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Chapter 2
Principles of Criminal Liability
Copyright © 2010, Elsevier Inc. All rights Reserved
1

2.1
Introduction
Before there can be a finding of guilt, the
following elements of any crime must be proven:





Parties to crimes (at least one),
The criminal act or omission (actus reus),
The criminal state of mind (mens rea),
Causation, and
Concurrence.
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2
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2.2
Parties to Crimes
Common Law

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Principals in the first degree,
Principals in the second degree,
Accessories before the fact, or
Accessories after the fact.
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Principals in the First Degree


2.2
Parties to Crimes
One who actually commits the act that causes a
crime to occur.
Principals in the Second Degree

One who aids or abets a principal in the first degree
as he or she commits the criminal act, or incites the
commission of the crime, and who is actually or
constructively present at the time of the commission
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
2.2
Parties to Crimes
Accessories before the fact are persons who
counsel, procure, or command the principal in
the first degree to commit a criminal offense, yet
who are too far away to have participated in the
felonious act.
An accessory after the fact is one who receives,
comforts, or assists another, knowing that the
other has committed a felony, in order to hinder
the perpetrator’s arrest, prosecution, or
conviction.
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
2.2
Parties to Crimes
Model Penal Code



A person is guilty of an offense if it is committed by his
or her own conduct or by the conduct of another
person for whom he or she is “legally accountable.”
An accomplice is one who solicits the commission of
an offense, aids in its commission or, having a legal
duty to prevent the commission of the offense, fails to
make proper effort to prevent it, or his or her conduct
is expressly declared by law to establish complicity.
Prosecutors must prove that accomplices had the
mens rea attached to the crime(s).
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
2.2
Parties to Crimes
Model Penal Code

A person commits the offense of accessory after the
fact if he or she:
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Harbors or conceals another;
Provides aid;
Conceals, destroys, or tampers with evidence;
Warns of impending discovery or apprehension; or
Volunteers false information to a law enforcement officer.
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7

2.2
Parties to Crimes
State Statutes, Codes, and Cases

Most state statutes have simplified the concept of
culpability and no longer follow the common law
principles.
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8

2.2
Parties to Crimes
State Statutes, Codes, and Cases


An accessory after the fact is generally treated as a
separate offense and is accorded different treatment
in modern codes.
To establish the crime of accessory after the fact, the
state must establish:
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The completed felony was completed by another party prior
to any acts engaged in by the defendant,
The accessory was not a principal in the commission of the
felony,
The accessory had knowledge of the felony, and
The accessory acted personally to aid or assist a felon to
avoid detection or apprehension for the crime(s).
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
2.2
Parties to Crimes
State Statutes, Codes, and Cases


Criminal facilitation statutes impose liability for
providing aid to someone, knowing that he or she
committed or is about to commit an offense.
In most jurisdictions, the penalty for facilitation is one
level, or class, lower than the substantive offense for
which the aid was offered.
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10

2.2
Parties to Crimes
Summary
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
The liability of an actor is categorized according to
proximity to the offense and the level of participation.
In most modern statutes, the only two types of
criminal parties are:

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Party (includes principals and accomplices), and
Accessory after the fact
In some jurisdictions there is also a lesser crime of

Criminal facilitation.
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11

In order to find someone guilty of a crime, every
element of this formula must be proven:
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
2.3
Criminal Act Requirements
Criminal Act + Requisite State of Mind + Causation +
Concurrence (of Act and State of Mind) = Crime
The prosecution must show that the person
committed an act prohibited by some law, or
failed to act when he or she had a legal
obligation to do so.

Often this principle is referred to as the actus reus.
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12

2.3
Criminal Act Requirements
As a rule, legal liability is typically based upon
an affirmative physical act by the person
charged, but in some instances liability can rest
upon a failure to act, if it is determined that a
person had a legal obligation to act under the
circumstances.
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13
2.3
Criminal Act Requirements

Model Penal Code


A person is guilty of an offense if it is committed by
his or her own conduct or by the conduct of another
person for who he or she is legally accountable.
An accomplice is one who solicits the commission of
an offense, aids in its commission or, having a legal
duty to prevent the commission of the offense, fails to
make proper effort to prevent it, or his or her conduct
is expressly declared by law to establish complicity.
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14

2.3
Criminal Act Requirements
Model Penal Code

A person commits the offense of accessory
after the fact if he or she:

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Harbors or conceals another;
Provides aid;
Conceals, destroys, or tampers with evidence;
Warns of impending discover or apprehension; or
Volunteers false information to a law enforcement
officer.
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15
2.3
Criminal Act Requirements

State Statutes, Codes, and Cases

Most state statutes have simplified the
concept of culpability and no longer follow the
common law principles.

