Mens Rea, Concurrence, Causation · 2007-03-02 · Introduction In the last chapter we noted that a...

Introduction

One of the common law’s great contributionsis to limit blameworthy individuals’ criminalguilt to “morally blameworthy” individuals.

Mens Rea

A. A criminal offense requires a criminalintent.

B. The requirement of a criminal intentis based on “moral blameworthiness,”a conscious decision to intentionallyor knowingly engage in criminalconduct or to act in a reckless or negligentfashion.

C. Mens rea consists of four states of mind.The most serious or culpable is purposely,and then knowingly, recklessly, andnegligently.

D. Strict liability offenses require an actusreus, but do not incorporate a mens rearequirement. These typically are publicwelfare offenses or crimes that protect public

safety and security by regulating food, drugs,and transportation.

Concurrence

A. There must be a concurrence betweena criminal intent and a criminalact that causes a prohibited harm orinjury.

Causality

A. A criminal act must be the cause in factor “but for” cause of a harm or injury, aswell as the legal or proximate cause.

B. A coincidental intervening act does notbreak the chain of causation caused by adefendant’s criminal act unless theintervening act was unforeseeable.

C. A responsive intervening act does not breakthe chain of causation caused by adefendant’s criminal act unless theintervening act was both abnormal andunforeseeable.

5 MMeennss RReeaa,,Concurrence, Causation

Should the defendant have known thathis pet tiger cats endangered his daughter?

By June 6, 1999, the tigers were two years old. Lauren was ten. She stood 57 inches tall andweighed 80 pounds. At dusk that evening, Lauren joined Hranicky in the tiger cage. Suddenly, themale tiger attacked her. It mauled the child’s throat, breaking her neck and severing her spinal cord.She died instantly . . . Hranicky testified . . . [that] he did not view the risk to be substantialbecause he thought the tigers were domesticated and had bonded with the family. . . . Thus, heargues, he had no knowledge of any risk.

Core Concepts and Summary Statements

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Introduction

In the last chapter we noted that a criminal act or actus reus is required to exist in unisonwith a criminal intent or mens rea, and as you soon will see, these two components must com-

bine to cause a prohibited injury or harm. This chapter completes our introduction to the basicelements of a crime by introducing you to criminal intent, concurrence, and causation.

One of the common law’s great contributions is to limit criminal punishment to “morallyblameworthy” individuals who consciously choose to cause or to create a risk of harm or injury.Individuals are punished based on the harm caused by their decision to commit a criminal act ratherthan because they are “bad” or “evil” people. Former Supreme Court Justice Robert Jackson observedthat a system of punishment based on intent is a celebration of the “freedom of the human will”and the “ability and duty of the normal individual to choose between good and evil.” Jackson notedthat this emphasis on individual choice and free will assumes that criminal law and punishmentcan deter people from choosing to commit crimes, and those who do engage in crime can beencouraged to develop a greater sense of moral responsibility and avoid crime in the future.1

MMeennss RReeaa

You read in the newspaper that your favorite rock star shot and killed one of her friends.There is no more serious crime than murder, yet before condemning the killer you want to

know “what was on her mind?” The rock star may have intentionally aimed and fired the rifle.On the other hand, she may have aimed and fired the gun believing that it was unloaded. Wehave the same act, but a different reaction based on whether the rock star intended to kill herfriend or acted in a reckless manner. As Oliver Wendell Holmes Jr. famously remarked, “even adog distinguishes between being stumbled over and being kicked.”2

As we have seen, it is the bedrock principle of criminal law that a crime requires an act oromission and a criminal intent. The appropriate punishment of an act depends to a large extenton whether the act was intentional or accidental. Law texts traditionally have repeated thatActus non facit rum nisi mens sit rea: “there can be no crime, large or small, without an evil mind.”The “mental part” of crimes is commonly termed mens rea (“guilty mind”) or scienter (“guiltyknowledge”) or criminal intent. The U.S. Supreme Court noted that the requirement of a “rela-tion between some mental element and punishment for a harmful act is almost as instinctive asthe child’s familiar exculpatory (not responsible) plea, ‘But I didn’t mean to.’”3

The common law originally punished criminal acts and paid no attention to the mental ele-ment of an individual’s conduct. The killing of an individual was murder, whether committed inten-tionally or recklessly. Canon, or religious law, with its stress on sinfulness and moral guilt, helped tointroduce the idea that punishment should depend on an individual’s “moral blameworthiness.”This came to be fully accepted in the American colonies and, as observed by the U.S. Supreme Court,mens rea is now the “rule of, rather than the exception to, the principles . . . of American criminaljurisprudence.” There are some good reasons for requiring “moral blameworthiness.”

• Responsibility. It is just and fair to hold a person accountable who intentionally choosesto commit a crime.

• Deterrence. Individuals who act with a criminal intent pose a threat to society andshould be punished in order to discourage them from violating the law in the future andin order to deter others from choosing to violate the law.

• Punishment. The punishment should fit the crime. The severity of criminal punishmentshould depend on whether an individual’s act was intentional, reckless, or accidental.

The concept of mens rea has traditionally been a source of confusion, and the first reaction ofstudents and teachers has been to flee from the topic. This is understandable when it is realized thatin 1972, United States statutes employed seventy-six different terms to describe the required mentalelement of federal crimes. This laundry list included terms such as intentionally, knowingly, fraudu-lently, designedly, recklessly, wantonly, unlawfully, feloniously, unlawfully, willfully, purposely, felo-niously, negligently, wickedly, and wrongfully. These are what Justice Jackson termed “thevariety, disparity and confusion” of the judicial definition of the “elusive mental element” of crime.4

MMeennss RReeaa,, CCoonnccuurrrreennccee,, CCaauussaattiioonn 119


The Evidentiary Burden

The prosecution must establish the required mens rea beyond a reasonable doubt. Professor Hallobserved that we cannot observe or record what goes on inside an individual’s mind. The mostreliable indication of intent is a defendant’s confession or statement to other individuals.Witnesses may also testify that they saw an individual take careful aim when shooting and thekilling did not appear to be accidental.5

In most cases, we must look at the surrounding circumstances and apply our understandingof human behavior. In People v. Conley, a high school student at a party hit another student witha wine bottle, breaking the victim’s upper and lower jaws, nose, cheek, and permanently numb-ing his mouth. The victim and his friend were alleged to have made insulting remarks atthe party and were leaving when one of them was assaulted with a wine bottle. The attackerwas convicted of committing an aggravated battery that “intentionally” or “knowingly” caused“great bodily harm or permanent disability or disfigurement.” The defendant denied possessingthis intent. An Illinois appellate court held that the “words, the weapon used, and the force ofthe blow . . . the use of a bottle, the absence of warning and the force of the blow are facts fromwhich the jury could reasonably infer the intent to cause permanent disability.” In other words,the Illinois court held that the defendant’s actions spoke louder than his words in revealing histhoughts. Evidence that helps us to indirectly establish a criminal intent or criminal act istermed circumstantial evidence.6

The Model Penal Code Standard

The common law provided for two confusing categories of mens rea, a general intent and aspecific intent. These continue to appear in various state statutes and decisions.

A general intent is simply an intent to commit the actus reus or criminal act. There is norequirement that prosecutors demonstrate that an offender possessed an intent to violate thelaw, an awareness that the act is a crime, or that the act will result in a particular type of harm.Proof of the defendant’s general intent is typically inferred from the nature of the act and thesurrounding circumstances. The crime of battery or a nonconsensual, harmful touching providesa good illustration of a general intent crime. The prosecutor is only required to demonstrate thatthe accused intended to commit an act that was substantially likely to harm another. In the caseof a battery, this may be inferred from factors such as the dangerousness nature of the weapon,number of blows, and the statements uttered by the accused. A statute that provides for a generalintent typically employs terms such as “intentionally” or “willfully” to indicate that the crimerequires a general intent.

A specific intent is a mental determination to accomplish a specific result. The prosecutoris required to demonstrate that the offender possessed the intent to commit the actus reus andthen is required to present additional evidence that the defendant possessed the specific intentto accomplish a particular result. For example, a battery with an intent to kill requires proof ofa battery along with additional evidence of a specific intent to murder the victim. The classicexample is common law burglary. This requires the actus reus of breaking and entering and evi-dence of a specific intent to commit a felony inside the dwelling. Some commentators refer tothese offenses as crimes of cause and result because the offender possesses the intent to “causea particular result.”

Courts often struggle with whether statutes require a general or specific intent. The conse-quences can be seen from the Texas case of Alvarado v. State. The defendant was convicted of“intentionally and knowingly” causing serious bodily injury to her child by placing him in a tubof hot water. The trial judge instructed the jury that they were merely required to find that theaccused deliberately placed the child in the water. The appellate court overturned the convictionand ruled that the statute required the jury to find that the defendant possessed the intent toplace the child in hot water, as well as the specific intent to inflict serious bodily harm.7

You may encounter two additional types of common law intent. A transferred intent applieswhen an individual intends to attack one person and injures another. In People v. Conley, Conleyintended to hit Marty but instead struck and inflicted severe injuries on Sean. Nevertheless, hewas convicted of aggravated battery. The classic formulation of the common law doctrine oftransferred intent states that the defendant’s guilt is “exactly what it would have been had theblow fallen upon the intended victim instead of the bystander.” Transferred intent also applies toproperty crimes in cases where, for example, an individual intends to burn down one home andthe wind blows the fire onto another structure, burning the dwelling to the ground.

120 General Criminal Law: Principles Of Criminal Responsibility


Constructive intent is a fourth type of common law intent. This was applied in the earlytwentieth century to protect the public against reckless drivers and provides that individualswho are grossly and wantonly reckless are considered to intend the natural consequences oftheir actions. A reckless driver who caused an accident that resulted in death is, under thedoctrine of constructive intent, guilty of a willful and intentional battery or homicide.

In 1980, the U.S. Supreme Court complained that the common law distinction betweengeneral and specific intent had caused a “good deal of confusion.”8 The Model Penal Codeattempted to clearly define the mental intent required for crimes by providing four easily under-stood levels of responsibility. All crimes requiring a mental element (some do not, as we shallsee) must include one of the four mental states provided in the Model Penal Code. These fourtypes of intent, in descending order of seriousness, are:

purposely,

knowingly,

recklessly,

negligently.

The Model Penal Code

Section 2.02. General Requirements of Culpability

(1) Minimum Requirements of Culpability. . . . [A] person is not guilty of an offenseunless he acted purposely, knowingly, recklessly or negligently . . . with respect to eachmaterial element of the offense.

(2) Kinds of Culpability Defined.

(a) Purposely.

A person acts purposely with respect to material elements of an offense when:

(i) . . . [I]t is his conscious object to engage in conduct of that nature or to causesuch a result. . . .

(b) Knowingly.

A person acts knowingly . . . when:

(i) If the element involves the nature of his conduct . . . he is aware of theexistence of such circumstances or he believes or hopes that they exist; and

(ii) If the element involves a result of his conduct, he is aware that it is practicallycertain that his conduct will cause such a result.

(c) Recklessly.

A person acts recklessly with respect to a material element of an offense when heconsciously disregards a substantial and unjustifiable risk that the material elementexists or will result from his conduct. The risk must be of such a nature and degreethat, considering the nature and purpose of the actor’s conduct and the circum-stances known to him, its disregard involves a gross deviation from the standard ofconduct that a law-abiding person would observe in the actor’s situation.

(d) Negligently.

A person acts negligently with respect to a material element of an offense when heshould be aware of a substantial and unjustifiable risk that the material elementexists or will result from his conduct. The risk must be of such a nature and degreethat the actor’s failure to perceive it, considering the nature and purpose of his con-duct and the circumstances known to him, involves a gross deviation from thestandard of care that a reasonable person would observe in the actors’ situation.

AnalysisPurposely. “You borrowed my car and wrecked it on purpose.”Knowingly. “You may not have purposely wrecked my car, but you knew that you were almost

certain to get in an accident because you had never driven such a powerful and fast automobile.”Recklessly. “You may not have purposely wrecked my car, but you were driving over the

speed limit on a rain soaked and slick road in heavy traffic and certainly realized that you wereextremely likely to get into an accident.”



Negligently. “You may not have purposely wrecked my car and apparently did not under-stand the power of the auto’s engine, but I cannot overlook your lack of awareness of the risk ofan accident. After all, any reasonable person would have been aware that such an expensivesports car would pack a punch and would be difficult for a new driver to control.”

Purposely

The Model Penal Code established purposely as the most serious category of criminal intent.This merely means that a defendant acted “on purpose” or “deliberately.” In legal terms, the

defendant must possess a specific intent or “conscious object” to commit a crime or cause aresult. A murderer pulls the trigger with the purpose of killing the victim, the burglar breaks andenters with the purpose of committing a felony inside the dwelling, and a thief possesses thepurpose of permanently depriving an individual of the possession of his or her property.


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COMMONWEALTH V. BARNETTE

699 N.E.2D 1230 (MASS.APP. 1988)

OPINION BY: LENK, J.

FactsThis case arises out of an altercation between next doorneighbors in Lexington. The victims, Maria Acuna andher son Israel Rodriguez, are Mexican-American. Thedefendant is predominately African-American. Duringthe incident, the defendant allegedly threatened to killAcuna and Rodriguez, calling them, among other things,“damn Mexicans” and telling them to “Get out of here.”After trial, a jury convicted the defendant of two countsof assault or battery for the purpose of intimidation . . .and two counts of threatening to commit a crime . . . Weaffirm.

FactsIn the early evening of September 21, 1995, MariaAcuna was working at her computer on the second floorof her home in Lexington, where she had been livingwith her son, Israel Rodriguez (Rodriguez), since May,1995. The defendant was next door at his sister’s housebabysitting his niece. Acuna heard a loud noise, likesomeone banging or shaking a wooden fence, lookedout her window, and saw the defendant trying to enterher back yard to retrieve his niece’s ball. Concerned thatthe defendant was going to break her fence, Acunacalled through the window to the defendant to pleasenot trespass, and that she would come downstairs tohelp him out.

The defendant shouted, “You b__ I just came to pickup my ball.” Acuna went downstairs and walked into herbackyard, and observed that the defendant had entered

her yard, and was turning to leave. As the defendant lefther yard, he repeatedly called her a “b__” and told her thatshe could keep the ball the next time. Acuna walkedtowards the fence to latch the gate and the defendant said:“You b__. You don’t fit here. What are you doing here, youdamn Mexican. Why don’t you go back to your country?All of you come and get our jobs and our houses. Get outof here. You don’t fit here. I’ll kill you, and your son.”

While standing next to the fence shouting at Acuna,the defendant thrust his fist towards her face so that she“could almost feel the hit of his fist” in her nose andface. The defendant then threw his fingers in a forkingmotion towards her, coming to within an inch of hereyes. The defendant was yelling at Acuna so loudly thatRodriguez awoke from his nap and came outside to thebackyard. Rodriguez testified that he could hear thedefendant shouting “f__,” “s__,” and “Mexican,” “Getthe hell out of the country,” “You don’t belong here,”and “Mexicans don’t belong here” at his mother. Hepulled his mother away from the fence and demanded toknow from the defendant what was going on. The defen-dant now attempted to hit Rodriguez with his fists, fromthe other side of the fence, rattling the gate, trying toenter the backyard, and saying: “You little s_. Come uphere. I’m going to take the f___ing s__ out of you andyour mother together. I will beat you both to death.” Thedefendant continued saying, “Damn Mexicans. What areyou doing here?” Acuna and Rodriguez both testifiedthat they felt afraid and threatened by the defendant’srage and determination to hit them.

At the time of the incident, the defendant’s neigh-bor, Michael Townes, was barbecuing in his backyard,approximately twenty feet away. Townes heard thedefendant yell at Acuna and Rodriguez “You should goback to where you’re from,” and refer to “whupping”Rodriguez’s ass. Townes came over and, smelling alcoholon the defendant’s breath, told the defendant to “Let itgo” and to go home and “sleep it off.” Townes put hishands on the defendant and led him away. Rodriguez


went inside and, after calling Townes to express hisgratitude, called the police.

Officer Paul Callahan responded to the call andarrived at Acuna’s residence to find her and her sonvisibly upset. Callahan filed an incident report and tried,unsuccessfully, to locate the defendant. The next day,Detective Charles Mercer returned to the neighborhoodand interviewed the defendant.

