Chapter 5b: Criminal Responsibility Corey McComas & Matt Cushman I. Criminal Responsibility

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Chapter 5b: Criminal Responsibility

Corey McComas & Matt Cushman

I. Criminal Responsibility

One of the most difficult things to do in law is to determine if someone is criminally responsible for an event. This is a very important concept because unless you can determine how to establish responsibility, it becomes very difficult to determine how to punish someone for any harm they may have caused. This chapter is going to help explain how we go about determining responsibility, and how it relates differently to adults, minors, criminally insane, those who are entrapped by law enforcement, and corporations.

Since the seventeenth century, criminal law has followed this principle: actus non facit reum, nisi mens sit rea--Latin for ‘an act does not make a people guilty unless their mind is also guilty’. The idea is that if a person did not mean for something to happen, then they may not be completely liable for the damages that were caused. The idea is that human behavior can be divided into two parts: the physical element (which can include the act, omission, or state of affairs) and the fault element (which may include intention or recklessness). The intent to do harm can be the difference in a person being charged with 2nd degree murder or manslaughter. With both 1st and 2nd degree murder, the person committing the crime had the intent to kill the person that died, but with manslaughter (which carries a much more lenient sentence) the person’s death was a result of someone else’s action, but it was not their intent for that person to die.

In modern criminal law, most serious crimes require one (or a combination) of the following elements: intention, recklessness, knowledge, or negligence. In some less serious offenses, the prosecution can dispense with the requirement that the prosecution prove that the criminal was in a mental state of mind, with intent to commit the crime, which creates offenses of strict or absolute liability. That said there is a presumption that the legislature intended that offenses should have some form of mental state. Accordingly, the courts will presume that some mental state is required in relation to each physical element. This can be refuted by reference to the words of the terms, its subject matter, and the extent to which applying strict liability would aid enforcement (in terms of the consequences for the community and the accused).

The precise legal meaning of ‘intention’ is as follows: “It connotes a decision to bring about a situation as far as it is possible to do so – to bring about an act of a particular kind or particular result. Such a decision implies a desire or wish to do an act or to bring about such a result” (Gani & Bronnit). When looked at this way, the definition of intent incorporates an element of knowledge in the sense that to intentionally strike someone, you must necessarily know that a person is in the path of your moving fist. The next two terms that were listed above, recklessness and knowledge, also have distinct meanings when it comes to criminal law. Recklessness is characterized by conscious risk-taking. This involves a person performing a prohibited act, while knowing the risk that a detrimental consequence or circumstance may occur. In the context of murder, recklessness requires a higher degree, based on the awareness that death, or serious injury will probably occur because of the stunt. The term that is commonly used with this concept is “foresight.” This means that a person had the foresight that a particular circumstance or outcome will occur, but carries on despite the risk. Knowledge, clearly, involves a greater level of certainty in a person’s mind than recklessness. This entails a person being conscious of the fact that if they carry out an act, a particular consequence will result from the conduct they engage in.

The last of the four elements that were mentioned above is negligence. This term is important because it relates to criminal responsibility in a different way than the elements that were listed above (all of the others concern a person’s actual or subjective state of mind). Negligence examines what a person did by reference to an objective or external behavior – that of a reasonable person. Therefore, instead of focusing on what a person knew or was aware of, when he or she engaged in the prohibited act, this element is concerned with the reasonableness of the conduct measure objectively. A person has acted with criminal negligence if his or her conduct falls short of how a reasonable person would have acted. Gross negligence is where someone has fallen so far below the ordinary standard of care that they warrant the label of “gross.” This applies to serious crimes, like manslaughter by criminal or gross negligence, as well as to less serious regulatory offenses dealing with, for example, negligent driving.

Bell v. Commonwealth

This is a court case that provides a solid example of what would classify as gross negligence. In this case, Bell was being tried for manslaughter after he hit and killed a woman with his car. He was not being tried for purposely hitting the woman but was being accused of being grossly negligent. Below is an excerpt from the case that shows the argument the prosecution made to show Bell was criminally negligent:

That at the time of and place laid in the indictment now pending against the said Gordon A. Bell, he did operate a motor vehicle recklessly and unlawfully, in that he then and there operated the said motor vehicle at a rate of speed in excess of a lawful rate of speed; that he drove the said motor vehicle upon the left of the center of the street or highway; that he operated the said motor vehicle, without any headlights, or with headlights which failed to comply with the requirements of the law of Virginia; that he failed to have the said motor vehicle under proper control or to keep a proper lookout for the safety of other persons using the said highway”

