elements of a crime essay question

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The mental element

Liability without mens rea, ignorance and mistake, responsibility.

• Mitigating circumstances and other defenses
• Degrees of participation

The elements of crime

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• Business LibreTexts Library - Introduction to Criminal Law
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• Table Of Contents

It is generally agreed that the essential ingredients of any crime are (1) a voluntary act or omission ( actus reus ), accompanied by (2) a certain state of mind ( mens rea ). An act may be any kind of voluntary human behaviour . Movements made in an epileptic seizure are not acts, nor are movements made by a somnambulist before awakening, even if they result in the death of another person. Criminal liability for the result also requires that the harm done must have been caused by the accused. The test of causal relationship between conduct and result is that the event would not have happened the same way without direct participation of the offender.

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Criminal liability may also be predicated on a failure to act when the accused was under a legal duty to act and was reasonably capable of doing so. The legal duty to act may be imposed directly by statute, such as the requirement to file an income tax return, or it may arise out of the relationship between the parties, as the obligation of parents to provide their child with food.

Although most legal systems recognize the importance of the guilty mind, or mens rea, the statutes have not always spelled out exactly what is meant by this concept. The Model Penal Code has attempted to clarify the concept by reducing the variety of mental states to four. Guilt is attributed to a person who acts “purposely,” “knowingly,” “recklessly,” or, more rarely, “negligently.” Broadly speaking, these terms correspond to those used in Anglo-American courts and continental European legal theory. Singly or in combination, they appear largely adequate to deal with most of the common mens rea problems. They have been adopted literally or in substance by a majority of U.S. states and clarify and rationalize a major element in the substantive law of crimes. Under the Model Penal Code and in most states, most crimes require a showing of “purposely,” “knowingly,” or “recklessly.” Negligent conduct will support a conviction only when the definition of the crime in question includes it.

Some penal offenses do not require the demonstration of culpable mind on the part of the accused. These traditionally include statutory rape , in which knowledge that the child is below the age of consent is not necessary to liability. There is also a large class of “public welfare offenses,” involving such things as economic regulations or laws concerning public health and safety. The rationale for eliminating the mens rea requirement in such offenses is that to require the prosecution to establish the defendant’s intent, or even negligence , would render such regulatory legislation largely ineffective and unenforceable. Such cases are known in Anglo-American law as strict liability offenses, and in French law as infractions purement matérielles . In German law they are excluded because the requirement of mens rea is considered a constitutional principle.

There has been considerable criticism of statutes that create liability without actual moral fault. To expose citizens to the condemnation of a criminal conviction without a showing of moral culpability raises issues of justice . In many instances the objectives of such legislation can more effectively be achieved by civil sanctions, as, for example, suits for damages , injunctions, and the revocation of licenses.

In most countries the law recognizes that a person who acts in ignorance of the facts of his action should not be held criminally responsible. Thus, one who takes and carries away the goods of another person, believing them to be his own, does not commit larceny , for he lacks the intent to steal. Ignorance of the law, on the other hand, is generally held not to excuse the actor; it is no defense that he was unaware that his conduct was forbidden by criminal law. This doctrine is supported by the proposition that criminal acts may be recognized as harmful and immoral by any reasonable adult.

The matter is not so clear, however, when the conduct is not obviously dangerous or immoral. A substantial body of opinion would permit mistakes of law to be asserted in defense of criminal charges in such cases, particularly when the defendant has in good faith made reasonable efforts to discover what the law is. In West Germany the Federal Court of Justice in 1952 adopted the proposition that if a person engages in criminal conduct but is unaware of its criminality, that person cannot be fully charged with a criminal offense; this has since been incorporated as rule in the German criminal code. Law and practice in Switzerland are quite similar. In Austria mistake of law is a legal defense. In the U.S. the Model Penal Code would allow a defense of mistake of law, but this would rarely include a mistake such as the existence or meaning of the law defining the crime itself.

It is universally agreed that in appropriate cases persons suffering from serious mental disorders should be relieved of the consequences of their criminal conduct. A great deal of controversy has arisen, however, as to the appropriate legal tests of responsibility. Most legal definitions of mental disorder are not based on modern concepts of medical science, and psychiatrists accordingly find it difficult to make their knowledge relevant to the requirements of the court .

Various attempts have been made to formulate a new legal test of responsibility. The Model Penal Code endeavoured to meet the manifold difficulties of this problem by requiring that the defendant be deprived of “substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law” as a result of mental disease or defect. This resembles the Soviet formulation of 1958, which required a mental disease as the medical condition and incapacity to appreciate or control as the psychological condition resulting from it. The same may be said of the German law, although the latter includes in mental illness such disorders as psychopathy and neurosis in addition to psychoses and provides for various gradations of diminished responsibility . Several U.S. jurisdictions, including federal law, have abandoned the volitional prong of the insanity test and returned to the ancient English rule laid down in M’Naghten’s Case (1843) 8 Eng. Rep. 718, 722. According to that case, an insane person is excused only if he did not know the nature and quality of his act or could not tell right from wrong. The English Homicide Act of 1957 also recognizes diminished responsibility, though to less effect. The act provides that a person who kills another shall not be guilty of murder “if he was suffering from such abnormality of mind…as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing.” The primary effect of this provision is to reduce an offense of murder to one of manslaughter .

Intoxication is usually not treated as mental incapacity. Soviet law was especially harsh; it held that the mental-disease defense was not applicable to persons who committed a crime while drunk and that drunkenness might even be an aggravating circumstance. American law is similar. In German law, on the other hand, intoxication like any other mental defect is acceptable as a defense in criminal cases.

Chapter 4 The Elements of a Crime

Source: Image courtesy of Tara Storm.

Thus, an Olympic swimmer may be deemed by the community as a shameful coward, or worse, for not rescuing a drowning child in the neighbor’s pool, but she is not a criminal.

State ex rel. Kuntz v. Thirteenth Jud. Dist. , cited in Section 4 "Duty to Act Based on a Special Relationship"

4.1 Criminal Elements

Learning objectives.

• List the elements of a crime.
• Define the criminal act element.
• Identify three requirements of criminal act.
• Describe an exception to the criminal act element.
• Ascertain three situations where an omission to act could be criminal.
• Distinguish between actual and constructive possession.
• Identify the criminal intent element required when possession is the criminal act.

Crimes can be broken down into elements Part of a crime. , which the prosecution must prove beyond a reasonable doubt. Criminal elements are set forth in criminal statutes, or cases in jurisdictions that allow for common-law crimes. With exceptions, every crime has at least three elements: a criminal act The illegal bodily movement or possession described in a criminal statute, or in a case in jurisdictions that allow common-law crimes. , also called actus reus; a criminal intent , also called mens rea; and concurrence of the two. The term conduct The criminal act and its accompanying state of mind. is often used to reflect the criminal act and intent elements. As the Model Penal Code explains, “‘conduct’ means an action or omission and its accompanying state of mind” (Model Penal Code § 1.13(5)).

Figure 4.1 Criminal Code of Georgia

Recall from Chapter 1 "Introduction to Criminal Law" that not all crimes require a bad result . If a crime does require a bad result, the prosecution must also prove the additional elements of causation and harm .

Another requirement of some crimes is attendant circumstances Factors that must be present when the crime is committed, such as the crime’s methodology, location and setting, or victim characteristics, among others. . Attendant circumstances are specified factors that must be present when the crime is committed. These could include the crime’s methodology, location or setting, and victim characteristics, among others.

This chapter analyzes the elements of every crime. Chapter 7 "Parties to Crime" through Chapter 13 "Crimes against the Government" analyze the elements of specific crimes, using a general overview of most states’ laws, the Model Penal Code, and federal law when appropriate.

Example of a Crime That Has Only Three Elements

Janine gets into a fight with her boyfriend Conrad after the senior prom. She grabs Conrad’s car keys out of his hand, jumps into his car, and locks all the doors. When Conrad strides over to the car, she starts the engine, puts the car into drive, and tries to run him down. It is dark and difficult for Janine to see, so Conrad easily gets out of her way and is unharmed. However, Janine is thereafter arrested and charged with attempted murder. In this case, the prosecution has to prove the elements of criminal act , criminal intent , and concurrence for attempted murder. The prosecution does not have to prove causation or that Conrad was harmed because attempt crimes, including attempted murder, do not have a bad result requirement. Attempt and other incomplete or inchoate crimes are discussed in Chapter 8 "Inchoate Offenses" .

Criminal Act

Criminal act , or actus reus , is generally defined as an unlawful bodily movement. N.Y. Penal Law § 15.00, accessed October 25, 2010, http://law.onecle.com/new-york/penal/PEN015.00_15.00.html . The criminal statute, or case in jurisdictions that allow common-law crimes, describes the criminal act element.

Figure 4.2 Alabama Criminal Code

The Requirement of Voluntariness

One requirement of criminal act is that the defendant perform it voluntarily . In other words, the defendant must control the act. It would not serve the policy of specific deterrence to punish the defendant for irrepressible acts. The Model Penal Code gives the following examples of acts that are not voluntary and, therefore, not criminal: reflexes, convulsions, bodily movements during unconsciousness or sleep, conduct during hypnosis or resulting from hypnotic suggestion, or a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual (Model Penal Code § 2.01 (2)). One voluntary act is enough to fulfill the voluntary act requirement. Thus if a voluntary act is followed by an involuntary one, the court may still impose criminal liability depending on the circumstances. Govt. of Virgin Islands v. Smith , 278 F.2d 169 (1960), accessed October 26, 2010, http://openjurist.org/278/f2d/169/government-of-the-virgin-islands-v-smith .

Example of an Involuntary and Noncriminal Act

Perry is hypnotized at the local county fair. The hypnotist directs Perry to smash a banana cream pie into his girlfriend Shelley’s face. Smashing a pie into a person’s face is probably battery in most states, but Perry did not commit the act voluntarily , so he should not be convicted of a crime. Punishing Perry for battery would not specifically deter Perry from performing the act again while hypnotized because he is not in control of his behavior when experiencing this mental state.

Example of a Voluntary Act Followed by a Nonvoluntary Act

Timothy attends a party at a friend’s house and consumes several glasses of red wine. Timothy then attempts to drive his vehicle home. While driving, Timothy passes out at the wheel and hits another vehicle, killing its occupant. Timothy can probably be convicted of one or more crimes in this situation. Timothy’s acts of drinking several glasses of wine and then driving a vehicle are voluntary . Thus even though Timothy got into a car accident while unconscious, his involuntary act was preceded by conscious, controllable, and voluntary action. A punishment in this instance could specifically deter Timothy from drinking and driving on another occasion and is appropriate based on the circumstances.

Status as a Criminal Act

Generally, a defendant’s status in society is not a criminal act. Status is who the defendant is, not what the defendant does . Similar to punishment for an involuntary act, when the government punishes an individual for status, it is essentially targeting that individual for circumstances that are outside his or her control. This punishment may be cruel and unusual pursuant to the Eighth Amendment if it is disproportionate to the defendant’s behavior.

In Robinson v. California , 370 U.S. 660 (1962), the US Supreme Court held that it is unconstitutional as cruel and unusual punishment pursuant to the Eighth Amendment to punish an individual for the status of being a drug addict—even if the drugs to which the defendant is addicted are illegal . The Court compared drug addiction to an illness, such as leprosy or venereal disease. Punishing a defendant for being sick not only is inhumane but also does not specifically deter, similar to a punishment for an involuntary act.

If the defendant can control the actions at issue in spite of his or her status, the defendant’s conduct can be constitutionally criminalized and punished pursuant to the Eighth Amendment. In Powell v. Texas , 392 U.S. 514 (1968), the US Supreme Court upheld the defendant’s conviction for “drunk in public,” in spite of the defendant’s status as an alcoholic. The Court held that it is difficult but not impossible for an alcoholic to resist the urge to drink, so the behavior the statute criminalized was voluntary. Also, the Court ruled that the state has an interest in treating alcoholism and preventing alcohol-related crimes that could injure the defendant and others. Pursuant to Powell , statutes that criminalize voluntary acts that arise from status are constitutional under the Eighth Amendment.

Example of a Constitutional Statute Related to Status

Refer to the example in Section 4 "Example of a Voluntary Act Followed by a Nonvoluntary Act" , where Timothy drives under the influence of alcohol and kills another. A state statute that criminalizes killing another person while driving under the influence is constitutional as applied to Timothy, even if Timothy is an alcoholic. The state has an interest in treating alcoholism and preventing alcohol-related crimes that could injure or kill Timothy or another person. Timothy’s act of driving while intoxicated is voluntary , even if his status as an alcoholic makes it more difficult for Timothy to control his drinking. Thus Timothy and other alcoholic defendants can be prosecuted and punished for killing another person while driving under the influence without violating the Eighth Amendment.

Thoughts as Criminal Acts

Thoughts are a part of criminal intent , not criminal act . Thoughts cannot be criminalized.

Example of Noncriminal Thoughts

Brianna, a housecleaner, fantasizes about killing her elderly client Phoebe and stealing all her jewelry. Brianna writes her thoughts in a diary, documenting how she intends to rig the gas line so that gas is pumped into the house all night while Phoebe is sleeping. Brianna includes the date that she wants to kill Phoebe in her most recent diary entry. As Brianna leaves Phoebe’s house, her diary accidentally falls out of her purse. Later, Phoebe finds the diary on the floor and reads it. Phoebe calls the police, gives them Brianna’s diary, and insists they arrest Brianna for attempted murder. Although Brianna’s murder plot is sinister and is documented in her diary, an arrest is improper in this case. Brianna cannot be punished for her thoughts alone . If Brianna took substantial steps toward killing Phoebe, an attempted murder charge might be appropriate. However, at this stage, Brianna is only planning a crime, not committing a crime. Phoebe may be able to go to court and get a restraining order against Brianna to prevent her from carrying out her murder plot, but Brianna cannot be incapacitated by arrest and prosecution for attempted murder in this case.

Omission to Act

An exception to the requirement of a criminal act element is omission to act An exception to the criminal act element; omission to act can only be criminal if there is a legal duty to act. . Criminal prosecution for a failure to act is rare because the government is reluctant to compel individuals to put themselves in harm’s way. However, under certain specific circumstances, omission to act can be criminalized.

