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CHAPTER THREE
ESSENTIAL ELEMENTS OF A CRIME
Learning Objectives
After reading this chapter, students will be able to:
1. Explain the meaning of and difference between actus reus and mens rea.
3. Write a simple criminal charge that does not have as an element a specific intent.
5. Distinguish between motive and intent.
7. Explain why the year-and-a-day rule is a rule of proximate cause.
9. Explain why a conclusive presumption is prohibited.
Lesson Plan
Correlated to PowerPoints
I. Crimes requiring proof of mental fault
Learning Objective 1: Learn the meaning of and difference between actus reus and mens rea.
Learning Objective 2: Identify when a criminal statute includes a requirement of a specific
intent.
Learning Objective 5: Distinguish between motive and intent.
A. Reasonable Doubt – Crimes that have these elements sometimes called true
crimes
1. A reasonable person could not conclude the element was not true
a. The external physical act or omission
i. the conduct or act forbidden
b. The internal mental element criminal intent or purpose
Strict Liability – These are sometimes called regulatory crimes
B. Model Penal Code
1. Proposed criminal law developed by the American Law Institute, a group
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of lawyers, judges, and teachers. Many states have modeled their criminal
codes on the Model Penal Code.
a.
Media Tool
“Model Penal Code”
http://www.ali.org/index.cfm?fuseaction=publications.ppage&node_id=92
o Publications catalog for the Model Penal Code (MPC). Describes
the purpose of the MPC and provides information on current
events and revisions.
o Discussion: Look at the MPC provisions that are currently under
revision. Why are these provisions being revised? How might
changes to the MPC affect laws in your state?
C. Concurrence
1. Thoughts about crime by themselves are not crimes
2. The requirement in crimes requiring proof of mental intent that the
forbidden act and guilty mind must occur at the same time or otherwise be
linked.
a. A pure accident is not a crime
D. Actus Reus: The Forbidden Act or Omission
1. The act forbidden or commanded by the law is described in the definition
3. The harm or the wrong done usually varies from crime to crime, but
sometimes two crimes embody the same harm or wrong.
4. Just as different mental states may result in different crimes charged, so
too may different acts be made criminal where more than one person is a
party to a crime.
5. The state has the burden of proving beyond a reasonable doubt the actus
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6. The criminal acts must be volitional; that is, the act must be the product of
conscious thought.
E. When failure to act is a crime
1. A small percentage of crimes in criminal codes are crimes of omission—
failure to act when a duty or obligation is imposed upon persons under
certain circumstances.
a. Failure to report the death of a child.
b. Failure to report the location of a human corpse.
c. Failure by a parent or guardian to provide adequate food, clothing,
shelter, or medical care to a child under the person’s care and
supervision.
Class Discussion/Activity
Failure to act involves specific people. What kind of people can be
convicted of failure to act crimes? Why does society require certain people
to take action and not others?
F. Mens Rea: The Guilty Mind – Assignment Number 1
What If Scenario
The state legislature has become tired of accidental injury cases in which no one is held liable
for the harms caused. As a result a statute has been written eliminating the mens rea
requirement from the criminal law. How might this statute be written? What are the problems
with such a statute?
1. The term mens rea means evil intent, criminal purpose, and knowledge of
the wrongfulness of conduct.
2. At common law, “general intent” referred to the intent of the defendant to
do the forbidden act. If the act was done intentionally, it did not matter if
3. “Specific intent” is understood today as referring to the intent that must
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accompany the forbidden act, over and above the intent to do the
forbidden act.
a. In United States v. Bailey, the U.S. Supreme Court stated that in a
Media Tool
“How Can a Prosecution Prove Intent?”
https://www.youtube.com/watch?v=-GTqrJn4jN8
o Short clip from the Lawinfo website describing the difference
between general intent and specific intent and what the prosecutor
must prove.
o Discussion: After watching the clip, discuss the differences
between general and specific intent and what crimes would
require each. Which do students think would present more
challenges to prosecutors?
1. When criminal intent or another mental element is an essential element of
a crime, the state has the burden of proving the required mens rea.
Class Discussion/Activity
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?
