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Crime. We are seemingly inundated with it every day. From the morning news to the late timedramas on television. For many of us, if we are lucky, that will be the only exposure to crime thatwe have to endure. Unless of course you happen to be a willing participant in the criminal justicesystem. Other than those of us absorbed in the law, or consumed with breaking it, how many ofus actually know what crime is?
We could start of by saying that a crime is an act that is defined by the law as wrong. However,that would be an over simplification. We can’t really say that crime always involves conductwhen someone with a legal duty to act, who chooses not to could be convicted of a crime.Furthermore, there are also different kinds of “wrongs,” some of which are criminal and some ofwhich are not.
The fact of the matter is that the study and practice of criminal law is as much as an art as it is ascience. It is the art of communication combined with many sciences such as medicine, forensics,and psychology just to name a few.
Most of us will never even stop to ponder why there are criminal statutes let alone ask whatactually constitutes the commission of a crime. Before getting into the different aspects ofcriminal law, however, it is important to define its purpose.
Quite simplistically, one can say that the purpose of criminal law is to prevent people from doingthings that are considered undesirable by society as a whole. It is essentially a deterrent tocommitting acts that are harmful to society and individuals. Obviously it is the punishmentcomponent of the law that is meant to act as the deterrent. Punishment serves several purposes.One of which is incarceration. If the criminal is detained in a facility under the watchful eye ofhis captors, then he or she is unable to commit further acts against society. Many also argue thatthe time spent in prison under the current system should include methods which serve torehabilitate the incarcerated.
Depending on the nature of the crime, the offender can be subject to an array of punishments. Forthe harshest of crimes, a significant loss of freedom will be the end result. The term “criminal” inand of itself carries a great burden on the offender even after her time has been served. From theloss of voting rights, to the ability to secure employment, once one has been tarnished with thescarlet letter of “criminal,” the ability to lead a gainful an fruitful life becomes all the moredifficult.
With so much at stake for the offender, it is important to have a criminal justice system thatincludes a plethora of safeguards, definitions and procedures that maintain the integrity of thelaw at every step.
Toward that end, this paper will attempt to discuss some of the more important aspects of
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criminal law that not only aid in the process of maintaining the integrity of the criminal justicesystem, but also aid in promoting society’s respect and admiration for said system.
Criminal Intent
Actus Reus
Back in 2002, Tom Cruise starred in a motion picture title Minority Report. The story was basedsome time in the future, around 2050, and essentially centered around the ability of lawenforcement to accurately predict when someone was going to commit a crime. Using thatknowledge, the police could then arrest and convict that person before the crime was actuallycommitted. In the land of make-believe, the powers that be do not have to deal with due processor the United States Constitution. Fortunately for those of us who inhabit the real world, we arenot subject to criminal liability for harboring evil intentions until such intentions are acted upon.
In order to be found guilty of a crime, the defendant must have committed a criminal act; the lawdoes not punish mere criminal thoughts. There must be an affirmative physical act, although incertain circumstances a total failure to act may result in criminal liability. Where criminalliability is based upon the defendant’s affirmative action, there must be a showing that thedefendant made some conscious and volitional movement (State v. Mercer, 165 S.E. 2d 328(N.C.1969).
As previously mentioned, there are certain situations in which acts of omission (as opposed tovolitional movement) will result in criminal liability. A common occurrence is when a defendantin a homicide case failed to take steps to save a victims life. Regardless of the defendant’sintentions, the omission will result in a finding of criminal liability only where it is shown that
(1) The defendant was under a legal duty to act (the most important of the three) (2) The defendant had the necessary knowledge and (3) It would have been possible for the defendant to act.
Mens Rea
As fascinating as it is to pronounce as it is to understand. “Mens rea” is the term used to refer toa defendant’s state of mind or wrongful intent during the commission of the act in question. Aspreviously discussed, the conviction of a crime imposes a certain stigma on the individual. Thatbeing the case, criminal law takes into account what the defendant was actually thinking whenshe engaged in the alleged conduct; so crime, is considered to be subjective in nature.