An omission to act can only be criminal when the law imposes a duty to act . N.Y. Penal Law § 15.00, accessed October 25, 2010, http://law.onecle.com/new-york/penal/PEN015.00_15.00.html . This legal duty to act becomes an element of the crime, and the prosecution must prove it beyond a reasonable doubt, along with proving the defendant’s inaction under the circumstances. Failure or omission to act is only criminal in three situations: (1) when there is a statute that creates a legal duty to act, (2) when there is a contract that creates a legal duty to act, or (3) when there is a special relationship between the parties that creates a legal duty to act. Legal duties to act vary from state to state and from state to federal.

Duty to Act Based on a Statute

When a duty to act is statutory, it usually concerns a government interest that is paramount . Some common examples of statutory duties to act are the duty to file state or federal tax returns, 26 U.S.C. § 7203, accessed October 25, 2010, http://www.law.cornell.edu/uscode/26/usc_sec_26_00007203----000-.html . the duty of health-care personnel to report gunshot wounds, Fla. Stat. Ann. § 790.24, accessed October 25, 2010, http://law.onecle.com/florida/crimes/790.24.html . and the duty to report child abuse. Ky. Rev. Stat. Ann. § 620.030, accessed October 25, 2010, http://www.lrc.ky.gov/krs/620-00/030.pdf .

Figure 4.3 Kentucky Revised Statutes

At common law, it was not criminal to stand by and refuse to help someone in danger. Some states supersede the common law by enacting Good Samaritan statutes A statute compelling an individual to assist another under certain specified circumstances. that create a duty to assist those involved in an accident or emergency situation. Good Samaritan statutes typically contain provisions that insulate the actor from liability exposure when providing assistance. Minnesota Code § 604A.01, accessed October 25, 2010, http://law.justia.com/minnesota/codes/2005/595/604a-s01.html .

Figure 4.4 Minnesota Good Samaritan Law

Good Samaritan Law Video

Good Samaritan Sued after Rescuing Woman in an Accident

This video is a news story on a California Supreme Court case regarding the civil liability of a Good Samaritan:

Duty to Act Based on a Contract

A duty to act can be based on a contract between the defendant and another party. The most prevalent examples would be a physician’s contractual duty to help a patient or a lifeguard’s duty to save someone who is drowning. Keep in mind that experts who are not contractually bound can ignore an individual’s pleas for help without committing a crime, no matter how morally abhorrent that may seem. For example, an expert swimmer can watch someone drown if there is no statute, contract, or special relationship that creates a legal duty to act.

Duty to Act Based on a Special Relationship

A special relationship may also be the basis of a legal duty to act. The most common special relationships are parent-child, spouse-spouse, and employer-employee. Often, the rationale for creating a legal duty to act when people are in a special relationship is the dependence of one individual on another. A parent has the obligation by law to provide food, clothing, shelter, and medical care for his or her children, because children are dependent on their parents and do not have the ability to procure these items themselves. In addition, if someone puts another person in peril , there may be a duty to rescue that person. State ex rel. Kuntz v. Thirteenth Jud. Dist. , 995 P.2d 951 (2000), accessed October 25, 2010, http://caselaw.findlaw.com/mt-supreme-court/1434948.html . Although this is not exactly a special relationship, the victim may be dependent on the person who created the dangerous situation because he or she may be the only one present and able to render aid. On a related note, some jurisdictions also impose a duty to continue to provide aid , once aid or assistance has started. Jones v. U.S. , 308 F.2d 307 (1962), accessed October 25, 2010, http://scholar.google.com/scholar_case?case=14703438613582917232&hl=en&as_sdt=2002&as_vis=1 . Similar to the duty to rescue a victim the defendant has put in peril, the duty to continue to provide aid is rooted in the victim’s dependence on the defendant and the unlikely chance that another person may come along to help once the defendant has begun providing assistance.

Example of a Failure to Act That Is Noncriminal

Recall the example from Chapter 1 "Introduction to Criminal Law" , Section 1.2.1 "Example of Criminal Law Issues" , where Clara and Linda are shopping together and Clara stands by and watches as Linda shoplifts a bra. In this example, Clara does not have a duty to report Linda for shoplifting. Clara does not have a contractual duty to report a crime in this situation because she is not a law enforcement officer or security guard obligated by an employment contract. Nor does she have a special relationship with the store mandating such a report. Unless a statute or ordinance exists to force individuals to report crimes committed in their presence, which is extremely unlikely, Clara can legally observe Linda’s shoplifting without reporting it. Of course, if Clara assists Linda with the shoplifting, she has then performed a criminal act or actus reus, and a criminal prosecution is appropriate.

Example of a Failure to Act That Is Criminal

Penelope stands on the shore at a public beach and watches as a child drowns. If Penelope’s state has a Good Samaritan law, she may have a duty to help the child based on a statute . If Penelope is the lifeguard, she may have a duty to save the child based on a contract . If Penelope is the child’s mother, she may have a duty to provide assistance based on their special relationship . If Penelope threw the child in the ocean, she may have a duty to rescue the child she put in peril . If Penelope is just a bystander, and no Good Samaritan law is in force, she has no duty to act and cannot be criminally prosecuted if the child suffers harm or drowns.

Possession as a Criminal Act

Although it is passive rather than active, possession is still considered a criminal act. The most common objects that are criminal to possess are illegal contraband, drugs, and weapons. There are two types of possession: actual possession The defendant has an item on or very near his or her person. and constructive possession The defendant has an item within his or her area of control. . Actual possession indicates that the defendant has the item on or very near his or her person. Constructive possession indicates that the item is not on the defendant’s person, but is within the defendant’s area of control, such as inside a house or automobile with the defendant. State v. Davis , 84 Conn. App. 505 (2004), accessed February 13, 2011, http://scholar.google.com/scholar_case?case=12496216636522596448&hl=en&as_sdt=2&as_vis=1&oi=scholarr . More than one defendant can be in possession of an object, although this would clearly be a constructive possession for at least one of them.

Because it is passive, possession should be knowing , meaning the defendant is aware that he or she possesses the item. Connecticut Jury Instructions No. 2.11-1, accessed February 13, 2011, http://www.jud.ct.gov/ji/criminal/part2/2.11-1.htm . As the Model Penal Code states in § 2.01(4), “[p]ossession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.” In the vast majority of states, a statute permitting a conviction for possession without this knowledge or awareness lacks the criminal intent element and would be unenforceable.

Example of an Unenforceable Possession Statute

A state has a criminal statute that prohibits “being within 100 feet of any quantity of marijuana.” Ricardo sits next to Jean on the subway. A law enforcement officer smells marijuana and does a pat-down search of Jean. He discovers that Jean has a large baggie of marijuana in his jacket pocket and arrests Jean and Ricardo for marijuana possession. Ricardo was within one hundred feet of marijuana as prohibited by the statute, but Ricardo should not be prosecuted for marijuana possession. No evidence exists to indicate that Ricardo knew Jean, or knew that Jean possessed marijuana. Thus Ricardo does not have the criminal intent or mens rea for possession, and the state’s possession statute should not be enforced against him.

Key Takeaways

• The elements of a crime are criminal act, criminal intent, concurrence, causation, harm, and attendant circumstances. Only crimes that specify a bad result have the elements of causation and harm.
• Criminal act is usually an unlawful bodily movement that is defined in a statute, or a case in jurisdictions that allow common-law crimes.
• The criminal act must be voluntary and cannot be based solely on the status of the defendant or the defendant’s thoughts.
• An exception to the criminal act element is omission to act.
• Omission to act could be criminal if there is a statute, contract, or special relationship that creates a legal duty to act in the defendant’s situation.
• Actual possession means that the item is on or very near the defendant’s person. Constructive possession means that the item is within the defendant’s control, such as inside a house or vehicle with the defendant.
• In most states, the defendant must be aware that he or she possesses the item to be convicted of possession.

Answer the following questions. Check your answers using the answer key at the end of the chapter.

• Jacqueline is diagnosed with epilepsy two years after receiving her driver’s license. While driving to a concert, Jacqueline suffers an epileptic seizure and crashes into another vehicle, injuring both of its occupants. Can Jacqueline be convicted of a crime in this situation? Why or why not?
• Read Oler v. State , 998 S.W.2d 363 (1999). In Oler , the defendant was convicted of possession of a controlled substance by misrepresentation. The defendant solicited and received prescriptions for Dilaudid, a controlled substance, from four different physicians without informing them that he already had a prescription for Dilaudid. The defendant appealed, arguing that he had no legal duty to disclose his previous receipt of the drug to the physicians, and was therefore unlawfully punished for an omission to act . Did the Texas Court of Appeals uphold the defendant’s conviction? Why or why not? The case is available at this link: http://scholar.google.com/scholar_case?case=460187562193844690&q= 998+S.W.2d+363&hl=en&as_sdt=10000000000002 .
• Read Staples v. U.S. , 511 U.S. 600 (1994). In Staples , the defendant was convicted of possession of an unregistered automatic weapon in violation of the National Firearms Act. The defendant claimed the conviction was improper because the prosecution did not prove that he knew the weapon was automatic, and the prosecution must prove this knowledge to convict under the statute. Did the US Supreme Court reverse the defendant’s conviction? Why or why not? The case is available at this link: http://www.law.cornell.edu/supct/html/92-1441.ZO.html .

4.2 Criminal Intent

• Describe one important function of criminal intent.
• List the three common-law criminal intents, ranking them in order of culpability.
• Compare specific and general intent.
• Describe an inference that makes it easier for the prosecution to prove a general intent crime.
• Differentiate between motive and criminal intent.
• List and define the Model Penal Code mental states, ranking them in order of culpability.
• Identify an exception to the requirement that every crime contain a criminal intent element.
• Explain how transferred intent promotes justice.
• Describe the circumstances that give rise to vicarious criminal liability.
• Define concurrence of criminal act and intent.

Although there are exceptions that are discussed shortly, criminal intent The mental state required for a crime; also called mens rea. or mens rea is an essential element of most crimes. Under the common law, all crimes consisted of an act carried out with a guilty mind. In modern society, criminal intent can be the basis for fault , and punishment according to intent is a core premise of criminal justice. As stated in Chapter 1 "Introduction to Criminal Law" , grading is often related to the criminal intent element. Crimes that have an “evil” intent are malum in se and subject the defendant to the most severe punishment. Crimes that lack the intent element are less common and are usually graded lower, as either misdemeanors or infractions.

Figure 4.5 New York Penal Law

States and the federal government vary in their approach to defining criminal intent, and each jurisdiction describes the criminal intent element in a criminal statute, or case, in jurisdictions that allow common-law crimes. In this section, common-law definitions of criminal intent are explored, along with definitions of the criminal mental states in the Model Penal Code.

Common-Law Criminal Intent

The common-law criminal intents ranked in order of culpability are malice aforethought Intent to kill, which is the common-law intent for murder. , specific intent The common-law intent to cause a specific result, do something other than the criminal act, or scienter. , and general intent The common-law intent to perform the criminal act. . Statutes and cases use different words to indicate the appropriate level of intent for the criminal offense, so what follows is a basic description of the intent definitions adopted by many jurisdictions.

Malice Aforethought

Malice aforethought is a special common-law intent designated for only one crime: murder . The definition of malice aforethought is “intent to kill.” Society considers intent to kill the most evil of all intents, so malice aforethought crimes such as first- and second-degree murder generally mandate the most severe of punishments, including the death penalty in jurisdictions that allow for it. Malice aforethought and criminal homicide are discussed in detail in Chapter 9 "Criminal Homicide" .

Specific Intent

Specific intent is the intent with the highest level of culpability for crimes other than murder. Unfortunately, criminal statutes rarely describe their intent element as “specific” or “general,” and a judge may be required to define the level of intent using the common law or a dictionary to explain a word’s ordinary meaning. Typically, specific intent means that the defendant acts with a more sophisticated level of awareness. Connecticut Jury Instructions No. 2.3-1, accessed February 14, 2011, http://www.jud.ct.gov/ji/criminal/part2/2.3-1.htm . Crimes that require specific intent usually fall into one of three categories: either the defendant intends to cause a certain bad result , the defendant intends to do something more than commit the criminal act, or the defendant acts with knowledge that his or her conduct is illegal, which is called scienter The intent to do an unlawful act. .

Example of Specific Intent to Bring about a Bad Result

A state statute defines mayhem as “physical contact with another, inflicted with the intent to maim, disfigure, or scar.” This statute describes a specific intent crime. To be guilty of mayhem under the statute, the defendant must inflict the physical contact with the intent of causing the bad result of maiming, disfigurement, or scarring. If the prosecution cannot prove this high-level intent, the defendant may be acquitted (or charged and convicted of a lower-level intent crime like battery).

So if Pauline says, “It’s time to permanently mess up that pretty face,” and thereafter takes out a razor and slices Peter’s cheek with it, Pauline might be found guilty of mayhem. On the other hand, if Pauline slaps Peter while he is shaving without making the comment, and the razor bites into his cheek, it is more challenging to prove that she intended a scarring , and Pauline might be found guilty only of battery.

Example of Specific Intent to Do More than the Criminal Act

A state statute defines theft as “a permanent taking of property belonging to another.” This statute describes a specific intent crime. To be guilty of theft under the statute, the defendant must intend to do more than “take the property of another,” which is the criminal act. The defendant must also intend to keep the property permanently.

So if Pauline borrows Peter’s razor to shave her legs, she has “taken the property of another,” but she has not committed theft for the simple reason that she intends to return the property after use.

Example of Scienter

Although the terms mens rea and scienter are sometimes used interchangeably, many jurisdictions define scienter as knowledge that an act is illegal . Scienter can be the basis of specific intent in some statutes. So a statute that makes it a crime to “willfully file a false tax return” may require knowledge that the tax return includes false information and that it will be unlawful to file it. U.S. v. Pompanio , 429 U.S. 10 (1976), accessed October 28, 2010, http://supreme.justia.com/us/429/10/case.html . If the prosecution fails to prove beyond a reasonable doubt that the defendant knew his or her conduct was illegal , this could nullify scienter, and the prosecution cannot prove specific intent.

