hello there this is Leon the lawyer and I am here with part two of my series on criminal law there will be eight total videos in this series this happens to be the second one and this one is going to delve into the two essential elements of criminal law mens rea a' & actus reyes so let's get started so what are these two things what are these two Latin terms well let's look at a crime in my first video I talked about my fictitious neighbor Jim who had killed my goat now when something like that happens most crimes and you'll see not all of them but most crimes require you to go into what was the mental state what was the defendant thinking in this case what was Jim thinking when he killed the goat that would be very important to try to determine whether or not he acted it was a crime or what level of a crime it was and so on so let's pretend that Jim prior to killing my goat decided he wanted to take revenge on me because he knew I loved that goat so he sat around he plotted he planned and he decided he was gonna stab my goat to death right in front of me and that's what he did well his actions and everything that he did can help us develop what his mental state was right and if that's one of the elements of the crime that he had to have a malicious intent then don't you think that he had a malicious intent in that scenario well so far with the facts I've given you it seems like that's where we were going with that but what if Jim decided to kill the goat and as we uncovered the facts we determined that he had a goat that looked exactly like my goat in my neighbors he saw the goat thought it was his goat and he killed the goat in a way that you would normally slaughter a goat for food because he was trying to get the meat from the goat and then upon discovery that the goat was not his he went to the authorities and he let them know I made a mistake you see how the mental state the mens rea is different in that situation than it was in the first one so getting inside of the accused head into their thoughts is extremely important in criminal law it oftentimes determines what degree of a crime that they are facing or whether they're facing a crime at all so that's what mens rea is it's the general intent oftentimes referred to as an evil mind it's the mental element of a crime then we have something called actus Reyes and as you can see from the word actus it's the actual act that somebody takes it should be a voluntary act it's often called an evil act it's the physical element of a crime so in my two scenarios it would be the action that Jim took to take the life of my goat all right so first thing we're gonna do is we're gonna look the first half is we're gonna look at mens rea and then when we're done completely discussing mens rea out we're gonna go into actus Reyes so at common law mens rea ax could be divided into a couple of different ways that you could establish intent the first one would be let's figure out what the general intent of this individual is okay this is where someone would have intended to do the thing to take the act but not the result of the act okay this is where somebody has done something they didn't intend for the consequences to be so severe a lot of times this would be I'm gonna fight at a bar and I don't like this guy and I just want him to stop talking and I think to myself I'm gonna punch that guy in the nose I don't have an intention to do anything more than to hurt his face with my fists but somehow someway I'm superhuman and I hit him in the nose and his little nose bone goes right up into his brain and somehow I kill him ooh well I intended to punch him right I certainly didn't intend to kill him so if we look at the general intent it's you intending to do the act but not necessarily intending the consequences or the final result of the outcome of the act a specific intent is you did mean to okay that is you desire you purpose to cause the result of the act and that's where hey I want to kill this guy because I can't stand them I think he deserves to die I'm trying to kill him and in fact that's what I did that would be specific intent and even if I failed to kill him I punched him as hard as I could I wanted to kill that guy that was my intent but I failed to do so I still attempted to kill him and that's still considered specific intent because I intended that crime to be committed starting with my mental my mens rea and then ending with my act that I took to accomplish that task all right then there's something called constructive intent now under common law this is where the result was not intended but the act was very likely to cause the result in this case it's treated as specific intent so let's go back to my goat gym okay um seize my goat and he takes my goat and he tosses my goat into a pond now he says he just was trying to see if the if the goat could swim he really meant no harm he was just trying to see if my goat could swim but what if I told you that my goat only had three legs it was very elderly in fact I mean it was on its last of those three legs if you know what I mean and it was wearing a backpack full of rocks and Jim still picked up my elderly three-legged goat with a big backpack full of rocks and threw him into a middle of a pond now he may not have intended for my goat to sink to the bottom of the pond and drowned which he did he may not have intended that to happen but the act wasn't it very likely to cause the result yeah it was that is constructive intent under the common law and we also have something called transferred intent this is an unintended illegal act resulting from the intent to commit the crime the original intent that the actor has transfers to the unintended result let's go back to my goat in this particular instance let's say Jim wants to kill my goat he wants to kill my goat by drowning okay so this is his intent specific intent to kill my goat except my goat my three legged elderly goat with a backpack and he throws my goat into the middle of the pond now what he doesn't know is there aren't rocks in that backpack no my friends there are puppies there's a litter of puppies in that backpack now somehow my goat is able to wriggle free from the backpack and he's somehow able to break the surface of the pond and get out of there so even though the goat was the intended victim of that crime he didn't die so he didn't get his intended result but you know what he got instead he got five dead puppies in a backpack he didn't intend that he didn't know they were there but the evilness of his action that intent transferred over to the puppy victims so in a court we could charge