2. Proof of the mental element may be made by:
a. Showing the acts of the defendant and the circumstances that
existed at the time of the crime.
H. The Requirement of Scienter – Assignment Number 2
1. Scienter is a legal term meaning possession of a degree of knowledge
about facts material to a conviction of a crime. If a statute requires
knowledge about the existence of a fact, then that knowledge must be proved
by the prosecution.
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Class Discussion/Activity
Discuss the concept of scienter and its importance for certain types of
crimes. Discuss why there is a requirement of scienter in some crimes and
not others. How does the wording the statute impact the requirement of
scienter?
2. Examples of crimes in which state statutes most often require scienter
include the following:
a. In battery or assault on a law enforcement officer, knowledge that
the victim is a law enforcement officer
3. A statute can of course add a scienter requirement by appropriate
language.
4. Statutes can dispense with the requirement of scienter as applied to an
element of an offense. In such a case, with respect to that element the
statute becomes one of “strict liability.”
I. The Willful Blindness Rule
1. Cases where defendants have raised lack of knowledge as a defense have
resulted in the “willful blindness” rule, sometimes called the “ostrich
2. The U. S. Supreme Court has held that under that rule, for willful
blindness to serve as a substitute for actual knowledge “(1) the defendant must
subjectively believe that there is a high probability that a fact exists and (2)
the defendant must take deliberate actions to avoid learning of that fact.”
Global Tech Appliances v. SEB S.A., 131 S. Ct. 2060, 2070 (2011)
J. The Motive for Committing a Crime
1. Intent and motive are sometimes thought of as being one and the same.
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Copyright © 2018 Cengage Learning. All Rights Reserved.
However, the law contains a clear distinction between the two.
a. Intent is the mental purpose or design to commit a specific act (or
omission). Frequently an essential element of crime
b. Motive is the cause, inducement, or reason why an act is
committed. Not usually an essential element
II. Strict liability crimes – Assignment Number 3
Learning Objective 6: Identify some of the similarities of strict liability crimes.
A. In enacting statutes to enforce rules having to do with public safety—such as
traffic, liquor, purity of food, hunting, and narcotics offenses—modern legislative
bodies often choose not to create “true” crimes, but rather to enact statutes that do
not require any proof of mens rea.
Media Tool
“Strict Liability: Dog-Bite Statutes”
http://www.nolo.com/legal-encyclopedia/dog-bite-statutes.html
o Information on NOLO.com regarding strict liability laws for dog-
bite statutes in the United States.
o Discussion: After reading the information discuss what would be
required in your state for a dog owner to be liable for harm cause
by his/her dog? Have students look up the statute for your state
and discuss whether they agree/disagree with the statute. Do they
see any potential problems with the wording of the statute? If so,
how would they write it differently?
B. These statutory crimes are usually called strict liability crimes.
D. In the case of federal criminal statutes, the U.S. Supreme Court has stated that
strict liability crimes are not preferred and that Congress must make it clear if it
G. In Liparota v. United States20 the U.S. Supreme Court held that for a defendant to be
convicted under 7 U.S.C.A. § 2024(b)(l) for the unlawful use of food stamps, the
prosecution must prove the defendant knew that his use of food stamps was not
authorized.
H. Strict liability laws that seek to protect children
What If Scenario
Currently, your state allows the defense of mistake of age in sex crimes involving
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remove the defense of mistake of age. You personally know someone who used this
defense. How would you argue for retention of this defense?
1. The age of a minor is an essential element of such crimes as sexual
2. Many states take away the defense of “mistake of age” from some or all of
the offenses that seek to protect children.
III. Proximate cause or causation – Assignment Number 4
Learning Objective 7: Explain why the year-and-a-day rule is a rule of proximate cause.
What If Scenario
The difficulty in prosecuting crimes after lengthy periods of time has prompted the legislature
to propose a law returning to the year-and-a-day rule of proximate cause. You have been asked
to provide a reasoned argument as to why this would or would not be a good idea. Provide a
brief paper stating arguments in favor of or against this proposal. Be sure to provide support
from the text for your argument.
