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mens rea

“Evil intent”—the possession of the requisite state of mind to commit

a prohibited act.

a. Specific intent crime. Specific intent crimes require that the perpetrator

intended to achieve a specific result from his illegal act.

specific intent crime

A crime that requires that the perpetrator intended to achieve

a specific result from his or her illegal act.

Examples

Premeditated murder is a specific intent crime because the perpetrator

intends a specific result, the death of the victim. Arson, forgery, and

fraud are other examples of specific intent crimes.

b. General intent crime. General intent crimes require that the perpetrator

either knew or should have known that her actions would lead to harmful

results. The government does not have to prove that the accused intended

the precise harm that resulted from her actions.

general intent crime

A crime that requires that the perpetrator either knew or

should have known that his or her actions would lead to

harmful results.

Examples

Assault and battery are usually considered general intent crimes

because the perpetrator intends to commit the crime but does not know

the actual result of the crime in advance.

Individual criminal statutes state whether the crime requires a showing of specific or

general intent. Some jurisdictions have eliminated the distinction between specific and

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general crimes.

Merely thinking about committing a crime is not a crime because no action has been

taken. Thus, merely thinking about killing someone or evading taxes and not actually doing

so is not a crime.

Concept Summary

Elements of an Intent Crime

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Nonintent Crimes

Most states have enacted laws that define certain unintended conduct as a crime. These

are called nonintent crimes. Nonintent crimes are often imposed for reckless or grossly

negligent conduct that causes injury to another person.

nonintent crime

A crime that imposes criminal liability without a finding of mens rea (intent).

The following feature discusses how criminal acts may also be the basis for civil tort

actions by an injured victim or a deceased victim’s relatives.

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Contemporary Environment

Criminal Acts as the Basis for Tort Actions

An injured victim of a crime or the relatives of a deceased victim of a crime may

bring a civil action against a wrongdoer who has caused the injury or death

during the commission of a criminal act. Civil lawsuits are separate from the

government’s criminal action against the wrongdoer. In a civil lawsuit, the plaintiff

usually wants to recover monetary damages from the wrongdoer.

Example

A person commits the crime of battery and physically injures the victim. In this

case, the government can prosecute the perpetrator for the crime of battery.

In addition, the victim may sue the perpetrator in a civil lawsuit to recover

monetary damages for the injuries the victim suffers because of the attack.

In many cases, a person injured by a criminal act will not sue the criminal to

recover civil damages because the criminal is often judgment proof—that is, the

criminal does not have the money to pay a civil judgment.

Criminal and civil law differ in the following ways:

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Criminal Procedure

The procedure for initiating and maintaining a criminal action is quite detailed. It includes

both pretrial procedures and the actual trial.

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Arrest

Before the police can arrest a person for the commission of a crime, they usually

must obtain an arrest warrant based on a showing of probable cause. The police go

before a judge and present the evidence they have for arresting the suspect. If the judge

finds that

there is probable cause to issue the warrant, she will do so. The police will then use the

arrest warrant to arrest the suspect. Probable cause is defined as the substantial

likelihood that a person either committed or is about to commit a crime.

arrest warrant

A document for a person’s detainment, based on a showing of probable

cause that the person committed a crime.

probable cause

Evidence of the substantial likelihood that a person either committed or is

about to commit a crime.

Example

The police have obtained information from a reliable informant about the criminal

activity of an individual and further investigate the situation and arrive at the

conclusion that the individual who is the target of their investigation is involved in the

illegal selling of drugs. The police can take this evidence, place it before a judge, and

request that the judge issue an arrest warrant. If the judge believes there is probable

cause, the judge will issue an arrest warrant. The police can then arrest the suspect

pursuant to the arrest warrant.

An arrest can be made without obtaining an arrest warrant if there is no time to obtain one

or it is otherwise not feasible to obtain a warrant prior to the arrest. Warrantless arrests

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must be based on probable cause.

warrantless arrest

An arrest that is made without obtaining an arrest warrant. The arrest must

be based on probable cause and a showing that it was not feasible to obtain

an arrest warrant.

Examples

The police can make a warrantless arrest if they arrive during the commission of a

crime, when a person is fleeing from the scene of a crime, or when it is likely that

evidence will be destroyed.

Example

In Atwater v. Lago Vista, Texas, the U.S. Supreme Court held that a police officer

may make a warrantless arrest pursuant to a minor criminal offense. Gail Atwater was

driving her pickup truck in Lago Vista, Texas, with her three-year-old son and five-

year-old daughter in the front seat. None of them were wearing seat belts. Bart Turek,

a Lago Vista police officer, observed the seatbelt violation and pulled Atwater over. A

friend of Atwater’s arrived at the scene and took charge of the children. Turek

handcuffed Atwater, placed her in his squad car, and drove her to the police station.

