This article is written by Shikha Pokhriyal. This article will analyze crime and its core elements, actus rea and mens rea that are considered as necessary requirements of every criminal case. This article shall also discuss the criminal system of the USA along with relevant case laws.


Any harmful act or offense that poses a threat to society or any individual can be understood as a crime. These offenses are prohibited everywhere around the world. Every country prohibits crime that threatens the peace of society. To constitute a crime, there are various elements that need to be fulfilled. The burden of proof in most cases of criminal matters lies entirely upon the prosecution, which alleges that a specific offense was committed by the defendant. The prosecution needs to prove to the court that all the essential conditions that are laid down in the legislation are satisfied. Crime can be divided into various kinds depending on the nature of the activity. A crime is an act that violates the basic principle of law and disturbs the balance of society. A criminal act is one that is morally wrong, leaving a huge impact on someone’s mind and body.

In the USA, every state has its own set of legislation that deals with the elements of crime. Though states have their own specifications about crime, the differences among the criminal laws do not vary much in the US.

Download Now

Congress was responsible for establishing and codifying the criminal law in the US. The federal government provided provisions that explained different kinds of crimes and their elements. The legislation also provided specific procedures that needed to be followed by the investigating officers while investigating any crime.

This article will talk about the concept of crime in detail, along with the essentials that the prosecution needs to prove to win their case. Also, it shall discuss some of the defenses that a prosecution can avail.

Crime : overview 

An intentional commission of an act that violates the moral structure of society or causes or tries to cause any physical or mental injury to any individual and the legal provisions can be deemed to be known as criminal activity. In order to prove that a criminal activity was committed, there are essentials that must be proved. There are some grave crimes that constitute some additional elements, but apart from these, the basic elements of all the other criminal activities are almost similar. 

The definition of crime varies from state to state. Several jurists explained the concept of crime by supporting different kinds of theories. Some jurists said that in order to understand a crime, one should think like a criminal. Also, one should consider the background and situation of a criminal so that these criminal actions can be prevented.

A crime is committed when an individual acts in a way that satisfies all the essential criteria of that particular crime. There are three essentials that are common to every crime; actus rea, mens rea, and proximate causation. The prosecution that files the allegation against the defendant must be able to prove all three essentials in order to constitute any act as a criminal act.

Types of crime

The division of crimes is done by almost every legal system to establish different courts and procedures for different kinds of offenses. Crime can be of a petty nature or of a severe nature. Crimes that leave an impact on the victim and on society are considered grave crimes. Petty crimes are those in which harm that is caused to an individual or their property can be compensated. 

Under the US Code Title 18, crimes are divided in different chapters starting from the general provisions of the crimes. This title explains different kinds of crimes like, theft, fraud, robbery, homicide, genocide, arson, counterfeit coins and etc.

There are various kinds of crimes that exist. As per the scholars, crime can be divided into five categories. A crime can be categorized by understanding how much force with an intent to kill or cause harm is caused to a specific individual. Felonies are considered grave offenses, consisting of felonies of the first degree being the most serious and grave one to third degree felonies being the least serious among all other degrees of felonies. As per the criminal experts, crimes can be divided into the following:

Crimes committed against a person

This kind of offense is committed against a specific individual that causes any physical or mental injury or harm to that person. Further crimes against a person are classified into two categories: violent and non-violent. These crimes include murder, manslaughter,or any attempt to harm the human body. Under the US Code Title 18 Chapter 51, deals with the cases of homicide.

Violent crimes are those that cause any physical harm to the person, and non- violent crimes are those that result in mental or psychological injury to a person or any kind of fraud that causes financial loss. One of the examples of violent crime is when a person is held accountable for the grave injury caused to another person that results in the death of that person. That person is then charged with first degree murder. Other examples of violent crimes caused against a person are assault, battery, domestic violence, rape, etc. The crimes committed against a person cause mental stress and trauma to the victim, which results in a loss of income and productivity.

Crimes committed against a property

This kind of crime is committed against a property that interferes with the usage of that specific kind of property in issue. Properties can be classified into two categories; movable properties and immovable properties. This kind of offense disrupts the right of an individual to enjoy the premises of a certain property or use that property in the way they want. Crimes committed against a property depend upon several factors, like physical force, value, deadly weapons involved in the commitment of the crime and injuries that are caused while this offense occurs. One of the most common features of crimes committed against a property is forced entrance into the property without any prior knowledge. Some of the examples of crimes that are committed against a property are robbery, burglary, fraud, theft, or shoplifting. These kinds of crimes result in more mental or psychological injury to the person than physical harm. These kinds of crime are included under Title 18 of the US Code Chapter 31– embezzlement and theft, Chapter 41– extortion and threats, Chapter 103– robbery and burglary.