In response to the detective’s questions, the defen-dant asserted that he entered the yard to retrieve the ballonly after knocking on the fence and not receiving aresponse, that Acuna had appeared and yelled at him fornot going around to ring the bell, and that he did notswear at or threaten Acuna. Nonetheless, the defendantdid admit that he had said that Acuna should “go backto where she came from,” but claims to have said it to hisneighbor Townes, not directly to Acuna.

IssueThe defendant argues that the judge erred in denying hismotion for a required finding of not guilty on the twocounts of assault or battery for the purpose of intimida-tion. The defendant claims that the Commonwealthpresented insufficient evidence that he acted “for thepurpose of intimidation. . . .”

General Laws c. 265, § 39, is a so-called “hate crime”statute. It provides that “whoever commits an assault or abattery upon a person . . . for the purpose of intimidationbecause of said person’s race, color, religion, or nationalorigin, shall be punished. . . .” As instructed by the trialjudge, the essential elements of the crime are: (1) the com-mission of an assault or battery (2) with the intent tointimidate (3) because of a person’s race, color, religion, ornational origin. In general, a hate crime is “a crime inwhich the defendant’s conduct was motivated by hatred,bias, or prejudice, based on the actual or perceived race,color, religion, national origin, ethnicity, gender, or sexualorientation of another individual or group of individuals.”. . . Thus, hate crime laws . . . operate to “enhance thepenalty of criminal conduct when it is motivated by racialhatred or bigotry.” It is not the conduct but the underlyingmotivation that distinguishes the crime.

Here, the defendant was convicted of assaultingthe victims for the purpose of intimidation. The intent

required . . . was not only that required to establishthe underlying assault, i.e., the intent either to causea battery or to cause apprehension of immediate bodilyharm, but also the intent to intimidate because of thevictim’s membership in a protected class. . . .

ReasoningAt trial, Acuna and Rodriguez both testified that,throughout the altercation that gave rise to this case, thedefendant repeatedly called them “damn Mexicans,” anddemanded that they “get out of here.” Acuna testifiedthat the defendant verbally attacked her, saying that sheshould go back to her country and that he would kill herand her son. Rodriguez testified that the defendant toldhim that he was going to beat up Rodriguez and his“b___y” mother. Both Acuna and Rodriguez also testifiedthat they felt threatened by the defendant’s behavior. TheCommonwealth presented ample evidence that thedefendant assaulted Acuna and Rodriguez with the intentto intimidate them because of their national origin. . . . Arational trier of fact could find that the defendant’s repe-tition of the phrase “damn Mexican,” accompanied byhis repeated demand that Acuna and Rodriguez “Get outof here,” demonstrated a purpose of intimidation becauseof the victims’ national origin. . . .

HoldingThe defendant contends that his outburst at Acuna andRodriguez was motivated by his anger at being called atrespasser and was not motivated by any anti-Mexicansentiment. The defendant believes that the fact that hisniece is of Puerto Rican descent demonstrates that helacks any anti-Hispanic bias or prejudice. The uncontro-verted evidence at trial, however, was that the defendantwas shouting specifically anti-Mexican slurs at Acuna andRodriguez, not that he expressed any more generalizedanti-Hispanic animus. Moreover, the evidence submittedin conjunction with the defendant’s motion for new trialestablished merely that the defendant’s niece was ofPuerto Rican descent not that the defendant thoughtfavorably of Puerto Ricans or Hispanics in general. . . .The trial judge did not err in denying the defendant’smotion for new trial. . . .


◆◆ Questions for Discussion

1. In your own words, explain the “purpose” or specific intentthat the prosecution must establish beyond a reasonabledoubt under the hate crimes statute in order to convict adefendant.

2. List the facts relied on by the prosecution to prove that thedefendant possessed a purpose or intent to intimidate. Asthe defense attorney, what would you argue to persuadethe court that your client did not possess the requiredintent?

3. Had Barnette uttered the same remarks and not physicallythreatened his neighbors, would he have been found guiltyof a “hate crime” involving a threat to inflict serious bodilyharm? Would the police have arrested Barnette for ethnicintimidation had he said nothing and physicallythreatened his neighbors? Is it significant that thiswas the first time that Barnette had made these types ofstatements to his neighbors?

4. As a prosecutor, would you have devoted time and energyto prosecuting Barnette?


Defendant Raul Perez-Gonzalez was arrested for transporting individuals whom he knew to be illegal aliens “in furtherance” of their illegal presence in

the United States. His car was stopped by an Ohio State police officer, who discovered fifteen Spanish-speaking illegal aliens in the rear of the vehicle. Perez-Gonzalez had a roster indicating that each indi-vidual paid $250. He explained that he worked for the company that owned the van, and his job wasto drive people from Texas to New York. Perez-Gonzalez claimed that this was his first trip for the com-pany and he was being paid $350. The vehicle had no external markings to indicate that it was a com-mercial vehicle. The van left early in the morning and had taken a complex route, apparently designedto avoid states that are heavily patrolled by the Immigration and Naturalization Service. The vehicle alsohad darkened windows that concealed the occupants. Only three or four passengers were permittedto exit the van at rest stops in order to avoid calling attention to the group. Perez-Gonzalez contendedthat he suspected, but did not know, that his passengers were illegal aliens. He merely intended totransport them to New York, where they apparently hoped to find employment. The government, onthe other hand, contended that Perez-Gonzalez acted purposely to assist individuals whom he knew tobe illegal aliens in furthering (supporting) their illegal presence in the United States. What evidence sup-ports the conclusion that Perez-Gonzalez knew that the passengers were illegal aliens? How does trans-porting illegal aliens to New York further their illegal presence in the United States?

On the facts presented in this problem, should a jury find Perez-Gonzalez guilty of “furthering”the presence of illegal aliens? See United States v. Perez-Gonzalez, 307 F.3d 443 (6th Cir. 2002).What if Perez-Gonzalez testified that he believed the passengers were fleeing political persecution intheir home countries and he was driving them to the liberally minded New York immigration office toapply for political asylum status (this status permits individuals who are able to demonstrate a well-founded fear of political persecution to remain in the United States). Would he be guilty of “further-ing” their illegal presence? See United States v. Merkt, 764 F.2d 266 (5th Cir. 1985).

You can find the answer at http://www.sagepub.com/lippmanstudy

❖

5.1. You Decide


International Perspective

TT he 1948 Convention on the Preventionand Punishment of the Crime of

Genocide punishes individuals who commitcertain acts with the intent to destroy, in whole orin part, a national, ethnical, racial, or religiousgroup, as such. Five specific acts of genocide arelisted, including killing members of a group andimposing conditions on members of a group calcu-lated to lead to their extermination. Other actsinclude causing serious bodily or mental harm tomembers of the group, imposing measuresintended to prevent births, and forcibly transferringchildren of the group to another group. The U.S.Congress ratified the convention in 1989 andadopted a law making genocide a crime when com-mitted within the United States.

The prosecution must establish that adefendant committed one of the acts listed in theconvention with the specific intent or purpose of

exterminating an entire group. It is sufficient thatthe intent to exterminate extends to members of agroup within the defendant’s immediate environ-ment; there is no requirement that he or she intendto kill every member of a group in the world, letalone within a country.

In the Jelisic case, the International CriminalTribunal for Yugoslavia convicted defendant GoranJelisic of murder and acquitted him of genocide atthe same time. Jelisic left his home in May, 1992, towork at the Luka concentration camp whereSerbian military forces had detained the maleMuslim inhabitants of the town of Brcko in north-east Bosnia. Jelisic claimed the title of “SerbianAdolf Hitler” and proclaimed it was only afterkilling twenty Muslims in the morning that he wasable to enjoy a cup of coffee. At various times,Jelisic bragged about the number of Muslims hekilled; at one point he claimed he had exterminatedas many as 150 Muslim prisoners. According to wit-nesses at the trial, Jelisic’s ultimate goal was to killseventy percent of the detainees under his control


Knowingly

An individual satisfies the knowledge standard when he or she is “aware” that circumstancesexist or a result is practically certain to result from his or her conduct. An example of knowl-

edge of circumstances is to “knowingly possess” narcotics or to knowingly “receive stolen property.”It is sufficient that a person is aware that there is a high probability that property is stolen, he orshe need not be certain. An illustration of a result that is practically certain to occur is a terroristwho bombs a public building knowing the people inside are likely to be maimed, injured, or die.

The commentary to the Model Penal Code uses the example of treason to illustrate the dif-ference between purpose and knowledge. In United States v. Haupt, Chicago resident Hans Hauptwas accused of treason during World War II based on the assistance he provided to his son,whom he knew was a German spy. The U.S. Supreme Court ruled that treason requires a specificintent (purpose) to wage war on the United States. Haupt claimed that as a loving father, heknowingly assisted his son, who unfortunately happened to be sympathetic to the Germancause, and he did not possess the purpose to injure the U.S. government. The Supreme Court,however, pointed to Haupt’s statements that “he hoped that Germany would win the war” andthat “he would never permit his son to fight for the United States” as indicating that Haupt’s“son had the misfortune of being a chip off the old block.”9

In the next case in the chapter, State v. Nations, the defendant remained “willfully blind” ordeliberately unaware of the criminal circumstances and claims that she did not knowinglyviolate the law. This type of situation typically arises in narcotics prosecutions in which drugcouriers claim to have been unaware that they were transporting drugs.10


and severely beat and subject the remaining thirtypercent to janitorial duties. Jelisic also reportedlyremarked that he wanted to sterilize Muslimwomen to prevent the growth of the Islamic popu-lation, and that in the short term, he would beginto kill Muslim male detainees in order to halt thegrowth of the Muslim population.

The International Trial Court noted that Jelisicpossessed a disturbed personality and that hisexercise of authority over the Muslim prisonersprovided him with a sense of power, satisfaction,

and personal fulfillment. Jelisic was described asenjoying the exercise of power over the prisonersand unpredictably spared some detainees whilekilling others. The tribunal concluded that Jelisiclacked a clear purpose to destroy all Muslimsunder his control in the camp. The trial court illus-trated this by pointing out that Jelisic released aprisoner who he had forced to play “Russianroulette” and permitted several others to leave thecamp after severely beating them. See Prosecutor v.Jelisic, IT-95-10 (1999).

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STATE v. NATIONS

676 S.W.2D 382 (MO.APP. 1984)

OPINION BY: SATZ, J.

IssueDefendant, Sandra Nations, owns and operatesthe Main Street Disco, in which police officers founda scantily clad sixteen year old girl “dancing” for“tips.” Consequently, defendant was charged withendangering the welfare of a child “less than seventeen

years old,” Defendant was convicted and fined$1,000.00. Defendant appeals. We reverse.

Specifically, defendant argues the state failed toshow she knew the child was under seventeen and,therefore, failed to show she had the requisite intentto endanger the welfare of a child “less than seventeenyears old.” We agree.

ReasoningThe pertinent part of § 568.050 provides:

(1) A person commits the crime of endangering thewelfare of a child if:. . . .


(2) He knowingly encourages, aids or causes achild less than seventeen years old to engagein any conduct which causes or tends tocause the child to come within the provisionsof subdivision (1)(c) . . . of section 211.031,RSMo. . . .”

Thus § 568.050 requires the state to prove thedefendant “knowingly” encouraged a child “less thanseventeen years old” to engage in conduct tending toinjure the child’s welfare, and “knowing” the child tobe less than seventeen is a material element of thecrime.

“Knowingly” is a term of art, whose meaningis limited to the definition given to it by ourpresent Criminal Code. Literally read, the Code defines“knowingly” as actual knowledge—“A person ‘actsknowingly,’ or with knowledge, (1) with respect . . . toattendant circumstances when he is aware . . . that thosecircumstances exist. . . .” So read, this definition of“knowingly” or “knowledge” excludes those cases inwhich “the fact [in issue] would have been known hadnot the person willfully ‘shut his eyes’ in order to avoidknowing.” The Model Penal Code, the source of ourCriminal Code, does not exclude these cases from itsdefinition of “knowingly.” Instead, the Model PenalCode proposes that “[when] knowledge of the existenceof a particular fact is an element of an offense, suchknowledge is established if a person is aware of a highprobability of its existence .” . . .

The additional or expanded definition of“knowingly” proposed in § 2.02(7) of the Model PenalCode “deals with the situation British commentatorshave denominated “willful blindness” or “connivance,”the case of the actor who is aware of the probableexistence of a material fact but does not satisfy himselfthat it does not in fact exist. . . . The inference of“‘knowledge” of an existing fact is usually drawnfrom proof of notice of substantial probability of itsexistence, unless the defendant establishes an honest,contrary belief. . . .

Our legislature, however, did not enact thisproposed definition of “knowingly.” . . . The sensible, ifnot compelling, inference is that our legislature rejectedthe expansion of the definition of “knowingly,” toinclude willful blindness of a fact, and chose to limit thedefinition of “knowingly” to actual knowledge of thefact. Thus, in the instant case, the state’s burden was toshow defendant actually was aware the child was underseventeen, a heavier burden than showing there was a

“high probability” that the defendant was aware that thechild was under seventeen. . . .

FactsThe record shows that, at the time of the incident, thechild was sixteen years old. When the police arrived, thechild was “dancing” on stage for “tips” with anotherfemale. The police watched her dance for some fiveto seven minutes before approaching defendant in theservice area of the bar. Believing that one of the girlsappeared to be “young,” the police questioned defen-dant about the child’s age. Defendant told them thatboth girls were of legal age and that she had checked thegirls’ identification when she hired them. When thepolice questioned the child, she initially stated thatshe was eighteen but later admitted that she was onlysixteen. She had no identification.

The state also called the child as a witness. Her testi-mony was no help to the state. She testified the defen-dant asked her for identification just prior to the policearriving, and she was merely crossing the stage to get heridentification when the police took her into custody.Nor can the state secure help from the defendant’s testi-mony. She simply corroborated the child’s testimony;i.e., she asked the child for her identification; the childreplied she would “show it to [her] in a minute”; thepolice then took the child into custody.

HoldingThese facts simply show defendant was untruthful.Defendant could not have checked the child’s identifica-tion, because the child had no identification with herthat day, the first day defendant “hired” the child. Thisdoes not prove that defendant knew the child was lessthan seventeen years old. At best, it proves defendantdid not know or refused to learn the child’s age. . . .Having failed to prove defendant knew the child’sage was less than seventeen, the state failed to make a . . .case.

Admittedly, a person in defendant’s shoes can easilyavoid conviction of a crime under § 568.050 by simplyrefusing to check the age of “dancers.” This result is to berectified, however, by the legislature, not by judicialredefinition of already precisely defined statutory lan-guage or by improper inferences from operative facts.The Model Penal Code’s expanded definition of “know-ingly” attracts us by its logic. Apparently, it was not asattractive to our legislature for use throughout ourCriminal Code. . . .


◆ Questions for Discussion

1. Why does the court conclude that the defendant is notguilty under the statute of endangering the welfare of theyoung dancer?

2. In your view, was the defendant aware that there was a“high probability” that the dancer was under seventeenand for that reason intentionally avoided checking her age?


CCaasseess aanndd CCoommmmeennttss1. Willful Blindness. The Missouri Court of Appeals

decision in Nations does not reflect the majority view con-cerning “willful blindness.” In Florez, the Eighth CircuitCourt of Appeals found that Antoinette Rose Florez wasaware that her former husband Tyrone Crawford hadengaged in extensive real estate fraud schemes in the past.Crawford was prohibited by a court order from opening abank account in his own name for one year; Florez agreedto open an account in her name. to which she gaveCrawford full access, including control over the check-book and bank card. Florez accompanied Crawford to thebank whenever he wanted to withdraw funds from theaccount. She claimed that she was unaware that Crawford

was once again engaged in a series of complex illegaltransactions, and that she did not know that this was thesource of the $100,000 that he asked her to withdrawfrom the account. The jury found Florez guilty of aidingand abetting the laundering of money (this involves hid-ing the fact that money came from an illegal enterprise).The Court of Appeals held that the evidence taken as awhole indicates that even if Florez did not have actualknowledge that Crawford was using the bank account forillegal activities, “it was only because she chose not toinvestigate and effectively buried her head in the sand.” Isthere a distinction between this case and Nations? SeeUnited States v. Florez, 368 F.3d 1042 (8th Cir. 2004).