Atwater was booked, her mug shot was taken, and she was placed in a jail cell for

about one hour, until she was released on $310 bond. Atwater ultimately pleaded no

contest to the misdemeanor seatbelt offenses and paid a $50 fine. Atwater sued the

City of Lago Vista and the police officer for compensatory and punitive damages for

allegedly violating her Fourth Amendment right to be free from unreasonable seizure.

The U.S. Supreme Court ruled against Atwater, finding that the Fourth Amendment

permits police officers to make a warrantless arrest pursuant to a minor criminal

offense.

Web Exercise

Go to www.fbi.gov and click on “Most Wanted” and then “Ten Most

Wanted Fugitives.” Who is the number-one fugitive listed, and what crime

is he or she wanted for?

3

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After a person is arrested, he or she is taken to the police station to be booked. Booking

is the administrative procedure for recording an arrest, fingerprinting the suspect, taking

a photograph of the suspect (often called a “mug shot”), and so on.

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Bail Bond

When a person is arrested, a bail amount is usually set by the court. If the court sets a

bail amount and the arrested person “posts” bail, he can be released from prison. If he

does not post bail, the arrestee may be kept in jail for some period of time and, in serious

crimes, until the date of trial. The arrested person can post the bail himself by paying the

court the set bail amount, which will be returned to him if he shows up for trial. More often,

the arrestee (or a relative or friend) pays a bail bonds professional who operates a bail

bonds business to post a bail bond with the court. Bail bonds professionals usually

require payment of 10 percent of the bail in order to post bond. For example, if the bail is

set at $100,000, then the arrestee pays the bail bonds professional $10,000 to post bail.

The bail bonds professional keeps this $10,000 payment. The bail bonds professional

guarantees the court that he will pay the court $100,000 if the arrestee does not show up

for trial. If this happens, the bail bonds professional will attempt to obtain the amount of the

bond—here $100,000—from the arrestee. Bail bonds professionals often require

collateral (e.g., title to an automobile, second mortgage on a house) before they issue a

bail bond.

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Indictment or Information

An accused person must be formally charged with a crime before he or she can be

brought to trial. This is usually done through an indictment issued by a grand jury or

an information statement issued by a magistrate.

indictment

The charge of having committed a crime (usually a felony), based on the

judgment of a grand jury.

information

The charge of having committed a crime (usually a misdemeanor), based

on the judgment of a judge (magistrate).

Evidence of serious crimes, such as murder, is usually presented to a grand jury. Most

grand juries comprise between 6 and 24 citizens who are charged with evaluating the

evidence presented by the government. Grand jurors sit for a fixed period of time, such as

one year. If the grand jury determines that there is sufficient evidence to hold the

accused for trial, it issues an indictment. Note that the grand jury does not determine guilt.

If an indictment is issued, the accused will be held for later trial.

For lesser crimes (e.g., burglary, shoplifting), the accused will be brought before a

magistrate (judge). A magistrate who finds that there is enough evidence to hold the

accused for trial will issue an information statement.

The case against the accused is dismissed if neither an indictment nor an information

statement is issued.

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Arraignment

If an indictment or information is issued, the accused is brought before a court for an

arraignment proceeding, during which the accused is (1) informed of the charges

against him and (2) asked to enter a plea. The accused may plead guilty or not guilty.

arraignment

A hearing during which the accused is brought before a court and is

(1) informed of the charges against him or her and (2) asked to enter a

plea.

Example

Peter has been arrested for the crime of automobile theft. At the arraignment Peter is

asked how he pleads. Peter replies “Not guilty.” Peter has pleaded “not guilty” rather

than “guilty.” The majority of accused persons plead not guilty at their arraignment.

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Nolo Contendere

A party may enter a plea of nolo contendere whereby the accused agrees to the

imposition of a penalty but does not admit guilt. The government has the option of

accepting a nolo contendere plea or requiring the defendant to plead guilty or not guilty. If

the government agrees to accept the nolo contendere plea, the accused and the

government usually enter into a plea bargain in which the accused agrees to the

imposition of a penalty but does not admit guilt. A nolo contendere plea cannot be used

as evidence of liability against the accused at a subsequent civil trial. Corporate

defendants often enter this plea.

Example

The government brings charges against a corporation for criminally violating

environmental pollution laws. The government and the corporation enter into an

agreement whereby the corporation pleas nolo contendere and agrees to pay a fine

of $5 million but does not plead guilty to the violation.

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Plea Bargain

Sometimes the accused and the government enter into plea bargain negotiations prior

to trial with the intent of avoiding a trial. If an agreement is reached, the government and

the accused will execute a plea bargaining agreement that sets forth the terms of their

agreement.

plea bargain agreement

An agreement in which the accused admits to a lesser crime than charged.

In return, the government agrees to impose a lesser sentence than might

have been obtained had the case gone to trial.