II. Parties to a Crime

As you can see from the description of Bell’s action his conduct fell short of the ordinary standard of care when operating a motor vehicle, which classifies him as being criminally negligent. By adding in all of the factors of his driving it can also be said that he fell so far below the standard of care that he also be considered “grossly negligent.”
Now that we have an understanding of how someone is deemed to be criminally liable, we now need to take a look at the different parties to crimes that are committed. The first party involved in a crime is the principal in the first degree. This is the person that is at the scene of the crime, and the person that actually commits the crime. This principal would be the person that actually carries out the crime. In a murder, they would be the one that “pulls the trigger.” The next relevant term is the principal in the second degree. This would be the person that is at the scene of the crime, but does not commit the crime directly. They are there as a helping hand. An example would be if they are at the scene of the murder, but did not commit the murder, and then helped to dispose of the body after the crime was committed.

Another party to a crime would be what is called the accessory before the fact. This person is not at the crime scene, but they were involved in the planning of the crime, or in the obtaining of the materials needed to complete the crime. This person did not actually commit the crime that is in question, but they were involved and they did know what was going on. An example would be someone buying large amounts of Sudafed medicine, for someone who produces methamphetamine. Another example would be purchasing a gun for someone that is planning on committing a murder. This is a person that is likely to be encouraging the crime, and is definitely not one who is discouraging the action.

One last party involved in a crime is the accessory after the fact. This is a person that is not involved in the crime itself, its planning, or in obtaining materials to commit the crime. This person has either helped the person escape, or has helped to hide the criminal from the police. An example would be a criminal showing up at a friend’s house, and telling them what they have done. The friend then hides the person in their house, and lies to the police about not knowing where the criminal is located. This person was not a part of the original crime, but has put themselves in line for criminal charges, by helping the criminal avoid legal action.

III. Minor’s Criminal Responsibility

In the United States, a minor is legally defined as a person below a particular age, as defined by the state. This age is set by the states and vary. Some states have a low age set for how young a person can be tried for a crime. Missouri no longer has a low age. In Missouri, a person is a minor under the age of 17. Those 17 and older are tried as an a adult. If a defendant is under 17, the person starts out being treated as a juvenile, though a judge may end up moving those who are considered as mature enough into being tried as an adult.

Juveniles are usually tried in a separate juvenile court. Their names may not be released and they will be incarcerated separate from adults. For example, a parent or guardian must be present during police questioning, or their names may be kept confidential when they are accused of a crime. In Missouri, 16 year olds are usually tried as an adult.

In most states, juveniles cannot be housed with adult inmates, even if the child is charged as an adult. This is discouraged by the federal government, which offers funding for prison systems, only if children and adults are housed in separate facilities. This leads to a lot of questions, such as whether a juvenile that is now past their 18th birthday, can be sentenced to adult facilities, for a conviction based on behavior that happened before their birthday. As with the adult system, the juvenile justice system has become more and more penalizing over time. These more strict sentences have come, despite a juvenile's lack of right to a jury in juvenile court proceeding, lower brain development (because of their youth), and evidence that incarceration, and even probation, lead to a higher incidence of reoffending for juveniles, than non-punitive consequences.

The death penalty for those who committed crimes under 18 was ruled unconstitutional by U.S. Supreme Court Case Roper v. Simmons in 2005. It had been decided that a murder committed by someone under the age of 18 would not merit their execution. Their ruling, essentially, decided that the better punishment was life in prison.

IV. Insanity Defenses

Often times, the use of the insanity defense, by an individual charged with a crime, is viewed as a means of escaping punishment, and avoiding the consequences for one’s actions. In actuality however, such defenses were put in place to help protect the rights of those individuals who lack the mental capacity to understand their actions, or to know the difference between what is right and wrong.

A. Background

In the United States, an individual can be held criminally responsible for an action if both actus reus and mens rea can be proven. Actus reus is providing evidence that the individual accused of the crime actually committed the action, and mens rea is proof that the individual “acted of his or her own free will, intentionally and for rational reasons” (Allnutt). Without such evidence being shown, the legal system within the U.S. holds that a person cannot be held responsible for an action. Because of this, it is necessary for those wishing to argue for a lack of mens rea, that there be a test in place, which will assist in defining when an individual lacks such capacity to commit an act of their own free will, and therefore, not be held criminally responsible. In U.S. courtrooms today, two different tests of insanity may be used.

The primary test is the M’Naghten Rules, which determine whether an individual lacks the ability to tell right from wrong. A second test, the Irresistible Impulse test, is used to determine whether an individual had the ability to control their actions. This test is implemented by a select number of court systems, and is used far less frequently than the M’Naghten Rules, as it has also drawn significant criticism over the years.