General Intent

General intent is less sophisticated than specific intent. Thus general intent crimes are easier to prove and can also result in a less severe punishment. A basic definition of general intent is the intent to perform the criminal act or actus reus. If the defendant acts intentionally but without the additional desire to bring about a certain result, or do anything other than the criminal act itself, the defendant has acted with general intent. People v. McDaniel , 597 P.2d 124 (1979), accessed February 14, 2011, http://scholar.google.com/scholar_case?case=8266915507346002022&hl=en&as_sdt=2&as_vis=1&oi=scholarr .

Inference of General Intent

Intent is a notoriously difficult element to prove because it is locked inside the defendant’s mind. Ordinarily, the only direct evidence of intent is a defendant’s confession, which the government cannot forcibly obtain because of the Fifth Amendment privilege against self-incrimination. Witnesses who hear the defendant express intent are often unable to testify about it because of evidentiary rules prohibiting hearsay. However, many jurisdictions allow an inference of general intent based on the criminal act . Commonwealth v. Ely , 444 N.E.2d 1276 (1983), accessed February 13, 2011, http://scholar.google.com/scholar_case?case=369554378994187453&hl=en&as_sdt=2&as_vis=1&oi=scholarr . In essence, if the jury accepts the inference, the prosecution does not have the burden of proving intent for a general intent crime.

Example of a General Intent Crime and an Inference of Intent

A state statute defines battery as “intentional harmful or offensive physical contact with another.” This statute describes a general intent crime. To be guilty of battery under the statute, the defendant must only intend the harmful or offensive contact. The defendant does not have to desire that the contact produces a specific result , such as scarring, or death; nor does the defendant need scienter , or awareness that the physical contact is illegal.

If Addie balls up her fist and punches Eddie in the jaw after Eddie calls her a “stupid idiot,” Addie has probably committed battery under the statute. A prosecutor could prove that Addie committed the act of harmful or offensive contact using Eddie’s testimony and a physician’s report. The jury could thereafter be instructed to “infer intent from proof of the act.” If the jury accepts the inference and determines that Addie committed the criminal act, the jury could find Addie guilty of battery without additional evidence of intent.

Figure 4.6 Common Law Intents

Intent should not be confused with motive The reason the defendant performs the criminal act. , which is the reason the defendant commits the criminal act or actus reus. Motive can generate intent, support a defense, and be used to determine sentencing. However, motive alone does not constitute mens rea and does not act as a substitute for criminal intent.

Example of Motive

Isabella, a housewife with no criminal record, sits quietly in court waiting to hear the jury verdict in a trial for the rape of her teenage daughter by Ignatius. Ignatius has been convicted of child rape in three previous incidents. The jury foreman announces the decision finding Ignatius not guilty. Ignatius looks over his shoulder at Isabella and smirks. Isabella calmly pulls a loaded revolver out of her purse, and then shoots and kills Ignatius. In this case, Isabella’s motive is revenge for the rape of her teenage daughter, or the desire to protect other women from Ignatius’ conduct. This motive generated Isabella’s criminal intent , which is malice aforethought or intent to kill. In spite of Isabella’s motive, which is probably understandable under the circumstances, Isabella can be found guilty of murder because she acted with the murder mens rea. However, Isabella’s motive may be introduced at sentencing and may result in a reduced sentence such as life in prison rather than the death penalty. In addition, Isabella’s motive may affect a prosecutor’s decision to seek the death penalty at all because this would probably be disfavored by the public.

Model Penal Code Criminal Intent

The Model Penal Code divides criminal intent into four states of mind listed in order of culpability: purposely The Model Penal Code intent to cause a specific result. , knowingly Under the Model Penal Code, the defendant is aware of the nature of the act and is practically certain of the consequences. , recklessly Under the Model Penal Code, the defendant is aware of a substantial risk of injury or harm, and unjustifiably takes it anyway. , and negligently Under the Model Penal Code, the defendant is unaware of a substantial risk of injury or harm, but should be, and unjustifiably deviates from the standard of care. .

A defendant who acts purposely intends to engage in conduct of that nature and intends to cause a certain result. N.H. Rev. Stat. Ann. § 626:2(II)(a), accessed February 14, 2011, http://www.gencourt.state.nh.us/rsa/html/LXII/626/626-2.htm . Purposeful criminal intent resembles specific intent to cause harm, which was discussed previously. As the Model Penal Code states, “[a] person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result” (Model Penal Code § 2.02 (2) (a)).

Example of Purposely

Review the example given in Section 4 "Example of Specific Intent to Bring about a Bad Result" , where Pauline takes out a razor and slices Peter’s cheek. In this example, Pauline is aware of the nature of the act (slicing someone’s cheek with a razor). Pauline also appears to be acting with the intent to cause a specific result, based on her statement to Peter. Thus Pauline is acting with specific intent or purposely and can probably be convicted of some form of aggravated battery or mayhem in most jurisdictions.

Knowingly indicates that the defendant is aware of the nature of the act and its probable consequences. Utah Code Ann. § 76-2-103(2), accessed February 14, 2011, http://le.utah.gov/~code/TITLE76/htm/76_02_010300.htm . Knowingly differs from purposely in that the defendant is not acting to cause a certain result but is acting with the awareness that the result is practically certain to occur. State v. Huff , 469 A.2d 1251 (1984), accessed February 14, 2011, http://scholar.google.com/scholar_case?case=4287195880403875631&hl=en&as_sdt=2&as_vis=1&oi=scholarr . The Model Penal Code describes knowingly as follows: “A person acts knowingly with respect to a material element of an offense when…he is aware that his conduct is of that nature…if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result” (Model Penal Code in § 2.02(2) (b)).

Example of Knowingly

Victor brags to his girlfriend Tanya that he can shoot into a densely packed crowd of people on the subway train without hitting any of them. Tanya dares Victor to try it. Victor removes a concealed weapon from his waistband and shoots, aiming at a group of people standing with their back to him. The shot kills Monica, who is standing the closest to Victor. In this case, Victor did not intend to shoot Monica. In fact, Victor’s goal was to shoot and miss all the standing subway passengers. However, Victor was aware that he was shooting a loaded gun (the nature of the act) and was also practically certain that shooting into a crowd would result in somebody getting hurt or killed. Thus Victor acted knowingly according to the Model Penal Code. If the state in which Victor shoots Monica defines murder intent as knowingly under the Model Penal Code, then Victor has most likely committed murder in this case.

Figure 4.7 Crack the Code

Recklessly is a lower level of culpability than knowingly, and reckless intent crimes are not as common as offenses criminalizing purposeful, knowing conduct. The degree of risk awareness is key to distinguishing a reckless intent crime from a knowing intent crime. A defendant acts recklessly if he or she consciously disregards a substantial and unjustifiable risk that the bad result or harm will occur. Colo. Rev. Stat. Ann. § 18-1-501(8), accessed February 14, 2011, http://www.michie.com/colorado/lpext.dll?f=templates&fn=main-h.htm&cp= . This is different from a knowing intent crime, where the defendant must be “practically certain” of the bad results. The reckless intent test is two pronged. First, the defendant must consciously disregard a substantial risk of harm. The standard is subjective; the defendant must know of the substantial risk. Second, the defendant must take an unjustifiable risk, meaning that no valid reason exists for the risk. The standard for this prong is objective; if a reasonable person would not take the risk, then the defendant’s action in taking it is reckless . As the Model Penal Code states, “[t]he risk must be of such a nature and degree that…its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation” (Model Penal Code § 2.02(2) (c)).

Example of Recklessly

Review the example in Section 4 "Example of Knowingly" , where Victor shoots into a crowd of subway travelers and kills Monica. Change the example, and imagine that the subway train has only three passengers. Victor easily shoots in between them, yet the bullet ricochets off one of the seats and strikes Monica, killing her. Victor would be acting with reckless rather than knowing intent in this situation. Victor’s knowledge and awareness of the risk of injury or death when shooting a gun inside a subway car containing three passengers is probably substantial . A reasonable, law-abiding person would probably not take this action under these circumstances. Thus Victor might be charged with a lower-level form of criminal homicide like manslaughter in this case. The difference between murder and manslaughter is discussed in detail in Chapter 9 "Criminal Homicide" .

Negligently

Negligent intent crimes are less culpable than reckless intent crimes and are also less common. The difference between reckless and negligent intent is the defendant’s lack of awareness . While defendants committing negligent intent crimes are also faced with a substantial and unjustifiable risk, they are unaware of it, even though a reasonable person would be. Idaho Code Ann. § 18-101(2), accessed February 14, 2011, http://www.legislature.idaho.gov/idstat/Title18/T18CH1SECT18-101.htm . Thus the first prong of the reckless intent test is simply changed from a subjective to objective standard. As the Model Penal Code states, “[a] person acts negligently…when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct”(Model Penal Code § 2.02(2) (d)).

Example of Negligently

Review the example in Section 4 "Example of Knowingly" , where Victor shoots into a crowd of subway travelers and kills Monica. Change the example, and imagine that the subway train has no passengers. Victor brags to Tanya that he can shoot a crumpled napkin on the floor. Tanya challenges him to try it. Victor shoots at the napkin and misses, and the bullet ricochets three times off three different seats, travels backward, and strikes Tanya in the forehead, killing her instantly. In this case, Victor may be unaware of the bullet’s potential to ricochet several times and actually travel backward. However, the trier of fact can determine that a “reasonable person” would be aware that shooting a gun inside a small subway train could result in injury or death. This would be a finding that Victor acted negligently , under the circumstances. If the state in which Victor shot Tanya criminalizes negligent killings, then Victor could be found guilty of criminal homicide in this case.

Figure 4.8 Model Penal Code Criminal Intents Ranked from Most Serious to Least Serious

Elements and Criminal Intent

Occasionally, different criminal intents support the various elements of an offense. If a crime requires more than one criminal intent, each criminal intent must be proven beyond a reasonable doubt for each element.

Under the common law, every offense had just one criminal intent. In modern society, every offense has one criminal intent unless a statute specifies otherwise. As the Model Penal Code states, “[w]hen the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all of the material elements of the offense, unless a contrary purpose plainly appears” (Model Penal Code § 2.02(4)).

Example of a Crime That Requires More Than One Criminal Intent

A state statute defines burglary as “breaking and entering into a residence at nighttime with the intent to commit a felony once inside.” In this statute, the elements are the following: (1) breaking, (2) and entering, (3) into a residence, (4) at nighttime. Breaking and entering are two criminal act elements. They must be committed with the specific intent , or purposely , to commit a felony once inside the residence. The elements of residence and nighttime are two attendant circumstances , which most likely have the lower level of general intent or knowingly . Thus this statute has four separate criminal intents that the prosecution must prove beyond a reasonable doubt for conviction.

Strict Liability

An exception to the requirement of a criminal intent element is strict liability Liability without intent. . Strict liability offenses have no intent element. Ala. Code § 13A-2-3, accessed February 14, 2011, http://law.onecle.com/alabama/criminal-code/13A-2-3.html . This is a modern statutory trend, which abrogates the common-law approach that behavior is only criminal when the defendant commits acts with a guilty mind. Sometimes the rationale for strict liability crimes is the protection of the public’s health, safety, and welfare. Thus strict liability offenses are often vehicle code or tax code violations, mandating a less severe punishment. Tex. Penal Code § 49.04, accessed February 14, 2011, http://law.onecle.com/texas/penal/49.04.00.html . With a strict liability crime, the prosecution has to prove only the criminal act and possibly causation and harm or attendant circumstances, depending on the elements of the offense.

Example of a Strict Liability Offense

A vehicle code provision makes it a crime to “travel in a vehicle over the posted speed limit.” This is a strict liability offense. So if a law enforcement officer captures radar information that indicates Susie was traveling in a vehicle five miles per hour over the posted speed limit, Susie can probably be convicted of speeding under the statute. Susie’s protests that she “didn’t know she was traveling at that speed,” are not a valid defense. Susie’s knowledge of the nature of the act is irrelevant. The prosecution only needs to prove the criminal act to convict Susie because this statute is strict liability and does not require proof of criminal intent.

Transferred Intent

Occasionally, the defendant’s criminal intent is not directed toward the victim . Depending on the jurisdiction, this may result in a transfer of the defendant’s intent from the intended victim to the eventual victim, for the purpose of fairness. N.Y. Penal Law § 125.27(1), accessed February 14, 2011, http://www.nycourts.gov/cji/2-PenalLaw/125/125.27/Capital-Crimes/AC.125.Transferred-Intent.pdf . Although this is a legal fiction, it can be necessary to reach a just result. Transferred intent The transfer of a defendant’s criminal intent from one victim to another, for the purpose of justice. is only relevant in crimes that require a bad result or victim. In a case where intent is transferred, the defendant could receive more than one criminal charge, such as a charge for “attempting” to commit a crime against the intended victim. Attempt and transferred intent are discussed in detail in Chapter 8 "Inchoate Offenses" .

Example of Transferred Intent

Billy and his brother Ronnie get into an argument at a crowded bar. Billy balls up his fist and swings, aiming for Ronnie’s face. Ronnie ducks and Billy punches Amanda in the face instead. Billy did not intend to batter Amanda. However, it is unjust to allow this protective action of Ronnie’s to excuse Billy’s conduct. Thus Billy’s intent to hit Ronnie transfers in some jurisdictions over to Amanda. Billy can also be charged with attempted battery, which is assault, of Ronnie, resulting in two crimes rather than one under the transferred intent doctrine.

Vicarious Liability

Vicarious liability The transfer of a defendant’s liability based upon a special relationship. is similar to respondeat superior, a civil law concept discussed in Chapter 1 "Introduction to Criminal Law" . Vicarious liability transfers a defendant’s responsibility for the crime to a different defendant , on the basis of a special relationship . Under a theory of vicarious liability, the defendant does not need to commit the criminal act supported by criminal intent. The defendant just has to be involved with the criminal actor in a legally defined relationship. As in civil law, vicarious liability is common between employers and employees.

