E lements of a C riminal O ffence

1. Elements of aCriminalOffence Zagreb, November 7th 2018

2. Structure • 1. Little about Common law system and civil law system-principles • 2. Elements of criminal offence • actus reus(US) //conduct/act/action/commission or omission • essence of the criminal offence; statutory element • unlawfulness • mens rea (US)// culpability /guilt • Excuses

3. 1. Common Law System versus Continental Civil Law System • Common Law System (hereinafter: CLS) -system of precedents// Model Penal Code 1962; Statutory Law (US Code: Title 18); Case Law; Sentencing Guidelines • Continental Civil Law System (hereinafter: CCLS)- criminal codes (general and special part) • there is no legal definition of the elements of the crime/ offence in German Criminal Code (hereinafter: StGB) nor in Croatian Criminal Code (hereinafter: CCC).

4. 1. Common Law System versus Continental Civil Law System • Substantive Criminal Law principles: • Principle of legality (art.1. StGB, art. 2. CCC)- „nullum crimen, nulla poena sine lege”, (lex scripta) • Principle of lenient law (art.3.§ 2 CCC ) • Principle of guilt (art. 4 CCC)

5. 1.Principle of legality („nullum crimen, nulla poena sine lege”) Common Law System Civil Law System Substantive principle-four subprinciples(p.254. Kevin..): „nullumcrimen, nullapoena sine legescripta”– the law must be writtenandcannotbebased on custom; „nullumcrimen, nullapoena sine legestricta”-analogy is forbidden (prohibition of analogy)- „thewordingofthe statute denotestheouterlimitsofpunishability; thestatutoryprobihbitoncannotbeextendedbyanalogy to conduct notcoveredbyordinarymeaningof he wordsused „nullumcrimen, nullapoena sine legecerta” – the law must be determined, defined- criminalprohibitionsmus „determine” theprohibited conduct; they must notbetoovague; „nullumcrimen, nullapoena sine legepraevia”- retroactivity is forbidden (retroactive ban)-actscannotbepunishedretroactively; • Theory of legality (mixture od substantive and procedural principles- p.207.Fl.) • Negative principle(substantive principle)- nullumcrimen, nullapoena sine lege- or no punishment without prior legislative warning • Positive principle of legality (procedural principle)–which stands for consistency and completeness in the application of the law- must punish the guilty, all the guilty-requires prosecution of all those who are guilty

6. 2. Elements of the criminal offence • 1.actus reus (commission, omission, possession)- objective element (US)//conduct/act (action/commission or omission)-objective element • 2. essence of the criminal offence; statutory element (a set of characteristics); very similar to legal description of criminal offence- objective element • 3. unlawfulness - objective element • 2. mens rea –subjective element (US)// culpability /guilt-subjective element

7. 2. Elementsofthecriminaloffence

8. 2.1. Actus reus/ conduct (action and omission) • there can be no criminal liability without culpable (or blameworthy) wrongdoing • Action – willful body motion (p.49. Fl) • Omission –the absence of bodily motion – when it constitutes criminal offence? 1) you are walking down the sidewalk, biker comes and throw you on the road, the car comes and try to avoid you while you are lying on the road, and hits the store in which were four people of which one dies, two had sever body injuries and one person had no injuries • are you responsible? Instrument? What is missing?

9. 2.1. Actus reus/ conduct (action and omission) • No actus reus(MPC): • (a) a reflex or convulsion; • (b) a bodily movement during unconsciousness or sleep; • (c) conduct during hypnosis or resulting from hypnosis; • (d) a bodily movement that is not a product of the effort or determination of the actor, either conscious or habitual • perpetration by means (denial of complicity)/ mittelbare Täterschaft 2) you are walking down the promenade and see somebody is drowning // (your mother)-OM 3) doctor fails to aid stranger in need and causes death • did you commit a criminal offence? • In CCLS- Causation // cause- (as energy or force that brings about a result?)/ (natural) event

10. 2.1. Actus reus/ conduct-omission • Problem of omission-criminal responsibility? • only - duty to preform the omitted act is imposed by law (p. 48.Fl) • Legal duties Common LS (p.68.FL): • Family relationships • Undertaking to assist • Communities of shared risk • Professional obligations

11. 2.1. Actus reus/ conduct-omission • Legal dutiesCivil LS: • 1. Statutory duty • 2. Relationship status • 3. Contractual duty • 4. Voluntary assumption of care for another • 5. Created the risk of harm • Criminal Offences by omission in Croatian and German Criminal Code • Failure to Render Assistance art. 123. CCC-1y • Non-Provision of Emergency Medical Assistance Art. 183CCC-3y • Violation of medical duties in connection with an abortionSection (Art.) 218c StGB-1Y)