In most modern statutes, the only two types of
criminal parties are:



Party (including principals and accomplices), and
Accessory after the fact.
Criminal facilitation statutes impose liability for
providing aid to someone, knowing that he or
she committed or is about to commit an
offense.
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16

2.3
Criminal Act Requirements
Summary
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In order to be convicted of a crime, the accused must
have committed a criminal act.
The act may involve an actual physical movement, or
it may consist of verbal acts.
When criminal liability is based upon the defendant’s
affirmative act, there usually must be a showing that
he or she made some conscious movement.
However, possession crimes have been upheld even
if there is no proof of a conscious movement.
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2.4
Criminal Omission
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Criminal omission: liability rests upon the failure
to act when there is a duty.
Jones v. United States

The court held that a person who failed to act may be
found guilty of homicide, if there existed a duty,
declaring:

There are at least four situations in which the failure to act
may constitute a breach of legal duty.
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A statute imposes a duty to care for another;
One stands in a certain status relationship to another;
One has assumed a contractual duty to care for another; and
One has voluntarily assumed the care of another, and so secluded the
helpless person as to prevent others from rendering aid.
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2.4
Criminal Omission

Statutory Duty
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Criminal liability could result if the person charged had
the opportunity and ability to perform the act and did
not.
Other statutory duties may create the potential for
criminal liability if their omission results in a death or
injury.
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2.4
Criminal Omission
“Good Samaritan” laws create a duty to render
assistance when one citizen sees another in
distress.
All states have what are called Good Samaritan
laws, but they do not create criminal liability.
They protect citizens from civil liability if they
stop and render assistance to a victim and are
sued as a result of their actions.
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2.4
Criminal Omission
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Relationship Duties
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At common law, certain affirmative duties were placed
upon persons with designated relationships.
“Filial responsibility” laws create a duty to financially
provide for one’s aged and infirm parents if one is
able to do so.
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2.4
Criminal Omission

Contractual Duties
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Where a person has a contractual duty to protect or
care from others and fails to carry out that contractual
duty, he or she may be criminally liable for not
performing that duty.
In the case of People v. Montecino, a nurse was held
liable for failing to care for a patient she had been
hired to care for.
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
2.4
Criminal Omission
Failure to Continue Care Duties

If a person who has no statutory, relationship, or
contractual obligation to render aid assumes this
obligation, that person must not put the helpless
person in such a position as to prevent others from
rendering aid.
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2.4
Criminal Omission
Knowledge and Impossibility

Before a person can be held responsible for an
omission, knowledge of one’s duty and an opportunity
to perform and failure to perform the act must be
shown.
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2.4
Criminal Omission

Summary
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In order for an omission to create criminal culpability,
there must be a duty.
Duties are created through statute, relationship,
contract, or through undertaking to care for a person
in distress.
Simple ignorance of the law defining the duty is not
sufficient to relieve one of liability.
A failure to act cannot create a criminal liability unless


Knowledge of facts that give notice to the person that they
have a duty to perform, and
An ability to perform one’s duty.
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
2.5
Criminal State of Mind—Mens Rea
The criminal intent need not have existed for
any length of time before the act, as long as it
existed at the instant of the act.
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2.5
Criminal State of Mind—Mens Rea

Common Law
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
Each crime possessed a mens rea, but the language
used in old English cases and early state statutes and
cases in this country was not uniform; thus, for
instance, the necessary intent for homicide might
have been malicious, premeditated, depraved
indifference, deprave heart, wanton disregard, or
some other term.
The mens rea requirement for crimes
traditionally falls into one of three categories:
specific intent, general intent, or negligence.
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27
2.5
Criminal State of Mind—Mens Rea

Specific Intent
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An intention to commit some act to accomplish a
result that is known to be illegal.
General Intent
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Present when a person consciously chooses to do a
prohibited act.
The only state of mind required is the intent to commit
the act constituting the crime.
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
2.5
Criminal State of Mind—Mens Rea
Negligence