Inchoate Crimes

An inchoate crime can be defined as a kind of crime that is committed when a person initiates a step that is prohibited by law in order to commit any other offense prohibited by law. These crimes are covered under the Title 18 of the US Code. These kinds of crimes are the ones that are not fulfilled but only an initial step is taken towards them. Inchoate crimes require more than mere intention or hope to commit a crime. An individual, in order to commit an inchoate offense, must take a ‘substantial step’ towards the completion of the offense in order to be held guilty of this offense. Some of the essential features of inchoate crimes are aiding, abetting, conspiracy, and attempt. The punishment for these kinds of crimes depends on the severity of the offense.

Statutory legislations in the USA vary from one state to another. So one offense can be a crime in one state of the USA, and in one, it is not punishable.

Criminal elements

A crime is committed when all the elements of an offense are fulfilled. The legal provisions highlight the essential elements of the specific offense. When a criminal commits a crime and all essential conditions of the legal provisions are fulfilled, then the accused is entitled to the punishment. Any crime consists of three essential elements in particular, that are the basic elements of any offense:

  1. Actus rea
  2. Mens rea 
  3. Causation between the act

There are various stages that a criminal goes through in preparation for a crime. In order for the government to prove that a crime was committed by the accused, they have to show that all the necessary essentials stated above are fulfilled. There are four stages of a crime that are stated below:

  1. One of the initial stages of a criminal act is the intention to commit an offense.
  2. After an intention to commit a crime is established, a criminal starts preparing for the act.
  3. After the preparation of the crime is done, the criminal focuses on the execution of the act, which is an attempt towards the criminal act. An attempt is a direct movement or action taken after preparation.
  4. After an attempt, the last stage is accomplishment or completion of the crime.

The fundamental principle of criminal offense is based upon the maxim actus non facit reum nisi mens sit rea. This maxim can be explained as only an act is not enough to show that someone has committed a crime, but with that activity, it has to be proven that the accused had an intention to commit that specific act. The gist of this principle is that no act is criminal unless it is supported by criminal intention. 

Along with these essentials, there are some circumstances that also satisfy criminal liability. Some of these situations include:

  • Acts are prohibited by the law: in order to prove that a crime has occurred, the prosecutor has to show that the said offense is prohibited by the law of that particular jurisdiction. Only establishing the existence of mens rea and actus rea is not enough when that act is not a crime as per the law. 
  • Acts must result in some harm or injury: this situation is not essential to prove that a criminal activity is done. But in cases where the allegations are of murder, rape, assault, injury, or harm, it becomes essential to the case. In cases of fraud or forgery, there is no bodily harm or injury that is caused to a person, but it does cause mental injury to the victim. 
  • Other conditions laid down by the legislature: as in the USA, each state has its own set of rules and regulations. Therefore, in order to prove that an act is a criminal offense, the prosecutor or the government needs to satisfy all the essential conditions as per the law of that state.

Com. v. Trowbridge (1978)


In this case, the appellant had six dogs living with her and her family.  One morning an officer was passing from the front of the house of appellant, when her dogs surrounded the vehicle of the officer.  In his defense the officer dispersed her dogs that ran back to the horse. This initiated heated conversations between the appellant and the defendant. The officer told the appellant that due to her reckless behavior, it endangered the life of the officer.


The issue that arose in the case was whether the act of the appellant endangered the life of the officer due to her negligence and recklessness.


Recklessly endangering another person is punishable under Title 18 Chapter 27  §2705 which highlights the essential features of this provision. Criminal assault includes present ability to cause injury.

The Commonwealth court held the appellant liable for the recklessness causing injury to the officer. The court stated that a person causes injury to another person if they recklessly cause any danger or serious injury. Therefore in order to hold a person liable under this provision following elements need to be proven:

  • Recklessness mens rea
  • Conduct that will be regarded as actus reus
  • Causation of act 
  • Achievement of that specific act

People v. Corpening (2016)

In this case, the defendant was punished for carjacking and robbery. The said observation was based on the fact that the defendant forcefully robbed the vehicle. One of the contentions of the defendant was that his action of taking away the vehicle should be considered as a single act. The question that arose in front of the court was whether forcefully taking away a vehicle constitutes two offenses or a single offense.

Therefore, the court said that as the actus reus was fulfilled by the single action, then the defendant shall be held liable under one provision.