Corporate liability The vicarious liability of a corporation. is a type of vicarious liability that allows a corporation to be prosecuted for a crime apart from its owners, agents, and employees. 720 ILCS 5/5-4, accessed February 14, 2011, http://law.onecle.com/illinois/720ilcs5/5-4.html . This is a modern concept that did not exist at early common law. Although corporations cannot be incarcerated, they can be fined. Vicarious liability and corporate liability are discussed in more detail in Chapter 7 "Parties to Crime" .

Example of Vicarious Liability

Don hires James to work in his liquor store. James is specially trained to ask for the identification of any individual who appears to be under the age of thirty and attempts to buy alcohol. One night, James sells alcohol to Ashley and does not request identification because Ashley is attractive and James wants to ask her out on a date. Unfortunately, Ashley is underage and is participating in a sting operation with local law enforcement. Certain statutes could subject Don to criminal prosecution for selling alcohol to an underage person like Ashley, even though Don did not personally participate in the sale. Because Don is James’s employer, he may be vicariously liable for James’s on-the-job conduct in this instance.

Concurrence of Act and Intent

Another element of most criminal offenses is the requirement that the criminal act and criminal intent exist at the same moment. California Criminal Jury Instructions No. 252, accessed February 14, 2011, http://www.justia.com/criminal/docs/calcrim/200/252.html . This element is called concurrence The requirement that the criminal act and criminal intent exist at the same moment. . Concurrence is rarely an issue in a criminal prosecution because the criminal intent usually generates the bodily response (criminal act). However, in some rare instances, the criminal act and intent are separated by time, in which case concurrence is lacking and the defendant cannot be convicted of a crime.

Example of a Situation Lacking Concurrence

Sherree decides she wants to kill her husband using a handgun. As Sherree is driving to the local gun shop to purchase the handgun, her husband is distracted and steps in front of her car. Sherree slams on the brakes as a reflex, but unfortunately she is unable to avoid striking and killing her husband. Sherree cannot be prosecuted for criminal homicide in this case. Although Sherree had formulated the intent to kill, the intent to kill did not exist at the moment she committed the criminal act of hitting her husband with her vehicle. In fact, Sherree was trying to avoid hitting her husband at the moment he was killed. Thus this case lacks concurrence of act and intent, and Sherree is not guilty of criminal homicide.

• One important function of intent is the determination of punishment. In general, the more evil the intent, the more severe the punishment.
• The three common-law intents ranked in order of culpability are malice aforethought, specific intent, and general intent.
• Specific intent is the intent to bring about a certain result, do something other than the criminal act, or scienter. General intent is simply the intent to perform the criminal act.
• With a general intent crime, the trier of fact may infer intent from the criminal act. This alleviates the prosecution’s burden of proving criminal intent.
• Motive is the reason the defendant commits the criminal act. Motive standing alone is not enough to prove criminal intent.
• The Model Penal Code’s criminal states of mind ranked in order of culpability are purposely, knowingly, recklessly, and negligently. Purposely is similar to specific intent to cause a particular result. Knowingly is awareness that results are practically certain to occur. Recklessly is a subjective awareness of a risk of harm, and an objective and unjustified disregard of that risk. Negligently is not being aware of a substantial risk of harm when a reasonable person would be.
• The exception to the requirement that every crime contain a criminal intent element is strict liability.
• Transferred intent promotes justice by holding a defendant responsible for his or her criminal conduct, even though the conduct was intended to harm a different victim.
• Vicarious liability is the transfer of criminal liability from one criminal defendant to another based on a special relationship.
• Concurrence requires that act and intent exist at the same moment.
• As Jordan is driving to school, she takes her eyes off the road for a moment and rummages through her purse for her phone. This causes her to run a stop sign. Jordan is thereafter pulled over by law enforcement and issued a traffic ticket. What is Jordan’s criminal intent in this case? Is Jordan criminally responsible for running the stop sign? Why or why not?
• Read Morissette v. U.S. , 342 U.S. 246 (1952). In Morissette , the defendant was convicted of unlawful conversion of federal property for gathering and selling spent bomb casings dropped during US Air Force practice maneuvers. The statute required “knowing” conversion of the property, and the defendant claimed he believed the property was abandoned . Did the US Supreme Court uphold the defendant’s conviction? Why or why not? The case is available at this link: http://scholar.google.com/scholar_case?case=787130527265701764&hl=en&as_sdt=2&as_vis=1&oi=scholarr .
• Read State v. Crosby , 154 P.3d 97 (2007). In Crosby , the defendant was convicted of manslaughter of a dependent person by neglect. The defendant’s mother died of “sepsis” and was brought to the hospital covered with feces and bedsores. The defendant was her mother’s caregiver. The jury was instructed that the defendant possessed the mental state of “recklessness” under the statute if she disregarded a substantial risk of harm or circumstances . The jury asked the judge if “circumstances” included the bedsores or just death . He responded that the risk could be more than just death and left it up to the jury to decide. Did the Supreme Court of Oregon uphold the defendant’s conviction? Why or why not? The case is available at this link: http://scholar.google.com/scholar_case?case=10006178173306648171&q= State+v.+Crosby+S53295&hl=en&as_sdt=2,5 .
• Read State v. Horner , 126 Ohio St. 3d 466 (2010). In Horner , the defendant pleaded no contest to aggravated robbery. The defendant’s pre-plea indictment did not contain a mens rea element for aggravated robbery, just the mens rea for theft. The defendant moved to dismiss the no contest plea, based on the fact that the indictment was defective for lacking the mens rea element. Did the Ohio Supreme Court find the indictment defective? Why or why not? The case is available at this link: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-ohio-3830.pdf .

Law and Ethics: Dean v. U.S.

Ten Years Imprisonment for an Accident?

“Accidents happen. Sometimes they happen to individuals committing crimes with loaded guns.” Read Dean v. U.S. , 129 S. Ct. 1849 (2009)), which is available at this link: http://scholar.google.com/scholar_case?case=10945987555184039397&q= Dean+v.+U.S.&hl=en&as_sdt=2,5 .

In Dean , the defendant was sentenced to ten years imprisonment under a federal sentencing enhancement for an accidental discharge of his firearm during a bank robbery. The prosecution presented evidence at trial indicating that the defendant went into the bank wearing a mask and carrying a loaded firearm. The defendant told everyone in the bank to “get down,” and then went behind the tellers’ station and began grabbing money with his left hand. The gun in his right hand discharged. The defendant seemed surprised by the discharge, cursed, and ran out of the bank. No one was injured or hurt during the robbery.

The defendant thereafter admitted he committed the robbery. The US Supreme Court upheld the defendant’s sentencing, in spite of the fact that there was no evidence of intent to discharge the firearm. The Court based its holding on the plain meaning of the statute requiring a minimum sentence of ten years imprisonment when a firearm is discharged during a robbery. The statute, 18 U.S.C. § 924(c) (1) (A), does not expressly state a criminal intent requirement. The Court further held that a presumption of criminal intent was not required. As the Court stated, “[i]t is unusual to impose criminal punishment for the consequences of purely accidental conduct. But it is not unusual to punish individuals for the unintended consequences of their unlawful acts” ( Dean v. U.S. , 129 S. Ct. 1849, 1855 (2009)).

• Do you think it is ethical to sentence Dean to ten years’ imprisonment for his accidental conduct in this case? Why or why not?

Check your answer using the answer key at the end of the chapter.

4.3 Causation and Harm

• Distinguish between factual and legal cause.
• Define intervening superseding cause, and explain the role it plays in the defendant’s criminal liability.
• Define one and three years and a day rules.

As stated previously, causation An element required for crimes that specify a bad result; the defendant must cause the harm. and harm An element of bad result crimes; the harm is the injury specified in the statute or case in jurisdictions that allow for common-law crimes. can also be elements of a criminal offense if the offense requires a bad result. In essence, if injury is required under the statute, or the case is in a jurisdiction that allows for common-law crimes, the defendant must cause the requisite harm . Many incidents occur when the defendant technically initiates circumstances that result in harm, but it would be unjust to hold the defendant criminally responsible. Thus causation should not be rigidly determined in every instance, and the trier of fact must perform an analysis that promotes fairness. In this section, causation in fact and legal causation are examined as well as situations where the defendant may be insulated from criminal responsibility.

Figure 4.9 Oregon Revised Statutes

Causation in Fact

Every causation analysis is twofold. First, the defendant must be the factual or but for cause The defendant starts the chain of events leading to the harm. of the victim’s harm. The but for term comes from this phrase: “but for the defendant’s act, the harm would not have occurred.” Del. Code Ann. tit. II, § 261, accessed February 14, 2011, http://delcode.delaware.gov/title11/c002/index.shtml#261 . As the Model Penal Code states, “[c]onduct is the cause of a result when…(a) it is an antecedent but for which the result in question would not have occurred” (Model Penal Code § 2.03(1)(a)). Basically, the defendant is the factual or but for cause of the victim’s harm if the defendant’s act starts the chain of events that leads to the eventual result.

Example of Factual Cause

Henry and Mary get into an argument over their child custody agreement. Henry gives Mary a hard shove. Mary staggers backward, is struck by lightning, and dies instantly. In this example, Henry’s act forced Mary to move into the area where the lighting happened to strike. However, it would be unjust to punish Henry for Mary’s death in this case because Henry could not have imagined the eventual result. Thus although Henry is the factual or but for cause of Mary’s death, he is probably not the legal cause The defendant is criminally responsible for the harm because it is a foreseeable consequence of the defendant’s criminal act. .

Legal Causation

It is the second part of the analysis that ensures fairness in the application of the causation element. The defendant must also be the legal or proximate cause of the harm. Proximate means “near,” so the defendant’s conduct must be closely related to the harm it engenders. As the Model Penal Code states, the actual result cannot be “too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability” (Model Penal Code § 2.03 (2) (b)).

The test for legal causation is objective foreseeability. California Criminal Jury Instructions No. 520, accessed February 14, 2011, http://www.justia.com/criminal/docs/calcrim/500/520.html . The trier of fact must be convinced that when the defendant acted, a reasonable person could have foreseen or predicted that the end result would occur. In the example given in Section 4 "Example of Factual Cause" , Henry is not the legal cause of Mary’s death because a reasonable person could have neither foreseen nor predicted that a shove would push Mary into a spot where lightning was about to strike.

The Model Penal Code adjusts the legal causation foreseeability requirement depending on whether the defendant acted purposely, knowingly, recklessly, or negligently. If the defendant’s behavior is reckless or negligent, the legal causation foreseeability requirement is analyzed based on the risk of harm, rather than the purpose of the defendant.

Example of Legal Causation

Imagine that Henry and Mary get into the same argument over their child custody agreement, but this time they are in their garage, which is crowded with furniture. Henry gives Mary a hard shove, even though she is standing directly in front of a large entertainment center filled with books and a heavy thirty-two-inch television set. Mary staggers backward into the entertainment center and it crashes down on top of her, killing her. In this situation, Henry is the factual cause of Mary’s death because he started the chain of events that led to her death with his push. In addition, it is foreseeable that Mary might suffer a serious injury or death when shoved directly into a large and heavy piece of furniture. Thus in this example, Henry could be the factual and legal cause of Mary’s death. It is up to the trier of fact to make this determination based on an assessment of objective foreseeability and the attendant circumstances.

Intervening Superseding Cause

Another situation where the defendant is the factual but not the legal cause of the requisite harm is when something or someone interrupts the chain of events started by the defendant. This is called an intervening superseding cause Something or someone that breaks the chain of events started by the defendant’s criminal act, insulating the defendant from criminal responsibility. . Typically, an intervening superseding cause cuts the defendant off from criminal liability because it is much closer, or proximate , to the resulting harm. Connecticut Jury Instructions No. 2.6-1, accessed February 14, 2011, http://www.jud.ct.gov/ji/criminal/part2/2.6-1.htm . If an intervening superseding cause is a different individual acting with criminal intent, the intervening individual is criminally responsible for the harm caused.

Example of an Intervening Superseding Cause

Review the example with Henry and Mary in Section 4 "Example of Legal Causation" . Change the example so that Henry pulls out a knife and chases Mary out of the garage. Mary escapes Henry and hides in an abandoned shed. Half an hour later, Wes, a homeless man living in the shed, returns from a day of panhandling. When he discovers Mary in the shed, he kills her and steals her money and jewelry. In this case, Henry is still the factual cause of Mary’s death, because he chased her into the shed where she was eventually killed. However, Wes is probably the intervening superseding cause of Mary’s death because he interrupted the chain of events started by Henry. Thus Wes is subject to prosecution for Mary’s death, and Henry may be prosecuted only for assault with a deadly weapon.

One and Three Years and a Day Rules

In criminal homicide cases, the causation analysis could be complicated by a victim’s survival for an extended time period. Because of modern technology, victims often stay alive on machines for many years after they have been harmed. However, it may be unreasonable to hold a defendant responsible for a death that occurs several years after the defendant’s criminal act. A few states have rules that solve this dilemma.

Some states have either a one year and a day rule The victim must die within one year and a day of the defendant’s criminal act, or the defendant will not be the legal cause of death. or a three years and a day rule The victim must die within three years and a day of the defendant’s criminal act, or the defendant will not be the legal cause of death. . S.C. Code Ann. § 56-5-2910, accessed February 15, 2011, http://www.scstatehouse.gov/code/t56c005.htm . These rules create a timeline for the victim’s death that changes the causation analysis in a criminal homicide case. Under one or three years and a day rules, the victim of a criminal homicide must die within the specified time limits for the defendant to be criminally responsible. If the victim does not die within the time limits, the defendant may be charged with attempted murder , rather than criminal homicide. California makes the timeline a rebuttable presumption that can be overcome with evidence proving that the conduct was criminal and the defendant should still be convicted. Cal. Penal Code § 194, accessed February 14, 2011, http://codes.lp.findlaw.com/cacode/PEN/3/1/8/1/s194 .