him for the death of those puppies that is where you're transferring his intent his intended victim didn't expire but those puppies sure did and it was completely because of his actions and his evil intent to do something so that would be transferred intent now also at common law and still a lot of this is is today we use this law today because it's been passed down in case law throughout the years the common law divided your mental state into two different types of crimes the first one is going to be malum in SE the second one is going to be malum prohibitum malum in SE in say means of itself okay in and of itself malum in SE means that crime is inherently evil everybody and every nation knows this crime is illegal jurisdictions still recognize this distinction and when they do they require an evil intent for these crimes they often say with malice or you know you have to have an evil state of mind to commit these inherently terrible crimes those things are like murder rape and arson they just are inherently evil the crime itself malum prohibitum the crime isn't evil in and of itself it's only criminal because it's been declared so by the legislature ok these are things that you don't just say yeah it's really wrong to kill somebody or it's really wrong you know to burn somebody's house down no these are things that are only wrong because the legislature says they were wrong they don't make you an evil person you don't have to have an evil state of mind and examples include things like failing to file your taxes doesn't make you an evil person because you failed to file your taxes but you shouldn't do it it's prohibited that would be malum prohibitum also failure to get a building permit is another example I have here just how jurisdictions operate within those two types of crimes now there's also something called strict liability when we're talking about mens rea oh this is these are crimes where you don't even actually have to have a mental state you don't have to it's just the act you actually doing that crime the state doesn't have to prove what your mental state was when you committed them so somewhere you're guilty of a criminal offense even if you had no criminal intention strict liability crimes do not require any kind of criminal intent and they usually involve like regulatory crimes petty offenses and infractions now things like failing to get a building permit they don't care why you didn't get the building permit but you didn't get one so all they have to show is that you didn't get the building permit they don't need your mental state you didn't have to be an evil person so in that case that's a strict liability crime either you had a building permit before you started building or you didn't same thing with with speeding let's pretend your speedometer is broken and you're going 65 in a 45 zone okay all the officer has to show is that you were going 65 in a 45 he doesn't have to prove what your mental state was I'm going to be so speedy today he doesn't care about that nobody cares that your speedometer is broken all they care about is that you were exceeding the speed limit so you'll find these types of strict liability crimes and in areas where it's not where the actions aren't particularly egregious then there's something called vicarious liability another situation where you don't actually have to have the mental state because you are actually assuming responsibility you are being held responsible and accountable for someone else's actions this often happens in an employer-employee relationship for example if the if your employees are committing sex crimes against the workers you didn't have to want to do any of that stuff but certainly as an employer you can be held accountable depending on the circumstances so it's a complex area of law but you understand the basic concept you could be vicariously liable for the actions of your employees so you have to keep an eye on these people also a lot of times this comes up in the juvenile system what if your kid isn't going to school a lot of times the parents are held by Carius Leal Isle and they will actually be punished as well as the child and through a juvenile court but the parents can be held responsible they didn't want their kid to miss school more than likely they weren't trying but somehow they are still seeing some of that punishment so that's the idea of being vicariously liable for someone else's crimes or their intent okay so - the model Penal Code now now I've talked about the model Penal Code in my other video and I'll probably talk about it in all my videos because not everybody's maybe gonna watch all eight of these the model Penal Code was developed by the American Law Institute now I have to emphasize to you that when you see something referencing the model Penal Code it is not actually law as it stands on its own in order for it to become law it needs to be enacted it adopted and enacted by a state legislature or by the federal government in order for it to become law as it stands by itself it is simply with the American Law Institute the scholars at the American Law Institute believed would be the ideal set of laws or principles to follow when it comes to criminal law so they sat down and they said we'll be the perfect murder statute what would be the perfect kidnapping statute those are things that are there for reference to state legislatures as they are writing new laws or and as they're revisiting their existing laws so let's see what the model Penal Code said what what is their ideal states of mind when it comes under mens rea a' so first one's going to be purposeful this is hey you did it on purpose this is most commonly equates to the common law specific intent that I talked about the result must be intentionally desired you want this thing to happen now under knowing which is slightly different the actor must be aware of the nature of the Act he must be practically certain near 100% that the conduct will cause the result now he isn't taking the act in order to cause the result in this situation he's taking the act but you know he's pretty darn sure that when he does that thing it's going to cause a certain result he has to be close to 100% this is Jim throwing my elderly three-legged goat with a backpack full of rocks into a pond does he really think that the goat is going to come out of that alive he should be close to near a hundred percent he should know or he should know that that action that he took was going to result in the death of the goat now reckless is something a little bit different it's less than knowing this is where someone consciously