B. M’Naghten Rules

Following the M’Naghten ruling, the following four rules were outlined when evaluating a person attempting to plead not guilty by reason of insanity:

This test was created in England in 1843, when Daniel M’Naghten was found not guilty by reason of insanity. The crime M’Naghten committed was shooting Edward Drummond, secretary to the British Prime Minister. M’Naghten believed that the Prime Minister and the ‘Tories’ were conspiring against him, and the only way to rid himself of the problem was to kill the Prime Minister. However, he mistakenly thought Drummond was the Prime Minister and shot him instead. His mental state at the time led him to be deemed insane at the time of committing the act.
1) All individuals are viewed as being sane, unless sufficient evidence can be shown to the contrary

2) If a person is delusional, whether fully or partially, the case should be treated as if the events occurring within the delusion are actually real

3) To use the defense of insanity, the following must be proven clearly that at the time of committing the act:

a. The accused suffered from a defect of reason, a disease of the mind, and did not know the nature and quality of the act he was committing

b. If the accused did know the nature and quality of the act, he did not know that what he was doing was wrong.

A defect of reason is defined as a “malfunction of the mental faculties,” from a pre-existing mental condition, that is of a different nature than would be the reaction of a healthy individual to circumstances and events that are of an unusual or extreme nature. Along with a defect, a disease of the mind is a legal concept that includes events such as mental illnesses and psychotic episodes, that occur frequently and on multiple occasions.

For an individual to understand the nature and quality of the action, the person must have been aware of what their action was at the time they were committing the act. In addition, many courts follow the guidelines that the individual must also be able to understand the importance of the event, and any consequences that may result from it being carried out.

Finally, the test of whether or not the accused knew that what he was doing was wrong, can follow different guidelines in various courts. In some courts, the test is whether the person knows that the act is wrong, whereas other court systems view the test as whether or not the individual knew that they should not carry out the action. Additional confusion is added when one court views the test as whether the person saw the act as legally wrong, yet still felt morally required to carry out the act, while yet another court may view the test as to whether the individual saw the act as wrong, both morally and legally.

C. Irresistible Impulse Test

In the United States today, some court systems, although not a majority, allow the use of the Irresistible Impulse Test, as a method of determining a defense by insanity. Under this test, a person may be able to claim insanity at the time of committing an action, if they can prove that they were unable to control their actions at the time of the event. While this test is allowed under certain jurisdictions, many do not allow its use because it is very difficult to prove, and its use has generated a large amount of criticism.

Many courts believe that this test should not be allowed because it may be virtually impossible to prove in a scientific or satisfactory manner, that the individual could not control his actions, rather than failing to stop himself from acting on a controllable desire. Due to this lack of scientific evidence, while many states follow the M’Naghten Rules in their courts, only a select few allow the use of the Irresistible Impulse Test.

D. State Use Today

Today, 26 of the 50 states follow the M’Naghten Rules as their primary test for allowing defense by reason of insanity. The remaining 24 states have either abolished the insanity defense all together, abolished but allow guilty but mentally ill verdicts, and a select few follow a different standard for testing mental impairment. The state of Missouri is has chosen a system that uses a combination of both the M’Naghten Rules and the Irresistible Impulse Test, in determining the applicability of the insanity defense. Of the 26 states currently following the M’Naghten Rules, only 5 of those states, in addition to Missouri, allow use of the Irresistible Impulse Test. Those states include Colorado, Georgia, New Mexico, Texas, and Virginia.

V. Entrapment

An entrapment defense is allowed within the U.S. in the Federal Court system and by a few select state courts. The majority of states, which disallow the idea of entrapment, view that the situational factors surrounding an event, are insignificant, as long as sufficient evidence can be shown that an illegal act has been committed. In those jurisdictions that do allow the use of the entrapment defense, the greatest debate often arises from accused criminals, who believe that actions constituting entrapment extend far beyond those included by the courts when they interpret the law. As a result, the following section will outline what defines entrapment, and discuss those actions which constitute entrapment versus those that do not.