Defendant Andy Hypolite is a citizen of Trinidad and Tobago. His cousin and his cousin’s friend offered him a round-trip airline ticket to fly to New York and trans-

port $70,000 back to Trinidad. Hypolite was to receive $6,000 on his return. At the airport in Trinidad,his cousin’s friend gave Hypolite “drink packets” that appeared to be milk products. U.S. Customsofficials in New York found that the “milk products” actually contained 2.9 kilograms of cocaine andarrested Hypolite. Hypolite claimed that he was unaware that he was transporting illegal drugs. Heconceded that he had a “strong suspicion” that the milk products contained narcotics, but did not askwhether the packages contained drugs because he “blanked it out” and tried “not to pry too much.”Was Hypolite guilty of knowingly importing illegal drugs into the United States? See United States v.Hypolite, 81 Fed.Appx. 751 (2003).


❖

Recklessly

We all know people who enjoy taking risks and skirting danger and who are confident thatthey will beat the odds. These reckless individuals engage in obviously risky behavior that

they know creates a risk of substantial and unjustifiable harm and yet do not expect that injuryor harm will result.

Why does the law consider individuals who are reckless less blameworthy than individualswho act purposely or knowingly?

• Individuals who act purposely deliberately create a harm and individuals who act know-ingly are aware that injury is certain to follow.

• Individuals acting recklessly, in contrast, disregard a strong probability that harm will result.

Recklessness is big, bold, and outrageous. Recklessness involves a conscious disregard of asubstantial and unjustifiable risk. This must constitute a gross deviation from the standard of

5.2. You Decide

3. How does the Missouri statute differ from the Model PenalCode in regards to “willful blindness”? What is the impactof the court decision for offenses involving the possessionof narcotics?

5. How would you amend the Missouri statute to eliminatethe “willful blindness” defense?

6. If you were a judge, how would you rule Nations?


conduct that a law-abiding person would observe in a similar situation. The reckless individualspeeds down a street where children usually play, builds and sells to an uninformed buyer ahouse that is situated on a dangerous chemical waste dump, manufactures an automobile witha gas tank that likely will explode in the event of an accident, or locks the exit doors of a rockclub during a performance in which a band ignites fireworks.

The Model Penal Code provides a two-fold test for reckless conduct:

• A Conscious Disregard of a Substantial and Unjustifiable Risk. The defendant mustbe personally aware of a severe and serious risk. Unjustifiable means that the harm wasnot created in an effort to serve a greater good, such as speeding down the street in aneffort to reach the hospital before a passenger who was in auto accident bleeds todeath.

• A Gross Deviation From the Standard That a Law-Abiding Person Would Observe inthe Same Situation. The defendant must have acted in a fashion that demonstrates aclear lack of judgment and concern for the consequences. This must clearly depart fromthe behavior that would be expected of other law-abiding individuals. Note this is anobjective test based on the general standard of conduct.

In Hranicky v. State, the next case in the chapter, the court is confronted with thechallenge of determining whether the defendant recklessly caused serious bodily injury to hisstepdaughter.


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HRANICKY v. STATE

13-00-431-CR (TEX. APP. 2004)

OPINION BY: CATILLO, J.

Bobby Lee Hranicky appeals his conviction for the second-degree felony offense of recklessly causing serious bodilyinjury to a child. A jury found him guilty, sentenced himto eight years confinement in the Institutional Division ofthe Texas Department of Criminal Justice, and assessed a$5,000 fine. On the jury’s recommendation, the trial courtsuspended the sentence and placed Hranicky on commu-nity supervision for ten years.

FactsA newspaper advertisement offering tiger cubs forsale caught the eye of eight-year-old Lauren Villafana.She decided she wanted one. She expressed her wish toher mother, Kelly Dean Hranicky, and to Hranicky, herstepfather. Over the next year, the Hranickys investi-gated the idea by researching written materials on thesubject and consulting with owners of exotic animals.They visited tiger owner and handler Mickey Sapp sev-eral times. They decided to buy two rare tiger cubs fromhim, a male and a female whose breed is endangered inthe wild. . . .

Sapp trained Hranicky in how to care for and handlethe animals. In particular, he demonstrated the risk adulttigers pose for children. Sapp escorted Hranicky, Kelly

Hranicky, and Lauren past Sapp’s tiger cages. He told thefamily to watch the tigers’ focus of attention. The tigers’eyes followed Lauren as she walked up and down besidethe cages.

The Hranickys raised the cubs inside their homeuntil they were six or eight months old. Then theymoved the cubs out of the house, at first to an enclosedporch in the back and ultimately to a cage Hranicky builtin the yard. The tigers matured into adolescence. Themale reached 250 pounds, the female slightly less.Lauren actively helped Hranicky care for the animals.

By June 6, 1999, the tigers were two years old.Lauren was ten. She stood 57 inches tall and weighed80 pounds. At dusk that evening, Lauren joinedHranicky in the tiger cage. Suddenly, the male tigerattacked her. It mauled the child’s throat, breaking herneck and severing her spinal cord. She died instantly.

The record reflects four different versions of theevents that led to Lauren’s death. Hranicky told thegrand jury Lauren and he were sitting side-by-side inthe cage about 8:00 p.m., petting the female tiger. Aneighbor’s billy goat cried out. The noise attracted themale tiger’s attention. He turned toward the sound. Thecry also caught Lauren’s attention. She stood and lookedat the male tiger. When Lauren turned her head towardthe male tiger, “that was too much,” Hranicky told thegrand jury. The tiger attacked. Hranicky yelled. The tigergrabbed Lauren by the throat and dragged her across thecage into a water trough. Hranicky ran after them. Hestruck the tiger on the head and held him under thewater. The tiger released the child.

Kelly Dean Hranicky testified she was asleepwhen the incident occurred. She called for emergency


assistance. Through testimony developed at trial, shetold the dispatcher her daughter had fallen from a fence.She testified she did not remember giving that informa-tion to the dispatcher. However, police officer DanielTorres, who responded to the call, testified he was toldthat a little girl had cut her neck on a fence.

Hranicky gave Torres a verbal statement thatevening. Torres testified Hranicky told him that he hadbeen grooming the female tiger. He asked Lauren tocome and get the brush from him. Lauren came into thecage and grabbed the brush. Hranicky thought she hadleft the cage because he heard the cage door close. Then,however, Hranicky saw Lauren’s hand “come over andstart grooming the female, start petting the female cat,and that’s when the male cat jumped over.” The tigergrabbed the child by the neck and started runningthrough the cage. It dragged her into the water trough.Hranicky began punching the tiger in the head, trying toget the tiger to release Lauren.

Justice of the Peace James Dawson performed aninquest at the scene of the incident. Judge Dawson testi-fied Hranicky gave him an oral statement also. Hranickytold him Lauren went to the cage on a regular basis andgroomed only the female tiger. He then corrected him-self to say she actually petted the animal. Hranicky was“very clear about the difference between grooming andpetting.” Hranicky maintained that Lauren never pettedor groomed the male tiger. Hranicky told Dawson thatLauren asked permission to enter the cage that evening,saying “Daddy, can I come in?”

Sapp, the exotic animal owner who sold theHranickys the tigers, testified Hranicky told him yetanother version of the events that night. When Sappasked Hranicky how it happened, Hranicky replied,“Well, Mickey, she just snuck in behind me.” Hranickyadmitted to Sapp he had allowed Lauren to enter thecage. Hranicky told Sapp he had lied because he did notwant Sapp to be angry with him.

Hranicky told the grand jury that Sapp and otherknowledgeable sources had said “there was no problemin taking a child in the cage.” He did learn children wereespecially vulnerable because the tigers would view themas prey. However, Hranicky told the grand jury, hethought the tigers would view Lauren differently thanthey would an unfamiliar child. He believed the tigerswould not attack her, he testified. They would see her as“one of the family.” Hranicky also told the grand jurythe tigers’ veterinarian allowed his young son into theHranickys’ tiger cage.

Several witnesses at trial contradicted Hranicky’sassessment of the level of risk the tigers presented, par-ticularly to children. Sapp said he told the Hranickys itwas safe for children to play with tiger cubs. However,once the animals reached forty to fifty pounds, theyshould be confined in a cage and segregated from anychildren. “That’s enough with Lauren, any child,because they play rough, they just play rough.” Sapp fur-ther testified he told the Hranickys to keep Lauren awayfrom the tigers at that point because the animals would

view the child as prey. He also said he told Laurendirectly not to get in the cage with the tigers. Sapp didnot distinguish between children who were strangers tothe tigers and those who had helped raise the animals.He described any such distinction as “ludicrous.” In fact,Sapp testified, his own two children had been aroundlarge cats all of their lives. Nonetheless, he did not allowthem within six feet of the cages. The risk is too great, hetold the jury. The Hranickys did not tell him that pur-chasing the tigers was Lauren’s idea. Had he known, hetestified, “that would have been the end of the conver-sation. This was not for children.” He denied tellingHranicky that it was safe for Lauren to be in the cagewith the tigers.

Charles Currer, an animal care inspector for theUnited States Department of Agriculture, met Hranickywhen Hranicky applied for a USDA license to exhibit thetigers. Currer also denied telling Hranicky it was permis-sible to let a child enter a tiger’s cage. He recalled givinghis standard speech about the danger big cats pose tochildren, telling him that they “see children as prey, asthings to play with.”

On his USDA application form, Hranicky listedseveral books he had read on animal handling. One bookwarned that working with exotic cats is very dangerous.It emphasized that adolescent males are particularlyvolatile as they mature and begin asserting their domi-nance. Big cat handlers should expect to get jumped, bit,and challenged at every juncture. Another of the listedbooks pointed out that tigers give little or no warningwhen they attack. The book cautioned against keepinglarge cats such as tigers as pets.

Veterinarian Dr. Hampton McAda testified heworked with the Hranickys’ tigers from the time theywere six weeks old until about a month before the inci-dent. McAda denied ever allowing his son into the tigers’cage. All large animals present some risk, he testified. Herecalled telling Hranicky that “wild animals and femalemenstrual periods . . . could cause a problem down theroad” once both the animals and Lauren matured.Hranicky seemed more aware of the male tiger, the vet-erinarian observed, and was more careful with him thanwith the female. . . .

James Boller, the Chief Cruelty Investigator for theHouston SPCA, testified that tigers, even those raised incaptivity, are wild animals that act from instinct.Anyone who enters a cage with a conscious adult tigershould bring a prop to use as a deterrent. Never takeone’s eyes off the tiger, Evans told the jury. Never makeoneself appear weak and vulnerable by diminishingone’s size by crouching or sitting. Never bring a childinto a tiger cage. The danger increases when the tigersare in adolescence, which begins as early as two years ofage for captive tigers. Entering a cage with more thanone tiger increases the risk. Entering with more thanone person increases the risk further. Entering with achild increases the risk even more. Tigers’ activity leveldepends on the time of day. . . . Boller identified eighto’clock on a summer evening as a high activity time. A



child should never enter a tiger cage in the first place,Boller testified. Taking a child into a tiger cage “duringa high activity time for the animal is going to increaseyour risk dramatically.”

Dr. Richard Villafana, Lauren’s biological father,told the jury he first learned of the tigers when hisdaughter told him over the phone she had a surpriseto show him at their next visit. When he came to pickher up the following weekend, he testified, she tookhim into the house and showed him the female cub.Villafana described his reaction as “horror and general-ized upset and dismay, any negative term you careto choose.” He immediately decided to speak to KellyHranicky about the situation. He did not do so in frontof Lauren, however, in an effort to avoid a “big argu-ment.” Villafana testified he later discussed the tigerswith Kelly Hranicky, who assured him Lauren was safe.. . . As the tigers matured, no one told Villafana theHranickys allowed Lauren in the cage with them. Hadhe known, he “would have talked to Kelly again” and“would have told her that [he] was greatly opposed toit and would have begged and pleaded with her notto allow her in there.” He spoke to his daughter abouthis concerns about the tigers “almost every time” hesaw her.

Kelly Hranicky told the jury Lauren was a veryobedient child. Villafana agreed. Lauren would not havegone into the tiger cage that evening without Hranicky’spermission.

Issue. . . Did Hranicky act in a reckless fashion?

ReasoningThe record reflects that each of the witnesses who cameinto contact with Hranicky in connection with the tigerstestified they told him that: (1) large cats, even thoseraised in captivity, are dangerous, unpredictable wildanimals; and (2) children were particularly at risk fromadolescent and adult tigers, especially males. Expert ani-mal handlers whom Hranicky consulted and writtenmaterials he claimed to have read warned Hranicky thatthe risks increased with adolescent male tigers, withmore than one person in the cage, with more than onetiger in the cage, at dusk during the animals’ heightenedactivity period, and when diminishing one’s size by

sitting or crouching on the ground. They each cautionedthat tigers attack swiftly, without warning, and are pow-erful predators.

Further, Hranicky’s initial story to Sapp that Laurenhad sneaked into the cage evidences Hranicky’s aware-ness of the risk. The jury also could have inferred hisawareness of the risk when he concealed from Sapp thatthe family was purchasing the tigers for Lauren. The juryalso could have inferred Hranicky’s consciousness ofguilt when he gave several different versions of whathappened.

On the other hand, the record shows that beforebuying the tigers, Hranicky researched the subject andconferred with professionals. He received training inhandling the animals. Further, Kelly Hranicky testifiedshe also understood the warnings about not allowingchildren in the tiger cage to apply to strangers, not toLauren. Hranicky told the grand jury he did not thinkthe warnings applied to children, like Lauren, who hadhelped raise the animal. He said he had seen otherhandlers, including Sapp and McAda, permit Lauren andother children to go into tiger cages. He testified Currertold him it was safe to permit children in tiger cages.Further, while the State’s witness described zoo policiesfor handling tigers, those policies were not known to thegeneral public. Finally, none of the significant figures inLauren’s life fully appreciated the danger the tigers posedfor Lauren. Hranicky was not alone in not perceiving therisk. . . .

HoldingHranicky testified to the grand jury he did not viewthe risk to be substantial because he thought the tigerswere domesticated and had bonded with the family.He claimed not to have any awareness of any risk. Thetigers were acting normally. Lauren had entered thecage numerous times to pet the tigers with no inci-dent. Further, he asserted, other than a minor scratchby the male as a cub, the tigers had never harmedanyone. Thus, he argues, he had no knowledge ofany risk.

Viewing all the evidence neutrally, favoring neitherHranicky nor the State, we find that proof of Hranicky’sguilt of reckless injury to a child is not so obviously weakas to undermine confidence in the jury’s determination.Nor do we do not find that the proof of his guilt isgreatly outweighed by contrary proof.



1. Did Hranicky’s disregard constitute a substantial andunjustifiable risk? Did his actions constitute a grossdeviation from the standard of conduct that a law-abidingperson would observe in a similar situation?

2. Why does the court consider it to be a “close call” as towhether Hranicky was aware of the risk posed by the tigersto Lauren?

3. Would the result be the same in the event that the tigersattacked Lauren when they were tiger cubs and were firstliving in the home?

4. What if Bobby Lee Hranicky had been mauled and killedby the tiger? Would a court convict Kelly Hranicky ofrecklessly causing Bobby Lee’s death?


Norma Surarez left home with her son P and her daughters N.E. and A.E. in the car. She stopped to visit Michelle Dominguez and then drove to the home of

Violanda Corrral, P’s grandmother. Suarez left P at Corral’s home and started toward home. N.E. wasin the front passenger seat and A.E. was in the back seat. Suarez arrived home to find that A.E. wasnot in the auto. It later was learned that A.E. had fallen from the car as the vehicle crossed theContinental Bridge, was struck by another car, and died of head injuries. Suarez was convicted of reck-lessly endangering A.E., who was three years old at the time, by failing to properly supervise her child.It was a crime in Texas at the time of this incident for the operator of a motor vehicle to fail to securea child over two and younger than four years of age by a seat belt or child seat.