A. The material elements of crimes include conduct that is forbidden or required, and
D. Proximate cause
1. The ordinary and probable consequences that follow from actions.
E. Cause in fact
1. The result would not have happened “but for” the prohibited conduct.
F. See Box “Multiple Causes of Death in Homicide Prosecutions”
G. The proximity between the distribution of illegal drugs, such as cocaine or heroin
and drug overdose deaths, has led in some states criminal statutes making the
person who distributed the illegal drugs responsible for the resulting overdose
death.
H. The ancient year-and-a-day murder rule
2. Because of changes in medical science many, perhaps most, states, either
by statute or court decision, have abandoned the year and a day rule.
i. Rogers v. Tennessee, 532 U.S. 451 (2001) the U.S. Supreme Court held that
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Tennessee.
IV. Possession alone as a crime
A. All states make the possession of certain objects a criminal offense.
1. Actual possession and constructive possession
2. Possession is one of the rights of ownership of property. Criminal statutes
do not require that ownership be proved.
Class Discussion/Activity
Actual possession and constructive possession can be very important
differences. How do these differences affect prosecution of crimes of
possession? Why do criminal statutes not require ownership to be proved?
B. The possession of illegal contraband inference
1. A strong inference of possession of illegal contraband can be made when
the contraband is found
a. Under the front seat of a car driven by the owner of the vehicle
b. In the home of a person who is the sole occupant of the house or
apartment
V. The use of presumptions and inferences in criminal law
Learning Objective 8: Identify the relationship between use of presumptions in the
prosecution’s case and the Due Process Clause.
Learning Objective 9: Explain why a conclusive presumption is prohibited.
What If Scenario
In the United States one of the best known presumptions is the presumption of innocence until
proven guilty. What if the Supreme Court decided that this presumption was no longer required
by the Constitution? How would this affect the legal system? What differences would exist in
the criminal courtroom?
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Process Clause because such a presumption allows the prosecution to
avoid proving an element.
C. Functions of presumptions and inferences
2. Presumptions are created to permit orderly civil and criminal trials.
a. A presumption is an assumption the law expressly directs that the
trier of fact must make. A presumption of law is not evidence nor
should it be weighed by the fact finder as though it had
evidentiary value.
b. Criminal trials commence with the presumption that the defendant
is innocent.
i. The presumption of innocence until proven guilty is
a rebuttable presumption, which means it may be
overcome by evidence proving otherwise.
c. An inference is a conclusion or deduction that a jury or judge may
draw from a fact or a group of facts presented to them.
D. The presumption that all persons are sane, normal, and competent
Lecture Notes
Chapter 3 introduces students to the essential elements of a crime. Students have probably not
had much experience in dissecting a real criminal act into its component parts—its essential
elements. Students might benefit from taking a crime defined by their state statute, robbery for
example, and breaking it down into its essential elements—what is the actus reus of robbery and
the mens rea. What type of harm to the victim is required?
Strict liability crimes help protect society from harm. Discuss with students the different types of
strict liability crimes. Students may better understand their importance through examination of a
case from their area or a nationwide case that has drawn national attention. Discuss with students
This material is not just an intellectual exercise in legal analysis. When a prosecutor tries a case,
he or she must prove each of the elements of the crime(s) charged against the defendant beyond a
beyond a reasonable doubt. This is a tremendous burden and requires a great deal of
organization and planning. The evidence needs to be introduced in a logical fashion so the jury
can follow it and match up which piece of evidence has been introduced to prove which element
of the offense(s) charged.