Example

An accused is charged with first-degree murder, which if proven carries a penalty of

life imprisonment. The government and the accused engage in plea bargaining, and

an agreement is reached whereby the accused agrees to plead guilty to the crime of

second-degree murder, which carries a maximum penalty of 20 years in jail.

Therefore, a trial is avoided.

The government engages in plea bargaining to save costs, avoid the risks of a trial, and

prevent further overcrowding of the prisons. In return, the government agrees to impose a

lesser penalty or sentence on the accused than might have been obtained had the case

gone to trial and the accused found guilty. The accused often agrees to a plea bargain to

avoid the risks of trial where if he was found guilty he would be subject to a greater

penalty than the penalty imposed by the plea bargain he has agreed to with the

government. Approximately 95 percent of criminal cases are plea bargained and do not

go to trial. Of those that go to trial, the government wins a conviction in approximately 75

percent of these cases.

Critical Legal Thinking

Why does the government offer plea bargains rather than go to trial? Is there

any reason why an innocent person may agree to a plea bargain of criminal

charges?

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Criminal Trial

At a criminal trial, all jurors must unanimously agree before the accused is found guilty of

the crime charged. If even one juror disagrees (i.e., has reasonable doubt) about the guilt

of the accused, the accused cannot be found guilty of the crime charged. If all the jurors

agree that the accused did not commit the crime, the accused is found not guilty of the

crime charged. After trial, the following rules apply:

If the defendant is found guilty, he or she may appeal.

If the defendant is found not guilty, the government cannot appeal.

If the jury cannot come to a unanimous decision about the defendant’s guilt one

way or the other, the jury is considered a hung jury . In this situation, the

government may choose to retry the case before a new judge and jury.

hung jury

A jury that cannot come to a unanimous decision about the defendant’s

guilt. In the case of a hung jury, the government may choose to retry the

case.

Example

A defendant is tried for the crime of murder. A 12-person jury hears the case. If 10

jurors find the defendant guilty but two jurors find the defendant not guilty, then there

is a hung jury. The government may retry the defendant and often does so with such

a vote. However, if the vote had been four jurors voting guilty and eight jurors voting

not guilty, it is highly unlikely the government would retry the case.

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Common Crimes

Many common crimes are committed against persons and property. Some of the most

important common crimes against persons and property are discussed in the following

paragraphs.

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Murder

Murder is defined as the unlawful killing of a human being by another person without

justification. In most states, there are several degrees of murder—usually defined as

first-degree murder, second-degree murder, voluntary manslaughter, and involuntary

manslaughter. These are discussed in the following:

murder

The unlawful killing of a human being by another person without justification.

1. First-degree murder. First-degree murder is the intentional unlawful killing of

a human being by another person with premeditation, malice aforethought, and

willful act. When a person can be executed for committing the murder it is referred

to as capital murder.

first-degree murder

The intentional unlawful killing of a human being by another person

with premeditation, malice aforethought, and willful act.

Example

A person purchases a weapon for the purpose of killing someone, lies in wait

to kill that person, and then carries out the murder.

2. Second-degree murder. Second-degree murder is the intentional unlawful

killing of a human being by another person that is not premeditated or planned in

advance. Second-degree murder involves some deliberation but not long-term

planning.

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second-degree murder

The intentional unlawful killing of a human being by another person

that is not premeditated or planned in advance.

Example

Two persons who are at a bar get into an unplanned fight and one of the

combatants kills the other.

3. Voluntary manslaughter. Voluntary manslaughter is the intentional unlawful

killing of a human being by another person that is not premeditated or planned in

advance and that is committed under circumstances that would cause a

reasonable person to become emotionally disturbed. Some states refer to this

crime as third-degree murder.

voluntary manslaughter

The intentional unlawful killing of a human being by another person

that is not premeditated or planned in advance and that is committed

under circumstances that would cause a reasonable person to

become emotionally disturbed.

Example

A spouse comes home unexpectedly, finds his or her spouse committing

infidelity, and in the heat of passion “snaps” and kills the spouse, the lover, or

both of them.

4. Involuntary manslaughter. Involuntary manslaughter is the unintentional

unlawful killing of a human being by another person that is caused from a reckless

or negligent act. Some states refer to this crime as negligent homicide.

involuntary manslaughter

The unintentional unlawful killing of a human being by another

person that is caused from a reckless or negligent act.

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Example

A drunk driver unintentionally causes another person’s death.

The first three crimes are intent crimes. The fourth is a nonintent crime. The penalties

assessed against persons found to have committed these crimes differ by state.

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Felony Murder Rule

Sometimes a murder is committed during the commission of another crime even though

the perpetrator did not originally intend to commit murder. Most states hold the perpetrator

liable for the crime of murder in addition to the other crime. This is called the felony

murder rule. The intent to commit the murder is inferred from the intent to commit the

other crime. Many states also hold accomplices liable under this doctrine.

The following case involves the crime of murder.