An investigating police officer testified that A.E. fell out of the front passenger window. Theofficer also found that the seat belt clips in the back seat were “pushed down . . . along the crease”indicating “non-use.” Suarez contended that A.E. put the belt on herself when they left home.Dominguez testified that she later buckled A.E. in the car. Corral stated that she told Suarez to“make sure you buckle up the girls” and testified that she saw Suarez look toward the backseat andthen put N.E. in the front seat. Corral indicated that she had no doubt that A.E. was properlysecured with a seat belt. There was testimony that A.E. could unbuckle the seat belt herself. Otherevidence indicated that Suarez stopped at a red light before driving across the bridge to insure thatA.E. was still asleep. Did Suarez recklessly cause A.E.’s death? See Suarez v. State, Tex.App. LEXIS10799 (2003).


❖

Negligently

R ecklessness entails creating and disregarding a risk. The reckless individual consciously liveson the edge, walking on a ledge above the street. Negligence, in contrast, involves engaging

in harmful and dangerous conduct while being unaware of a risk that a reasonable person wouldappreciate. The reckless individual would “play around” and push someone off a cliff into a poolof water that he or she knows contains a string of dangerous boulders and rocks. The negligentindividual simply does not bother to check whether the water conceals a rock quarry beforepushing another person off the cliff. Recklessness involves an awareness of harm that is lackingin negligence and for that reason is considered to be of greater “moral blameworthiness.”

In considering negligence keep in mind:

• Mental State. The reckless individual is aware of and disregards the substantial andunjustifiable risk; the negligent individual is not aware of the risk.

• Objective Standard. Recklessness and negligence ask juries to decide whether the indi-vidual’s conduct varies from that expected of the general public. The reckless individualgrossly deviates from the standard of care that a law-abiding person would demonstratein the situation; the negligent individual grossly deviates from the standard of care thata reasonable person would exhibit under a similar set of circumstances.

It is not always easy to determine whether a defendant was unaware of a risk and is guiltyof negligence rather than recklessness. In Tello v. State, the defendant was convicted of criminallynegligent homicide after a trailer that he was pulling came unhitched, jumped a curb, and killeda pedestrian. Tello argued that he had not previously experienced difficulties with the trailer andclaimed to have been unaware that safety chains were required or that the hitch was clearly bro-ken and in need of repair. The court convicted Tello of negligent homicide based on the fact thata reasonable person would have been aware that the failure to safely secure the trailer hitch con-stituted a gross deviation from the standard of care that an ordinary person would have exhib-ited and posed a substantial risk of death. Is it credible to believe that Tello regularly used thetrailer and yet lacked awareness that the trailer was secured so poorly that a bump in the roadwas able to separate the trailer from the truck?11

People v. Baker illustrates the difficulty of distinguishing negligence from recklessness.

5.3. You Decide



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PEOPLE v. BAKER

771 N.Y.S.2D 607 (2004)

OPINION BY: ROSE, J.

FactsAfter a three-year-old child died while defendant wasbabysitting in the child’s home, she was charged withboth intentional and depraved indifference murder. Attrial, the evidence established that, on a warm summernight, the victim died of hyperthermia as a result of herprolonged exposure to excessive heat in a bedroom of herfoster parents’ apartment. The excessive heat was causedby the furnace having run constantly for many hours asthe result of a short circuit in its wiring. The victim wasunable to leave her bedroom because defendant engagedthe hook and eye latch on its door after putting her tobed for the night. Defendant then remained in the apart-ment watching television while the furnace ran uncon-trollably. The victim’s foster parents and another tenanttestified that when they returned in the early morninghours and found the victim lifeless in her bed, the livingroom of the apartment where defendant sat waiting forthem felt extremely hot, like an oven or a sauna, and thevictim’s bedroom was even hotter. Temperature readingstaken later that morning during a police investigationwhile the furnace was still running indicated that theapartment’s living room was 102 degrees Fahrenheit, thevictim’s bedroom was 110 degrees Fahrenheit and the aircoming from the vent in the bedroom was more than130 degrees Fahrenheit.

In characterizing defendant’s role in these events,the prosecutor argued that the key issue for the jury waswhether or not defendant had intended to kill thevictim. The prosecution’s proof on this issue consistedprimarily of the second of two written statements givenby defendant to police during a four-hour interview con-ducted a few hours after the victim was found. In thefirst statement, defendant related that she had beenaware of the oppressive heat in the victim’s bedroom,kept the victim latched in because the foster parents hadinstructed her to do so, had not looked at or adjusted thethermostat even though the furnace was running on ahot day, heard the victim kicking and screaming to be letout and felt the adverse effects of the heat on herself.The second statement, which defendant disavowed attrial, described her intent to cause the victim’s deathby turning up the thermostat to its maximum setting,closing all heating vents except the one in the victim’sbedroom and placing additional clothing on the victimwhich she then removed after the victim died. Becausethese actions differed from those described in the firststatement and each reflects an intent to kill the victim,the jurors’ initial task, as proposed by the prosecutor

during summation, was to decide which statement theywould accept.

After trial, the jury acquitted defendant of inten-tional murder thereby rejecting the second statement,and instead convicted her of depraved indifference mur-der of a child. County Court sentenced her to a prisonterm of 15 years to life, and she now appeals.

IssueCould the jury reasonably infer from the evidence a cul-pable mental state greater than criminal negligence dueto the unique combination of events that led to thevictim’s death, as well as the lack of proof that defendantactually perceived and ignored an obvious and severerisk of serious injury or death?

ReasoningThe jury’s finding that defendant was not guilty ofintentional murder clearly indicates that it rejecteddefendant’s second statement containing an explicitadmission of an intent to kill. Although the excessiveheat ultimately proved fatal and defendant failed toremove the victim from her bedroom and made no effortto reduce the heat, the evidence does not establish thatthe defendant created dangerous conditions supportingthe jury verdict of a wanton indifference to human lifeor a depravity of the mind.

Is the defendant guilty of reckless or negligent homi-cide? There is no evidence that defendant knew the actualtemperature in any portion of the apartment or subjec-tively perceived a degree of heat that would have madeher aware that serious injury or death from hyperthermiawould almost certainly result. Put another way, the risk ofserious physical injury or death was not so obvious underthe circumstances that it demonstrated defendant’s actualawareness. There was only circumstantial evidence onthis point consisting of the subjective perceptions ofother persons who later came into the apartment fromcooler outside temperatures. Defendant, who had been inthe apartment as the heat gradually intensified over manyhours, and who was described by others as appearingflushed and acting dazed, could not reasonably be pre-sumed to have had the same perception of oppressive anddangerous heat. Rather, defendant testified that she knewonly that the heat made her feel dizzy and uncomfort-able, and denied any awareness of a risk of death. Mostsignificantly, there is no dispute that defendant remainedin a room that was nearly as hot as the victim’s bedroomfor approximately nine hours and checked on the victimseveral times before the foster parents returned. This evi-dence of defendant’s failure to perceive the risk of seriousinjury stands unrefuted by the prosecution.

Defendant’s ability to appreciate such a risk was fur-ther brought into doubt by the prosecution’s own expertwitness, who described her as having borderline intellec-tual function, learning disabilities and a full-scale IQ ofonly 73. We also note that here, unlike where anunclothed child is shut outside in freezing temperatures,



the circumstances are not of a type from which it can beinferred without a doubt that a person of even ordinaryintelligence and experience would have perceived asevere risk of serious injury or death. . . .

A person is guilty of manslaughter in the seconddegree when he or she recklessly causes the death ofanother person and of criminally negligent homicidewhen, with criminal negligence, he or she causes thedeath of another person. Reckless criminal conductoccurs when the actor is aware of and consciously disre-gards a substantial and unjustifiable risk, and criminalnegligence is the failure to perceive such a risk.

As we have noted, there is no support for a findingthat defendant perceived and consciously disregardedthe risk of death which was created by the combinationof the “runaway” furnace and her failure to release thevictim from her bedroom. None of defendant’s provenconduct reflects such an awareness and the fact that shesubjected herself to the excessive heat is plainly incon-sistent with a finding that she perceived a risk of death.

HoldingHowever, the evidence was sufficient to establish defen-dant’s guilt beyond a reasonable doubt of criminallynegligent homicide. A jury could reasonably concludefrom the evidence that defendant should have per-ceived a substantial and unjustifiable risk that the exces-sive heat, in combination with her inaction, would belikely to lead to the victim’s death. . . . Since defendantwas the victim’s caretaker, this risk was of such a naturethat her failure to perceive it constituted a gross devia-tion from the standard of care that a reasonable personin the same circumstances would observe in such a situ-ation. Thus, defendant’s conduct was shown to consti-tute criminal negligence and such a finding would notbe against the weight of the evidence. Accordingly, wereduce the conviction from depraved indifference mur-der to criminally negligent homicide and remit thematter to County Court for sentencing on the reducedcharge.


◆◆ Questions for Discussion

1. Explain the court’s factual basis for determining that thedefendant should be held liable for negligent rather thanreckless homicide.

2. Should the appellate court overturn the verdict of thejurors who actually observed the trial?

3. As a judge, what would be your ruling in this case?

See more cases on the study site:

Koppersmith v. State

http://www.sagepub.com/lippmanstudy

The fifty-seven-year old defendant Strong emigrated from Arabia to China andthen to the United States. He testified that he was a member of the Sudan

Muslim religious faith since birth and became one of the sect’s leaders. The three central beliefs of thereligion are “cosmetic consciousness, mind over matter and psysiomatic psychomatic consciousness.”Mind over matter empowers a master or leader to lie on a bed of nails without bleeding, walk throughfire or on hot coals, perform surgical operations without anesthesia, raise people off the ground, andsuspend a person’s heartbeat, pulse, and breathing while the individual remained conscious. Thedefendant claimed that he could stop a follower’s heartbeat and breathing and plunge knives into anadherent’s chest without injuring the person. Strong testified that he performed this ceremony count-less times over the previous forty years.

On January 28, 1972, Strong performed this ceremony on Kenneth Goings, a recent recruit tothe sect. The wounds from the hatchet and three knives that Strong inserted into Goings proved fatal.Prior to being stabbed, Goings objected and the defendant stated that “It will be all right, son.” Thedefendant and one of his adherents testified that they perceived no danger and, in fact, the adherenthad volunteered to participate. Another member of the sect claimed that Strong had performed thisritual on another occasion without harming the individual involved in the ritual.

The defendant was convicted of reckless manslaughter at trial and appealed the refusal of thetrial judge to instruct the jury to consider a conviction for criminally negligent homicide. Should thejudge remand the case for a new trial and instruct the trial court judge to permit the jurors to decidefor themselves whether the defendant is guilty of either reckless or negligent homicide? See Peoplev. Strong, 338 N.E.2d 602 (N.Y. 1975).


❖

5.4. You Decide


Strict Liability

We all have had the experience of telling another person that “I don’t care why you actedin that way, you hurt me and that was wrong.” This is similar to a strict liability offense.

A strict liability offense is a crime that does not require a mens rea, and an individual may beconvicted based solely on the commission of a criminal act.

Strict liability offenses have their origin in the industrial development of the United Statesin the middle of the nineteenth century. The U.S. Congress and various state legislatures enacteda number of public welfare offenses that were intended to protect society against impure food,defective drugs, pollution, unsafe working conditions, trucks, and railroads. These malum pro-hibita offenses (an act is wrong because it is prohibited) are distinguished from those crimes thatare malum in se (inherently wrongful, such as rape, robbery, and murder).

The common law was based on the belief that criminal offenses required a criminal intentto insure that offenders were morally blameworthy. The U.S. Supreme Court has pronouncedthat the requirement of a criminal intent, although not required under the Constitution, is “uni-versal and persistent in mature systems of law.”12 Courts, however, have disregarded the strongpolicy in favor of requiring a criminal intent in upholding the constitutionality of malum pro-hibita laws. Congress and state legislatures typically indicate that these are strict liability laws byomitting language such as “knowingly” or “purposely” from the text of the law. Courts look toseveral factors in addition to the textual language in determining whether a statute should beinterpreted as providing for strict liability:

• The offense is not a common law crime.

• A single violation poses a danger to a large number of people.

• The risk of the conviction of an “innocent” individual is outweighed by the public inter-est in preventing harm to society.

• The penalty is relatively minor.

• A conviction does not harm a defendant’s reputation.

• The law does not significantly impede the rights of individuals or impose a heavyburden. Examples are the prohibition of acts such as “selling alcohol to minors” or “dri-ving without a license.”

• These are acts that most people avoid and individuals who engage in such acts generallypossess a criminal intent.

The argument for strict liability offenses is that these laws deter unqualified people from par-ticipating in potentially dangerous activities, such as the production and selling of pharmaceu-tical drugs, and that those who engage in this type of activity will take extraordinary stepsto insure that they proceed in a cautious and safe fashion. There is also concern that requiringprosecutors to establish a criminal intent in these relatively minor cases will consume time andenergy and divert resources from other cases.

There is a trend toward expanding strict liability into the non-public-welfare crimes thatcarry relatively severe punishment. Many of these statutes are criticized for imposing prisonterms without providing for the fundamental requirement of a criminal intent. For instance, inState v. York, the defendant was sentenced to one year in prison in Ohio after he was convictedof having touched the buttocks of an eleven-year-old girl. The appellate court affirmed his con-viction for “gross sexual imposition” and ruled that this was a strict liability offense and that theprosecutor was only required to demonstrate a prohibited contact with an individual under thir-teen that could be perceived by the jury as sexually arousing or gratifying to the defendant.13

The U.S. Supreme Court indicated in Staples v. United States that it may not be willing tocontinue to accept the growing number of strict liability “public welfare” offenses. The NationalFirearms Act was intended to restrict the possession of dangerous weapons and declared it acrime punishable by up to ten years in prison to possess a “machine gun” without legal regis-tration. The defendant was convicted for possession of an AR-15 rifle, which is a semiautomaticweapon that can be modified to fire more than one shot with a single pull of the trigger. TheSupreme Court interpreted the statute to require a mens rea, explaining that the imposition ofa lengthy prison sentence has traditionally required that a defendant possess a criminal intent.



The court noted that gun ownership is widespread in the United States and that a strict liabilityrequirement would result in the imprisonment of individuals who lacked the sophistication todetermine whether they purchased or possessed a lawful or unlawful weapon.14

The Model Penal Code, in § 1.04(5), accepts the need for strict liability crimes while limit-ing these crimes to what the code terms “violations” that are not subject to imprisonmentand only are punishable by a fine, forfeiture, or other civil penalty, and which may not resultin the type of legal disability (e.g., result in loss of the right to vote) that flows from a criminalconviction.

In the next case in the chapter, United States v. Flum, a federal appellate court struggles withwhether carrying a concealed knife onto an airplane is a strict liability offense. Pay attention tothe reasoning of the court and to the points raised in the dissenting opinion. Consider whetherthe benefits to society outweigh the danger of convicting individuals who might accidentallycarry a prohibited “weapon” onto a plane. Is the standard for what is considered a prohibitedweapon under the statute in Flum sufficiently clear to the average individual?


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UNITED STATES v. FLUM

518 F.2D 39 (8TH CIR. 1975)

OPINION BY: WEBSTER, J.

Thomas Lawrence Flum was convicted in a jury-waivedtrial of attempting to board an aircraft while havingabout his person a concealed dangerous and deadlyweapon, in violation of the Federal Aviation Act of 1958,as amended, 49 U.S.C. § 1472 (1). In this appeal Flumcontends that he was convicted upon insufficient evi-dence since there was no evidence tending to establishthat he intended to conceal the knives which were dis-covered during a pre-boarding search of his carry-on lug-gage and personal belongings. The government, whilearguing in the alternative that there was sufficient evi-dence of intent to conceal, first contends that the statutedoes not require proof of such intent. The District Courtso held and we agree.

At the time of the incident in question, the statuteprovided in relevant part:

Whoever, while aboard an aircraft being operatedby an air carrier in air transportation, has on or abouthis person a concealed deadly or dangerous weapon, orwhoever attempts to board such an aircraft while havingon or about his person a concealed deadly or dangerousweapon, shall be fined not more than $1,000 or impris-oned not more than one year, or both.

FactsOn July 20, 1973, defendant Flum, accompanied bysome friends, arrived at the Lincoln Municipal Airportat approximately 5:20 p.m. He first went to the ticketcounter and purchased a ticket. The agent instructedhim to proceed immediately to the gate where the

passengers on his flight were already boarding. Thedefendant proceeded to a security post through whichpassengers must pass before reaching the departuregate. During the security inspection which followed,guards discovered a switchblade knife with a 3 3/4 inchblade and a butcher knife with a 7 7/8 inch blade.The butcher knife was found in a suitcase, wrapped inloose clothing. The switchblade knife was found insidea small gray box which was on the counter with otherbelongings.