There are basically two reasons why this subjective nature permeates criminal law. The first is toensure that only morally reprehensible behavior that is considered blameworthy will be subject to
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criminal prosecution. The second reason is the belief that individuals that engage in intentionalbehavior are the most dangerous to society because they are more likely to do harm.
During the early days of the development of common law crimes, judges would declare conductto be criminal even though there was not any “bad state of mind”. Since the early 1600's,however, judges have generally defined common law crimes in terms of which require someprescribed state of mind in addition to a requisite act (or omission). That state of mind hasdiffered from one common law crime to another.
There is no single state of mind that will suffice for purposes of imposing criminal liability.Rather, the requisite state of mind is defined separately for each specific crime (Regina v. Tolson,23 Q.B.D. 168 (1889).
Statutory crimes can require subjective fault (bad state of mind) or objective fault (no state ofmind) and still others require no fault at all. The difficulties inherent in such a variety of crimeshas resulted in the Model Penal Code reducing mens rea to four basic types of crimes whichrequire fault: purposeful, knowing, reckless and negligent.
Basically there are two dimensions to criminal state of mind requirements. The first one is theobject dimension. This mens rea element embraces the subject of the state of mind or what themind was concerned about. For example, the mind’s concern could be related to the consequenceof conduct.
The second dimension concerns the quality state of mind required. For example, in a murdertrial, the mental element might be satisfied only by showing that the defendant desired thevictim’s death.
Criminal liability without a mens rea requirement is called strict liability. It is an exceptional typeof criminal liability and constitutional considerations limit the extent to which it an be imposed.The United States Supreme Court has never made clear what, if any, culpable mental states arerequired for crimes as a matter of federal constitutional law. Some decisions do suggest that thefederal requirement of due process might require some minimal awareness by one accused of acrime (Lambert v. California, 255 U.S. 225 (1957). In other words, some of the Supreme Courtdecisions imply that a crime which imposes a complete, limited or partial liability may beunconstitutional
It is important to note that motive has nothing to do with mens rea but only refers to the reasonfor perpetrating the crime to begin with (financial gain, revenge, jealousy, etc.) A showing ofmotive may constitute reliable evidence that the defendant committed the crime but it is notessential in proving criminal liability.
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Concurrence
It is not enough to independently establish the actus reus and mens rea of a crime, there must alsobe a concurrence between the two which is required by the crime at issue. Simply stated, the actor result must be attributable to the culpable state of mind. This principle is often expressed asthe requirement of a “union” or “joint operation” between the act and intent (Thabo Meli v.Regina (1954), 1 All E.R. 373. Generally speaking, this means that the defendant must have hadthe requisite intent at the moment he performed the act.
It is not essential that the intent and the result concur in point of time. It need only be shown thatthe result was attributable to the intent. In People v. Clayborn, (224 Cal. App 2d 38 (1964)), thedefendant drove his car toward the plaintiff intending to injure the plaintiff. At the last minute,the defendant changed his mind and attempted to stop the vehicle but he was unable to do so. Inthis case the harm to the plaintiff was caused by and was attributable to the defendant’s act ofdriving the car towards the plaintiff. It was irrelevant that at the exact moment of injury, thedefendant did not have the necessary intent.
In no other type of crime are the afore-mentioned aspects of criminal law more important thanmurder. These three facets of criminal law often determine whether or not a homicide becomes amurder and subsequently to what degree such murder is classified.
As of this writing, George Zimmerman is currently standing trial for an alleged second degreemurder charge in the death of Trayvon Martin. Second degree murders are all murders which arenot first degree murders. In other words, they are homicides committed with malice aforethoughtbut do not meet the requirements for murder in the first degree.
Malice aforethought is the mens rea required for murder. It exists when the defendant has a manendangering state of mind as evidenced by one of the following intentions: 1. An intent to kill as expressed by the defendant
2. An intent to cause serious bodily harm as implied by the defendants actions 3. A wanton and willful disregard of human life (depraved or maligned heart) as implied
by the defendants actions or 4. An intent to commit a dangerous felony as implied by the defendants actions.
