitation, and home confinement. Potential con-
sequences of a felony conviction also include the inability to vote, own a weapon, or even participate in
certain careers.

4.2 Misdemeanors
Misdemeanors are less serious than felonies, either because the intent requirement is of a lower level or
because the result is less extreme. Misdemeanors are usually punishable by jail time of one year or less
per misdemeanor, a fine, or alternative sentencing like probation, rehabilitation, or community service.
Note that incarceration for a misdemeanor is in jail rather than prison. The difference between jail and
prison is that cities and counties operate jails, and the state or federal government operates prisons, de-
pending on the crime. The restrictive nature of the confinement also differs between jail and prison.
Jails are for defendants who have committed less serious offenses, so they are generally less restrictive
than prisons.

4.3 Felony-Misdemeanors
Felony-misdemeanors are crimes that the government can prosecute and punish as either a felony or a
misdemeanor, depending on the particular circumstances accompanying the offense. The discretion
whether to prosecute the crime as a felony or misdemeanor usually belongs to the judge, but in some
instances the prosecutor can make the decision.

4.4 Infractions
Infractions, which can also be called violations, are the least serious crimes and include minor offenses
such as jaywalking and motor vehicle offenses that result in a simple traffic ticket. Infractions are gener-
ally punishable by a fine or alternative sentencing such as traffic school.

CHAPTER 1 INTRODUCTION TO CRIMINAL LAW 13

F I G U R E 1 . 3 Diagram of Grading

14 CRIMINAL LAW

K E Y T A K E A W A Y S

< Grading is based on the severity of punishment.

< Malum in se crimes are evil in their nature, like murder. Malum prohibitum crimes are regulatory, like a
failure to pay income taxes.

< Felonies are graded the highest. Punishment options for felonies include the following:

< Execution

< Prison time

< Fines

< Alternative sentencing such as probation, rehabilitation, and home confinement

< Misdemeanors are graded lower than felonies. Punishment options for misdemeanors include the
following:

< Jail time of one year or less per misdemeanor

< Fines

< Alternative sentencing such as probation, rehabilitation, and community service

< Felony-misdemeanors are punished as either a felony or a misdemeanor.

< Infractions, also called violations, are graded lower than misdemeanors and have less severe punishment
options:

< Fines

< Alternative sentencing, such as traffic school

< One difference between jail and prison is that cities and counties operate jails, and the state or federal
government operates prisons, depending on the crime. The restrictive nature of the confinement is
another difference. Jails are for defendants who have committed less serious offenses, so they are
generally less restrictive than prisons.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Harrison kills Calista and is prosecuted and sentenced to one year in jail. Did Harrison commit a felony or a
misdemeanor?

2. Read State v. Gillison, 766 N.W. 2d 649 (2009). In Gillison, why did the Iowa Court of Appeals rule that the
defendant’s prior convictions were felony convictions? What impact did this ruling have on the
defendant’s sentence? The case …

The assignment  
The following discussion comes from your week 1-3 readings. Outside research to address these issu Has been handled previously by writers From HUB ESSAYS, and Assignment Writing Service

ORDER ASSIGNMENT

About ASAP Essays

We are a professional paper writing website. If you have searched a question and bumped into our website just know you are in the right place to get help in your coursework. We offer HIGH QUALITY & PLAGIARISM FREE Papers.

How It Works

To make an Order you only need to click on “Order Now” and we will direct you to our Order Page. Fill Our Order Form with all your assignment instructions. Select your deadline and pay for your paper. You will get it few hours before your set deadline.

Are there Discounts?

All new clients are eligible for 18% off in their first Order. Our payment method is safe and secure.

Hire a tutor today CLICK HERE to make your first order

Order your Assignment today and save 15% with the discount code ESSAYHELP

X