IssueThe essential elements of the relevant offense prohibitedby 49 U.S.C. § 1472 (1) are (1) attempting to board anaircraft (2) while carrying a deadly or dangerous weapon(3) which was concealed on or about the defendant’sperson. Flum was clearly attempting to board an aircraft,and the deadly and dangerous character of the knivesis likewise not disputed. What is disputed is whetherthe evidence showed beyond reasonable doubt that theweapons were “concealed” within the meaning of thestatute.

The FAA guidelines furnished to preboard screeningpersonnel define as dangerous:

KNIVES—All sabers, swords, hunting knives,and such other knives considered illegal by locallaw. . . .

The defendant contends that the statute takes asits source the common law crime of carrying a concealedweapon and therefore requires the same proof of mensrea, that is, a specific intent to conceal. Flum testifiedthat he had intended to check his bags in advance ofboarding but lacked time to do so because he had arrivedat the airport only five minutes prior to take-off time.Since no one inquired whether he had any weaponsin his possession, he argues, his act of presenting hisbelongings for inspection negated any intent to conceal.If intent to conceal were an essential element of theoffense, this would be a compelling argument.


ReasoningThe provision of the statute applicable to the instantcase makes no reference to intent. In order then to deter-mine whether the requirement of specific intent isnonetheless implied from the nature of the statute, weturn again to the classic test which Judge (now Justice)Blackmun announced for our court:. . . .

[W]here a federal criminal statute omits men-tion of intent and where it seems to involvewhat is basically a matter of policy, where thestandard imposed is, under the circumstances,reasonable and adherence thereto properlyexpected of a person, where the penalty is rela-tively small, where conviction does not gravelybesmirch, where the statutory crime is not onetaken over from the common law, and wherecongressional purpose is supporting, the statutecan be construed as one not requiring criminalintent. The elimination of this element is thennot violative of the due process clause. . . .

1. Policy. In 1961 Congress adopted certain amend-ments to the Federal Aviation Act of 1958, for the pur-pose of “extend[ing] Federal criminal laws to certain actscommitted on board aircraft—in particular, such acts asaircraft hijacking, murder, manslaughter, assault, maim-ing, carrying concealed deadly or dangerous weapons,and stealing personal property.” Nowhere in the report[accompanying the law] is found any inference of acongressional purpose or policy that intent to concealmust be demonstrated in order to prove the fact ofconcealment. . . .

2. Standard. We cannot say that the standardexpressed in the plain meaning [of the statute] is unrea-sonable. A demonstrated need to halt the flow ofweapons on board aircraft, which had exposed toperil large numbers of passengers and jeopardized theintegrity of commercial travel, justified a stringent rule,adherence to which was properly expected of all personstraveling by air, for their mutual safety.

3. Penalty. The statutory penalty, a maximumfine of $1000 or imprisonment for not more than oneyear, or both, makes the offense a misdemeanor . . . andis thus “relatively small.” . . .

4. Effect of Conviction. Little need be said of thefourth requirement. Conviction of this offense does notgravely besmirch; it does not brand the guilty personas a felon or subject him to any burden beyond thesentence imposed.

5. Source of Statute. It is argued that the statutemakes into a federal offense that which was an offenseat common law: carrying a concealed weapon. The com-mon law offense required proof of an intent to conceal;hence, defendant argues, the statute impliedly containsthe same requirement. . . . The thrust of the federalstatute, a misdemeanor, is to prohibit entry of an airplane

with such weapon concealed upon one’s person. Theoffense is not simply carrying the concealed weaponabout one’s person, but in boarding or attempting toboard an aircraft with it.

6. Congressional Purpose Supporting. TheCongress, as demonstrated sought to promote safety inaircraft by extending the federal criminal laws to aircraft-related acts as a deterrent to crime. This purpose sup-ports the conclusion that Congress did not intend toimpede the deterrent effect of its statute by imposingupon the government prosecutor the added burden ofshowing the state of mind of the person found attempt-ing to board an aircraft with a deadly or dangerousconcealed weapon. If conviction depended upon proofof misrepresentation at the security gate or some otherfurtive act inconsistent with innocence, then the con-gressional purpose to keep weapons out of the passengersection of aircraft would depend entirely upon the thor-oughness of the inspection, since in almost every case aperson who presented his bags for inspection wouldthereby have rebutted in advance a claim that he pos-sessed a specific criminal intent to conceal. To the con-trary, we think the congressional purpose of keepingweapons from being taken on board airplanes by pas-sengers fully supports the conclusion that intent to con-ceal is not an essential element of the offense.

While intent to conceal is not an essential elementof the offense and therefore need not be established inorder for the prosecution to make a submissible case, thefact of concealment is an essential element and must beproved beyond reasonable doubt.

The classic definition of a concealed weapon is onewhich is hidden from ordinary observation. . . . A sub-missible case is made when the government establishesthat a person has attempted to board an aircraft witha dangerous or deadly weapon on or about his personwhich is hidden from view.

We do not intimate that the weapon must in allcases be in open view prior to inspection. The trier of thefact could consider, for example, evidence offered onbehalf of the defendant that he had informed the inspec-tor of the presence and location of a deadly or dangerousweapon among his belongings. The obviousness of theweapon is a factor to be taken into consideration underall of the relevant facts and circumstances.

Concealment under subsection (1) of the statute ismeasured by what a defendant did or failed to do, not byhis intent. The inspection process in a particular casemay be an objective fact to be considered with otherobjective facts on the issue of concealment. Not everyinspection will uncover a concealed weapon, and nocongressional purpose to let the fact of a security inspec-tion operate as an absolute defense to the charge can befound in either the statute or its legislative history. Eachcase must stand upon its own facts.

HoldingWhile defendant submitted his bags and belongings to aninspection, as he was required to do, this objective fact



was insufficient to overcome as a matter of law the find-ing of the District Court that the knives were concealed, afinding which is fully supported by the evidence.

It will be argued that the statute thus construed mayoperate harshly upon passengers boarding aircraft witharticles which potentially are deadly or dangerousweapons. Balanced against the heavy risks to largenumbers of passengers, including those who would carrysuch weapons on board with no evil purpose, we cannotsay that the resulting effect is too severe. It requires norecitation of recent history to remind us that such risksare real, and in comparison, the statute—broad thoughits reach may be—is a reasoned response to a demon-strated need.

Dissent, HHeeaanneeyy,, JJ..The decision of the majority permits imposition of crim-inal liability upon the housewife who carries scissors inher sewing bag; the fisherman who carries a scaling knifein his tackle box; the professional who carries aletter opener in his briefcase; the doctor who carriesscalpels in his medical bag; and the tradesman whocarries a hammer in his tool kit.

The majority attempts to avoid this problem bypointing out that concealment is always a factual ques-tion and that all facts and circumstances can be consid-ered in determining whether a weapon has beenconcealed. This ambiguous language may be taken bysome as requiring that an intent to conceal be found, butI am not willing to leave the matter in such an ambigu-ous state. I agree that an oral disclosure of the weaponand the obviousness of its presence upon the physicalsearch rebut the criminal act. They also rebut the crimi-nal intent. The understandable failure to orally disclose

the existence of a weapon, when momentarily the con-tents of the hand luggage will be subjected to a fullsearch, or the fortuitous manner in which a passengerpacks his hand luggage should not be the sole factorsdetermining guilt. Only by preserving the defendant’sopportunity to put before the jury evidence that the actof concealment was without culpability will the inno-cent be protected. Easing the prosecutor’s burden cannotbe justified when the result is injustice.

It is not the imposition of criminal liability uponthose who innocently carry weapons in their hand lug-gage but the preflight boarding searches that will “haltthe flow of weapons on board aircraft.” This extraordi-nary procedure is the practical method Congress haschosen to insure flight safety. The requirement of intentas an essential element . . . will not undermine thatprocedure or its purpose. The intent requirement willonly insure that prosecutions under the statute will belimited to those persons who would be deterred thereby.The statute should not be construed to serve a purpose itcannot achieve.

The troublesome problem of selective enforcementis also aggravated by the majority’s decision. As revealedin the Federal Aviation Administration’s First Semi-Annual Report to Congress on the Effectiveness ofPassenger Screening Procedures, 67,710 weapons weredetected in 1974. As a result thereof, however, only1,147 arrests for weapons related offenses were made.The percentage of arrests made to weapons detected was1.69%. It is apparent that the security officer possessesan enormous amount of unreviewable discretion. Thedecision of a majority of this Court increases that discre-tionary power and places the determination of inno-cence in the hands of the police.



1. Why does the federal court establish that the statute doesnot require a criminal intent?

2. What are the reasons Congress has made the prohibitionon bringing a deadly or dangerous weapon onto a plane a“strict liability offense?” Do you believe that this results insignificant injustice to the flying public?

3. Summarize the argument of the dissent. Do you agree thatpublic safety can be adequately protected and still require a“criminal intent?”

4. As a judge, would you vote with the majority or thedissent?

CCaasseess aanndd CCoommmmeennttss

1. Hand Guns. A Virginia statute, §18.2-308.1(B),makes it a felony for an individual to possess “anyfirearm designed or intended to expel a projectile . . .while such person is upon . . . any public . . . elemen-tary . . . school, including buildings and grounds. . . .”Deena Estaban, a fourth-grade elementary schoolteacher, left a zippered yellow canvas bag in a classroomthat was found to contain a loaded .38 caliber revolver.She taught a class in the room earlier in the day that was

primarily comprised of children in wheelchairs. Thedefendant claimed that she inadvertently left the gun inthe bag that she used to carry various teaching aids. Afterteaching in the classroom, Esteban took the teachingaids with her but left the yellow bag. Esteban explainedthat she placed the gun in the bag and took it to thestore on the previous Saturday and then forgot that thepistol was in the bag and inadvertently carried it intothe school.

The trial court interpreted the statute as providingfor a strict liability offense and ruled that the prosecution


was not required to demonstrate criminal intent. Estebanwas convicted and received a suspended term of incarcer-ation and a fine. The Virginia Supreme Court ruled thatthe legislature intended to assure that a safe environmentexists on or about school grounds and that the presenceof a firearm creates a danger for students, teachers, andother school personnel. The court stressed that the factthat Esteban “innocently” brought a loaded revolver intothe school “does not diminish the danger.” A footnote inthe decision indicated that Esteban possessed a concealedhandgun permit that specifically did not authorize pos-session of a handgun on school property. Would requir-ing a criminal intent impede the safety and securityof the school? Should teachers be permitted to armthemselves? See Esteban v. Commonwealth, 587 S.E.2d 523(Va. 2003).

2. An Open Bottle of Intoxicating Liquor. StevenMark Loge was cited for a violation of a Minnesota statutethat declares it a misdemeanor for the owner of a motorvehicle, or the driver when the owner is not present, “tokeep or allow to be kept in a motor vehicle when suchvehicle is upon the public highway any bottle or recepta-cle containing intoxicating liquors or 3.2 percent maltliquors which has been opened.” This does not extend tothe trunk or to other areas not normally occupied by thedriver or passengers. Loge borrowed his father’s pickup

truck and was stopped by two police officers while on hisway home from work. One of the officers observed andseized an open beer bottle underneath the passenger’sside of the seat and also found one full unopened can ofbeer and one empty beer can in the truck. Loge passed allstandard field sobriety tests and was issued a citation fora violation of the open bottle statute. At trial, Loge testi-fied that the bottle was not his, but he neverthelesswas convicted based on a determination by the trialand appellate court that this was a strict liability offense.The Minnesota Supreme Court affirmed that the plainlanguage of the statute indicated that the legislatureintended this to be a strict liability offense and that aknowledge requirement would make conviction for pos-session difficult, if not insurmountable. The SupremeCourt also observed that drivers who are aware of thisstatute will carefully check any case of packaged alcoholbefore driving in order to ensure that each container’sseal is not broken. The dissent noted that the language“allow to be kept” clearly indicated a knowledge require-ment. Absent a provision for intent, there is a risk thatindividuals will be convicted “not simply for an actthat the person does not know is criminal, but also for anact the person does not even know he is committing.”Does the prevention of “drinking and driving” justify thepossible conviction of innocent individuals? See State v.Loge, 608 N.W.2d 152 (Minn. 2000).


Aaron Walker was convicted in Indianapolis, Indiana, of dealing in cocainewithin 1,000 feet of a school after selling cocaine to a undercover police officer

for twenty dollars. The statute declares that a person who “knowingly or intentionally . . . [d]eliverscocaine . . . commits . . . dealing in cocaine.” The Class B penalty is enhanced to a Class A felony if theperson “delivered . . . the drug in or on school property or within 1,000 feet of school property or on aschool bus.” A Class B felony carries a sentence of ten years; a Class A felony, thirty years. Walker wassentenced to thirty years in prison and an additional thirty years was imposed on Walker based on thefact that he was found to be a habitual offender. Is the prosecution required to prove a criminal intentto convict a defendant or to enhance the sentence? Would you favor declaring that this is a strict liabil-ity offense if you were an Indiana state legislator? See State v. Walker, 668 N.E.2d 243 (Ind. 1996).


❖

Concurrence

We now have covered both actus reus and mens rea. The next step is to understand that theremust be a concurrence between a criminal act and a criminal intent. This means that:

• Chronological Concurrence. A criminal intent must exist at the same time as a criminal act.

An example of chronological concurrence is the requirement that a burglary involves breakingand entering with an intent to commit a felony therein. The classic example is an individualwho enters a cabin to escape the cold and after entering decides to steal food and clothing.

5.5. You Decide


In this instance, the intent did not coincide with the criminal act and the defendant will not beheld liable for burglary.

The principle of concurrence is reflected in Section 20 of the California Penal Code thatprovides that in “every crime . . . there must exist a union or joint operation of act and intentor criminal negligence.” The next case is State v. Rose. Can you explain why the defendant’s guiltfor manslaughter depends on the prosecution’s ability to establish a concurrence between thedefendant’s act and intent?

The Legal Equation

Concurrence = Mens rea (in unison with) + actus reus.


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STATE v. ROSE

311 A.2D 281 (R.I. 1973).

OPINION BY: ROBERTS, J.

These are two indictments, one charging the defendant,Henry Rose, with leaving the scene of an accident, deathresulting . . . and the other charging the defendant withmanslaughter. The defendant was tried on both indict-ments to a jury in the Superior Court, and a verdict ofguilty was returned in each case. Thereafter the defen-dant’s motions for a new trial were denied. . . .

FactsThese indictments followed the death of David J.McEnery, who was struck by defendant’s motor vehicleat the intersection of Broad and Summer Streetsin Providence at about 6:30 p.m. on April 1, 1970.According to the testimony of a bus driver, he had beenoperating his vehicle north on Broad Street and hadstopped at a traffic light at the intersection of SummerStreet. While the bus was standing there, he observeda pedestrian starting to cross Broad Street, and as thepedestrian reached the middle of the southbound lanehe was struck by a “dirty, white station wagon” that wasproceeding southerly on Broad Street. The pedestrian’sbody was thrown up on the hood of the car. The busdriver further testified that the station wagon stoppedmomentarily, the body of the pedestrian rolled off thehood, and the car immediately drove off along BroadStreet in a southerly direction. The bus operator testifiedthat he had alighted from his bus, intending to attemptto assist the victim, but was unable to locate the body.

Subsequently, it appears from the testimony of apolice officer, about 6:40 p.m. the police located a whitestation wagon on Haskins Street, a distance of some 610feet from the scene of the accident. The police further

testified that a body later identified as that of DavidJ. McEnery was wedged beneath the vehicle when itwas found and that the vehicle had been registered todefendant. . . .

IssueThe defendant is contending that if the evidence is sus-ceptible of a finding that McEnery was killed uponimpact, he was not alive at the time he was beingdragged under defendant’s vehicle and defendant couldnot be found guilty of manslaughter. An examination ofthe testimony of the only medical witness makes it clearthat, in his opinion, death could have resulted immedi-ately upon impact by reason of a massive fracture of theskull. The medical witness also testified that death couldhave resulted a few minutes after the impact but con-ceded that he was not sure when it did occur.