Figure 4.10 California Penal Code

Death timeline rules are often embodied in a state’s common law and have lost popularity in recent years. Key v. State , 890 So.2d 1043 (2002), accessed February 15, 2011, http://www.lexisone.com/lx1/caselaw/freecaselaw?action= OCLGetCaseDetail&format=FULL&sourceID=beehed&searchTerm= efiQ.QLea.aadj.eaOS&searchFlag=y&l1loc=FCLOW . Thus many states have abolished arbitrary time limits for the victim’s death in favor of ordinary principles of legal causation. Rogers v. Tennessee , 532 U.S. 541 (2001), accessed February 14, 2011, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-6218 . Death timeline rules are not to be confused with the statute of limitations , which is the time limit the government has to prosecute a criminal defendant.

Figure 4.11 Diagram of the Elements of a Crime

• Factual cause means that the defendant starts the chain of events leading to the harm. Legal cause means that the defendant is held criminally responsible for the harm because the harm is a foreseeable result of the defendant’s criminal act.
• An intervening superseding cause breaks the chain of events started by the defendant’s act and cuts the defendant off from criminal responsibility.
• One and three years and a day rules create a timeline for the victim’s death in a criminal homicide.
• Phillipa sees Fred picking up trash along the highway and decides she wants to frighten him. She drives a quarter of a mile ahead of Fred and parks her car. She then hides in the bushes and waits for Fred to show up. When Fred gets close enough, she jumps out of the bushes screaming. Frightened, Fred drops his trash bag and runs into the middle of the highway where he is struck by a vehicle and killed. Is Phillipa’s act the legal cause of Fred’s death? Why or why not?
• Read Bullock v. State , 775 A.2d. 1043 (2001). In Bullock , the defendant was convicted of manslaughter based on a vehicle collision that occurred when his vehicle hit the victim’s vehicle in an intersection. The defendant was under the influence of alcohol and traveling thirty miles per hour over the speed limit. The victim was in the intersection unlawfully because the light was red. The defendant claimed that the victim was the intervening superseding cause of her own death. Did the Supreme Court of Delaware agree? The case is available at this link: http://caselaw.findlaw.com/de-supreme-court/1137701.html .
• Read Commonwealth v. Casanova , 429 Mass. 293 (1999). In Casanova , the defendant shot the victim in 1991, paralyzing him. The defendant was convicted of assault with intent to murder and two firearms offenses. In 1996, the victim died. The defendant was thereafter indicted for his murder. Massachusetts had abolished the year and a day rule in 1980. Did the Massachusetts Supreme Judicial Court uphold the indictment, or did the court establish a new death timeline rule? The case is available at this link: http://scholar.google.com/scholar_case?case=16055857562232849296&hl=en&as_sdt=2&as_vis=1&oi=scholarr .

4.4 End-of-Chapter Material

Crimes are made up of parts, referred to as elements. The criminal elements are criminal act or actus reus, criminal intent or mens rea, concurrence, causation, harm, and attendant circumstances. Only crimes that specify a bad result require the causation and harm elements.

Criminal acts must be voluntary or controllable and cannot consist solely of the defendant’s status or thoughts. Just one voluntary act is needed for a crime, so if a voluntary act is followed by an involuntary act, the defendant can still be criminally responsible. Omission or failure to act can also be criminal if there is a duty to act based on a statute, contract, or special relationship. Possession is passive, but it can still be a criminal act. The most common items that are criminal to possess are illegal contraband, drugs, and weapons. Possession can be actual if the item is on or very near the defendant’s person, or constructive if within an area of the defendant’s control, like inside the defendant’s house or vehicle. More than one defendant can be in possession of one item. Criminal possession should be supported by the intent of awareness because it is passive.

Criminal intent is an important element because it is often one factor considered in the grading of criminal offenses. The three common-law criminal intents are malice aforethought, which is intent to kill, specific intent, and general intent. Specific intent is the intent to bring about a particular result, a higher level of awareness than is required to perform the criminal act, or scienter, which is knowledge that a criminal act is unlawful. General intent is the intent to do the act and can often give rise to an inference of criminal intent from proof of the criminal act. Motive should not be confused with or replace intent. Motive is the reason the defendant develops criminal intent.

The Model Penal Code describes four criminal states of mind, which are purposely, knowingly, recklessly, and negligently. Purposely is similar to specific intent to cause a particular result. Knowingly is awareness that results are practically certain to occur. Recklessly is a subjective awareness of a risk of harm and an objective and unjustified disregard of that risk. Negligently is not being aware of a substantial risk of harm when a reasonable person would be. Offense elements, including specified attendant circumstances, may require different mental states. If so, the prosecution must prove each mental state for every element beyond a reasonable doubt.

Strict liability crimes do not require an intent element and are generally malum prohibitum, with a less severe punishment. Transferred intent is a legal fiction that transfers a defendant’s criminal intent to an unintended victim for the purpose of fairness. Pursuant to transferred intent, the defendant may be responsible for two crimes: attempt and the completed crime, depending on the circumstances. Vicarious liability transfers a defendant’s criminal liability to a different defendant based on a special relationship. Corporate liability is a type of vicarious liability that holds a corporation responsible for crimes apart from its owners, agents, and employees. Concurrence is also a criminal element that requires the criminal act and criminal intent exist at the same moment.

When the crime requires a bad result, the defendant must cause the harm. The defendant must be the factual and legal cause. Factual cause means that the defendant starts the chain of events that leads to the bad result. Legal or proximate cause means that it is objectively foreseeable that the end result will occur when the defendant commits the criminal act. An intervening superseding cause breaks the chain of events started by the defendant’s criminal act and insulates the defendant from criminal liability. When the intervening superseding cause is an individual, the intervening individual is criminally responsible for the crime. Some states have rules that protect the defendant from criminal responsibility for homicide when the victim lives a long time after the criminal act. These death timeline rules require the victim to die within one or three years and a day from the defendant’s criminal act and are becoming increasingly unpopular. Many states have abolished death timeline rules in favor of ordinary principles of legal causation.

You Be the Law Student

Read the prompt, review the case, and then decide whether the issue is the defendant’s criminal act or criminal intent . Check your answers using the answer key at the end of the chapter.

• Read State v. Andrews , 572 S.E.2d 798 (2002). In Andrews , the defendant took Prozac and Effexor for one day. The next day, the defendant ran his wife and her friend down with his car. After hitting both victims, the defendant jumped out of the car and stabbed his wife three times. He was convicted of attempted murder and assault with a deadly weapon against both victims . He appealed on the grounds that the jury was given an improper instruction as to his criminal responsibility for the crimes committed against his wife’s friend . Did the Court of Appeals of North Carolina hold that this is an issue of criminal act or criminal intent ? The case is available at this link: http://caselaw.findlaw.com/nc-court-of-appeals/1197459.html .
• Read State v. Sowry , 155 Ohio App. 3d 742 (2004). In Sowry , Ohio police arrested the defendant and brought him to jail. Before booking the defendant, the police asked him whether he had any drugs on his person. He responded “no.” The police thereafter searched him and discovered a plastic bag of marijuana in his pocket. The defendant was later convicted of knowingly conveying drugs onto the grounds of a detention facility. The defendant appealed and was successful. Did the Court of Appeals of Ohio hold that this is an issue of criminal act or criminal intent ? The case is available at this link: http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2004/2004-Ohio-399.pdf .
• Read Regalado v. U.S. , 572 A.2d 416 (1990). In Regalado , the defendant was convicted of animal cruelty for punching a puppy repeatedly in the face. The defendant appealed, claiming that he was merely “disciplining” the puppy. Did the District of Columbia Court of Appeals hold that this is an issue of criminal act or criminal intent ? The case is available at this link: http://scholar.google.com/scholar_case?case=10084482120424691457&hl=en&as_sdt=2&as_vis=1&oi=scholarr .
• Read State v. Slayton , 154 P.3d 1057 (2007). In Slayton , the defendant received a hunting permit, hired a guide, and thereafter shot an elk and carried it out of the area. The defendant’s hunting permit was valid in only a limited location, and the defendant shot the elk outside that location. The defendant was convicted of unauthorized hunting and transporting wildlife. The Arizona Superior Court vacated the defendant’s convictions, the state appealed, and the Court of Appeals of Arizona reversed. Did the Court of Appeals of Arizona hold that this is an issue of criminal act or criminal intent ? The case is available at this link: http://scholar.google.com/scholar_case?case=13377680343653410685&q= State+v.+Slayton&hl=en&as_sdt=2,5&as_ylo=2006 .

Cases of Interest

• State v. Kanavy , 4 A.3d 991 (2010), discusses omission to act: http://scholar.google.com/scholar_case?case=13238547420575358722&q= State+v.+Kanavy&hl=en&as_sdt=2,5&as_vis=1 .
• U.S. v. Grajeda , 581 F.3d 1186 (2009), discusses criminal intent: http://scholar.google.com/scholar_case?case=10326332733812062874&hl=en&as_sdt=2&as_vis=1&oi=scholarr .
• People v. Roberts , 826 P.2d 274 (1992), discusses proximate cause: http://scholar.google.com/scholar_case?case=128455976362726317&hl=en&as_sdt=2&as_vis=1&oi=scholarr .

Articles of Interest

• The duty to rescue: http://www.utexas.edu/law/journals/tlr/abstracts/84/84hyman.pdf
• Strict liability: http://www.bu.edu/law/central/jd/organizations/journals/bulr/volume86n2/documents/CARPENTERv2.pdf
• Vicarious liability: http://www.nj.com/news/index.ssf/2010/05/jury_finds_godinez_guilty_in_n.html

Websites of Interest

• State and federal laws and cases: http://law.onecle.com
• State and federal laws and cases: http://www.findlaw.com

Answers to Exercises

From Section 4.1 "Criminal Elements"

• Jacqueline can be convicted of a crime in this situation. Although an epileptic seizure is not a voluntary act, Jacqueline’s conduct in driving while aware that she has epilepsy is . Only one voluntary act is required for a crime, and Jacqueline was able to control her decision making in this instance. Punishing Jacqueline for driving with epilepsy could specifically deter Jacqueline from driving on another occasion and is appropriate under the circumstances.
• The Texas Court of Appeals upheld the defendant’s indictment and conviction. The court stated that the defendant’s conduct in deliberately seeking out four physicians and presenting his medical problem to them with the intent to gain a prescription for a controlled substance in violation of Texas law is a criminal act , not an omission to act .
• The US Supreme Court reversed the defendant’s conviction and held that the prosecution must prove that the defendant knew the weapon was automatic to convict him of failure to register an automatic weapon.

From Section 4.2 "Criminal Intent"

• Jordan is acting recklessly or negligently . If Jordan is an experienced driver, then she knows that there is a substantial risk of injury or harm when a driver takes his or her eyes off the road. If Jordan is not an experienced driver, she may not be aware of the risk, but she should be because she has been trained to drive and has passed exams and practical driving tests that emphasize this fact. Whether Jordan’s intent is reckless or negligent is probably irrelevant because most states make running a stop sign a strict liability offense with no criminal intent required.
• The US Supreme Court reversed the defendant’s conviction. The Court disagreed with the lower court that this was a strict liability public welfare offense and determined that a presumption of intent was inappropriate. The Court held that criminal intent was an element of the offense that the trier of fact needed to find beyond a reasonable doubt.
• The Oregon Supreme Court reversed and held that the substantial risk applied to the victim’s death (bad result), not the victim’s bedsores (attendant circumstances).
• The Ohio Supreme Court held that the indictment was valid and that the statute clearly intended for aggravated robbery to be a strict liability offense lacking mens rea.

From Section 4.3 "Causation and Harm"

• Phillipa’s act is the factual and legal cause of Fred’s death. Phillipa’s act in jumping out of the bushes screaming caused Fred to run onto the highway, so Phillipa’s act is the factual cause of Fred’s death. In addition, a reasonable person could foresee that frightening someone next to a major highway might result in them trying to escape onto the highway, where a vehicle traveling at a high rate of speed could hit them. Thus Phillipa’s act is also the legal cause of Fred’s death.
• The Delaware Supreme Court reversed the defendant’s conviction based on a jury instruction that did not include the victim’s actions . The Delaware Supreme Court held that the defendant’s acts could not be the legal cause of death unless the result of the defendant’s acts was foreseeable. Foreseeability in this case could only be analyzed if the jury instructions address the victim’s behavior.
• The Massachusetts Supreme Judicial Court upheld the defendant’s indictment, and did not create a new death timeline rule.

Answer to Law and Ethics Question

• Although ten years is a lengthy prison sentence, it may be ethical even for a criminal act committed without criminal intent if there is a potential for harm . In Dean , the defendant may have discharged the firearm unintentionally, but there was a great potential for injury. The defendant was inside a bank filled with employees and customers. Although the defendant’s shot did not cause physical injury to any of the bank’s occupants, this was mere happenstance. The defendant could have shot and killed someone. If a security guard was startled by the gunshot, a shootout may have occurred, injuring many more individuals. Thus punishing a defendant for an act that lacks criminal intent (and harm) could fulfill specific and general deterrence . Criminal intent and harm are only two factors to be considered when grading crimes. If other purposes of punishment are applicable, they can also be considered as factors.

Answers to You Be the Law Student

• The Court of Appeals of North Carolina held that the defendant was criminally responsible for hitting his wife’s friend under a theory of transferred intent . Thus this is an issue of criminal intent . The Court of Appeals held that transferred intent applies even when the defendant injures the intended victim.
• The Court of Appeals of Ohio held that the defendant did not choose to bring drugs to the jail; the police forcibly took him there. Thus there was no voluntary criminal act .
• The District of Columbia Court of Appeals affirmed the defendant’s conviction, holding that the animal cruelty statute required proof of general intent plus malice , which the defendant demonstrated with his beating of the puppy. Thus this is an issue of criminal intent .
• The Court of Appeals of Arizona held that the statutes the defendant violated are strict liability , so the fact that the defendant may have been mistaken as to the limited location authorized by his hunting permit is irrelevant . Thus this is an issue of criminal intent .

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Three Elements of Crime

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Concurrence.

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1.1 Introduction

Learning objective.

• Define a crime.