Criminal intent (Mens Rea)

The mens rea is one of the essential conditions to establish that a person is guilty of a crime. Mens rea consists of the criminal intention to commit an offense. While deciding whether an accused is guilty of an offense or not, their mental state needs to be taken into consideration. Mens rea is also known as the guilty mind. The object of the law is to punish any person who has a guilty mind. The reason that mens rea is considered an essential element of criminal liability is because every person has a reasonable capacity to choose between right and wrong actions. When a person makes a choice, they are aware of its consequences and can foresee the possible conclusions. In many legislations, mens rea is presented with words like ‘intentionally’, ‘wilfully’, ’knowingly’, ‘guilty’, etc. All these represent the state of mind of the accused at the time of the commission of the act.

In the case of Staples v. United States (1994), the Court stated that the requirement of mens rea is important in order to determine a guilty state of mind. In order to constitute a crime, the defendant must be aware that an act committed by him is prohibited by law. The Court stated that the defendant must be conscious of the fact that his conduct puts him within the definition of an offense.

The Model Penal Code recognizes mental states by taking four states into consideration; purpose, knowledge, recklessness, and carelessness or negligence. This Code states that the defendant must satisfy all these elements in order to be punished for an offense unless the state law states otherwise. As per this Code, in order to establish the fact that the defendant is guilty of the crime these essentials of mental state need to be proven.

  1. Purpose: In order to commit an offense, a person acts with a purpose or intention to get certain results. Here, a person commits a crime with the intention of causing injury or harm to another person. As per Austin, “intention is the aim of the act, of which the motive is the spring.”
  2. Knowledge: When it is established that a person has intention to cause a certain kind of offense, then it means that the accused is well equipped with knowledge of the consequences of their actions. For example: if A shoots X with the intention of causing him an injury, then A has knowledge about the fact that shooting can cause death of X. Knowledge specifies a mental state where the mind is conscious and passive recipient of specific ideas and strategies, while intention denotes a conscious state of mind where the mind has awareness about perceived actions and their consequences.
  3. Recklessness: Recklessness occurs when a person who is well equipped with knowledge that there exists a risk if he commits a certain action is still able to deviate from the action, causing gross risk. When a person acts recklessly, they do not have any idea what results will come from their actions. For example, A wanted to take revenge from X due to a business feud between them. So A plans to poison X’s food to kill him. When A enters the kitchen to poison the food, he gets confused as he doesn’t know what food will be served to X. So A mixes the poison in every dish that was on the kitchen counter. When the food was served, X did not eat anything, but his wife ate the food and died. Here, A did not have an intention to kill the wife of X, but he knew that there existed a substantial risk that could result in harm to another person. Therefore, A acted recklessly, as he was aware about the consequences of his action.
  4. Negligence: Negligence occurs when an accused is not aware of the circumstances and consequences that their actions hold. The only difference between recklessness and negligence is that in recklessness, an accused is well aware of the risks involved but still tends to ignore them but in negligence, an accused is not well equipped with the knowledge that an action might have some risks. The level of risk in both cases is almost the same but in negligence, the accused should have anticipated the consequences of their actions.

Burden of proof

As the saying goes, every person is innocent until proven guilty by the prosecution. Therefore, whenever a criminal trial is initiated, it shall start with the presumption that the accused is innocent, and the prosecution needs to show evidence to the jury to hold the defendant guilty. It is the obligation of the prosecution to establish reasonable doubt, including mens rea, to prove that the accused is guilty of the crime. In these cases, the defendant cannot be asked to show that he is innocent, as the entire burden is upon the party who filed criminal charges.

In cases of legal provisions where the presumption of mens rea is mentioned, the prosecution only needs to prove that the defendant has committed the specific act. If this is established by the prosecution, then the accused is presumed guilty. Now the burden of proving innocence is shifted to the defendant.

Mens rea is very important but difficult to prove in the courts of law. The courts have realized that proving the existence of intention is difficult; therefore, prosecution can prove the accused guilty by the general conduct of the accused. This includes the fact that the intention of the accused can be proved by what he says or his prior or subsequent admission of what he wanted to do.

Strict liability 

A person is considered to be held liable for strict liability when he voluntarily commits a crime that is just wrong in nature and morally and will not be accepted by society without even considering the element of mens rea. The doctrine of strict liability is used in both tort law and criminal law. The gist of the doctrine is that an accused cannot escape its action under any condition.

In recent times, all the countries have developed their criminal system consisting of strong principles and defenses where the work of the prosecutors has gotten a little easier. In some of the crimes that are of grievous nature, like in the cases of rape, proving of mens rea is not important. Other than this, there are several offenses where the element of mens rea is not considered, especially in cases of public welfare and cases involving minors. This is called strict liability, where there is no need to show the guilty state of mind of the defendant. In strict liability, the only thing that needs to be proved in court is that the accused committed the said crime, regardless of the fact what his intentions were while committing the crime.