ReasoningWe are inclined to agree with defendant’s contention inthis respect. Obviously, the evidence is such that deathcould have occurred after defendant had driven awaywith McEnery’s body lodged under his car and, there-fore, be consistent with guilt. On the other hand, themedical testimony is equally consistent with a findingthat McEnery could have died instantly upon impactand, therefore, be consistent with a reasonable conclu-sion other than the guilt of defendant.

HoldingIt is clear, then, that, the testimony of the medicalexaminer lacking any reasonable medical certainty asto the time of the death of McEnery, we are unableto conclude that on such evidence defendant was guiltyof manslaughter beyond a reasonable doubt. Therefore,we conclude . . . that it was error to deny defendant’smotion for a directed verdict of acquittal. . . .

We are unable, however, to reach the same conclu-sion concerning the denial of the motion for a directedverdict of acquittal . . . in which defendant was chargedwith leaving the scene of an accident. . . .



1. Why is it important to determine whether the victim diedon impact with Rose’s automobile or whether the victimwas alive at the time he was dragged under the defendant’sautomobile? What is the ruling of the Rhode IslandSupreme Court?

2. How does this case illustrate the principle ofconcurrence?


Jackson administered what he believed was a fatal dose of cocaine to PearlBryan in Cincinnati, Ohio. Bryan was pregnant, apparently as a result of her

intercourse with Jackson. Jackson and a companion then transported Bryan to Kentucky and cut offher head to prevent identification of the body. Bryan, in fact, was still alive when brought to Kentuckyand died as a result of the severing of her head. A state possesses jurisdiction over offenses commit-ted within its territorial boundaries. Can Jackson be prosecuted for the intentional killing of Bryan inOhio? In Kentucky? See Jackson v. Commonwealth, 38 S.W. 422 (Ky.App.1896).


5.6. You Decide

Crime in the News

In February 2004, former New Jersey Net Basketball star

Jason Williams was prosecuted for killing Costas “Gus”

Crisofi on February 14, 2002. The thirty-six-year-old

Williams faced multiple charges carrying a possible term of

fifty-five years in prison.Williams’s family moved from South Carolina to New

York when he was a child. In New York, Williamsexperienced the violence of urban life and witnessed histwo sisters die of AIDS. He managed to earn a basketballscholarship to St. John’s University and while still incollege raised his sister’s children. As a professional bas-ketball player, the six-foot-ten-inch Williams achievedall-star status and was rewarded with an eighty-sixmillion dollar contract before suffering a career-endinginjury in 1999. Williams reportedly was extremely gener-ous with his new-found wealth, freely giving millionsto charities and running a basketball camp for under-privileged children.

The media portrayed Williams as a decent and hard-working player who was seemingly always available tooffer quotes and observations. There was another lesswidely reported side to Jason Williams. His romance withguns turned violent on several occasions. Williams, forinstance, pled guilty to a felony after being accused of fir-ing a semiautomatic weapon in the parking lot of the NewJersey Net’s arena and shot his dog after losing a bet thatanother player could not drag the Rottweiler out of

Williams’s home. Williams was also allegedly involved inseveral fights and, on one occasion, was charged withinterfering with a police officer.

On February 14, 2002, Willliams entertained agroup of friends and several members of the HarlemGlobetrotters, a popular touring professional basketballteam, at his sixty-five acre New Jersey estate.

Testimony indicated that Williams was extremelydrunk and while “showing-off” grabbed a loaded double-barrel shotgun from the wall and in a dramatic gesturecracked open the rifle and snapped the barrel shut. Theweapon discharged, killing limousine chauffer GusChristofi, who was standing three feet from Williams.There was evidence that earlier in the evening thatWilliams had verbally attacked Christofi and may havebeen criticizing him when the gun fired.

Following the shooting, Williams wiped his finger-prints from the gun and attempted to rearrange the crimescene to make Christofi’s death appear to be a suicide. Hepersuaded one eyewitness to bury Williams’s clothes andinstructed the others to tell the police that Christofi hadkilled himself while they had been partying downstairs.Williams’s brother phoned 911 and reported that Christofihad committed suicide. The three-month trial involvingforty-three witnesses would center on the events thattranspired during the roughly three seconds that the shotwas fired.


Only one easily dismissed eyewitness testified thatWilliams’s finger was on the trigger. The defense pled thatthis was an accident. Williams’s attorney claimed that theformer-basketball star did not anticipate that the gunwould fire and that he did not notice Christofi enter theroom. Firearms experts testifying on Williams’s behalfstated that the gun went off as a result of a malfunction inthe firing mechanism. In the words of the defense, this wasan unforeseeable event that was akin to a tree randomlyfalling across the road and killing a motorist. Williams, atmost, exercised poor judgment, and negligent homicidewas not a crime under New Jersey law.

Prosecutors charged Williams with reckless manslaugh-ter punishable with a mandatory term of from five to tenyears in prison. They possessed the burden of demonstrat-ing that Williams understood that the gun posed a substan-tial risk of serious injury or death, and that he neverthelessfreely played with the firearm. This might be increased toimprisonment from between ten and twenty years in theevent that the jury found aggravated manslaughter. Thischarge required showing that Williams was so reckless thathe demonstrated “an extreme indifference to human life.”

Prosecutors illustrated the difference between thesetwo states of mind by explaining that a driver is recklesswho, after a night of heavy drinking at a bar, drives homeand kills another motorist (death is foreseeable). This con-trasts with the drunk who drives home at an excessivespeed, on the wrong side of the road without lights, andkills another motorist (death is probable). The prosecutionpointed out that the inebriated Williams had irresponsiblyhandled a loaded firearm (or did not check to see whetherthe gun was loaded) in a crowded room. His actionsfollowing the shooting, according to the prosecution,demonstrated a callous disregard for Christofi.

Seven of the eyewitnesses who testified for the pros-ecution at trial had been involved in covering up Christofi’skilling and had struck deals in return for their testimony.The jury deliberated for twenty-three hours over four daysand divided eight to four in favor of acquitting Williams onthe manslaughter charges. He was only convicted of wit-ness and evidence tampering and with hindering appre-hension and fabricating evidence, none of which carried amandatory jail term. The prosecution later announced thatWilliams would be retried for manslaughter.


Causation

You now know that a crime entails a mens rea that concurs with an actus reus. Certain crimes(termed crimes of criminal conduct causing a criminal harm) also require that the criminal

act cause a particular harm or result: the death or maiming of a victim, the burning of a house,or damage to property.

Causation is central to criminal law and must be proven beyond a reasonable doubt. Therequirement of causality is based on two considerations:15

• Individual Responsibility. The criminal law is based on individual responsibility.Causality connects a person’s acts to the resulting social harm and permits the imposi-tion of the appropriate punishment.

• Fairness. Causality limits liability to individuals whose conduct produces a prohibitedsocial harm. A law that declares that all individuals in close proximity to a crime are liableregardless of their involvement would be unfair and penalize people for “being in thewrong place at the wrong time.” Individuals might hesitate to gather in crowds or barsor to attend concerts and sporting events.

Establishing that a defendant’s criminal act caused harm to the victim can be more com-plicated than you might imagine. Should an individual who commits a rape be held respon-sible for the victim’s subsequent suicide? What if the victim attempted suicide a week beforethe rape and then killed herself following the rape? Would your answer be the same if thestress induced by the rape appears to have contributed to the victim contracting cancer anddying a year later? What if the doctors determine that a murder victim who was hospitalizedwould have died an hour later of natural causes in any event? We can begin to answer thesehypothetical situations by reviewing the two types of causes that a prosecutor must establishbeyond a reasonable doubt at trial in order to convict a defendant: cause in fact and legal orproximate cause.


As noted, causality arises in prosecutions for crimes that require a particular result, such asmurder, maiming, arson, and damage to property. The prosecution must prove beyond a rea-sonable doubt that the harm to the victim resulted from the defendant’s unlawful act. You willfind that most causality cases involve defendants charged with murder who claim that theyshould not be held responsible for the victim’s death.

Cause in Fact

The cause in fact or factual cause simply requires you to ask whether “but for” the defendant’sact would the victim have died? An individual aims a gun at the victim, pulls the trigger, andkills the victim. “But for” the shooter’s act, the victim would be alive. In most cases, the defen-dant’s act is the only factual cause of the victim’s injury or death and is clearly the direct causeof the harm. This is a simple “cause and effect” question. The legal or proximate cause of thevictim’s injury or death may not be so easily determined.

A defendant’s act must be the cause in fact or factual cause of a harm to be criminally convicted.This connects the defendant to the result. The cause in fact or factual cause is typically a straightfor-ward question. Note that the defendant’s act must also be the legal or proximate cause of the resultingharm.

Legal or Proximate Cause

Just when things seemed simple, we encounter the challenge of determining the legal or proxi-mate cause of the victim’s death. Proximate cause analysis requires the jury to determinewhether it is fair or just to hold a defendant legally responsible for an injury or death. This isnot a scientific question. We must consider questions of fairness and justice. There are few rulesto assist us in this analysis.

In most cases, a defendant is clearly both the cause in fact and legal cause of the victim’sinjury or death. However, consider the following scenarios: You pull the trigger and the victimdies. You point out that it was not your fault since the victim died from the wound youinflicted in combination with a minor gun wound that she suffered earlier in the day. Shouldyou be held liable? In another scenario an ambulance rescues the victim, the brakes fail and thevehicle crashes into a wall, killing the driver and victim. Are you or the driver responsible forthe victim’s death? You later learn that the victim died after the staff of the hospital emergencyroom waited five hours to treat the victim and that she would have lived had she receivedtimely assistance. Who is responsible for the death? Would your answer be different in theevent that the doctors protest that they could not operate on the victim because of a power out-age caused by a hurricane? What if the victim was wounded from the gun shot and althoughbarely conscious, stumbled into the street and was hit by an automobile or by lightning? Ineach case, “but for” your act, the victim would not have been placed in the situation that ledto his or her death. On the other hand, you might argue that in each of these examples youwere not legally liable because the death resulted from an intervening cause or outside factorrather than from the shooting. As you can see from the previous examples, an interveningcause may arise from:

• the act of the victim wandering into the street;

• an act of nature, such a hurricane;

• the doctors who did not immediately operate;

• a wound inflicted by an assailant in combination with a previous injury.

Another area that complicates the determination of proximate causes is a victim’s preexist-ing medical condition. This arises when you shoot an individual and the shock from the woundresults in the failure of the victim’s already seriously weakened heart.

Intervening Cause

Professor Wayne LaFave helps us answer these causation problems by providing two useful cat-egories of intervening acts: coincidental intervening acts and responsive intervening acts.



Coincidental Intervening Acts

A defendant is not considered legally responsible for a victim’s injury or death that results froma coincidental intervening act. The classic case is an individual who runs from a mugger and ishit and dies from a falling tree that has been struck by lightning. It is true that “but for” the rob-bery that the victim would not have fled. The defendant nevertheless did not order or compelthe victim to run and certainly had nothing to do with the lightning strike that felled the tree.As a result, the perpetrator generally is not held legally liable for a death that results from thisunpredictable combination of an attempted robbery, bad weather, and a tree.

Coincidental intervening acts arise when a defendant’s act places a victim in a particular placewhere the victim is harmed by an unforeseeable event.

The Ninth Circuit Court of Appeals offered an example of an unforeseeable event as a hypo-thetical in the case of United States v. Main. The defendant in this example drives in a recklessfashion and crashes his car, pinning the passenger in the automobile. The defendant leaves thescene of the accident to seek assistance and the semiconscious passenger is eaten by a bear. TheNinth Circuit of Appeals observed that reckless driving does not create a foreseeable risk of beingeaten by a bear and that this intervening cause is so out of the ordinary that it would be unfairto hold the driver responsible for the victim’s death.16 Another example of an unforeseeablecoincidental intervening event involves a victim who is wounded and taken to the hospital formedical treatment where she is killed by a knife-wielding mass murderer. Professor JonathanDressler notes that in this case that the unfortunate victim has found him or herself in the“wrong place at the wrong time.”17

Defendants will be held responsible for the harm resulting from coincidental causes in thoseinstances in which the event is “normal and foreseeable” or could have been reasonably pre-dicted. In Kibbe v. Henderson, two defendants robbed and abandoned George Stafford on theshoulder of a dark, rural two-lane highway on a cold, windy, and snowy evening. Stafford’strousers were down around his ankles, his shirt was rolled up toward his chest, and the tworobbers placed his shoes and jacket on the shoulder of the highway and did not return Stafford’sglasses. The near-sighted and drunk Stafford was sitting in the middle of a lane on a dimly-lithighway with his hands raised when he was hit and killed by a pickup truck traveling ten milesper hour over the speed limit. The U.S. Second Circuit Court of Appeals determined that“Stafford would have frozen to death . . . had he remained on the shoulder of the road. The onlyalternative left to him was the highway, which in his condition . . . clearly foreboded theprobability of his resulting death.”18

In sum, a defendant who commits a crime is responsible for the natural and probable consequencesof his or her actions. This does not extend to unforeseeable coincidental intervening acts (the bear). Thedefendant generally is legally liable for foreseeable coincidental intervening acts.

Responsive Intervening Acts

The response of a victim to a defendant’s criminal act is termed a responsive intervening act. Inmost instances, the defendant is considered responsible because his or her behavior caused thevictim to respond. A defendant is only relieved of responsibility in those instances in which thevictim’s reaction to the crime is both abnormal and unforeseeable. Consider the case of a victimwho jumps into the water to evade an assailant and drowns. The assailant will be charged withthe victim’s death despite the fact that the victim could not swim and did not realize that thewater was dangerously deep. The issue is the foreseeability of the victim’s response rather thanthe reasonableness of the victim’s response. Again, courts generally are not sympathetic to defen-dants who set a chain of events in motion and generally will hold the defendant criminallyliable.

In People v. Armitage, David Armitage was convicted of “drunk boating causing [the]death” of Peter Maskovich. Armitage was operating his small aluminum speedboat at a highrate of speed while zigzagging across the river when it flipped over. There were no floatationdevices on board and the intoxicated Armitage and Maskovich clung to the capsized vessel.Maskovich disregarded Armitage’s warning and decided to swim to shore and drowned. ACalifornia appellate court ruled that Maskovich’s decision did not break the chain of causa-tion. The “fact that the panic stricken victim recklessly abandoned the boat and tried to swimashore was not a wholly abnormal reaction to the peril of drowning” and Armitage cannot



exonerate himself by claiming that the “victim should have reacted differently or moreprudently.”19

Defendants have also been held liable for the response of individuals other than the victim.For instance, in the California case of People v. Schmies, defendant Schmies fled on his motorcy-cle from a traffic stop at speeds of up to ninety miles an hour and disregarded all traffic regula-tions. During the chase, one of the pursuing patrol cars struck another vehicle, killing the driverand injuring the officer. Schmies was convicted of grossly negligent vehicular manslaughter andof reckless driving. A California court affirmed the defendant’s conviction based on the fact thatthe officer’s response and the resulting injury were reasonably foreseeable. The officer’s reaction,in other words, was not so extraordinary that it was unforeseeable, unpredictable, and statisti-cally extremely improbable.20

Medical negligence has also consistently been viewed as foreseeable and does not breakthe chain of causation. In People v. Saavedra-Rodriquez, the defendant claimed that the negli-gence of the doctors at the hospital rather than the knife wound he inflicted was the proxi-mate cause of the death and he should not be held liable for homicide. The Colorado SupremeCourt ruled that the medical negligence is “too frequent to be considered abnormal” and thatthe defendant’s stabbing of the victim started a chain of events, the natural and probableresult of which was the defendant’s death. The court added that only the most gross and irre-sponsible medical negligence is so removed from normal expectations to be consideredunforeseeable.21

In United States v. Hamilton, the defendant knocked the victim down and jumped on andkicked his face. The victim was rushed to the hospital where he was treated and his armsrestrained. During the night the nurses changed his bed clothes and negligently failed to reat-tach the restraints on Hamilton’s arms. Early in the morning the defendant went into convul-sions, pulled out the nasal tubes, and suffocated to death. The court held that regardless ofwhether the defendant accidentally or intentionally pulled out the tubes, the defendant’s deathwas the ordinary and foreseeable consequence of the attack and affirmed the defendant’s con-viction for manslaughter.22

The Model Penal Code

The Model Penal Code eliminates legal or proximate causation and only requires “but-for cau-sation.” The code merely asks whether the result was consistent with the defendant’s intent orknowledge or was within the scope of risk created by the defendant’s reckless or negligent act.In other words, under the Model Penal Code you merely look at the defendant’s intent and actand ask whether the result could have been anticipated. In cases of a resulting harm or injurythat are “remote” or “accidental” (e.g., a lightning bolt or a doctor who is a serial killer), theModel Penal Code requires that we look to see whether it would be unjust to hold the defendantresponsible.23

The next two cases, Banks v. Commonwealth and People v. Kern, ask whether it is just and fairto hold a defendant liable as the legal or proximate cause of the victim’s death.

