PRINCIPLES OF CRIMINAL LIABILITY
"Law, with all its weaknesses, is all that stands between civilization and barbarism" (John Derbyshire)
Criminal liability is what unlocks the logical structure of the criminal law. Each element of a crime that the prosecutor needs to prove (beyond a reasonable doubt) involves a principle of criminal liability. There are some crimes that only involve a subset of the principles of liability, but these are rare and are called "crimes of criminal conduct." Burglary, for example, is such a crime because all you need to prove beyond a reasonable doubt is an actus reus concurring with a mens rea. On the other hand, there are crimes that involve all the principles of liability, and these are called "true crimes" that reflect "black letter law." Homicide, for example, is such a crime because you need to prove actus reus, mens rea, concurrence, causation, and harm. The requirement that the prosecutor must prove each element of criminal liability beyond a reasonable doubt is called the "corpus delicti rule."
Liability needs to be distinguished from the following concepts:
In general, liability is one of the most important concepts in law. From the above list, it is closest to responsibility, but more strictly refers to the idea of "legal responsibility" as in the notion from civil law where a person is "legally liable" if they do not meet some "legal responsibility." Some good synonyms for it are answerability or accountability. Liability is inherently a social concept, which implies not only some harm is done to society, but there is some collective accountability involved. Of course, pure collective accountability is called "vicarious liability" but modern societies (and even Anglo-American common law) have moved away from collective or community-based systems of responsibility to systems where governments get to declare what is criminal or quasi-criminal.
There are five principles of liability in criminal law:
THE PRINCIPLE OF ACTUS REUS
involuntariness -- sleepwalking, hypnotic behavior, etc. are seen as examples of acting upon forces beyond individual control, and are therefore not normally included in the principle of actus reus. However, certain "voluntarily induced involuntary acts" such as drowsy driving might arguably be included if the prior voluntary act created the risk of a future involuntary act.
manifest criminality -- caught red-handed, clear-cut case of actus reus proven beyond a reasonable doubt
possession -- the law recognizes various degrees of this. Actual possession means physically on your person. Constructive possession means physically under your control. Knowing possession means you know what you are possessing. Mere possession means you don't know what you are possessing. Unwitting possession is when something has been planted on you. The only punishable types of possession are the ones that are conscious and knowable.
procuring -- obtaining things with the intent of using them for criminal purposes; e.g., precursor chemicals for making narcotics, "pimping" for a prostitute, and procuring another to commit a crime ("accessory before the fact")
status or condition -- sometimes a chronic condition qualifies as action, e.g., drug addiction, alcoholism, on the assumption that first use is voluntary. Sometimes the condition, e.g. chronic alcoholism, is treated as a disease which exculpates an individual. Most often, it's the punishment aspect of criminal law in these kinds of cases that triggers an 8th Amendment issue. Equal Protection and other constitutional issues may be triggered.
thoughts -- sometimes, not often, the expression of angry thoughts, e.g., "I'll kill you for that" is taken as expressing the resolution and will to commit a crime, but in general, thoughts are not part of the principle of actus reus. Daydreaming and fantasy are also not easily included in the principle of mens rea.
words -- these are considered "verbal acts"; e.g. sexual harassment, solicitation, terroristic threats, assault, inciting to riot.
THE PRINCIPLE OF MENS REA
circumstantial -- determination of mens rea through indirect evidence
confessions -- clear-cut direct evidence of mens rea beyond a reasonable doubt
constructive intent -- one has the constructive intent to kill if they are driving at high speeds on an icy road with lots of pedestrians around, e.g.
general intent -- the intent to commit the actus reus of the crime one is charged with; e.g., rape and intent to penetrate
specific intent -- the intent to do something beyond the actus reus of the crime one is charged with; e.g., breaking and entering with intent to burglarize
strict liability -- crimes requiring no mens rea; liability without fault; corporate crime, environmental crime
transferred intent -- the intent to harm one victim but instead harm another
THE PRINCIPLE OF CONCURRENCE
attendant circumstances -- some crimes have additional elements that must accompany the criminal act and the criminal mind; e.g., rape, but not with your wife
enterprise liability -- in corporate law, this is the idea that both the act and the agency (mens rea) for it can be imputed to the corporation; e.g., product safety
year-and-a-day rule -- common law rule that the final result of an act must occur no later than a year and a day after the criminal state of mind. For example, if you struck someone on the head with intent to kill, but they didn't die until a year and two days later, you could not be prosecuted for murder. Many states have abolished this rule or extended the time limit. In California, it's three years.