disregards a substantial and unjustifiable risk that the result will occur so let's take the backpack off of my goat let's give him back his other leg maybe he's just elderly so he's not at any kind of a disadvantage okay and Jim thinks it'd be funny to throw him into the water now and my unfortunately my goat drowns in that situation now he knew that that was a possibility he wasn't near a hundred percent certain that the goat would drown but he knew didn't he and he consciously disregarded the risk to the goat by taking that action that's somebody who's just plain reckless you see this sometimes in the situations where it's unfortunate like in these hazing incidences on college campuses where people are having you know someone else drink a large amount of alcohol they know that alcohol poisoning is a thing but they consciously disregard it because they just don't think it's going to happen they're just being very reckless with someone else's life okay and in that situation that's a reckless reckless situation it could rise to the level of knowing in that situation these hazing incidences I'm not saying that they don't rise to the level of knowing but there could be factor you have to look at all the facts and the variables to see where you fell in that range then there's just negligence okay you don't you know consciously aware of the risk when you know you did something your action however is a gross deviation from what a law-abiding person would do in that situation a lot of times this is like texting and driving a lot of people think oh if I just text for a second I just looked down for a second everything should be okay they're not trying to run over a person but then they do and they're really upset about it and that could be reckless depending on how much texting they were doing what this circuit when they go in seventy five miles an hour when they were texting where they had a stop sign and rolling out of the stop sign as they were texting it just depends on a lot of different circumstances but there's these nuanced levels so you go from necklace negligent to reckless to knowing to purposeful now I keep talking about the situation and the circumstances which transitions us beautifully into this slide how do you prove what was going on in somebody's head the subjective intent refers to this is what the person actually intended it's their motives their intentions their desires and the way a judge or a jury a fact-finder could determine what that because a lot of times the defendant is not going to tell you what they were thinking when something was when they were took that action you're going to have to build that from the facts from the circumstances from the behavior of this person and you're going to have to look at it and try to determine what that defendant actually intended and you can build that motive is something else that you can look to to try to determine what this person was thinking then there's something called objective intent this isn't the defendants actual intent but you are replacing the defendants actual intent with a legal standard it's a legal imposition of what the defendant should have known or believed what would a reasonable person have known or should have known in that situation my poor goat with the with the backpack full of rocks and with the and and the three legs and he was elderly I mean what would a reasonable person think in that situation what would they have known what should they have known before throwing the goat into the water what did you think was going to happen that's the objective intent that's where you take a reasonable person's thought processes you you put them on to the defendant because you can't really get into the defendants head some other ways that you can prove what was the mental state okay as you're thinking about this person's mental state is you can look at inferences these are conclusions that a judges or juries are permitted to make after considering the facts of the case you can look at all the facts and the judge may give you an instruction that says based on the evidence if you find that you know the goat had a very little opportunity of being able to swim on his own then you can infer from those facts that the defendant was being reckless okay that's one thing is you get and the jury doesn't have to find that inference they can they are permitted to do so then there's something called a presumption this is a conclusion that must be made by the judge of the jury there's two different types okay so the inference is permissible you can or cannot go with that inference depending on your evaluation of the facts but a presumption is something that's just there and it's either rebuttable or it's an irrebuttable presumption a rebuttable presumption is a conclusion you have to draw the conclusion the presumption but then if the facts disprove that then it's rebuttable and you can throw it out and the greatest example the one that we're all familiar with it's the presumption of innocence so in this case somebody is presumed innocent unless and until they are proven guilty right so the presumption you have to go with is that the defendant is innocent and you have to think that think that think that until the facts show you otherwise and then you're allowed to rebut that presumption now an irrebuttable presumption and some people argue the constitutionality of irrebuttable presumptions but if this is regardless of what the evidence shows an irrebuttable presumption stands as a fact so this is something that the judge and the jury that the instruction is you have to presume this you have to believe this even if the facts show something else and that's called an irrebuttable presumption looking at motive so we talked about earlier in the video where you know Jim was sitting around plotting how was he going to take revenge on me okay motive is the reason why a person does something why did you do it did you do it because you were trying to take revenge on me or did you do it because you made a mistake thought it was your goat and you just wanted the meat big difference right that motive helps us understand the mental state of the individual so that's why the motive leads us to mens rea now motive is not an element of a crime why somebody did something is not one of the elements of murder why somebody did something is not one of the the mental state is an element but why that person that just helps you understand the mental state but where it comes into play is sentencing so somebody really had a really terrible evil motive that's going to perhaps enhance the sentence for that person and it