Many times, the critical element will be whether the defendant committed the actus reus. Other
times it’s clear the defendant committed the act, but the issue will be his or her mens rea. There
Legal presumptions and inferences help structure the presentation of evidence and guide the fact-
finder (who may be the judge or a jury) as they evaluate the evidence. How much more
Key Terms
reasonable doubt – Proof beyond a reasonable doubt means that it is not enough to prove it was
more likely than not that an element of the crime was true. The proof must be such that a reasonable
person could not conclude the element was not true. (p. 54)
actus reus – The criminal act. (p. 54)
mens rea – The criminal intent or state of mind. (p. 54)
Model Penal Code (MPC) – Proposed criminal law developed by the American Law Institute, a
group of lawyers, judges, and teachers. Many states have modeled their criminal codes on the Model
Penal Code. (p. 55)
concurrence – The requirement in crimes requiring proof of mental intent that the forbidden act and
guilty mind must occur at the same time or otherwise be linked. For example, trustees, guardians,
and lawyers might have possession of another person’s money (physical act). For the crime of
embezzlement to occur they must intentionally and wrongfully misappropriate this money (forbidden
act and guilty mind). (p. 56)
specific intent – The intent necessary for one or more elements of an offense. Murder, for example,
requires the specific intent that the act be done intentionally or purposely. (p. 59)
scienter – A form of specific intent requiring a showing that the actor knew of the existence of
certain facts. For example, one cannot be guilty of possession of stolen property if one does not
know property is stolen. (p. 63)
intent – The mental purpose or design to commit a specific act (or omission). (p. 67)
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motive – The cause, inducement, or reason why an act is committed. (p. 67)
presumption – A rule of law that the trier of fact shall assume the existence of a state of facts
without evidence being produced. Presumptions are rebuttable or irrebuttable. (p. 80)
Assignments
1. Using the example provided in the mens rea section of the chapter as a guideline describe
2. Read the box To Know or Not to Know: That is the Question in Chapter Three. Read the
case briefs for the cases involved. In your small group write an argument supporting one
3. Check your state’s penal code for strict liability crimes. Describe the similarities between
4. Read the proximate cause and cause-in-fact box. Define proximate cause and cause-in–
fact. Describe the relationship between the two terms and why this relationship is
important. Find a case in your state in which this relationship is important to the
prosecution of the crime. Describe the issues related that make this relationship important
for prosecution. Why does/does not the year-and-a-day rule matter in this case? [LO 7]
Case Analysis and Writing Exercises
1. Every state has a statute making it a crime to “cause” another person’s death if the
defendant was operating a vehicle while intoxicated. What exactly must the prosecution
prove to make the causal connection between one element of the crime, intoxicated, and the
victim’s death? Is it enough to show (1) the defendant was driving the vehicle that struck
the victim, and (2) the defendant was intoxicated? Or does the prosecution have to show a
causal connection between the intoxication and the death? What did the Supreme Court of
Iowa decide was the answer to the causation question? Do you agree? See State v. Adams,
2. It is a crime in most states to “possess burglary tools.” What does “possession” require the
state to prove? Do the tools have to be used in a burglary? Does the defendant in possession
have to be convicted of burglary to be convicted of the possession charge? In State v. Platt,
154 So.3d 1200 (Fla. App. 2015) the defendant was convicted under the Florida burglary
tools statute, 810.06 Fla. Stat. The jury did not find the defendant guilty of burglary, but did
find him guilty of the possession charge. After the verdict, the trial judge granted the
defendant’s motion for acquittal on the possession charge, and the state appealed. Was the
trial judge correct to overrule the jury verdict on the possession charge? Why or why not?
3. As we note in this chapter, at times failure to act can be a crime. Child abuse can go
undetected and unpunished if only the victim is relied upon for reporting the abuse.
Children are often incapable of understanding the need to tell others about such abuse. As a
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mandated. An example of such a statute is Ark. Code Ann. § 12-18-201. High school
teachers are typically mandated reporters. What did the high school teacher fail to do as a
mandated reporter under Arkansas law in Griffin v. State, 454 S.W.3d 262 (Ark. App.
2015)? There, one teacher learned that another teacher had a sexual relationship with a
4. Under 26 U.S.C. § 5861(d) it is a crime to possess certain kinds of “unregistered” firearms,
such as sawed–off shotguns or machine guns. The term includes “destructive devices,” such
as grenades or “flash bang” devices. The crime is thus being in possession of a covered
firearm without registering that possession with the appropriate federal agency. In United
States v. Berres, 777 F.3d 1083 (10th Cir. 2015) the defendant was convicted under this
statute of carrying a flash bang device in his back pack. On appeal the defendant contended
he could not be convicted for failure to register the device, because the registration statute
did not permit him to register the device. Is that a good argument?