This textbook introduces you to our legal system in the United States, the basic elements of a crime, the specific elements of commonly encountered crimes, and most criminal defenses. Criminal law always involves the government and government action, so you will also review the pertinent sections of the United States Constitution and its principles as they apply to criminal law. By the end of the book, you will be comfortable with the legal framework that governs the careers of criminal justice professionals.

Definition of a Crime

Let’s begin at the beginning by defining a crime . The most basic definition of a crime is “an act committed in violation of a law prohibiting it, or omitted in violation of a law ordering it” (Yourdictionary.com, 2010). You learn about criminal act and omission to act in Chapter 4 “The Elements of a Crime” . For now, it is important to understand that criminal act, omission to act, and criminal intent are elements or parts of every crime. Illegality is also an element of every crime. Generally, the government must enact a criminal law specifying a crime and its elements before it can punish an individual for criminal behavior. Criminal laws are the primary focus of this book. As you slowly start to build your knowledge and understanding of criminal law, you will notice some unique characteristics of the United States’ legal system.

Laws differ significantly from state to state. Throughout the United States, each state and the federal government criminalize different behaviors. Although this plethora of laws makes American legal studies more complicated for teachers and students, the size, cultural makeup, and geographic variety of our country demand this type of legal system.

Laws in a democratic society, unlike laws of nature, are created by people and are founded in religious, cultural, and historical value systems. People from varying backgrounds live in different regions of this country. Thus you will see that different people enact distinct laws that best suit their needs. This book is intended for use in all states. However, the bulk of any criminal law overview is an examination of different crimes and their elements. To be accurate and representative, this book focuses on general principles that many states follow and provides frequent references to specific state laws for illustrative purposes. Always check the most current version of your state’s law because it may vary from the law presented in this book.

Laws are not static . As society changes, so do the laws that govern behavior. Evolving value systems naturally lead to new laws and regulations supporting modern beliefs. Although a certain stability is essential to the enforcement of rules, occasionally the rules must change.

Try to maintain an open mind when reviewing the different and often contradictory laws set forth in this book. Law is not exact, like science or math. Also try to become comfortable with the gray area, rather than viewing situations as black or white.

Key Takeaway

• A crime is an act committed in violation of a law prohibiting it or omitted in violation of a law ordering it. In general, the criminal law must be enacted before the crime is committed.

Answer the following question. Check your answer using the answer key at the end of the chapter.

• Read Gonzales v. Oregon , 546 U.S. 243 (2006). Did the US Supreme Court preserve Oregon’s right to legalize physician-assisted suicide? The case is available at this link: http://www.law.cornell.edu/supct/html/04-623.ZS.html .

Yourdictionary.com, “Definition of Crime,” accessed August 15, 2010, http://www.yourdictionary.com/crime .

Criminal Law Copyright © 2015 by University of Minnesota is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

Born a Crime

By trevor noah, born a crime essay questions.

What role does language play in Trevor Noah's experience of growing up in South Africa?

Noah does not fit readily into any community or culture, and he often feels isolated and lonely as a result. He learns that while people cannot control their skin color or appearance, they can make an effort to learn different languages, and he comes to notice that “language, even more than color, defines who you are to people” (p. 56). By speaking different languages, Noah is able to gain acceptance with different groups who initially treat him like an outsider and mistrust or even threaten him. While it cannot provide him with a deep sense of belonging, speaking multiple languages allows him to build connections, be adaptable, and fit in with different people. He notes that he gained this skill from watching his mother: “I learned to use language like my mother did . . . It became a tool that served me my whole life” (p. 55).

How does Trevor Noah's relationship with his father evolve over time?

When Patricia first wants to conceive a child, she reassures Robert that he does not have to be involved in the child's life at all. However, after Noah is born, Robert realizes he does want to play a role in his son's life. Although he cannot openly own the relationship because it is technically illegal for him to be the father of a mixed-race child, Robert makes an effort to regularly spend time with his son, and the two have an affectionate relationship. However, as Noah gets older, the two drift apart, and the presence of Abel in Noah's life also makes maintaining a relationship more complicated. Robert eventually moves to another city, and the two lose touch entirely. Patricia, however, insists that Noah track Robert down, explaining that “‘he’s a piece of you [...] and if you don’t find him you won’t find yourself’” (p. 101). When he is twenty-four, Noah reconnects with his father and is moved to find out that Robert knows all about his career and has been taking an interest in him. He knows it will take time to rebuild their relationship, but he is open to trying.

How is criminal activity depicted in the memoir?

Noah grows up in a world where violence is a regular occurence, and he is taught by his mother not to let a fear of criminal activity prevent him from living his life. He does not, however, have much direct exposure to petty crime until he starts spending time in a notoriously rough and impoverished neighborhood called Alexandra. He realizes there that for people in poverty, engaging in criminal activity can be morally ambiguous since they have few or no other options. As Noah explains, "Crime does the one thing the government doesn’t do: crime cares. Crime is grassroots. Crime looks for the young kids who need support and a lifting hand. Crime offers internship programs and summer jobs and opportunities for advancement. Crime gets involved in the community. Crime doesn’t discriminate” (p. 209). Nonetheless, he eventually realizes that hustling and petty crime are not going to get him anywhere in life and that things like theft are hurtful to the victims.

What is Trevor Noah's view of his mother? Does it change over time? If so, how? If not, what accounts for that constancy?

As a child, Noah is often frustrated by his mother's strict discipline and attempt to monitor his behavior. However, he also loves when they have fun together, and he appreciates how she makes everyday life adventurous. Even from a young age, Noah knows that his mother will stand up for him when she believes in his perspective, and that she expects people to treat him with respect. As he grows older, Noah appreciates his mother's strength and resilience, but he also becomes frustrated as to why she chooses to stay with Abel even after Abel becomes abusive. Eventually, Noah grows apart from his mother because he cannot relate to her decisions. However, he always sees her as the center of his life and feels loving and protective towards her. As he grows older, he comes to see that people are complex, and he develops more respect for the way his mother has lived her life.

What role does domestic violence play in the memoir?

Noah gradually introduces the theme that his stepfather Abel physically abuses both him and his mother. He sees this specific form of violence as part of a wider pattern of violence, exacerbated by social factors. Abel's problems with alcohol and violence are exacerbated by the fact that he is unsuccessful in his career and feels emasculated by the fact that Patricia is the breadwinner in the family. His traditional ideology around gender roles also makes him angry when Patricia refuses to listen to him or be submissive. While Noah clearly sees Abel as personally responsible for the violence he commits, he also notes that the legal and police systems in South Africa neither help nor support his mother. Patricia tries to report the violence, but the police refuse to help her, and her own mother encourages her to stay with her abusive husband. All of this context means that Patricia has few options for recourse.

Born a Crime Questions and Answers

The Question and Answer section for Born a Crime is a great resource to ask questions, find answers, and discuss the novel.

What 3 things does trevor say they always had

Chapter please?

Explain Trevor's rationale for identifying Soweto driveways as a metaphor for Soweto's hope. What symbol do you indentify with hope? Explain why you chose this symbol

Trevor's rationale for identifying Soweto driveways as a metaphor for Soweto's hope is that the driveways represent tiny steps towards progress. He sees the driveways as symbols of transformation and possibility: even small changes can lead to big...

What rhetorical choice is used when Trevor Noah says that South Africa is a mix of old and new?

South Africa is a mix of the old and the new, the ancient and the modern, and South African Christianity is a perfect example of this. We adopted the religion of our colonizers, but most people held on to the old ancestral ways, too, just...

Study Guide for Born a Crime

Born a Crime study guide contains a biography of Trevor Noah, literature essays, quiz questions, major themes, characters, and a full summary and analysis.

• About Born a Crime
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Specifications that use this resource:

• AS and A-level English Literature B 7716; 7717

Specimen question commentary

An explanation of how a question taken from the specimen assessment material addresses the assessment objectives, with suggestions of how the task might be approached.

This is not intended to be an exhaustive list of every point that could be made, but the explanation will provide a workable way into the question and the intention is to offer some support for teachers preparing students for the examination.

This type of question from Section A of Paper 2 Elements of crime writing invites students to respond to an unseen text which contains elements of the crime writing genre.  Students need to apply their knowledge of the genre to the given text. One hour is recommended for this question and students should read the passage carefully, at least twice, before they start writing. They need to be taught how to annotate the passage in a way that will be helpful to them.

Sample question

Explore the significance of the crime elements in this extract. Remember to include in your answer relevant detailed analysis of the ways that Hill has shaped meanings.

This extract is taken from the early part of Susan Hill's novel, A Question of Identity (published in 2012). The witnesses have just given their evidence in a murder trial. The accused, Alan Keyes, has pleaded not guilty. Two crime reporters, Charlie Vogt and Rod Hawkins, are awaiting the verdict with every expectation of a conviction.

How the question meets the Assessment Objectives

In this question, as throughout the paper, all the assessment objectives are assessed. It needs to be noted how the question targets the assessment objectives so that if teachers are designing their own questions, they can follow the pattern established here.  All AOs are targeted through the words 'significance of the crime elements' though there is an additional reminder to students to focus on AO2: 'Remember to include in your answer relevant detailed analysis of the ways that Hill has shaped meanings.' Note the expectation for students to 'analyse'. This is because they have the passage in front of them and can extract relevant details for comment. As the extract comes from a novel, students will be expected to focus on narrative methods. AO1 will be tested through the way the students organise their writing and express their ideas as they are analysing and exploring significance. In addressing 'significance', students will be thinking about contextual factors that arise in the passage (AO3) and engaging in debate about possible meanings (AO5).  AO3 will be addressed through the students showing their understanding of both the crime writing and modern contexts of A Question of Identity; and in the way they will elicit from the extract contextual ideas about when the text was written and how it might be received. AO5 will be addressed when students grapple with meanings that arise about crime writing in the extract. Finally, in writing about and engaging with elements of crime writing, AO4 will be hit as students will be connecting with concepts of the crime writing genre (and other crime texts) through the 'elements' which they are exploring.

Possible content

The possible content of the mark scheme provides some ideas that students might write about. However, there are clearly many others and if students have a good understanding of the crime writing genre they will be able to identify a number of different elements in the passage.

Central to the genre is the setting of the scene in a courtroom and the characters (and readers) are awaiting a judgement on a murder trial. The use of court reporters helps to establish the modern context of the novel. The reporters are used in a narrative sense to commentate on proceedings. There is also focalisation through Charlie which offers an interesting narrative perspective. By focusing on those awaiting the verdict, Hill is able to build up suspense, a key crime writing element. It could also be relevant for students to note how Hill uses Charlie, to speculate on the accused murderer. Charlie describes Keyes' hands and draws the readers' attention to the crime for which he is being tried: the strangulation of elderly women. Juries are crucial to court room dramas and Hill describes the jury returning to announce their verdict. Hill re-creates, through Charlie, the imagined fear of one of the jury women, fear again being a key crime element. In this modern crime text, Hill focuses on the impact crime has on the relatives of victims, perhaps showing how crimes have a wide and lasting impact on families and communities. Trials in crime writing texts are often theatrical events and Hill dramatises the happenings here in a way that is much like a courtroom drama, a kind of spectacle. The climactic moment of the extract is when the jury returns its not guilty verdict which is clearly a shock for the observers.

Significance

In writing about any of the above points students will need to explore how the elements work in Hill's narrative, how meanings and ideas arise from them. For example, there is a sense that because the verdict of not guilty appears at the start of the novel, this is not the end of the matter and there will be consequences. There is also a sense that the crime reporters' expectations and shock will lead to further investigations and that perhaps the later narrative will go in this direction. Students might choose to develop ideas about Hill's focus on the jury, and perhaps write about the unpredictability of juries. In writing about the crime element of victims, discussion might focus on sympathy for the relatives who will have to ensure further trials. Students might develop ideas about the verdict and the apparent killer, Alan Keyes, who is found not guilty of the crimes and yet no sympathy is created for him in this passage. Students of course might voice different views on the judgements here and on those who are making judgements. The crimes themselves might also be discussed and students could argue that murder is always horrible and its impact goes on beyond the point of murder. The preamble to the passage gives the context of Hill's novel and students might include comments about modern crime writing texts and how in a trial in 2002 men and women have equal status: there is almost an equal share of women to men on the jury and there is a junior female barrister. Even though Hill makes her judge a male, students might say that it would be perfectly feasible to have a female judge in the 21st century. Comment might be made about how such a trial would have been represented differently by crime writers in earlier times or in different historical periods (Charlie, himself, recalls the jury his father had served on being largely middle-aged and largely male).

Narrative method

Comments on method need to be embedded into the argument about the significance of crime elements. Writing about AO2 should not be an exercise in feature spotting. Perhaps one of the most telling methods here is the way tension and suspense are created through the structure of the passage and through the focalisation of Charlie. It might also be relevant to incorporate comments on Hill's direct uncluttered style and on her use of imagery: 'like greyhounds in the slips' suggests the eagerness with which the reporters await the verdict. In writing about the modern context of the novel, students might focus on Hill's method of using Charlie's address to himself about the excitement of the trial to foreground the postmodern nature of the text which draws attention to its own artifice and the creation of fiction (Charlie ironically thinks the scene is 'better than any film, better than any book').  If students choose to write about the theatricality of the court room scene, they could sensibly comment on Hill's  use of voices, her use of minor sentences to reflect speech, her use of legalistic language and phrasing – 'innocent until proven guilty', the  staccato sentences, her use of questions and answers and the shock perhaps of the not guilty verdict.  If students choose to write about the modern context of the novel in relation to crime writing they might comment on Hill's reference to real criminals - Hindley and Brady - and the impact such references might have on readers, perhaps shaping judgements here.

This resource is part of the Elements of crime writing resource package .

Document URL https://www.aqa.org.uk/resources/english/as-and-a-level/english-literature-b/teach/crime-writing-specimen-question-commentary-2a-a

Last updated 16 Dec 2022

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Trump Rallied in Battleground Georgia, as Harris Mulled Her V.P. Choice

Donald J. Trump and his running mate, Senator JD Vance of Ohio, campaigned in the same Atlanta arena where Kamala Harris held an event this week. She is expected to announce her running mate by Tuesday.