In common law, negligence is the failure to perform a
duty when such conduct is reckless and indifferent to
the consequences.
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
2.5
Criminal State of Mind—Mens Rea
Model Penal Code

General Requirements of Culpability
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Minimum Requirements of Culpability
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Except as provided in 2.05, a person is not guilty of an offense unless
he acted purposely, knowingly, recklessly or negligently, as the law
may require, with respect to each material element of the offense.
Kinds of Culpability Defined

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Purposely
Knowingly
Recklessly
Negligently
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
2.5
Criminal State of Mind—Mens Rea
Transferred intent

Is a doctrine holding that if the defendant shoots or
strikes at A, intending to wound or kill him, and
unforeseeably hits B instead, he is guilty of the
originally intended crime.
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2.5
Criminal State of Mind—Mens Rea

Summary

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Mens rea can be defined as criminal state of mind.
It is not just intent, although that is one level of mens
rea.
The four different levels of criminal states of mind that
are recognized in the Model Penal Code and many
state criminal codes are:



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Purposely
Knowingly
Recklessly
Negligently
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
2.5
Criminal State of Mind—Mens Rea
Summary

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The level of mens rea is related to the seriousness of
the crime and the degree of punishment.
Specific intent can be roughly equated to purposely,
and general intent can be roughly equated to
knowingly.
Transferred intent is a doctrine whereby the offender
is charge with the crime that he intended regardless
who is actually harmed.
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2.6
Causation

Causation
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In order for one who is accused of a crime to be
convicted of that crime, the prosecution must show
that the act of the defendant constituted a substantial
factor in bringing about the result.
Conduct is the cause of a result when:


It is an antecedent but for which the result in question
would not have occurred; and
The relationship between the conduct and result
satisfied any additional causal requirements imposed
by the Code or by the law defining the offense.
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2.6
Causation

Proximate causation


Is a common sense approach to cut off liability even
though one’s actions may have actually caused the
result or contributed to the result.
A person’s action will be defined as the proximate
cause of the result when there are not intervening
superseding factors that come between the actions
and the end result.

If there is a superseding intervening factor—an independent
act or occurrence that supersedes the defendant’s act as the
legally significant causal factor—the defendant’s conduct will
not be the legal cause of the result.
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

2.6
Causation
If there is a superseding intervening factor—an
independent act or occurrence that supersedes
the defendant’s act as the legally significant
causal factor—the defendant’s conduct will not
be the legal cause of the result.
To constitute a superseding cause, the
independent occurrence must be:



Intervening,
Unforeseeable (or unnatural), and
The sole direct cause of the result.
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
2.6
Causation
Summary



The law is only concerned with proximate causation or
legal causation.
This is when there is no break in the causal chain
between the offender’s action and the result.
If there is a superseding intervening factor, then the
causal chain is broken and the offender is not
responsible for the ultimate result.
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37
2.6
Causation

Summary


Offender’s action > events that are foreseeable
and/or natural > result = proximate causation/culpable
Offender’s action > events that are unforeseeable
and/or unnatural > result = not proximate/not culpable
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38

2.7
Concurrence—Criminal Act and State of Mind
Concurrence

Is the meeting or coming together; agreement or
union in action; meeting of minds; union in design;
consent.
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39
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
2.8
Attendant Circumstances
In some crimes, proof must be offered to show
that certain circumstances existed at the time of
the act in question.
In many instances, these attendant
circumstances are listed as elements of the
crime.
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40
2.9
Strict Liability


Strict liability: culpability that occurs
without mens rea; in strict liability crimes,
the state need not prove any level of mens
rea on the part of the offender.
The rationale for strict liability crimes is
that, if the prosecution were required to
prove the mental element, convictions
would be so difficult to obtain that the
existence of the criminal statute would not
deter the conduct.
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41
2.10
Vicarious Liability


Vicarious liability is liability for crimes committed
by another person, imposed simply because of
the relationship between the parties.
It is unnecessary to show that the defendant
acted in any way or participated in the offense; it
need only be established that the crime was
committed by another person and that the
defendant stood in the required relationship as
stated by statute.
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42


2.11
Lesser Included Offenses
All states and the federal courts adhere to the
concept that defendants may be convicted of
“lesser included offenses.”
If a defendant is convicted of a crime of a higher
degree, that defendant cannot be convicted of a
lesser included offense arising from the same act
or omission.
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43