12. 2.1. Actus reus/ conduct-omission • CCL- Jones v. U.S. (omission offences) 1962 • under duty to do so (guarantor-special duty to render aid)- family relationship, communities of shared risk, professional obligation etc. • Casebriefs/Brief fact: Defendant Jones was found guilty of involuntary manslaughter of his friend’s 10-month-old baby where he failed to provide for the child and such failure resulted in the child’s death. • Facts/Summary:Defendant’s friend had a 10-month-old illegitimate child who was placed with Defendant. The mother lived in the house with Defendant for some time, however the evidence was conflicting as to how long and as to whether or not Defendant was paid to take care of the child. Defendant failed to provide for the child and such failure resulted in the child’s death. Defendant was charged and convicted with involuntary manslaughter based on his failure to provide for the child. At trial, the court failed to charge the jury that it must find beyond a reasonable doubt that Defendant was under a legal duty to provide for the child. Defendant appeals. • In CCC- Manslaughter (art. 112 CCC) and Negligent Homicide (art. 113 CCC)

13. 2.2. Essenceof the criminal offence/ elements constituting an offence • essence of the criminal offence/statutory element (StGB)/elements constituting an offence (CCC) ; • objective/subjective elements of the offence • In civil law system -set of characteristics; • conduct, • perpetrator, • causation (causational link); • object, • consequences • very similar to legal description of criminal offence (criminal offence in Code) BUT not the same (it can be broader or narrower) • In common law system- causation

14. 2.2. Essence of the criminal offence/ elements constituting an offence- actusreusin Common Law • common law – act must be the actual and legal (proximate) cause of the result • MPC – „BUT-FOR” test (conditio sine qua non) + PROXIMATE cause • „BUT-FOR” test: What would have happened if the suspect's actions were absent? • BUT-FOR” test -suffers from three major deficiencies-Problem with: • 1) alternative sufficient causes; • 2) proximate cause and intervening cause; • 3) liability for omissions (p.63-69, Fl) • 1) alternative sufficient causes- if Y would have occurred withoutX, then X is not a cause of Y (People v. Arzon-merging fires)

15. 2.2. Essence of the criminal offence/ elements constituting an offence- actusreusin Common Law • alternative sufficient causes; People v. Arzon(causation) 1978 • Casebriefs/Brief fact: The Defendant, Arzon, was charged with the murder of a fireman who had received fatal injuries when, responding to an arson that Defendant committed, he encountered a separate arson fire in the same building. • Synopsis of Rule of Law. An individual is criminally liable for the death of another if his conduct is a sufficiently direct cause of death that could have been reasonably foreseen as a consequence of his actions. • Facts. The Defendant set fire to a couch on the fifth floor of an abandoned building. Firemen attempted to put out the blaze, but decided to give up when they saw they were having no effect. In retreating from the building, they encountered another fire on the second floor of the building and one of the fireman received fatal injuries from this blaze. The second fire was also determined to be caused by arson, but there was no evidence that it had been committed by Defendant. He was nonetheless charged with the fireman’s murder. • Issue. Was Defendant criminally liable for the fireman’s death notwithstanding that the victim’s fatal injuries were received by an independent intervening cause not attributable to Defendant? • No break of causal chain because Arzon should have foreseen the result • Problem in question: 1) alternative sufficient causes

16. 2.2. Essence of the criminal offence/ elements constituting an offence- actusreusin Common Law- causation • alternative sufficient causes; if Y would have occurred withoutX, then X is not a cause of Y Scenario a) The problem ofmerging fires.- „Suppose that both Joe and Karl set fires that convergeand destroy the plaintiff's house. Either fire alone would have beensufficient to destroy the house. Therefore both Joe and Karl can pointthe finger at the other and say: He was the cause; I was not the causebecause the harm to the plaintiff's house would have happened evenwithout my fire. This is a serious challenge to the "but for" test for infact if that test is applied, neither Joe nor Karl is responsible for thedamage to the plaintiff's house. …Together they generatea single fire that in fact destroys the house”.-YES both responsible

17. 2.2. Essence of the criminal offence/ elements constituting an offence- actusreusin Common Law- causation • alternative (independent)sufficient causes; if Y would have occurred withoutX, then X is not a cause of Y Scenario b) „Joe wants to kill Paul and therefore on the eve of Paul's settingforth on a hike across the desert, Joe sneaks into Paul's room and replacesthe water in his canteen with scentless and colorless poison. Karlalso wants to kill Paul and therefore later the same evening he sneaksinto Paul's room and drills a small hole in the bottom of Paul's canteen.Paul leaves the next morning without noticing the hole in his canteen.After two hours in the desert he decides that it is time to drink but bynow the canteen is empty. Without other sources of water he dies ofdehydration in the desert. Who is responsible for the death? Karl canclaim that if he had not drilled the hole in the canteen, Paul wouldhave died of poison. But Joe can maintain that in view of Karl's subsequentaction, replacing the water with poison was an irrelevant act”. –Joe responsible; Karl attempted murder • These scenarios illustrate the limitations of counterfactual thinkingin assessing causation. In these cases, where there are alternative sufficient conditions, the question should be not what would have happened,but what in fact did happen.(p. 63,64 Fl)