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Neil Vigdor

At Atlanta rally, Trump says Georgia’s governor is hampering his efforts to win there.

Former President Donald J. Trump suggested without evidence on Saturday that Georgia’s Republican governor was hampering his efforts to win the battleground state in November, a claim that carried echoes of Mr. Trump’s attempt to overturn his defeat to President Biden there in 2020.

“In my opinion, they want us to lose,” Mr. Trump said, accusing the state’s governor, Brian Kemp, and its secretary of state, Brad Raffensperger, who is also a Republican, of being disloyal and trying to make life difficult for him.

At a rally at the Georgia State University Convocation Center in Atlanta, in a speech that lasted more than 90 minutes and that was peppered with grievances about his loss four years ago, Mr. Trump falsely claimed, “I won this state twice,” referring to the 2016 and 2020 elections.

Mr. Trump lost to Mr. Biden by roughly 12,000 votes in Georgia in 2020. Last year, the former president was indicted by an Atlanta grand jury on charges related to his efforts to subvert the results of that election in that state. On Saturday, he complained that he might have avoided legal jeopardy if Mr. Kemp and Mr. Raffensperger had cooperated with his attempts to reverse the 2020 results.

Mr. Trump added that he thought Georgia had slipped under Mr. Kemp’s leadership. “The state has gone to hell,” he said.

Mr. Kemp, who indicated in June that he had not voted for Mr. Trump in the Republican primary this year, said on X that his focus is “on winning this November” and “not engaging in petty personal insults, attacking fellow Republicans, or dwelling on the past.”

“You should do the same, Mr. President, and leave my family out of it,” he said, sharing a social media message that Mr. Trump had posted earlier Saturday in which he jabbed at Mr. Kemp and Mr. Kemp’s wife.

Mr. Raffensperger shared a screenshot of the same post from Mr. Trump and said : “History has taught us this type of message doesn’t sell well here in Georgia, sir.”

Mr. Trump held his rally in Atlanta in the same arena where his Democratic opponent, Vice President Kamala Harris, held a rally earlier in the week. Both candidates filled the complex, which holds 8,000 people, though Mr. Trump, who has long bragged about his ability to draw overflow crowds, questioned whether Ms. Harris’s supporters had in fact come to hear the hip-hop star Megan Thee Stallion, who performed at that event.

Mr. Trump recalled that Bruce Springsteen had performed at a rally for Hillary Clinton in 2016 . “I’m not a huge fan,” he said of Mr. Springsteen. “I have a bad trait. I only like people that like me.”

Mr. Trump, who was preceded onstage by his running mate, Senator JD Vance, repeatedly leveled personal attacks against Ms. Harris. He mocked the pronunciation of her first name, insulted her intelligence and communication skills, and called her a “radical left freak.”

“Kamala,” Mr. Trump said, enunciating with derision the syllables of her name. “You know there’s about 19 different ways of saying it. She only likes three.”

The Harris campaign provided a statement on Saturday night from Geoff Duncan, a Republican who was the lieutenant governor of Georgia during the 2020 election, denouncing Mr. Trump.

“Tonight, we heard a particularly unhinged, angry version of the same Donald Trump that Georgia rejected in 2020,” said Mr. Duncan, who has endorsed Ms. Harris.

Mr. Trump, who has been criticized for his past praise of dictators and authoritarian leaders, also suggested that Russia had managed to get the better end of a major prisoner swap with the Biden administration this week, which resulted in the release of the Wall Street Journal reporter Evan Gershkovich and the security contractor Paul Whelan.

“I’d like to congratulate Vladimir Putin for having made yet another great deal,” Mr. Trump said of the Russian president.

He added: “Boy, we make some horrible, horrible deals.”

Jonathan Weisman and Reid J. Epstein

Harris to interview V.P. contenders in final test of chemistry.

Vice President Kamala Harris will meet with top candidates to serve as her vice president on Sunday, closing out her search for a running mate with a test of whether she and her potential new partner click.

At least three leading candidates — Senator Mark Kelly of Arizona, Gov. Tim Walz of Minnesota and Gov. Josh Shapiro of Pennsylvania — are scheduled to meet with Ms. Harris on Sunday at her residence at the Naval Observatory, in Washington, according to several people briefed on the plans who spoke on the condition of anonymity to discuss the private meetings.

It was unclear whether other potential candidates — including Gov. Andy Beshear of Kentucky and Transportation Secretary Pete Buttigieg — were also on the schedule, or if they had already met with Ms. Harris.

The in-person meeting, described as a “chemistry test,” is a final step in the search, but one that Ms. Harris is expected to put considerable stock in. Aides and associates have said that she often prioritizes personal rapport with her staff and advisers.

Ms. Harris is also searching for a running mate who will help her win. Among the finalists are two popular state leaders from battleground states, Mr. Kelly and Mr. Shapiro, and several politicians with a record of appealing to moderates and voters in Republican areas. Ms. Harris, a California Democrat, has scant experience winning over Republicans.

The assets and liabilities of the three candidates on her schedule on Sunday vary. Mr. Kelly is a swing-state senator with an impressive résumé and moderate positions on immigration that might help neutralize a problematic issue for Democrats. Mr. Shapiro is broadly popular in Pennsylvania, arguably a must-win state. But he has faced criticism from the left, especially from pro-Palestinian activists, over his support for Israel and his handling of college protests over the war in Gaza.

Mr. Walz is a fairly new face, even to most Democrats, but he has recently become a favorite among progressives who relish his folksy takedowns of former President Donald J. Trump on cable news. Minnesota, however, is unlikely to be critical to Ms. Harris’s path to the White House.

Ms. Harris’s search has been unusually accelerated. It began in earnest just two weeks ago, shortly after President Biden withdrew from the race and endorsed her to replace him. The vetting — a deep investigation of the candidates’ personal, financial and political lives — was completed by Covington & Burling, a Washington law firm, on Thursday.

Finalists for the job were briefed by Harris campaign advisers about whatever information was found — or not found — by the firm, according to a person close to one of the finalists. They will be told either Monday night or Tuesday morning whether they were picked.

The Harris campaign has said it will announce its choice before she and her new running mate start a cross-country tour with a rally in Philadelphia on Tuesday.

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Donald J. Trump just wrapped up his remarks at a rally in Atlanta, where he repeatedly attacked Vice President Kamala Harris over immigration, crime and inflation in a meandering speech that lasted more than 90 minutes.

At his rally in Georgia, a state he won in 2016 but lost to President Biden in 2020, former President Donald J. Trump is relitigating his defeat in the last election. “I won this state twice,” he falsely claimed. Trump also attacked Georgia’s governor, Brian Kemp, and its secretary of state, Brad Raffensperger, two Republicans who defied his bid to overturn his defeat. He suggested, without evidence, that they were making life difficult for him in the 2024 election. “In my opinion, they want us to lose.”

Ken Bensinger and Jim Rutenberg

Doug Emhoff, Kamala Harris’s husband, acknowledges a long-ago affair.

Doug Emhoff, the husband of Vice President Kamala Harris, said on Saturday that he had an extramarital affair during his first marriage, years before he met Ms. Harris.

The acknowledgment, which was released in a statement, came hours after a British tabloid reported that Mr. Emhoff had a previously undisclosed relationship with a teacher who worked at the elementary school his children attended in Culver City, Calif., approximately 15 years ago.

At the time, Mr. Emhoff, an entertainment lawyer, was married to Kerstin Emhoff, a film producer, with whom he had two children. The couple filed for divorce in 2009. Mr. Emhoff met Ms. Harris in 2013, and they married the following year.

“During my first marriage, Kerstin and I went through some tough times on account of my actions,” Mr. Emhoff said in the statement. “I took responsibility, and in the years since, we worked through things as a family and have come out stronger on the other side.”

The Biden campaign was aware of the affair before it decided to tap Ms. Harris as vice president in 2020, according to a person familiar with the vetting process, who spoke on condition of anonymity. In addition, this person said that Ms. Harris knew of the affair before she married Mr. Emhoff in 2014.

According to an article published by The Daily Mail on Saturday, Mr. Emhoff had the relationship with a woman who at the time worked as a teacher at The Willows Community School, a private school in west Los Angeles.

The woman, who now lives on Long Island, did not respond to messages seeking comment.

In the years since their divorce, Mr. Emhoff and his ex-wife have frequently referred to each other as friends, and they have said they have worked to raise their children with Ms. Harris , whom they call a “co-parent.”

Ms. Emhoff also has lately defended Ms. Harris. After Senator JD Vance, Republican of Ohio, was named the vice-presidential nominee, critics began resurfacing remarks he made in 2021 claiming the country was run by “childless cat ladies,” including Ms. Harris. Ms. Emhoff called the attacks “baseless” and praised the vice president’s role in her family.

The former couple’s two children, now both adults, have also defended the vice president’s role in their upbringing. Ella Emhoff, in a social media post last week, wrote “how can you be ‘childless’ when you have cutie pie kids like Cole and I,” referring to herself and her brother.

In another statement on Saturday, Ms. Emhoff also addressed her husband’s affair, but stopped short of blaming it for their divorce.

“Doug and I decided to end our marriage for a variety of reasons, many years ago,” Ms. Emhoff said. “He is a great father to our kids, continues to be a great friend to me and I am really proud of the warm and supportive blended family Doug, Kamala and I have built together.”

Mr. Emhoff, who left his law practice when Ms. Harris was elected as President Biden’s vice president, has become an integral and prominent part of Ms. Harris’s political operation. On Friday he co-hosted a fund-raiser on Fire Island for the campaign, along with Chasten Buttigieg, the husband of Pete Buttigieg, the transportation secretary, which the Democratic National Committee said had raised $321,000.

At his rally in Atlanta, Donald J. Trump returned to a favorite preoccupation of his campaign speeches: crowd size. He argued that his Democratic opponents, from Hillary Clinton in 2016 to Vice President Kamala Harris in 2024, needed celebrity headliners to fill arenas. He harkened back to the 2016 election when Bruce Springsteen performed at a rally for Clinton. “I’m not a huge fan,” Trump said of the Boss. He added: “I only like people that like me.”

Vice President Kamala Harris held a rally in this same arena on Tuesday, when roughly 10,000 people attended. The arena is filled again tonight, but Trump has repeatedly complained that officials with the complex would not allow in all of the people who had lined up to attend.

Jonathan Weisman

Abed Ayoub, a Palestinian-rights activist in Michigan, confirmed on Saturday that he was a finalist to be the Green Party presidential candidate Jill Stein’s running mate. Al Jazeera reported that Ayoub, the executive director of the American-Arab Anti-Discrimination Committee, and two other Palestinian-rights activists, were the finalists, suggesting that Stein was determined to make it that much tougher for Vice President Kamala Harris to win battleground Michigan, which has a large Arab American population.

Former President Donald J. Trump, who has been criticized for his past praise of dictators and authoritarian leaders, suggested during his Atlanta rally that Russia got the better end of a major prisoner swap with the Biden administration this week that resulted in the release of the Wall Street Journal reporter Evan Gershkovich and the security contractor Paul Whelan. “I’d like to congratulate Vladimir Putin for having made yet another great deal,” Trump said of the Russian president. He added: “Boy, we make some horrible, horrible deals.”

Former President Donald J. Trump is taking the stage at a campaign rally in Atlanta, where he was introduced by his running mate, Senator JD Vance of Ohio.

Shawn McCreesh

Senator JD Vance of Ohio is speaking here at the Trump rally in Atlanta. He says that when Vice President Kamala Harris and the Democrats make fun of him for being “weird,” it’s evidence of their elitist, sneering, condescending worldview — of a piece with Hillary Clinton’s “basket of deplorables” comment in 2016 and Barack Obama’s remark in 2008 about “bitter” working-class voters who “cling to guns or religion or antipathy to people who aren’t like them.” The crowd gave Vance a thundering reception.

Reid J. Epstein

Gov. Tim Walz, Democrat of Minnesota and a contender to be Vice President Kamala Harris’s running mate, has canceled a planned trip to New Hampshire on Sunday, his spokesman, Teddy Tschann, said. “The governor’s schedule has changed,” Tschann said.

Former President Donald J. Trump will soon take the stage here at the Georgia State Convocation Center, the same arena in Atlanta where Kamala Harris held a packed rally on Tuesday. It’s totally filled for Trump, too, but the crowd is overwhelmingly white, except in one spot — the section directly behind the stage that is in full view of the broadcast cameras. Representatives Mike Collins and Marjorie Taylor Greene are here as warm-up acts. “Kamala Harris is like the Stacey Abrams of California,” Collins told the crowd, referring to the voting-rights activist who twice lost the governor's race. “Georgia didn’t want Stacey, and we don’t want Kamala.”

Ahead of his rally in Atlanta on Saturday, former President Donald J. Trump renewed his grievances with two Georgia elected officials, both Republicans, who rejected his bid to overturn his election defeat in the battleground state in 2020. In a social media post, he called on Brad Raffensperger, the secretary of state, to “do his job,” and he amplified his false claims about election fraud. Trump also attacked the governor, Brian Kemp: “His Crime Rate in Georgia is terrible, his Crime Rate in Atlanta is the worst, and his Economy is average.”

A campaign official for Vice President Kamala Harris accused Donald J. Trump on Saturday of scheming up a Sept. 4 debate on Fox News to avoid a debate scheduled for six days later on ABC News that Trump had committed to before President Biden dropped out of the race. “We’re happy to discuss further debates after the one both campaigns have already agreed to,” Michael Tyler, the Harris campaign’s communications director, said. “Mr. Anytime, Anywhere, Anyplace should have no problem with that unless he’s too scared to show up on the 10th.”

Nicholas Nehamas

As the Harris campaign brings on new top-level aides , it is also hiring staff members in battleground states. In the next two weeks, the campaign will add 150 people to its staff in the blue wall states of Michigan, Pennsylvania and Wisconsin, and “more than double our staff in Arizona and North Carolina,” according to a memo from Dan Kanninen, the campaign’s battleground states director. The memo says that the campaign currently has more than 1,400 staff members across the swing states.