may actually reduce the sentence if it's found later you know during sentencing that this person really didn't have an evil intent all right so moving on to actus Reyes so we've talked a lot about you know actions and mental state together because they do work together somebody taking an action and what was their mental state leading to that action now and I just Reyes it has to be something voluntary okay in order for you to be criminal liable for criminally liable for something you have to actually have voluntarily taken that act so there's reasons why you might not be voluntarily doing something so the model Penal Code says these are the things you know that kind of outline the different circumstances where you might be doing something involuntarily let's say you it your reflexes or you have a convulsion while you're driving are you responsible for you know the people that you run over when that happens if you weren't taking a voluntary act it's going to completely change the circumstances of the crime that you may be charged with or whether you'll be charged at all bodily movements that you may take during unconsciousness or sleep you might punch somebody in your sleep are you liable for that what about conduct during hypnosis or resulting from hypnotic suggestion so there's there's you know it says Oh somebody's under the influence of hypnosis are they really responsible for their actions and any other movements that are not a product of the effort or determination of that actor okay it's not something that you purposely and voluntarily did okay so let's talk about some different things that you could do well one long-standing proposition is that thoughts are not enough to constitute act as Reyes so just thinking about something doesn't really do anything for example Jim could have been sitting around all day long for weeks for months for years thinking to himself gee I'd really like to kill my neighbor's goat but he never acted upon that thought just having an evil thought alone it's not enough to constitute actus Reyes it is not enough to be a voluntary Act also statements statements can be acts but there's a really big impediment to saying that statements are acts in that we have something called the First Amendment it protects freedom of speech there are limits to this protection however and some examples include inciting a riot if you're seeing things that are causing a riot to ensue that is not protected speech and it is actually an act something like treason solicitation conspiracy all of these things are can involve statements that can be construed as voluntary acts to meet that act astraeus requirement also anything that's gonna cause imminent harm to others if you're talking about statements as an act all right what about your personal status who you are is that an act just being who you are well things that your illness a financial status race sex religion they're all examples of human conditions and they cannot be declared criminal you just can't be declared criminal just because you are something now personal status may not be criminalized but it may be subject to the regulatory authority of the state for example people were mentally ill and impose a danger to themselves or others maybe civilly committed and that's for obvious reasons it's there to protect the individual from himself or herself and it's also to protect society from perhaps a person who is going to do something dangerous okay so who you are specifically is not an act all by itself how about possession as an act this is just having something okay now obviously you've all heard of possession as a crime so this shouldn't be a big surprise to you certain items can be made criminal for example drugs you know narcotics contraband anything that you would have to sort of make or or use a drug some contraband des is perfectly legal and some of it is not and having certain types of dangerous weapons could be considered an act possessing that thing maybe you're not supposed to have a gun something has happened and you have lost your right to have a gun under some other statute just merely having it the possession of it is an act now the model Penal Code talks about how an act of possession can be either actual or constructive possession is an act as long as the possessor knowingly procured or receive the thing possessed like you knew that you were getting that thing or you knew that you were receiving that thing right there that's enough to constitute possession also if you became aware of your control of this object or item for a sufficient period of time to have been able to terminate your possession of it you know let's pretend that your roommate has put drugs in your room and you didn't know anything about it but it was there long enough for you to have discovered it the police could make an argument that you were in possession of the narcotics it was there long enough free of note to known about it and you could have disposed of it and gotten rid of it knowing oh wait I shouldn't have this thing how about when you don't do something is that considered an act well talk about this word is called omissions failing to do something that you should do just you not doing it is an act act of not doing it so sometimes your duty is imposed by statute for example leaving the scene of an accident so if you go and you get into a car accident many states have determined that if you leave the scene of that accident you are you are you are omitting an action that you should be taking if you fail to stay at the scene of the accident then you are committing a crime that Duty has been imposed on you by statute to do something once something else has occurred how about duty by a relationship parents you have to take care of your children you have a duty you have a responsibility to take care of your children you have a duty responsibility not to do things to your children like abuse them okay also spouse to spouse so sometimes this duty to do something is created by the mere relationship that you have with another individual so that is very important and if you fail to do that thing then that can be considered enough to be actus Reyes you can also have a duty which is established by contract this is for example like a physician and patient a physician has an obligation to do no harm a physician is it has a contractual duty with the patient to make sure that the physician takes care of the patient and helps the patient and whatever way they possibly can they did with a lifeguard when you go to a public pool the lifeguard there's an expectation a contractual expectation that that lifeguard