The case Sorrells v. United States provides an example of a successful use of the entrapment defense. In this case, a federal agent was visiting with some friends during the time in which prohibition was in effect. The agent asked a friend repeated times to acquire him some alcohol, and after repeated attempts of saying no and denying the request, the friend finally gave in to the agent. Upon his return with the alcohol, the man was arrested and eventually convicted. After appealing, it was ruled that the man had no prior intent to commit the act, was of good standing within the community, and had no prior tendencies of purchasing or producing illegal alcohol. Because of this, he was able to successfully use entrapment as a valid defense, and achieve an acquittal. In many situations however, accused criminals believe they have been entrapped, but in reality, the tactics used by police are legal and not considered entrapment, because the individuals had a prior intent to commit the act.
Entrapment may be allowed as a valid defense if “a person is incited, induced, inveigled, or lured into the commission of a crime not contemplated by him, for the purpose of prosecuting him, by a law enforcement officer or his agent” (Williams). This defense becomes viable only when a law enforcement official creates a plan to commit a crime, for an individual who would otherwise not carry out such an illegal activity, if it weren’t for the actions of the official. To prove that entrapment occurred, evidence must be presented showing that a defendant was coaxed or manipulated into the commission of the crime, or that law enforcement created the ability and opportunity to carry out the criminal act. In identifying cases of entrapment, a test of intent can be used, which shows that if the accused individual had the prior intent and opportunity to commit the act in question, they cannot use entrapment as a valid defense.

A primary example of a lawful act by law enforcement officials is the use of traps to catch a criminal in the act. Officials have no duty to stop the commitment of a crime, unless his duty to protect life and property comes into effect and forces him to act. Under any other situation, law enforcement can wait for a crime to be committed, in order to achieve proper evidence, prior to making an arrest. Such actions do not constitute entrapment, as the offenders had the prior intent and opportunity to commit the crime. Additionally, police may implement the use of a decoy individual, or deception, to further a prospective criminal’s desire to commit a crime. As long as the individual has demonstrated prior intent, the use of a decoy or deception to aid that person in carrying out the action, in order to obtain sufficient evidence, may be used without such actions being considered entrapment.

VI. Corporate Criminal Liability

A. The Early Years

In the beginning years of corporations throughout the United States, there was virtually no need to establish a corporation’s criminal liability, as the organizations were small enough that the individual employee(s) who committed a criminal offense could easily be identified and charged with the crime. As these organizations grew in size and complexity, it became more difficult to separate the individual employee(s) from the organization. As a result, corporations have begun facing liability themselves for a wide variety of statutes, as long as the statute provides an indication that the corporation should be held responsible. Note that corporations cannot be imprisoned but corporate officials can be. Generally the criminal penalty for corporations is a fine, and sometimes the fine is higher than it is for individuals.

B. Present Corporate Liability for Criminal Offenses

The general concept followed by many courts today holds that a corporation may be deemed responsible for actions carried out by managers or employees who acted for the corporation and within the scope of their job. With little doubt, a company’s senior level management, which has the responsibilities of running the company, can be placed into this category. In many instances however, it has been noted that illegal actions can be traced to various lower level employees, or middle managers, but no direct evidence can be linked back to senior management. As a result of this type of situation, many courts have began to hold corporations liable for the illegal actions carried out by any employee, not just those of higher level management. In spite of the change that the courts have made towards corporate liability in all situations, a debate continues over the effectiveness of such a liability, due to the many difficulties that exist.

C. Difficulties

The primary difficulty that arises as a result of punishing corporations is its lack of desired effectiveness. Many times, the punishment levied on a corporation is a fine of some amount, but a large portion of the time, the amount is of little significance to the corporation. Because of this, the company may not concern itself with correcting such actions, or it may simply attempt to pass off the fine onto employees, customers, and other stakeholders through decreased wages, higher prices for goods, or other methods. Additionally, a fine will only be an effective deterrent if the corporation’s primary concern is bottom line profitability. If the organization is focused on a different measure of success, such as differentiation, innovation, or other factors, having to pay even a large fine, may not have a large impact on the company.

Another difficulty coming about because of the liability of corporations is the unintended effects that it has on employees. When a criminal act within a corporation occurs, it often involves only a select number of employees, with the rest being completely innocent. However, if a company faces significant problems to an extent that it’s continued operations may be hindered, employees forced out of the company may have a hard time finding a new job. Despite having no involvement in the illegal activities, or any ability to stop such actions from taking place, these innocent employees may receive a negative label, causing companies to avoid hiring them. Due to these difficulties, many courts are beginning to look at the use of new and innovative punishments when a corporation is held criminally liable.

D. Innovative Punishments

Some of the ideas that are being considered as punishments for corporations include a form of probation, which may involve carrying out self-studies, or reorganizing the company. If required to conduct a self-study, the company would likely have to investigate the underlying causes of the action or violation, and develop their own methods to prevent a similar action from occurring in the future. Another possibility is mandating that the company go through reorganization, if they desire to avoid a stronger penalty, and obtain probation instead of a more significant punishment. Under such a situation, the company may be forced to create a new management position that would oversee the collection and observation of the information that is necessary to prevent or identify illegal activities that may occur in the future.