Neil Vigdor Maggie Haberman and Simon J. Levien

Trump cancels a debate with Harris on ABC News and pitches one with Fox News instead.

Former President Donald J. Trump declared late on Friday that he was dropping out of an ABC News debate scheduled for Sept. 10 and presented a counterproposal to Vice President Kamala Harris, his presumptive opponent, to face off on Fox News six days earlier.

The change, which Mr. Trump announced on his social media site, Truth Social, raised objections from the Harris campaign and appeared to throw a potential showdown between the rivals into question.

A campaign official for Ms. Harris on Saturday accused Mr. Trump of scheming up the Fox News debate to distract from reneging on his commitment to the ABC debate. Mr. Trump had agreed to that debate in May, before President Biden dropped out of the race and before Mr. Biden’s calamitous performance in a CNN debate on June 27.

“Donald Trump is running scared and trying to back out of the debate he already agreed to and running straight to Fox News to bail him out,” Michael Tyler, the communications director for the Harris campaign, said in a statement. “He needs to stop playing games and show up to the debate he already committed to on Sept 10.”

Mr. Tyler said that the Harris campaign was open to discussing further debates if Mr. Trump honored his commitment to the ABC debate.

“Mr. Anytime, Anywhere, Anyplace should have no problem with that unless he’s too scared to show up on the 10th,” he said.

A spokesman for ABC News would not say whether the network would go ahead with its debate and give time only to Ms. Harris. In a post on X on Saturday, Ms. Harris said: “I’ll be there on September 10th, like he agreed to. I hope to see him there.”

A spokesman for the Trump campaign did not immediately respond to a request for comment on Saturday. Representatives for Fox News did not respond to questions.

Mr. Trump has repeatedly railed against ABC News, which he is suing for defamation, a case that a federal judge in Florida recently allowed to move forward . He has attacked George Stephanopoulos, the host of “This Week” on ABC, who did the first television interview with Mr. Biden after his debate performance. He also turned combative toward Rachel Scott of ABC News during a question-and-answer session on Wednesday at a convention of Black journalists in Chicago.

Mr. Trump has appeared to be struggling to find his footing since Mr. Biden left the race, despite the fact that Democrats had been increasingly calling for such a change since the president’s debate performance.

He has tested out a series of nicknames against Ms. Harris and has made clear he would rather attack her personally and focus the public discussion on her race — Ms. Harris’s father was born in Jamaica and her mother in India — than attempt to tie her to the Biden administration’s record or her own record as a prosecutor in California.

Mr. Trump, who spent nearly 16 months getting nonstop attention since he was first criminally indicted in March 2023, has also struggled to try to inject himself back into the headlines at a moment when Ms. Harris is enjoying a political honeymoon. By canceling the ABC debate, Mr. Trump has put himself back in the news cycle.

According to Mr. Trump’s post on his social media site, the Fox News debate would take place on Sept. 4 at a to-be-determined location in Pennsylvania, one of the most consequential battleground states. The network’s anchors Bret Baier and Martha MacCallum would moderate.

Mr. Trump said on social media that the Fox News debate would have a live audience; the previous debate between him and Mr. Biden was hosted by CNN in an empty venue. Though both campaigns agreed to the format of the first debate, Mr. Trump had bemoaned the lack of a crowd.

He added that the rules would be similar to the CNN debate, though he did not specify which rules. The candidates’ microphones in the June debate were muted when it was not their turn to speak to prevent interruptions.

Mr. Trump also said that he was “totally prepared to accept” Ms. Harris as the Democrats’ new candidate. Since her campaign suddenly took shape after Mr. Biden dropped out of the race about two weeks ago, Mr. Trump has characterized her ascendancy as a “coup” within the Democratic Party. In his debate announcement, the former president complained about the shake-up.

“I spent Hundreds of Millions of Dollars, Time, and Effort fighting Joe, and when I won the Debate, they threw a new Candidate into the ring,” Mr. Trump said on his social media site on Friday, adding that he hoped to tie Ms. Harris to Mr. Biden’s policies.

The Sept. 4 date is close to the start of some states’ early voting windows and long after Ms. Harris has clinched the nomination from her party. (The Democratic National Committee said on Friday that she had already won enough delegates in a virtual roll call vote to secure the party’s nomination.)

The first presidential debate between Mr. Biden and Mr. Trump had a seismic impact on the race. Mr. Biden gave a halting performance, in contrast to Mr. Trump, who spoke comparatively vigorously while repeatedly advancing falsehoods.

Mr. Biden’s garbled responses supercharged concerns among his Democratic colleagues about his age and health, as well as his ability to beat Mr. Trump in the general election. After several weeks of declining poll numbers and mounting pressure from key allies, Mr. Biden announced on July 21 that he would withdraw from the race.

Since then, Ms. Harris has challenged Mr. Trump to debate her and criticized his reluctance to commit to a date. As recently as Friday morning, in an interview with Fox Business, he was refusing to say whether he would debate Ms. Harris.

After the president dropped out, Ms. Harris said she would be willing to debate in Mr. Biden’s place, but Mr. Trump was noncommittal.

“Well Donald, I do hope you’ll reconsider to meet me on the debate stage,” Ms. Harris said at her rally in Atlanta on Tuesday. “Because as the saying goes, ‘If you’ve got something to say, say it to my face.’”

Shapiro’s college-era criticism of Palestinians draws fresh scrutiny.

Gov. Josh Shapiro, Democrat of Pennsylvania, wrote in his college newspaper three decades ago that Palestinians were “too battle-minded” to achieve a two-state solution in the Middle East, prompting criticism as Vice President Kamala Harris considers him to be her running mate.

Mr. Shapiro, 51, has embraced his Jewish identity and been one of the Democratic Party’s staunchest defenders of Israel at a moment when the party is splintered over the war in Gaza.

But he says his views have evolved since publishing an opinion essay as a college student at the University of Rochester in New York, when he wrote that Palestinians were incapable of establishing their own homeland and making it successful, even with help from Israel and the United States.

“They are too battle-minded to be able to establish a peaceful homeland of their own,” he wrote in the essay, published in the Sept. 23, 1993, edition of The Campus Times , the student newspaper. “They will grow tired of fighting amongst themselves and will turn outside against Israel.”

Mr. Shapiro, who was 20 at the time, noted in his essay that he had spent five months studying in Israel and had volunteered in the Israeli Army.

“The only way the ‘peace plan’ will be successful is if the Palestinians do not ruin it,” Mr. Shapiro wrote, adding, “Palestinians will not coexist peacefully.”

During a news conference on Friday at Cheyney University of Pennsylvania, the nation’s first historically Black college or university, Mr. Shapiro tried to distance himself from those remarks, which were first reported by The Philadelphia Inquirer .

“Something I wrote when I was 20, is that what you’re talking about?” Mr. Shapiro told a reporter who asked him about it. “I was 20.”

Mr. Shapiro said he had been in favor of a two-state solution, with “Israelis and Palestinians living peacefully side by side” long before the Hamas-led attack on Israel on Oct. 7 that started the war in Gaza.

“It is my hope that we can see a day where peace will reign in the Middle East,” he said, “where there will be a two-state solution, where all leaders involved in the conversations will respect the other side and show a willingness to make the hard choices to find peace.”

Mr. Shapiro’s explanation did not satisfy the Philadelphia chapter of the Council on American-Islamic Relations, which later on Friday called on him to apologize.

“We are deeply disturbed by the racist, anti-Palestinian views that Governor Shapiro expressed in this article,” Ahmet Tekelioglu, the group’s executive director said in a statement. “We are also concerned by his failure to clearly apologize for those hateful comments, especially given how quickly and harshly he has targeted college students protesting the Gaza genocide for their speech.”

In regards to Mr. Shapiro’s having written that he had volunteered in the Israeli army, a spokesman for Mr. Shapiro, Manuel Bonder, said in a statement: “While he was in high school, Josh Shapiro was required to do a service project, which he and several classmates completed through a program that took them to a kibbutz in Israel where he worked on a farm and at a fishery. The program also included volunteering on service projects on an Israeli army base. At no time was he engaged in any military activities.”

Mr. Shapiro has been one of the most vocal party leaders to condemn the documented rise of antisemitism since the Hamas-led attack on Israel. When he was previously asked if he considered himself a Zionist, he said that he did.

He has also not shied away from criticizing college administrators over their response to campus antisemitism, including at the University of Pennsylvania.

If Ms. Harris chooses Mr. Shapiro to be her running mate, he will become only the second Jewish vice-presidential nominee on a major-party ticket. The first was Joseph I. Lieberman, the former Connecticut senator who died in March . He ran with Al Gore in 2000.

Jon Hurdle and Katie Glueck contributed reporting.

Eduardo Medina

Reporting from Lucama, N.C.

Mark Robinson tries to reframe his strict anti-abortion position in a new ad.

Lt. Gov. Mark Robinson of North Carolina, the Republican nominee for governor, released a new ad on Friday that sought to moderate his opposition to abortion, saying that he supports the current state law, which generally bans the procedure after 12 weeks of pregnancy.

His campaign had previously said that he wanted a so-called heartbeat law, which would ban the procedure after about six weeks of pregnancy, when many women have yet to realize they are pregnant.

Mr. Robinson’s softened stance was included in an ad that focused on the story of how his wife, Yolanda Hill Robinson, had an abortion in 1989 — a decision that he said “was like this solid pain between us that we never spoke of.” The couple had previously disclosed the abortion in a Facebook video in 2022.

The ad appeared to be an attempt by Mr. Robinson’s campaign to blunt the criticism he has received for his past comments on the issue and to get ahead of future attacks. One of the first ads released by his Democratic opponent, Josh Stein, the attorney general of North Carolina, featured a compilation of clips showing Mr. Robinson discussing his restrictive views on abortion.

“An abortion in this country is not about protecting the lives of mothers,” Mr. Robinson says in one clip. “It’s about killing a child because you weren’t responsible enough to keep your skirt down.”

Mr. Stein’s campaign has accused Mr. Robinson of hiding his true intentions to seek a stricter abortion ban if elected, pointing to some of his past comments, such as when he said in February: “We’ve got it down to 12 weeks. The next goal is to get it down to six, and then just keep moving from there.”

Abortion is a central issue in North Carolina’s race for governor, which is expected to be one of the most expensive and consequential elections in the country, and one that could influence the presidential race. Republicans have rarely held the governor’s mansion in Raleigh over the past century, and recent polls show that the race is tight this year. Still, a Democratic presidential candidate has not won the state since Barack Obama in 2008.

The governor’s race also has been viewed as a Rorschach test for the swing state, where the current Democratic governor, Roy Cooper, is term-limited. Will voters go with a moderate Democrat in Mr. Stein, or veer to the right with Mr. Robinson?

With less than 100 days before the election, Mr. Robinson’s ad underscored how some Republicans have taken a more cautious approach when discussing abortion since the repeal of Roe v. Wade, which energized Democrats in the 2022 midterms. Despite the anti-abortion movement’s longtime support for a national ban, Republican former President Donald J. Trump has said that abortion restrictions should be left to the states.

In North Carolina and elsewhere, Democrats have pushed to make abortion rights a focal point, with Mr. Stein repeatedly bringing up Mr. Robinson's comments in stump speeches. Republicans have sought to tie Mr. Stein to President Biden and portray him as an out-of-touch extreme liberal.

Mr. Stein has said he supports a framework for abortion based on Roe v. Wade, which generally allowed the procedure through the point of viability, or roughly between 24 and 26 weeks.

In his ad on Friday, Mr. Robinson specified that he supports the current 12-week ban, which includes exceptions for rape, incest and the life of the mother.

“When I’m governor, mothers in need will be supported,” Mr. Robinson said.

Morgan Hopkins, a spokeswoman for Mr. Stein’s campaign, said in a statement that Mr. Robinson “has resorted to running from his record and misleading voters.”

“If North Carolinians want to know where Mark Robinson really stands on abortion, they should listen to every other comment he’s made on the issue before today,” Ms. Hopkins said.

Mr. Robinson, a fiery orator who has been bolstered by the MAGA faction of his base, has drawn criticism in the past for incendiary comments perceived as antisemitic, hateful and conspiratorial.

In recent months, Mr. Robinson has attempted to moderate his tone in public speeches and focused more of his campaign on the economy, though he still discusses cultural issues, such as denouncing diversity, equity and inclusion efforts and transgender women in sports.

Noam Scheiber Kate Kelly and Kenneth P. Vogel

Harris’s brother-in-law, Uber’s chief lawyer, is taking a leave to advise her.

Vice President Kamala Harris’s brother-in-law, Tony West, will go on leave as Uber’s chief legal officer later this month to take an unofficial role in her presidential campaign.

Mr. West, a Stanford-trained lawyer and former Justice Department official, has informally advised Ms. Harris throughout her political career and has been by her side frequently since President Biden announced that he would not seek re-election.

The company revealed the change in a filing with the Securities and Exchange Commission on Friday afternoon.

In an email to Uber employees on Friday, Mr. West wrote that while he loved his job at the company, “I have always believed family comes first. So I’ve decided to dedicate myself full-time to supporting my family and my sister-in-law on the campaign trail.” Mr. West is married to Ms. Harris’s sister, Maya.

Beginning Aug. 17, he said, he will work as a “family-member surrogate” for the vice president, sharing the perspective of someone who has long been close to her, but will not have a formal campaign position. He said he intended to return to Uber after the presidential election and stressed that Uber would continue to take no position on the election.

Mr. West was general counsel of PepsiCo before joining Uber in 2017. He served in the Justice Department in the Clinton and Obama administrations and was the department’s third-ranking official from 2012 to 2014.

Some in the labor movement have expressed concerns about Mr. West’s ties to Ms. Harris in light of his role at Uber, which in 2020 helped enact a California ballot measure that exempted its drivers from a state law that would have probably classified them as employees.

As a result of the measure, which was recently upheld by the California Supreme Court, Uber drivers and other gig workers in the state do not benefit from certain legal protections, like state rules governing the minimum wage and overtime. The measure provided some benefits , like a separate wage floor and health care subsidies.