Based upon testimony heard by the prosecution’s witnesses (as of this writing the prosecution hasrested its case and the judge refused to request defense’s motion to dismiss the case), it wouldappear that George Zimmerman did not have any intent to commit a dangerous felony (outside ofthe one in which he is being charged). That leaves the afore-mentioned items numbered 1through 3.
No one is arguing about the actus reus in this case. The evidence indicates that George
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Zimmerman’s act of shooting Trayvon Martin was conscious and volitional. The real question iswhether or not he had the culpable state of mind to satisfy the malice aforethought aspectrequired for second degree murder. Furthermore, there must be concurrence between the act ofshooting and the mental state of malice aforethought in order to convict Mr. Zimmerman ofsecond degree murder.
The prosecution must be able to prove that Zimmerman expressed an intent to kill or causeserious bodily harm during the night of the homicide. Alternatively, they must prove thatZimmerman displayed a wanton and willful disregard of human life. The prosecution must thenprove that this state of mind was concurrent with the act of pulling the trigger.
The prosecution has attempted to paint a picture in which George Zimmerman spotted TrayvonMartin and confronted him with malice aforethought. While there are no witnesses to the actionsthat took place immediately prior to their physical contact, there is one witness that described Mr.Martin straddled on top of Mr. Zimmerman while striking blows to Zimmerman’s head.
In order to believe that Mr. Zimmerman had the mens rea to commit second degree murder onehas to conclude that Zimmerman deliberately subjected himself to being placed in a situationwhere he could assert his defense of self-defense (presuming that the witness who placedZimmerman on the ground below Martin is believable).
Given Mr. Zimmerman’s knowledge of the law, this is not entirely improbable. To do so,however, would have placed Zimmerman in a situation where he himself could have been killedsince he would have no idea as to whether or not Mr. Martin possessed a deadly weapon. Upuntil this point in the trial the prosecution has not presented any evidence to suggest that Mr.Zimmerman deliberately placed himself in this precarious position.
Alternatively, one could argue that the situation escalated faster than Mr. Zimmerman anticipatedand that this resulted in him being straddled by Mr. Martin. If it is established that Mr.Zimmerman had the adequate mens rea prior to this turn of events, concurrence should not be aproblem (See People v. Clayborn supra) .
Also, if it is established that Mr. Zimmerman had the required mens rea (malice aforethought) forsecond degree murder and it can be determined that he was the initial aggressor, he cannot useforce to defend himself. By beginning the altercation, he forfeited the right to assert self defense.However, since Mr. Zimmerman is claiming self defense it is presumed that either (1) he usednon-deadly force and Mr. Martin used deadly force, and that Zimmerman used whatever forcethat appeared reasonably necessary (including deadly force) to repel the attack or (2) that Mr.Zimmerman was not the aggressor. Under either scenario, proving either situation would negatethe allegation that he had the culpable state to commit second degree murder.
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If he in fact did possess the malice aforethought required for second degree murder and either didnot have a plot to create a self-defense position, or did not lose control of an escalating situation,one has to ask why Mr. Zimmerman did not simply shoot Mr. Martin as soon as he wasapproached.
As is the case with many murder trials, the ultimate outcome of this case hinges upon the mentalstate (mens rea) of Mr. Zimmerman at the time of the act. It will be interesting to see the ultimateoutcome of this case.
Many experts believed that the prosecution over-reached by asserting a second degree murdercharge. I would tend to agree. It is my believe that a better charge would have been involuntarymanslaughter. Involuntary manslaughter is an unintentional homicide committed without malicebut under circumstances involving gross negligence.
Gross negligence has been determined to exist in situations where there was both a high andunreasonable risk of death of another (Commonwealth v. Aurick, 19 A.2d 920 (P.A. 1941)) Insome cases the facts must show wanton or reckless conduct which must go even beyond grossnegligence (Commonwealth v. Welansky, 55 N.E. 2d, 902) (MA 1944)).