vicarious liability -- sometimes, under some rules, the guilty party would not be the person who committed the act but the person who intended the act; e.g., supervisors of employees
THE PRINCIPLE OF CAUSATION
actual cause -- a necessary but not sufficient condition to prove causation beyond a reasonable doubt; prosecutor must also prove proximate cause
but for or sine qua non causation -- setting in motion a chain of events that sooner or later lead to the harmful result; but for the actor's conduct, the result would not have occurred
intervening cause -- unforeseen events that still hold the defendant accountable
legal causation -- a prosecutor's logic of both actual and proximate cause
proximate cause -- the fairness of how far back the prosecutor goes in the chain of events to hold a particular defendant accountable; literally means the next or closest cause
superceding cause -- unforeseen events that exculpate a defendant
THE PRINCIPLE OF RESULTING HARM
Harm is the objective, material substance of the crime, as distinct from the subjective component of mens rea. The basic principle is that no conduct can truly be called a crime unless it causes some resulting harm. Such conduct must be injurious to the public at large or injurious enough to any individual that society takes notice of it and regards it as a harm against itself. In other words, there must be some "material unlawfulness." There is also an assumption that resulting harm is done by challenging the legality of the law itself.
injury to society -- a "material" injury or wrong that society recognizes, is aware of, or takes notice of
injury to legality -- goes beyond mere breach of law to a conception of the law itself being threatened by a loss in value
punishability of attempt -- there are borderline cases of punishable attempt and non-punishable preparation (the law of inchoate crimes - a later lecture), and it is probably best in determining punishability by abiding with threats to legal interests as long as those legal interests serve a real need
utility -- by necessity and Constitutional strictures, nothing should be considered harmful unless it is morally repugnant, although immoral behavior alone should be sharply distinguished from criminal behavior
RESPONSIBILITY FOR CRIME: PRESUMPTIONS
Presumptions are court-ordered assumptions that the jury must take as true unless rebutted by evidence. Their purpose is to simplify and expedite the trial process. The judge, for example at some point in testimony, may remind the jury that it is OK to assume that all people form some kind of intent before or during their behavior. It is wrong, however, for the judge to order the jury to assume intent or a specific kind of intent in a case. Presumptions are not a substitute for evidence. Presumptions are supposed to be friendly reminders about safe, scientific assumptions about human nature or human behavior in general. The most common presumptions are:
reminders that the accused is considered innocent until proven guilty
reminders that the accused is to be considered sane, normal, and competent
It is important to understand that presumptions are not inferences. Presumptions must be accepted as true by the jury. Inferences may be accepted as true by the jury, but the trick is to get the jury to believe they thought of it first. Lawyers are not allowed to engage in the practice of "stacking of inferences", or basing an inference solely upon another inference. Lawyers are also prohibited by logic from making certain "impermissible inferences" and here's an example of how the logic goes:
Inferences that can be drawn:
|Witnesses testify that X repeatedly hit Y on the head with a club until stopped by passerbys||Intent to kill or seriously injure; Purposely or Knowingly using club as deadly weapon.|
|Witnesses testify that X repeatedly hit Y on the head with a rolled-up newspaper||Intent to kill cannot be inferred; newspaper cannot be construed as a deadly weapon|
Anatomy of a Prosecution
Buffalo Criminal Law Review
The General Principles of Liability (pdf)
Fletcher, G. (1996). Basic Concepts of Legal Thought. NY: Oxford Univ. Press.
Gardner, T. & T. Anderson. (1996). Criminal Law: Principles and Cases. 6th ed. Minneapolis: West Publishing
Posner, R. (2004). Frontiers of Legal Theory. Cambridge, MA: Harvard Univ. Press.
Samaha, J. (1999). Criminal Law. 6th ed. Belmont, CA: West/Wadsworth.
Last updated: Dec 18, 2012
Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal Justice
O'Connor, T. (2012). "Principles of Criminal Liability," MegaLinks in Criminal Justice. Retrieved from http://www.drtomoconnor.com/3010/3010lect02.htm.