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Criminal Law
South Texas College of Law Houston
Wheeler, Michael E.

Criminal Law – FALL 2012- Wheeler

Elements of Criminal Accountability

· Mens Rea – mental state

a) General intent

1. When a person intentionally does that which the law declares to be a crime even though he may not know his act or conduct is unlawful

i. Conditional – d may intend to engage in certain behavior

ii. Unconditional – intent to cause harm is unrestricted

b) Specific Intent

i. Desire to bring about a wrongful result, rather than just engaging in the act itself

ii. Going above and beyond the act of the actual crime

iii. Malice – no justification, excuse, or recognized mitigation and presence of either actual intent to cause harm or willfully doing an act with awareness of likelihood that harm may result

1. Negative side – no justification, excuse or mitigation

2. Positive side – intent to do the very harm done or harm of similar nature or willful disregard of obvious likelihood of causing such harm

3. Malice may vary for the crime it is being applied to (i.e. arson/mayhem)

4. Can be objective (implied from the act) and subjective (desire to do the act)

iv. Deadly Weapon Doctrine – if person uses a deadly weapon and kills, he presumably intends to kill

c) Negligence

i. Any conduct, except intentionally, harmful or recklessly disregardful of an interest of others.

ii. Failure to perceive a substantial and unjustifiable risk that a result will occur – must be a gross deviation from the standard of a reasonable person

iii. Common law overlooked difference between criminal negligence and recklessness

iv. Objective high degree of risk, subjective awareness

– Recklessness MPC

a. To have a high degree of risk (Objective)

b. Subjective awareness of that risk

a) Potential of harm

i. Reasonable risk

ii. Unreasonable risk

– Social utility v. potential harm

* Ex. Wife rushing husband to hospital

· Actus Reus – a prohibited act

· Concurrence – that the actus reus is triggered by a mens rea

· Causation – defendant brought about the harm and there is no intervening legal doctrine or act by the victim or third party source that precludes finding there to be a causal connection between the actions of the accused and the resulting harm.

Others Mental States:

Criminal Negligence

Mens Rea is essentially two factors 1) a substantial and unjustifiable risk (in which balance risk of harm versus social utility of the act) and 2) awareness factor that is judged objectively as opposed to subjectively for “recklessly”

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


i. Majority:subjective

1. Guilty knowledge – An awareness of the facts,

2. Guilty belief – A guilty belief which is incorrect, OR;

3. Guilty avoidance – A guilty avoidance of knowledge; willful blindness

a. Willful blindness: Makes a conscious choice of not finding out. Ignorance and disregard was solely and entirely a conscious purpose to avoid learning the truth.

ii. Minority: objective: should have known.


1. Something deliberately and intentionally done with evil or bad purpose unless the statute says otherwise [negates negligence, by statute]

2. Used by itself, the term denotes “intentionally”

Malum In Se (morally evil act)

1. Offenses requiring a mens rea constituted by a malicious element or manifest an evil nature, or wrongful disposition to harm or injure another in his person or property

Malum Prohibita – act prohibited by a statute – lacks mens rea

1. An offense that is prohibited by law and not inherently evil and thus lack the mens rea requirement

Strict Liability (i.e. speeding, food and drug labeling)

1. D is at fault without carelessness or fault or awareness and just requires that D was engaged in an act

2. No mens rea needed, but courts can require it

3. Penalties will not be overly harsh

4. Usually regulatory in nature

5. Usually constitutional

6. Not involving moral impropriety

Vicarious Liability – hold someone liable for the crimes of others.

Respondent Superior

1. Makes an employer liable for actions of an employee when those

ed death while committing felony

i. felony must be independent of the homicide,

ii. the death must be during the duration of the felony

iii. there must be proximate cause and it is

iv. within the list of applicable crimes or statutorily defined but is usually an inherently dangerous crime

– The mens rea of malice aforethought is implied from Ds felonious act which is a wanton and willful disregard for risk of human life

· ex. fireman death from arson

Degrees of Murder

1. First Degree

i. Malice aforethought expressed

ii. Felony Murder with restrictions – robbery, arson, rape, burglary, or aggravated murders

iii. Capital punishment crime

2. Second Degree

i. Malice aforethought implied murders

ii. Non-capital punishment crime

Homicide – justified or excusable killing of another human being

1. Justifiable – demanded or authorized by law i.e. rules of combat

i. Carried out as a punishment for the crime you’ve been convicted of = capital

1. Must comport to the rules of such punishment i.e. done on the day you’re told to do it, not day before or day after

ii. Self Defense

2. Excusable – committed crime, but is not held accountable

i. Insanity – must prove that person knew right from wrong

ii. Infancy – under the age of 7, lack capacity to commit crime

1. Over 14, treated as an adult or punishments and actions

2. Between 7 and 14, there was presumption that this person could not emulate capacity to commit crime

a. Presumption was strongest at 7 years and 1 day

b. Presumption was weakest at 13 years and 364 days

3. To overcome presumption, must prove person knew right from wrong – much like test of insanity

4. Could not be convicted of rape if under age of 14

iii. Done by accident – has neither engaged in criminal negligence or criminal act