Criminal Law & Procedure
Criminal Law
Requires an act coupled with a mental state
1Actus Reus - “Guilty Act”
1. Must committed in violation of some proscribed behavior - usually statutory
2. Omission - only where person had a legal duty to act (failure to file tax returns)
3. Guilty thoughts not punishable - even speaking or threatening to commit a crime is no
punishable
Mens Rea - “Wrongful Intent”
1. Requisite mental state necessary to establish guilt is specified in the applicable statute
2. Mental States
Purposefully/Intentionally
a. intends to bring about a certain criminal objective/ result
b. engages in certain criminal conduct accomplishing that objective
or cause a certain criminal result
Knowingly
a. conscious belief or awareness of the illegality of the conduct
b. willful blindness - suspect the criminal conduct exists but fails to
confirm it
Recklessly
a. consciously disregards a substantial and unjustifiable risk
b. usually requires a subjective belief that the risk existed when engaging
in the act
Negligently (not to be confused with Tort Law)
a. grossly deviates from the standard of care that a reasonable person
would use under the same circumstances
b. action takes an unjustified, substantial, and foreseeable risk resulting
in harm
3. Transferred Intent
(1) Unintended Victim
i. intended result happens to an unintended victim
ii. A aims gun at B with intent to kill B, shoots and misses
killing C
iii. A guilty of murdering C
(2) Unintended Manner
i. intended result happens to intended victim but in an
unintended manner
ii. A aims gun at B’s heart with intent to kill B, shoots and hits
B in the head killing him
iii. A guilty of murdering B
(3) Unintended Degree of Harm
, i. intended result does not happen but instead, a different
degree of unintended harm happens to intended victim
ii. A hits B with a stick intending to injure B, but kills B
instead
iii. A still guilty of killing B, although probably under a
recklessness theory
(4) Unintended Type of Harm
i. intended result does not happen and instead, a different
type of unintended harm happens (either to the intended
victim or a different victim)
ii. A throws rock at B with intent to injure B but misses,
accidentally breaking B’s (or C’s) window
iii. problem holding A guilty because no mens rea to cause a
different type of crime (concurrence required between mens
rea and resulting harm)
Corporate Criminal Liability
Corporations
1. Crimes committed by agents or employees acting within the course and
scope of their employment
2. Failing to perform a specific affirmative duty required by law Crimes
authorized, requested, commanded, committed, or recklessly tolerated by the
firm’s president, directors, officers or “high level managerial agents”
3. Corporate entity itself cannot form “intent” and cannot be imprisoned, but can
be fined and/ or have licenses to operate suspended or revoked.
Presidents, directors, officers & “high level managerial agents”
1. “Responsible Corporate Officer” doctrine: personally liable even in the
2. Absence of direct supervision, participation or knowledge of criminal
violation, if:
a. they have a reasonable relationship to the corporation, and
b. had the power to prevent the criminal violation
see United States v Hanousek, (11th edition, p. 207)
Criminal Law
Requires an act coupled with a mental state
1Actus Reus - “Guilty Act”
1. Must committed in violation of some proscribed behavior - usually statutory
2. Omission - only where person had a legal duty to act (failure to file tax returns)
3. Guilty thoughts not punishable - even speaking or threatening to commit a crime is no
punishable
Mens Rea - “Wrongful Intent”
1. Requisite mental state necessary to establish guilt is specified in the applicable statute
2. Mental States
Purposefully/Intentionally
a. intends to bring about a certain criminal objective/ result
b. engages in certain criminal conduct accomplishing that objective
or cause a certain criminal result
Knowingly
a. conscious belief or awareness of the illegality of the conduct
b. willful blindness - suspect the criminal conduct exists but fails to
confirm it
Recklessly
a. consciously disregards a substantial and unjustifiable risk
b. usually requires a subjective belief that the risk existed when engaging
in the act
Negligently (not to be confused with Tort Law)
a. grossly deviates from the standard of care that a reasonable person
would use under the same circumstances
b. action takes an unjustified, substantial, and foreseeable risk resulting
in harm
3. Transferred Intent
(1) Unintended Victim
i. intended result happens to an unintended victim
ii. A aims gun at B with intent to kill B, shoots and misses
killing C
iii. A guilty of murdering C
(2) Unintended Manner
i. intended result happens to intended victim but in an
unintended manner
ii. A aims gun at B’s heart with intent to kill B, shoots and hits
B in the head killing him
iii. A guilty of murdering B
(3) Unintended Degree of Harm
, i. intended result does not happen but instead, a different
degree of unintended harm happens to intended victim
ii. A hits B with a stick intending to injure B, but kills B
instead
iii. A still guilty of killing B, although probably under a
recklessness theory
(4) Unintended Type of Harm
i. intended result does not happen and instead, a different
type of unintended harm happens (either to the intended
victim or a different victim)
ii. A throws rock at B with intent to injure B but misses,
accidentally breaking B’s (or C’s) window
iii. problem holding A guilty because no mens rea to cause a
different type of crime (concurrence required between mens
rea and resulting harm)
Corporate Criminal Liability
Corporations
1. Crimes committed by agents or employees acting within the course and
scope of their employment
2. Failing to perform a specific affirmative duty required by law Crimes
authorized, requested, commanded, committed, or recklessly tolerated by the
firm’s president, directors, officers or “high level managerial agents”
3. Corporate entity itself cannot form “intent” and cannot be imprisoned, but can
be fined and/ or have licenses to operate suspended or revoked.
Presidents, directors, officers & “high level managerial agents”
1. “Responsible Corporate Officer” doctrine: personally liable even in the
2. Absence of direct supervision, participation or knowledge of criminal
violation, if:
a. they have a reasonable relationship to the corporation, and
b. had the power to prevent the criminal violation
see United States v Hanousek, (11th edition, p. 207)