The Legal Equation

Causality = Cause in fact + legal or proximate cause.

Cause in Fact = “But for” the defendant’scriminal act the victim would not be injured or dead.

Legal or Proximate Cause = Whether just orfair to hold the defendant criminally responsible.

Intervening Acts = Coincidental interveningacts limit liability where unforeseeable responsive

intervening acts limit liability where unforeseeable and abnormal.



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BANKS v. COMMONWEALTH

586 S.E. 2D 876 (VA.CT. APP., 2003)

OPINION BY: CLEMENTS, J.

Damon Lynn Banks was convicted in a jury trial ofinvoluntary manslaughter . . . [o]n appeal, he contendsthe trial court erred in finding the evidence sufficientto sustain his conviction. We disagree and affirm theconviction. . . .

FactsThe evidence established that, in the earlymorning hours of September 10, 2000, Banks and fourother Marines, Terrance Jenkins, Francisco Ortez,Khaliah Freeman, and Tory Benjamin, left theCoppermine Club in Petersburg, Virginia. At theywalked down Washington Street in the direction ofthe Howard Johnson Hotel, the victim, Keith Aldrich,came up behind them. The Marines stopped so thatsome of them could urinate, and Aldrich walked pastthem. The Marines began to talk and joke with Aldrich.Aldrich joked back. Benjamin threw a twenty-ounceplastic coke bottle at Aldrich, who thereafter began walk-ing in the middle of the street. Cars coming down thestreet honked and flashed their lights at him.

As the Marines approached the intersection withInterstate 95 (I-95), Aldrich asked them if they were inthe Army. They told Aldrich they were in the Marines,and Aldrich responded that he too was in the Marines.Believing Aldrich was lying, Banks stood in front ofAldrich and began to question him about Marine Corpsvalues and the chain of command. Aldrich tried to getaround Banks, but Banks got in front of him again.When Aldrich put his hands up, Ortez tackled him andhit him in the face. Aldrich then stumbled and startedrunning down the I-95 off-ramp towards the interstate.Banks ran after Aldrich. Benjamin and Freeman followedBanks, and Ortez and Jenkins remained at the top ofthe ramp.

Benjamin ran part way down the ramp after Banks.There, he observed Banks standing over Aldrich, whowas “all balled up” on the ground in the middle of theroad in a fetal position. Benjamin then saw Banks hitAldrich in the face. At that point, Benjamin saw head-lights approaching up the ramp and observed Banks“running to the side of the road.” Benjamin startedgoing back up the ramp and then heard a “boom,boom.” Turning around, he saw Aldrich had been hit bya car. Benjamin returned to the other Marines and toldthem that Aldrich had been hit by a car. Rejoined byBanks, the group then ran to the Howard Johnson Hotel.None of them contacted the police or called for anambulance.

At the hotel, Banks admitted to Ortez that he hadknocked Aldrich down after chasing him. He also admit-ted to Benjamin that he had hit Aldrich, saying Aldrichdeserved it for lying about being in the Marines.

The car that struck Aldrich was driven by Nina AnnCampbell. Campbell testified she was exiting off I-95,going thirty miles an hour, when all of a sudden she sawsomething “all balled up” in the middle of the off-ramptwo feet in front of her. There were no streetlights illu-minating the roadway. Observing “it was pitch black” atthe time and that she “didn’t expect to see anything inthe middle of the road,” Campbell stated it was too latefor her to stop by the time she saw the object in the road,despite her last-second efforts to avoid it. Immediatelyafter hitting Aldrich, Campbell stopped her car, deter-mined that she had run over a body lying on the ramp,and found a nearby policeman.

Dr. William G. Gormley, the medical examiner whoperformed Aldrich’s autopsy, testified that Aldrich, whowas found dead at the scene of the accident, sustainedsevere crushing injuries to his chest and thoracic areaand had several abrasions on the side of his body, whichDr. Gormley described as “road burn.” Dr. Gormleyconcluded that the cause of death was “multipleblunt-force injuries to the chest” consistent with beingrun over by a car. Dr. Gormley could not give an opin-ion, based on the autopsy, to confirm whether Aldrichhad been assaulted prior to being run over. He didopine, however, that the injuries were consistent withAldrich being struck by the car while in a reclining posi-tion, rather than standing up. On cross-examination,Dr. Gormley testified Aldrich had a blood alcohol con-tent of .12%. The legal limit for lawfully driving a motorvehicle was .08%. Based on this legal limit for intoxica-tion, a general average indicator to correlate the effectof alcohol on judgment, Dr. Gormley said Aldrich’sconsumption of alcohol was “likely to have had aneffect [on his] judgment.”

Testifying in his own defense, Banks admitted hegot “upset” and “angry” when Aldrich stated he was inthe Marines. He further admitted that, when chasingAldrich, he tried to trip him but missed and fell him-self. He got up and continued the chase down the ramp.Catching up to Aldrich, Banks “grabbed him and he fell”in the roadway. Banks then hit Aldrich in the face.Leaving Aldrich lying “in the middle of the road,” Banksstarted back up the ramp. He then heard the car strikeAldrich, but did nothing to help the victim and did notcall the police.

IssueBanks contends the evidence was insufficient, as amatter of law, to convict him of involuntary manslaugh-ter. The Commonwealth, he argues, failed to provebeyond a reasonable doubt that his conduct amountedto criminal negligence or that it was the proximate causeof Aldrich’s death.



ReasoningWe conclude that assaulting Aldrich and leaving himlying apparently injured on the unlit exit ramp in thedark, with a vehicle approaching, was conduct so wan-ton and willful that it showed utter disregard for thesafety of human life. Furthermore, a reasonable personwould have known that these circumstances wouldlikely lead to Aldrich’s injury or death. Accordingly, theevidence proved that Banks’ acts of commission andomission rose to the level of criminal negligence.

To convict Banks of involuntary manslaughter, theCommonwealth also had to prove beyond a reasonabledoubt that Banks’ “criminally negligent acts were aproximate cause of the victim’s death.” . . .

Banks asserts that, notwithstanding his role in theconfrontation with Aldrich, the actual causes of Aldrich’sdeath were Ortez’s hitting Aldrich, which “sent him run-ning down the expressway ramp,” the negligent drivingof Campbell, and Aldrich’s own voluntary intoxication.Each of those acts, he maintains, was an independent,intervening cause of the victim’s death. Accordingly, heconcludes, the Commonwealth failed to prove that hisconduct was the proximate cause of Aldrich’s death.Again, we disagree.

Banks’ argument disregards the applicable principlesof proximate cause.

To be an intervening cause the act in question musthave been an event which the accused could not haveforeseen. “An intervening act which is reasonably fore-seeable cannot be relied upon as breaking the chain ofcausal connection between an original act of negligenceand subsequent injury.” . . .

It is clear from the evidence in this case that Banks’“negligent acts and omissions exposed [Aldrich] to thesubsequent . . . act that ultimately resulted in his death.”Indeed, but for Banks’ assault on Aldrich, the decedentwould not have been lying helpless in the middle of theexit ramp of I-95 at night. Banks himself admitted that,after catching Aldrich, knocking him down, and hittinghim in the face while he was on the ground, he left himlying in the middle of the exit ramp.

It is also clear that Ortez hit Aldrich before Bankschased Aldrich down the ramp, assaulted him, and lefthim lying in the middle of the exit ramp. Thus, Ortez’shitting Aldrich had no bearing on the “chain of causalconnection between [Banks’s] original acts of negligence

and [Aldrich’s] subsequent [death].” . . . Hence, Ortez’shitting Aldrich does not constitute an independent,intervening cause.

For Campbell’s conduct to constitute an indepen-dent, intervening cause, as Banks suggests, Campbell’sdriving on the exit ramp must have been an event thatBanks could not have foreseen. It was readily foresee-able, however, that vehicles traveling on I-95 would usethe off-ramp to exit the interstate and that a driver soexiting may not be able to see a “balled up” body in theroadway because it was dark and the road was not lit.

Therefore, irrespective of whether Ortez’s hittingAldrich or Campbell’s driving was criminally negligentor not, the evidence proved that Banks’ conduct wasa proximate cause of Aldrich’s death. He is, thus,criminally liable.

Finally, we find no merit in Banks’ argument thatAldrich was to blame for his own death because heran down a highway exit ramp in an intoxicated condi-tion. The evidence did indicate that Aldrich had a bloodalcohol level of .12. However, “contributory negligencehas no place in a case of involuntary manslaughter,[and] if the criminal negligence of the [accused] is foundto be the cause of death, [he] is criminally responsible,whether the decedent’s failure to use due care contri-buted to the injury or not.”

“Only if the conduct of the deceased amounts toan independent, intervening act alone causing the fatalinjury can the accused be exonerated from liabilityfor his or her criminal negligence. In such case, the con-duct of the accused becomes a remote cause.” Here, asdiscussed above, the evidence makes clear that Banks’negligent acts were not merely a “remote” cause ofAldrich’s death. While Aldrich’s level of intoxicationmay have affected his judgment in fleeing down theinterstate exit ramp, the record plainly shows that it wasBanks’ assault that left Aldrich lying in the road to besubsequently hit by an oncoming car.

HoldingFor these reasons, we hold the trial court did not errin finding the evidence sufficient, as a matter of law, toprove beyond a reasonable doubt that Banks’ conductamounted to criminal negligence and was a proximatecause of Aldrich’s death. Accordingly, we affirm Banks’conviction of involuntary manslaughter.



1. Is this case an example of a coincidental intervening act ora responsive intervening act?

2. Did Aldrich’s inebriated condition and confrontation withthe Marines and running down the highway rampconstitute the legal or proximate cause of his death? Is itpossible that he would have been hit by a car withoutBanks chasing and hitting him?

3. Was Ortez the proximate cause of the victim’s death? Whatabout Campbell?

4. Did Banks reasonably believe that Aldrich would get upbefore he was hit by an oncoming automobile? Whatwould be the result if Banks hit Aldrich and carried him tothe side of the road, and Aldrich later wandered onto thestreet and was killed?

5. Why did the Virginia court convict Banks of negligentrather than reckless homicide?


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PEOPLE v. KERN

554 N.E.2D 1235 (N.Y. 1990)

OPINION BY: ALEXANDER, J.

FactsDefendants were convicted, after a highly publicized trial,of manslaughter, and other charges arising out of theirparticipation in an attack by a group of white teen-agersupon three black men in the community of HowardBeach in Queens. This so-called “Howard Beach incident”occurred during the early morning hours of December 20,1986, after the three victims, Michael Griffith, CedricSandiford and Timothy Grimes left their disabled car onthe nearby Cross Bay Boulevard and walked into theHoward Beach neighborhood to seek assistance.

At the same time that Griffith, Sandiford and Grimesleft their car, a birthday party was being held in HowardBeach and was attended by approximately 30 teen-agers,including defendants Kern, Lester, and Ladone, their code-fendant Michael Pirone and the individual who testifiedagainst them, Robert Riley. At approximately 12:20 A.M.,Kern’s girlfriend, Claudia Calogero, left the party and wasdriven home by Salvatore DeSimone, accompanied byLester and a fourth youth. As DeSimone turned the cornerfrom Cross Bay Boulevard onto 157th Avenue, Griffith,Grimes and Sandiford started to cross the street, headingtowards the New Park Pizzeria. Calogero testified thatthree black men darted in front of the car, forcingDeSimone to stop suddenly. An argument ensued betweenthe pedestrians and the occupants of the car. According toCalogero, Sandiford stuck his head into the car windowand stared at the teen-agers. According to Sandiford’stestimony, however, the occupants of the car stuck theirheads out of the window and yelled “N__, get [out of] theneighborhood.” Following that confrontation, the threemen crossed the street and entered the pizzeria while theyouths continued on their way. After driving Calogerohome, DeSimone, Lester and the other youth returned tothe party.

Robert Riley was sitting on the steps outside thehouse where the party was being held when DeSimone,Lester and the other youth arrived. Lester shouted “Therewere some n__s on the boulevard, lets go up there and killthem.” A few minutes later, a number of youths, includ-ing Kern, Lester, Ladone and Pirone, left the party to trackdown the three black men. DeSimone led the caravan ofcars from the party to the New Park Pizzeria in his carwith Lester and Ladone. Riley followed in his own carwith three male teen-agers and Laura Castagna, whomRiley intended to escort home. John Saggese followed thegroup in his car. Although Riley did not know in whichcar Kern and Pirone traveled, he testified that he observedthe two when the group eventually arrived at the pizzeria.

Meanwhile, at approximately 12:45 A.M., Grimes,Sandiford and Griffith left the New Park Pizzeria. At thepoint, the cars containing the teen-agers pulled into theparking lot and the youths, with the exception of LauraCastagna, emerged from the cars. The group, wieldingbats and sticks, confronted Griffith, Grimes andSandiford and yelled at them to get out of the neighbor-hood. Riley testified that Kern was banging a baseball baton the ground as the teen-agers formed a semicirclearound the three men, who, according to Riley, wereeach holding a knife. According to Grimes, several of theyouths were carrying bats and sticks and one youth held“something that looked like an iron pipe.” Sandiford tes-tified that he did not have a weapon and that he did notobserve whether Griffith or Grimes displayed anyweapons. Grimes testified that he pulled out a knife andheld it in front of him as the youths approached. At thatpoint, Sandiford was struck in the back by a bat.Although Riley never saw Kern swing the bat he hadbeen holding, he did testify that after Sandiford wasstruck, Riley grabbed the bat from Kern because he(Riley) could swing it “harder.” As the three men fledacross Cross Bay Boulevard, Riley, Kern, Ladone, Lester,Pirone and several other youths gave chase.

Griffith, Grimes and Sandiford ran in different direc-tions. Grimes headed north on Cross Bay Boulevard andmanaged to escape his attackers. Sandiford was struckseveral times with bats and tree limbs as his assailantschanted “N__s, get . . . out of the neighborhood.”Sandiford was able to break away from the youths andwas eventually joined by Griffith as they ran down analleyway behind several stores parallel to Cross BayBoulevard. The two men were followed by Kern, Ladone,Lester, Riley, Pirone and two other youths. The alleywayended at three-foot-high barricade where it intersectedwith 156th Avenue. Both Sandiford and Griffith jumpedover the barricade and made a left turn onto 156thAvenue. The group of teen-agers followed, approxi-mately 30 feet behind, jumped the barricade and con-tinued the chase.

At the time, Saggese pulled up in the westbound laneon 156th Avenue, and after clearing the barricade, Rileygot into the backseat. The car followed closely behind theyouths on foot, who turned right on 90th Street, followingGriffith. At the end of 90th Street, a three-foot-highguardrail separated that street from the Belt Parkway, a six-lane highway which runs east and west. Shore Parkway, aservice road for the Belt Parkway which also runs east andwest, partially intersects 90th Street at the guardrail andleads to Cross Bay Boulevard. The Saggese car, which hadpulled ahead of the youths on foot, stopped three quartersof the way down 90th Street. Lester ran to the car, grabbeda bat from Riley, and he, Riley, Kern and Ladone rantoward the end of 90th Street after Griffith. Griffithjumped over the guardrail and ran onto the Belt Parkway.When the youths reached the guardrail, Riley observedGriffith run across the three eastbound lanes of the high-way, jump the center median and enter the westbound



lanes where he was struck by a car driven by DominicBlum. Griffith was killed in the accident; his body wasthrown a distance approximately 75 to 125 feet and Blumleft the scene without realizing that he had hit a person.He later returned to the scene of the accident and spoke tothe police.

After the youths observed Griffith being struck by acar, Lester, Kern and Ladone and ran back toward 156thAvenue where they met up with two other youths. Riley,Pirone, Saggese and another youth returned in Saggese’scar to the pizzeria, where they picked up Castagna andheaded toward 156th Avenue.