will act to save you if you start to drown in the pool now what if you're not a lifeguard well maybe you assumed duty for example you might voluntarily take on the duty to take care of your children your friends children at the police say well don't worry you go have lunch I'll watch your child well now you've assumed that duty to take care of that child should something happen to the child at the pool now you're going to be on the hook if you fail to do something if that child becomes you know you know starts to drown or something happens to the child you've assumed that duty also if you see a complete stranger normally you don't have there's no duty imposed upon you if you are walking by a lake and you see somebody drowning you do not have to jump in and save that person and if it sounds awful but it's the truth however if you decide that you are now going to go in and try to save that individual you are assuming the duty to rescue you make movements towards saving that person you jump into the water and you start going towards that person that act in itself you've now assumed the duty to rescue others may not act because they see you acting and they're there thinking oh I was gonna jump in and say that guy but that other person is doing it I don't want to get in the way but then you decide no the water's too cold I don't want to go I don't wanna swim out there and you turn back in the meantime that has delayed other people making an effort to rescue that person so you could be on the hook for failing to continue that assumed duty to rescue what if you have in fact created some sort of danger well when you create a danger you may be taking on a duty to help those that have been placed in danger because of your actions for example an arsonist has a duty to rescue those in the fire a lot of people don't realize that what if an electrician is working on a home and he starts a fire it's like oh well I think I'm just gonna go on my lunch break now and doesn't warn the people in the house well he's gonna be on the hook for omitting to warn or save the inhabitants of that house now we look at causation okay so we have these voluntary acts we understand what an act is so there are two forms of causation that exist under in criminal law there's factual causation and there's legal causation now factual causation is pretty simple to understand it's sort of this domino effect if you think about it an act is the cause in fact of the result if the results result would not have occurred unless the act occurred first this is the butt for analysis so but for the act of the person that harm would not have resulted so for example we go back to the goat situation the goat drowned and Jim picked up my goat and threw him in the pond now even though he didn't intend for my goat to drown in one scenario he just wanted to see if the goat could swim his action led to the death of my goat so that would be he's the cause in fact of the death of my goat because without what for his action of picking up my goat and throwing him into the pond my goat might still be alive so factual cause means the defendant started a chain of events legal cause means that the defendant could be held criminally responsible for the harm because the harm is a foreseeable result of the defendants criminal act so in the situation I just mentioned we've got my neighbor Jim he picks up my goat he throws him in the pond my goat dies very simple there's not a chain of events there so he's the legal cause of the death of my goat he's also the factual cause of the death of my goat factual cause because but for his actions my goat would still be alive legal cause okay because he's going to be held criminally responsible for the harm that befell my poor goat because it was foreseeable but what if okay we have an intervening cause okay so let's imagine that my goat who he threw in the water I jump in I rescue my goat I get my goat I call the veterinarian ambulance the veterinarian ambulance pulls up they put my goat in the ambulance and they start to drive away and they're in a terrible accident they crash my goat listen gonna survive by the way they crash and then it burns up and everybody dies in flames now but for Jim's act of throwing my goat in the pond my goat would never have been in that ambulance okay so that means that he is the factual cause of the death of my goat because he started that chain of events but legally is he the cause of death of my goat or is whatever caused that ambulance to run off the road is that the legal cause of the death because the goat didn't die by drowning he died by fire he died by ambulance accident this is a question there so legal cause the result must be a consequence of the act not some kind of coincidence and the model Penal Code uses the phrase it can't be too remote or accidental there has to be some similarity between the intent result in the actual results so you have to look at that this is going to be something for the jury to determine the fact-finder the judge so an intervening cause like I just mentioned where this whole ambulance thing came about it's common for legal cause to be lacking when there's a happening that occurs after the initial act and it changes the outcome of events okay so and then for factual cause we already stated it's the whole but for analysis also with the voluntary act an actus Reyes there are some crimes that require both a mental state amends rheya as an element and a physical element in actus Reyes as an element if that is the case then both of them must be present and it must abide by what is called concurrence this is the joining of the men's Raya and the actus Reis and the Act the mental state must occur first and sent into motion the Act there has to be some sort of a connection between the two things so Jim gets this crazy idea that he's going to kill my goat and then he takes some action in furtherance of killing the goat there's a disc incurrence there has to be some sort of connection between the two it can't just be like Jim gets this crazy idea that he's gonna kill my goat and then all of a sudden my goat gets struck by lightning that's just a coincidence there's no concurrence there he didn't actually take any act he he was just thinking about killing my goat and he's very happy that the lightning struck my goat but he's not going to be legally on the hook for it all right I want to thank you for listening to this lecture I appreciate it if you liked it please like it if you'd like to hear more about my videos and when they when they are made available please subscribe and get some notifications all right thank you