VII. Conclusion

This chapter has been written to demonstrate the significance of determining the criminal liability attributable to a person or corporation after an illegal act has been committed. Within the United States, the legal system views that an individual or organization should only be held fully liable for the crime if they had the intent and willingness to carry out the activity. In many situations however, the person or group that committed the act may not have had the intention to commit the offense. Because of this, many different tests and guidelines have been developed to assign criminal responsibility to different parties under different circumstances. The treatment of individuals, minors, the criminally insane, and corporations, will vary depending on the attributes of the event. As a result, criminal responsibility is an extremely important area of the law, but should be studied carefully, as the multitude of tests can often lead to confusion.

Famous American Trials: John W. Hinckley, Jr. Attempted Assassination of Ronald Reagan-- Matt Garcia & John Weedin

The trial of John Hinckley is very important because it lead many people to rethink the insanity defense. John Hinckley attempted to assassinate President Ronald Reagan on the afternoon of March 30, 1981 at the Washington Hilton. With dozens of witnesses and the shootings captured on videotape, the court knew as well as John Hinckley's own defense lawyer, Vince Fuller, that the only possible defense was the insanity defense. Hinckley was charged with attempted assassination along with thirteen other crimes.

Hinckley said that the sole purpose of the attempted assassination on the president was to impress a girl. The girl was Jodie Foster, and she had no idea who John Hinckley actually was. Hinckley would always send letters to Foster confessing his love for her, but he never met her in person. He wrote Foster a note a few hours before the assassination attempt on the president. In the letter he said he could not wait any longer to impress her (Foster). He figured Foster would be impressed by him risking his life to assassinate the president.

Right away, the obvious was established in the case: a shooting had occurred and that Hinckley had done the shooting. Some of the early prosecution witnesses included two of the victims, police officer Thomas Delehanty and secret service agent Timothy McCarthy. Roger Adelman, a prosecutor in the case, attempted to show pre meditation by showing a video with Hinckley’s face in a crowd at a Carter campaign rally. Adelman also found an attendant who testified that Hinckley was at a Colorado rifle range for target practice in late 1980. The prosecution rested its formal case and the insanity trial began.

The trial opened with questions about John Hinckley’s childhood. Assistant U. S. Attorney Robert Chapman tried to prove that Hinckley couldn’t have been too sick or his parents would have noticed at some point. Chapman wanted to know why Hinckley’s mother told his psychiatrist that “things are fine” just months before the shooting. Then came a point in the trial where there was a video tape of Jodie Foster being questioned about John Hinckley.

Jodie Foster’s answers were definitely in favor of John Hinckley being legally insane. Some of the questions were if she had ever seen him or responded to any of his letters. Jodie Foster declared that she did not have any sort of relationship with John Hinckley. There were also tapes of short phone conversations between Hinckley and Foster. Most of the tapes ended with Foster saying something along the lines of I’m not going to talk to someone I don’t know.

The lead psychiatric expert for John Hinckley was Dr. William Carpenter. Carpenter concluded that Hinckley suffered from schizophrenia. He said Hinckley had four major symptoms of mental illness: “an in capacity to have an ordinary emotional arousal,” “autistic retreat from reality," depression including "suicidal features," and an inability to work or establish social bonds.

The decision came in after three days of deliberation from the jury. The verdict was Not Guilty by Reason of Insanity for all thirteen counts. Within a month of the Hinckley verdict, the House and Senate were holding hearings on the insanity defense. Within three years after the verdict, two-thirds of the states placed the burden on the defense to prove insanity, while eight states adopted a separate verdict of “guilty but mentally ill,” and Utah got rid of the defense all together. After 1984, a federal defendant has had to prove that the severe mental disease made him “unable to appreciate the nature and quality or the wrongfulness of his acts.”

Note in the federal courts at the time, the burden of proof in regard to sanity was on the prosecution. In most jurisdictions, the burden to prove insanity is on the defendant.



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Gani, Miriam, and Simon Bronitt. "Criminal Law: Exploring Guilt and Punishment." LegalDate 20 (July 2008): 1-4. Ebscohost.

"Insanity Defense." Encyclopedia of Everyday Law. 2009. 23 Mar 2009.

Jones, Bryce. "Criminal Responsibility." Truman State University, Kirksville, MO. Feb. 2005.
Levitt, Steven. "Juvenile crime and punishment." Journal of Political Economy 106 (1998): 1156-188. Ebscohost.
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Williams, John B. "Entrapment - A Legal Limitation on Police Techniques." Journal of Criminal Law, Criminology & Police Science 48(1957): 343-348.

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