The Building Blocks to a Defense: Elements of a Crime

Introduction

Criminal laws are made up of elements. You may think of the elements as the “ingredients” of the crime. Each ingredient is necessary to the recipe. Similarly, the government has to prove each element of the criminal charge. Therefore, knowing the elements is crucial to knowing what a strong defense to a charge will be. A strong defense targets the elements.

Elements of a Crime

Generally, crimes have three elements:

1. An action that is prohibited by law

2. The intent (or state of mind) of the acting individual

3. The concurrence of the action and intention at the same time 

Some crimes have a fourth element: causation and harm. This element means the concurrent action and intention caused a harmful or criminal outcome.

Examples

An example of a three element crime is attempt. Attempt does not require that the crime was completed–so there is no element of causation or harm. The only elements are the action and state of mind which concurrently show the defendant attempted a crime. A four element crime is murder. In addition to the concurrent action and intent of the defendant, the defendant’s conduct must have been the cause of the defendant’s death. 

(1) The Act Element

The first element of a crime—the act—is also known as the actus reus, which means “guilty act” in Latin. Depending on the crime, the act can be an action a defendant takes, or an action a defendant fails to perform. For example, a defendant takes action to commit a burglary. However, if the defendant has a legal duty to act, failing to do so is also a crime. A defendant can have a legal duty based on:

1. A statute (such as a Good Samaritan Law)

2. A contract (such as employment as a life guard)

3. A special relationship (such as a parent and child)

In these cases where there is a legal duty, failing to act (also known as omission to act) is criminal.

Another key concept about the act element is that the act must be voluntary. This means that the act was in the defendant’s control. It can be sufficient if one act in a change of events is voluntary. For example, the voluntary act of drinking and then driving is sufficient for criminal liability, even if a subsequent act, like hitting a pedestrian, is involuntary. 

(2) The Intent Element

The second element of a crime is the intent (or state of mind) of the defendant. This is also known as the mens rea, which means “guilty mind” in Latin. Criminal law focuses on the state of mind because it helps differentiate between an innocent mistake and deliberate action. There are several states of mind that criminal law categorizes as different types of intent. These are explored fully in our Criminal Intent article. For now, it helps to know that the criminal state of mind generally falls in one of two categories:

1. Intention 

   1. Acting knowingly or deliberately to bring about the criminal result

2. Criminal negligence 

   1. Acting so recklessly or negligently that it demonstrates a disregard for life

A crime has occurred only when the criminal state of mind is paired with the criminal act.

(3) The Concurrence Element

The final, necessary element for any crime is concurrence between the intent and the act. These elements must concur at the same moment. For example, say Jane plans to murder Joe with a weapon. She drives to Joe’s house with the weapon in her car. Jane doesn’t see Joe in the street and accidentally hits him. Hitting Joe with the car by accident lacks the intent for murder, which is malice. At the moment Jane hit Joe, she did not do so maliciously. Hence, if Jane was driving recklessly, she may be charged with manslaughter, but her intent would likely not rise to the level of malice for murder. 

The (Sometimes) Fourth Element

All crimes require the concurrent act and intent. Some crimes are satisfied with just these three elements. An example is inchoate (or incomplete) crimes, such as attempt, conspiracy, and solicitation. These crimes do not need to be completed to cause a criminal result or harm. The attempt, planning, or solicitation of the crime is a crime in itself. By contrast, other crimes require a fourth element: causation and harm. Causation and harm means the defendant’s conduct (the concurring intent and act) directly or substantially caused the criminal result or harm. You will learn more about this in our  Causation and Harm article.

Where to Find the Elements of a Crime

The elements of a crime are found in the statute that defines the crime. Elements are also listed in the jury instructions for the crime. This is because the jury must know what the elements are so that they can decide if the prosecution has proved each element beyond a reasonable doubt. In some states, there are common law crimes, which are defined by common law rather than statute. For these crimes, the elements are written in common law. California does not have common law crimes. Instead, crimes are defined in the statute (California Penal Code) and jury instructions.

For example, robbery requires four key elements: 1) the unlawful taking of another person’s property; 2) through the use of force or fear; 3) with the intent to permanently deprive the person of that property; 4) causing harm or the threat of harm. It is important to note that the intent and the use of force or fear must occur at the same time, meaning the defendant intended to steal while using force or fear to take the item. If the prosecution fails to prove any of these elements beyond a reasonable doubt, then the defense may be successful.

Conclusion

In conclusion, every crime generally has three elements: the act, intent, and their concurrence at the same time. Some crimes also have a fourth element: causation and harm. At trial, the government must prove each element of the crime beyond a reasonable doubt to convict the defendant. You can learn more about this through our What Is Beyond a Reasonable Doubt?  article. All in all, the elements of a crime are critical to its defense.