It would have been better for the prosecution to prove that George Zimmerman’s actions in lightof the unfolding situation were wanton and reckless. Here we had a young man walking throughthe neighborhood with a bag of candy. Mr. Zimmerman was not a member of law enforcementand was advised by a police dispatcher to keep his distance and not follow Mr. Martin. Whilefollowing Mr. Martin was not a crime, Mr. Zimmerman must have been aware that a potentialconfrontation could result from his pursuit.
Under a traditional homicide analysis, courts have not always drawn a distinction betweenrecklessness and negligence that is often drawn under modern statutes. Because of this, it issometimes unclear whether criminal negligence required for involuntary manslaughter requiresan awareness of the risk of death. If actual awareness is required in the Zimmerman case themental state becomes recklessness rather than negligence.
Mr. Zimmerman certainly had to be aware of a risk of death seeing that he was carrying a gun.The prosecution could then argue that Mr. Zimmerman’s pursuit and subsequent confrontationwith Mr. Martin was reckless enough in that his disregard for the potential danger was a grossdeviation from the standard of conduct that a law-abiding person would observe in his situation.
STRICT LIABILITY CRIME
While mens rea is crucial in establishing many crimes., certain crimes do not require any intentwhatsoever. These crimes are called strict liability crimes.
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Whether a crime imposes strict liability turns initially at least upon the legislatures intent.However, as quite often is the case, criminal statutes do not indicate on their face what thelegislative intent actually was, so the courts turn to other factors.
Factors that suggest that the legislature intended the requisite crime to be a strict liability crimeare as follows:
(1) the crime is a new statutory offense rather than a common law offense,(2) it does not involve a direct and positive infringement on the rights of other persons,(3) it is a part of a broad regulatory scheme,(4) it imposes a relatively light penalty on conviction,(5) requiring mens rea would impede implementation of the legislative purpose, and (6) the “offense” is part of a regulatory scheme or is designed to further the general
welfare.
A strict liability offense occurs where a person commits an act which is prohibited by law. It doesnot matter that the person did not intend to commit the act, or that the results of the act wereunexpected. The fact that the act was committed by itself is a crime. It is not a defense that it wasan accident. There is no mental state required in a strict liability offense.
My father was the Supervisor of Code Enforcement for the city of Providence when I was a child.As such, he was responsible for upholding the housing code statutes in the city with a team ofhousing inspectors. Many violations of the housing code are considered strict liability crimes;from allowing your grass to grow too high to failing to remove harmful paint, it does not matterwhether or not the resulting violation was deliberate or intentional.
More recently, my son was stopped for a traffic violation. He was clocked going in excess of theposted speed limit. As a mechanic he made the responding officer aware of the fact that thespeedometer of his old vehicle had been temporarily disconnect in order to repair certain aspectsof the vehicle. As a result, he was unaware of how fast he had been traveling. Since thisparticular violation was a strict liability crime, it did not matter whether or not my son knew orintended to drive in excess of the speed limit. In fact, many traffic offenses are considered to bestrict liability crimes. The primary reason is to ensure efficient enforcement that provides anincentive for citizens to comply with the traffic laws.
As has been shown, in a case where a court is trying to prove a defendant guilty of a crime,whether the crime is a misdemeanor or felony, serious or petty, there must be two factors that arepresent for the defendant to be found guilty. The first is actus reus, and represents the fact that,either physically or literally, a crime has been committed. The second factor is the more difficultone to prove, and it’s referred to as mens rea. Even though mens rea is the more difficult aspectto prove, it’s also the most important.
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Mens rea, is latin for “guilty mind”, and represents the proof of the intent by the defendant tocommit the crime he or she is being prosecuted for. The reason that mens rea is important withregard to proving crimes is the fact that in most cases, whether successful or not, the simpleintention of committing a crime is a crime in itself (attempt). If a court can prove the intention, ormens rea, then the court should easily be able to prove the actus reus by simply showing that thecrime has been committed.
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