Sandiford, who had managed to temporarily escapehis assailants, was walking west on 156th Avenue whenhe was attacked from behind by the group of teen-agerswho beat him with bats and tree limbs. Sandiford testi-fied that he managed to grab the bat being wielded byLester as he pleaded with Lester not to kill him. At thatpoint, a car pulled up and, as its occupants approached,Sandiford released the bat which Lester then swung athim, striking him in the head and causing blood to rundown the back of his head. He further testified that he“[felt] like [his] brain . . . busted apart.”

Sandiford broke away from his attackers, who con-tinued to chase him. The chase ended when Sandifordtried to climb a chainlink fence which ran parallel tothe Belt Parkway. The youths pulled Sandiford downfrom the fence, kicking and beating him with bats andtree limbs. Sandiford cried for help to Theresa Fisher,who was standing in the doorway of a house acrossthe street. In response, Fisher called the police. A taperecording of her 911 call was admitted into evidence atthe trial. The beating of Sandiford continued and thefinal attack was witnessed by George and Marie Toscano,who also called the police.

After his assailants left him, Sandiford was picked upby a police car on the belt Parkway and driven to the sitewhere Griffith’s body was located, where he identifiedthe body. He was later taken to the hospital and treatedfor his injuries. . . . .

IssueWe also reject defendants’ contentions that the evidenceadduced at trial was legally insufficient to support theirconvictions of second degree manslaughter and firstdegree assault Penal Law.

HoldingViewed in the light most favorable to the People . . . theevidence supports the jury’s finding that the defendantsrecklessly caused Griffith’s death because they wereaware of the risk of death to Griffith as they continuedto chase him on 90th Street and onto a six-lane highway,they consciously disregarded that risk, and, in so doing,grossly deviated from the standard of care which reason-able persons would have observed under the circum-stances. The evidence was also sufficient to supportfindings that defendants’ actions were a “sufficientlydirect cause” of Griffith’s death and that although it waspossible for Griffith to escape his attackers by turningonto Shore Road rather than attempting to cross the BeltParkway, it was foreseeable and indeed probable thatGriffith would choose the escape route most likely todissuade his attackers from pursuit. The evidence wassufficient to prove, beyond a reasonable doubt, thatBlum’s operation of his automobile on the Belt Parkwaywas not an intervening cause sufficient to relieve defen-dants of criminal liability for the directly foreseeableconsequences of their actions.

The evidence is also legally sufficient to supportdefendants’ conviction of first degree assault. Contraryto defendants’ contention . . . the evidence supportsthe jury’s determination that Sandiford suffered “seriousphysical injury” as a result of their attack upon him.Their determination that Sandiford suffered a “pro-tracted impairment of [his] health” was supported bythe testimony of Sandiford and the doctors who treatedhim that Sandiford suffered severe injuries to his backand right eye which affected him for nearly a year afterthe incident.



1. Explain why Griffith’s running onto the expressway didnot constitute an intervening event that was the proximatecause of his death. Is it significant that Griffith chose toescape on Belt Parkway rather than Shore Road?

2. Was Dominic Blum the proximate cause of Griffith’s death?If not, can you name the individuals who were theproximate cause of Griffith’s death?

3. Is there a meaningful difference between the facts in Banksand Kern?

4. Was this a hate crime?

CCaasseess aanndd CCoommmmeennttss

1. Apparent Safety Doctrine. Preslar kicked andchoked his wife and beat her over the head with a

thirty-inch thick piece of wood. He also threatened tokill her with his axe. The victim gathered her children


and walked over two miles to her father’s home.Reluctant to reveal her bruises and injuries to her family,she spread a quilt on the ground and covered herselfwith cotton fabric and slept outside. The combination ofthe exhausting walk, her injuries, and the biting cold ledto a weakened condition that resulted in her death. Thevictim’s husband was acquitted by the North CarolinaSupreme Court, which ruled that the chain of causationwas broken by the victim’s failure to seek safety. Thecourt distinguished this case from the situation of avictim who in fleeing is forced to wade through a swampor jump into a river. Is it relevant that the victim likelyfeared that her family would force her to return to hermarital home and that she would have to face additionalphysical abuse from her husband? See State v. Preslar, 48N.C. 421 (1856).

2. Drag Racing. In Velasquez v. State, the defendantVelazquez and the deceased Alvarez agreed to “drag race”their automobiles over a quarter-mile course on a publichighway. Upon completing the race, Alvarez suddenlyturned his automobile around and proceeded east towardthe starting line. Velazquez also reversed direction. Alvarezwas in the lead and attained an estimated speed of 123mph. He was not wearing a seat belt and had a bloodalcohol content of between .11 and .12. Velazquez hadnot been drinking and was traveling at roughly 90 mph.As both approached the end of the road, they appliedtheir brakes, but Alvarez was unable to stop. He crashedthrough the guardrail and was propelled over a canal andlanded on the far bank. Alvarez was thrown from his carand pinned under the vehicle when it landed and died.The defendant crashed through the guardrail, landed inthe canal, and managed to escape.

A Florida District Court of Appeal determined thatthe defendant’s reckless operation of his vehicle in the“drag race” was technically the “cause in fact” ofAlvarez’s death under the “but for” test. There was nodoubt that “but for” the defendant’s participation, thedeceased would not have recklessly raced his vehicle andwould not have been killed. The court, however, ruledthat the defendant’s participation was not the proximatecause of the deceased’s death because the “deceased, ineffect, killed himself by his own volitional reckless dri-ving” and that it “would be unjust to hold the defendantcriminally responsible for this death.” The race was com-pleted when Alvarez turned his car around and engaged

in a “near-suicide mission.” From the point of publicpolicy, would it have been advisable to hold Velazquezliable? Was Alvarez’s death foreseeable? See Velazquez v.State, 561 So.2d 347 (Fla. Ct.App., 1990).

3. The Year-and-a-Day Rule. Defendant WilbertRogers stabbed James Bowdery in the heart with abutcher knife on May 6, 1994. During an operation torepair Bowdery’s heart, he suffered a cardiac arrest. Thisled to severe brain damage as a result of a loss of oxygen.Bowdery remained in a coma and died on August 7,1995, from kidney complications resulting from remain-ing in a vegetative condition for such a lengthy period oftime. Rogers was convicted of second-degree murder andappealed on the grounds that the prosecution was barredby the year-and-a-day rule, which prohibits a murderconviction when more than a year has transpiredbetween the defendant’s criminal act and the victim’sdeath. The Tennessee Supreme Court observed that therule was based on the fact that thirteenth-century med-ical science was incapable of establishing causationbeyond a reasonable doubt when a significant amount oftime elapsed between the injury to the victim and thevictim’s death. The rule has also been explained as aneffort to moderate the common law’s automatic imposi-tion of the death penalty for felonies.

The Tennessee Supreme Court, in abolishing theyear-and-a-day rule, noted that almost one-half of thestates had now eliminated the rule. The court explainedthat medical science now possessed the ability to deter-mine the cause of death with greater accuracy and that itno longer made sense to terminate a defendant’s liabilityafter a year. In addition, medicine was able to sustain thelife of a victim of a criminal act for a lengthy period oftime, and the year-and-a-day rule would result in theperpetrators of slow-acting poisons or viruses escap-ing criminal prosecution and punishment. The courtdeclined to adopt a revised period in which prosecutionsfor murder must be undertaken and, instead, stressedthat prosecutors possessed the burden of establishingcausation. The U.S. Supreme Court later ruled that theTennessee court’s abolition of the year-and-day rule wasnot in violation of the ex post facto clause of the U.S.Constitution. See State v. Rogers, 992 S.W.3d 393 (Tenn.1999), aff’d 532 U.S. 451(2001). Should there be a timelimit on prosecutions for homicide? See Commonwealthv. Casanova, 708 N.E.2d 86 (Mass. 1999).


Joseph Herman started a fire in an abandoned house used by drug addicts in order to remove the “hazard” from the neighborhood. Roughly ten firemen

responded to the blaze, including Charles Swan, a nineteen-year veteran of the Chicago FireDepartment. Swan placed a twenty-foot wooden ladder against the house in order to knock a hole inthe roof and allow smoke to escape. Swan carried a fifteen-pound axe and a pipe pole that wasapproximately six feet long. As Swan reached the top of the building, the ladder slid from the build-ing and Swan fell roughly eighteen feet and broke his right leg and seriously injured his knee. A lieutenantwho was to steady the ladder apparently became distracted and had walked away. The defendant was

5.7. You Decide


convicted of aggravated arson based on the fact that a fireman was injured in the line of duty “as aresult of the fire.” The only precedent cited by the court involved a defendant who was convicted forsetting a fire that led to one fireman inhaling smoke and another injuring his wrist. Was Herman’s set-ting the fire the proximate cause of Swan’s injury? Do you believe that Swan was injured “as a resultof the fire?” Prior to setting the fire, Herman cleared the addicts out of the building. Would Herman’ssetting the fire have constituted a proximate cause in the event that unknown to Herman, some ofthe addicts remained in the structure and were killed in the fire set by Herman? See People v. Herman,807 N.E.2d 1036 (Ill. App. 2004).


❖

Chapter Summary

It is a fundamental principle of criminal law that a criminal offense requires a criminal intentthat concurs with a criminal act. The requirement of a mens rea, or the mental element of a

criminal act, is based on the concept of “moral blameworthiness.” The notion of blameworthi-ness, in turn, reflects the notion that individuals should only be subject to criminal punishmentand held accountable when they consciously choose to commit a crime or to create a high riskof harm or injury.

We cannot penetrate into the human brain and determine whether an individual harboreda criminal intent. In some cases, a defendant may confess to the police or testify as to his or herintent in court. In most instances, prosecutors rely on circumstantial evidence and infer anintent from a defendant’s motive and pattern of activity.

The Model Penal Code proposed four levels of mens rea or criminal intent. The four in orderof severity or culpability are:

Purposely. You aimed and shot the arrow at William Tell with the purpose of killing himrather than with the intent of hitting the apple on his head (Tell is the national hero ofSwitzerland who was required to shoot an arrow off his son’s head).

Knowingly. You know that you are a poor shot, and when shooting at the apple on WilliamTell’s head, you knew that you were practically certain to kill him.

Recklessly. You clearly appreciated and knew the risk of shooting the arrow at William Tellwith your eyes closed. Nevertheless, you proceeded to shoot the arrow despite the fact thatthis was a gross deviation from the standard of care that a law-abiding person would exhibit.

Negligently. You claim that you honestly believed that you were such an experienced hunterthat there was no danger in shooting the apple from William Tell’s head. This was a grossdeviation from the standard of care that a reasonable person would practice under thecircumstances.

Strict liability crimes only require an actus reus and do not require proof of a mens rea. Theseoffenses typically are public welfare crimes that protect the safety and security of society by reg-ulating food, drugs, and transportation. These offenses are malum prohibitum rather than malumin se and usually are punishable by a small fine. Strict liability offenses are criticized as incon-sistent with the traditional concern with “moral blameworthiness.”

A criminal act requires the unison or concurrence of a criminal intent and a criminal act.This means that the intent must dictate the act.

Crimes such as murder, aggravated assault, and arson require the achievement of a particu-lar result. Particularly in the case of homicide, defendants may claim that their act did not causethe victim’s death. The prosecution must establish beyond a reasonable doubt that an individ-ual’s act was the cause in fact or “but for” cause that set the chain of causation in motion. The



defendant’s act must also be the legal or proximate cause of the death. Normally this is not dif-ficult. Cases involving complex patterns of causation, however, may require judges to make dif-ficult decisions concerning whether it is fair and just to hold an individual responsible for theconsequences of intervening acts.

We saw that two types of intervening acts are important in examining the chain of causation:

A coincidental intervening act that is foreseeable does not break the chain of causation.

A responsive intervening act only breaks the chain of causation when the reaction is bothabnormal and unforeseeable.

Chapter Review Questions


1. What is the reason that the law requires a mens rea?

2. Why is it difficult to prove mens rea beyond areasonable doubt? Discuss some different ways ofproving mens rea.

3. Explain the difference between purpose andknowledge. Which is punished more severely? Why?

4. Distinguish recklessness from negligence. Which ispunished more severely? Why?

5. What is the difference between a crime requiring acriminal intent and strict liability?

6. Explain the “willful blindness” rule.

7. What is the importance of the principle ofconcurrence? Provide an example of a lack ofconcurrence.

8. Disputes over causation typically arise inprosecutions for what types of crimes?

9. Explain the statement that an individual’s criminalact must be shown to be both the cause in factand the legal or proximate cause.

10. What is meant by the statement that legal orproximate cause is based on a judgment of what isjust or fair under the circumstances? How doesthis differ from the determination of a cause infact or a “but for” analysis?

11. What is the difference between a coincidentalintervening act and a responsive intervening act?Provide examples.

12. Discuss the test for determining whethercoincidental intervening acts and responsiveintervening acts break the chain of causation.

13. Provide concrete examples illustrating acoincidental intervening act and a responsiveintervening act that do not “break the chain ofcausation.” Now provide examples of coincidentaland intervening acts that “break the chain ofcausation.”

14. What is the year-and-a-day rule? Why are statesnow abandoning this principle?

15. What are the arguments for and against strictliability offenses?

16. What is the approach of the Model Penal Codetoward causality? Use some of the cases in the textto illustrate your answer.

17. Are we too concerned with criminal intent? Whynot impose the same punishment on criminal actsregardless of the individual’s intent? Is the fatheror mother of a child hit by a car concernedwhether the driver was acting intentionally,knowingly, recklessly, or negligently?

Legal Terminology

cause in factcircumstantial evidencecoincidental intervening actconcurrenceconstructive intentcrimes of cause and resultgeneral intentknowingly

malum in semalum prohibitamens reanegligentlyproximate causepublic welfare offensepurposelyrecklessly

responsive intervening actscienterspecific intentstrict liabilitytransferred intentwillful blindnessyear-and-a-day rule


Criminal Law on the Web


Log on to the Web-based student study site athttp://www.sagepub.com/lippmanstudy to assistyou in completing the Criminal Law on the Webexercises, as well as for additional cases andresources.

1. The U.S. Supreme Court, in Staples v. United States in1994, decided whether the prosecution mustestablish that a defendant knowingly possessed anunregistered machine gun or whether this is a strict

liability offense. Explain the decision and reasoningof the Supreme Court.

2. The Kansas Supreme Court considered whether adefendant is responsible for a death caused by apolice officer during a high-speed chase in State v.Anderson. In another interesting case, State v. Pelhamin 2003, a New Jersey court considered whether adefendant was guilty of vehicular homicide whenthe victim of a car crash was voluntarily removedfrom life support following the accident. Explain theanalysis of the courts in these cases.

Bibliography

American Law Institute, Model Penal Code and Commentaries,vol. 1, pt. 1. (Philadelphia: American Law Institute, 1985),pp. 225–266. A detailed examination of intent and causal-ity with proposals for reforms.

Joshua Dressler, Understanding Criminal Law, 3rd ed. (New York:Lexis, 2001), pp. 115–150, 179–200. A comprehensive andeasily understood examination of intent, concurrence, andcausation.

Hyman Gross, A Theory of Criminal Justice (New York: OxfordUniversity Press, 1979), pp. 74–113, 232–254, 342–374. Adifficult discussion of the abstract theory of intent andcausation for the sophisticated reader.

Jerome Hall, General Principles of Criminal Law, 2nd ed.(Indianapolis, IN: Bobbs-Merrill, 1960), pp. 70–105. A diffi-cult and challenging discussion of intent.

Wayne R. LaFave, Criminal Law, 3rd ed. (St. Paul, MN: WestPublishing, 2000), pp. 224–320. A detailed discussionwith citations to relevant cases on intent, concurrence, andcausation.

Rollin M. Perkins and Ronald N. Boyce, Criminal Law, 3rd ed.(Mineola, NY: Foundation Press, 1982), pp. 760–906. Avaluable discussion of the historical evolution of criminalintent and causation.

Richard G. Singer and John Q. La Fond, Criminal Law Examplesand Explanations (New York: Aspen, 2001), pp. 45–78,99–146. An accessible overview of intent and causalitywith questions to test your understanding.


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Mens Rea, Concurrence, Causation · 2007-03-02 · Introduction In the last chapter we noted that a...

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