18. 2.2. Essence of the criminal offence/ elements constituting an offence- actusreusin Common Law • Brackett v. Peters: • The Facts: Defendant B., a prisoner in state prison was convicted of felony murder. At the time of the crime, defendant B. was 21 and had raped and severely beaten an 85 year old widow, who he had previously done yard work for. Her hospital records show a broken arm, a broken rib, and extensive bruising. While at the hospital, defendant P. became depressed and refused to eat or be fed and became progressively weaker. Her physical injuries were healing when she was transferred to a nursing home, but her mental status deteriorated as she continued her resistance to food. “Her doctor ordered a nasal gastric feeding tube for her but the tube could not be inserted, in part because facial injuries inflicted by Bracket made insertion of the tube too painful.” Victimdied ten days after admission to the nursing home while a nurse was feeding her through a syringe. The autopsy revealed that she died from a large amount of food being stuck in her trachea, from which she asphyxiated. • The Issue: Whether a defendant’s asphyxiation after being fed through a syringe constitutes sufficient causation of death after a beating and rape, such that defendant can be convicted of felony murder. • Rule: „..an act is a cause of an event if 2 conditions are satisfied: • (1) the event would not have occurred without the act (but-for doctrine); • (2) the act made the event more likely

19. 2.2. Essence of the criminal offence/ elements constituting an offence- actusreusin Common Law- causation • proximate cause and intervening cause;Brackett v. Peters Scenario a) „Defense lawyers often try tomount the argument that their clients seemingly fatal blow to the victimdid not cause the victim's death because after being shot or stabbed,the victim received negligent medical care. • the defense tried this argumentin the trial of Bernhard Goetz: Darrell Cabey was supposedlyparalyzed for life not because of the gunshot wound that Goetz deliveredto Cabey but because of the subsequent negligent care in the hospital • the same argument came forward in the trial of LemrickNelsonfor having allegedly stabbed and killed YankelRosenbaum; Rosenbaumwas taken to the hospital and as the argument goes, if he hadreceived proper care for his wounds he would have survived • there thenegligent medical care is like the intersecting tributary that overwhelmsand dominates the original causal stream(of proximate cause)”. (p. 65 Fl)- intervening cause- YES they were held responsible (if circumstance is made by negligent doing, first actors (which acted with intent) are responsible// Intent/ negligent)

20. 2.2. Essence of the criminal offence/ elements constituting an offence- actusreusin Common Law- causation • proximate cause and intervening cause;Brackett v. Peters Scenario b)„Suppose Jack negligently runs down the mob boss Gabe. While Gabe is recuperating in the hospital, his nemesis in the criminal underground, Mike, finds him in the room and executes him, mob style, with a rope around the neck. In this situation the party responsible for Gabe's death appears to be Mike, not Jack. Jack's negligence merely explains why Mike finds his victim in the hospital rather than at home. • in other words, Mike's actions emerge in the foreground as the responsible cause and Jack's bringing about the car accident recedes into the background • there is good authority for the conclusion that Jack would not be liable for Gabe's death • now what is the difference between medical negligence in treating Darrell Cabey and Mike's executing Gabe? • is it a matter of probability? • of foreseeability, as lawyers say?

21. 2.2. Essence of the criminal offence/ elements constituting an offence- actusreusin Common Law- causation • proximate cause and intervening cause;Brackett v. Peters Some prominent judges, notably Justice Benjamin Cardozo, have reasoned that analyzing proximate cause is nothing more than assessing "the eye of vigilance" and the degree of foreseeability • this seems to be an oversimplification • the perspective of probability ignores the key factor in the situation, namely, that the wound injuring Darrell Cabey in the hospital was merely negligence • the mode of Mike's killing Gabe was intentional and willful • it could well be the case that the intentional killing of a mob boss in the hospital was more probable, more foreseeable, than the hospital staff's negligent treatment after a gunshot wound”.(p. 65 Fl) • break of causal link/chain -intervening cause (negligent/intent)

22. 2.3. Unlawfulness • essence of the criminal offence indicates the unlawfulness • negative form- negative way • lack of justifications (self-defense, necessity, consent) • 1) you are walking down the sidewalk, biker comes and throw you on the road, the car comes and try to avoid you while you are lying on the road, and hits and destroy the store, but no one is hurt • Responsibility of the driver?

23. 2.4. Mens rea/ culpability(guilt)- US • Model Penal Code: • 1. Purposely - he is aware & wants the conduct/result and is aware of the attendant circumstances • 2. Knowingly – he is aware of the conduct, result and the attendant circumstances • 3. Recklessly – he consciously disregards the risk + a gross deviation from the law-abiding standard of conduct • 4. Negligently – should be aware of the risk + a gross deviation from the reasonable person standard of conduct • Common law: • 1. general intent (rape, battery) – it refers to the act, which presumes a general intent it’s important to determine: • (a) whether the defendant had a reasonable mistake, and • (b) whether defendant’s belief is honest. • 2. specific intent (1st degree murder, robbery, larceny, attempt, conspiracy) – he wants specific result, no presumption;knowledge of the specific result is sufficient • Strict liability – mainly used for public welfare offences

24. 2.4. Mens rea/ culpability(guilt) Civil LS • Dolus (intention/intent- direct// indirect) -doulsdirectus// doluseventualis • Culpa (negligence- thoughtlessness, carelessness) • Excuses (insanity, involuntary intoxication, duress, personal necessity; mistakes (avoidable / unavoidable)– • mistakes of law; • reasonable mistake about the factual basis of justification, • reasonable failure to perceive the running of a substantial and unjustified risk)// Croatia – mistakes and exceeding the limits of self-defense because of strong scareetc. • „an excuse does nor challenge the wrongfulness or unlawfulness of the conduct, but merely denies the personal accountability of the actor for the wrongful act„;-Read more: Excuse: Theory - The Range Of Excuses - Law, Duress, Actor, and Personal - JRank Articleshttp://law.jrank.org/pages/1112/Excuse-Theory-range-excuses.html#ixzz4OHHQgDPS (26.10.2016.)

25. 2.4. Mens rea/ culpability(guilt) Civil LS • Elements of Guilt „A perpetrator who at the time of commission of the criminal offence was of sound mind, acted with intent or by negligence, wasconscious or ought to and could have been conscious of the fact that his/her act was prohibited, provided there is no excusable reason, shall be guilty of a criminal offence(Art. 23 CCC) • Intent(Art. 28 CCC) • „1) A criminal offence may be committed with direct (dolusdirectus) or indirect intent (doluseventualis). • (2) A perpetrator is acting with direct intent when he/she is aware of the elements of a criminal offence and wants or is certain of their realisation. 3) A perpetrator is acting with indirect intent when he/she is aware that he/she is capable of realising the elements of a criminal offence and agrees to this. • Negligence (Art. 29 CCC) • „1) A criminal offence may be committed by „reckless”(„conscious” negligence) conduct or by „unconscious”negligence. • 2) A perpetrator is acting „recklessly”when he/she is aware that he/she can realise the elements of a criminal offence but foolishly believes that this will not occur or that he/she will be able to prevent this from occurring.” –(thoughtlessness) • „3) A perpetrator is acting with unconscious negligence when he/she is not aware that he/she can realise the elements of a criminal offence, although under the circumstances he/she ought to and, by reason of his/her personal characteristics, could have been aware of this possibility.” -(carelessness)

26. 2.4. Liability for criminal negligence • „Justification” for liability for negligence • Four prerequisites for liability for criminal negligence (p. 263. Kelvin..) • The actor can foresee the risk • The actor violates aa duty of care with respect to the protected interest • Harm, as defined by the statute occurs • The offender could have avoided the harm by careful conduct

27. 2.4.1.Excuses –Common Law-US • Excuses-exclude or affect (diminish) guilt • Duress (excuse) • Common law elements: • (1) a “threat of imminent death or serious bodily injury” led the defendant to commit the crime, • (2) the defendant had no reasonable, legal alternative to breaking the law, and • (3) the defendant was not responsible for creating the threat. • duress applies to crimes other than murder

28. 2.4.1.Excuses –Common Law-US • Model Penal Code: • actor was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, • if a person of reasonable firmness in actor’s situation would have not been able to resist. • Insanity (excuse) – 4tests: • 1. Durham (product) test - he is not responsible if his act is the product of mental desease or a mental defect • 2. M’Naghten (cognitive) test – requires such a defect of reason from disease of the mind that he did not know: a) the nature and quality of the act he was committing; or b) what he was doing was wrong. • 3. irresistible impulse test – the defendant could not control his act • 4. MPC (cognitive-voluntaristic concept): no responsibility if, as a result of mental disease or defect, he lacks substantial capacity to: a) appreciate the criminality [wrongfulness] of his conduct, or b) conform his conduct to the requirements of law • Batteredwomansyndrome/ Culturaldefense /Rottensocialbackground (New defenses)

29. 2.4.1.Excuses –Civil Law System- Germany and Croatia • Mistakes • Insanity/Mental Incompetence • Excessive self-defense • Duress/ • Necessity as a reason for excluding guilt (Art. 22 § 2 CCC)

33. Thank you for your attention!