In the case of United States v. Zhou (2005), the defendant accessed confidential health records after his employment was terminated. For this offense, he was convicted, and he contended that there was no evidence that he had an intention to use or sell these records in any manner. The Court in this case rejected the contentions of the defendant by stating that while the defendant was accessing the confidential records, he had knowledge that it was illegal, but he still did it. This was enough to hold him liable for the said crime, and there is no need to prove the intention of the defendant.

Some of the situations where the court can ignore the requirement of mens rea are:

  • If the law explicitly states that mens rea is not an essential requirement to determine the innocence of the accused, then this has to be taken as a strict liability.
  • If the statute states that mens rea is not important in any specific case, then the courts will examine not only that specific legal provision in question but also other alternative legislation. In order to understand, courts often examine the legal reports and debate them in order to ascertain the requirement of mens rea.
  • If a legal provision states that there is no requirement of mens rea, then the court shall consider the severity of punishment and the level of stigma attached to that particular offense.
  • In order to prove that an offense falls within the ambit of strict liability, it is important to show that, after considering the offense as strict liability, it would help in discouraging that specific crime.

Kahler v. Kansas (2020)

In this case, the accused Kahler was charged with the allegation of murder for killing a family of four people. He took the defense of insanity. Under the Kansas Law, the defendant can take the plea of insanity by stating that he was not able to understand his actions and its consequences. This will help the defendant to show that “he lacked the culpable mental state required as an element of the offense charged”.

The Supreme Court rejected this test of “cognitive incapacity” as it violates the due process of natural justice. The Kansas Law does not consider moral incapacity defense that allows the defendant to understand what is morally right or wrong with respect to their action. 

Actus Reus

Actus reus means an illegal activity or omission. Actus reus is one of the essential elements of a criminal act. The term actus reus has been defined by Glanville Williams as “actus reus is the whole explanation of crime with the exception of mens rea”. The necessity of the actus reus depends on the facts of the case. One of the features of actus reus is voluntary action. The defendant must have committed the crime voluntarily and without any force.

In the case of the  Supreme Court Powell v. Texas (1968), the Court observed that the interests of society and bodily movement are included within the ambit of actus reus. 

The physical action of a criminal act is actus reus. In order to prove a criminal act, the defendant must have caused some injury to someone or omitted something. Without this, no criminal trial can take place. Apart from causing injury to others, actus reus also includes the omission to do something that must have been done out of duty or law.

The human conduct that the legislature seeks to prevent is known as actus reus. Such conduct must be prohibited by law in order to prove that the defendant is guilty.

Actus reus can be determined by the court by considering the following conditions:

  • Place: in some cases, actus reus needs to be proven where it occurred
  • Time: in the cases of causing hurt or assault, the actus reus is determined with the help of both time and place
  • Persons involved: in the cases of abduction or any other missing cases, actus reus needs to be determined in terms of a concerned person
  • Consent: consent is also considered while determining a criminal action. In the case of rape, consent plays a huge factor. If there was no consent, then it would amount to rape.
  • State of mind of the victim: when the victim is put under any threat or influence or when consent is obtained through these conditions, then the state of mind of the victim is also taken into consideration as actus reus.

Causation and harm 

The criminal act that occurs is the result of several factors involved in the process. A factor is said to have resulted in some action when, without that factor, that specific event would not have happened. The specific act must be causa causa, this means that a cause must have resulted in an immediate effect. This also depends upon the facts of the particular case. If the facts of the case are not complicated, then establishing a causal connection between the act and effect may not be very tough. In order to determine the causation of the act, it is not necessary that the factor that caused a crime must be physical only. This is used in cases of fraud or conspiracy.

One of the other essential elements of the criminal act is causing harm to the person. The prosecution has to prove that the defendant’s action caused some injury to the person filing the criminal case. The causation factor should have resulted in causing injury to the victim. Causes can be divided into two types: factual causation and legal causation.

  • Factual causation: this rule is also known as “but for” test (Causa sine qua non). This factual test involves investigation to determine the cause of death. The test determines if a certain act resulted in the injury or death of the victim. This rule takes into consideration the negligence of the accused that resulted in the death of the victim. When the prosecution establishes that the concerned injury would not have happened but that due to the defendant’s action it occurred, then they are able to establish the lament of causation.
  • Legal causation: this concept has a more subjective approach as compared to factual causation. This approach is concerned with determining whether the actions of the defendant’s injury or damage can be termed as legal cause. In order to determine whether the action of the defendant is a legal cause or not, there are two things that need to be satisfied:
  1. The cause must be substantial to the extent that injury occurred and caused harm to the victim 
  2. In order to establish legal cause, the defendant must be in a position to be blamed.
  3. The act of the defendant must have occurred when the liability arose.
  • Novus actus interventions: the defendant can be excused from the liability of the criminal act in two cases; first, due to the intervention of the third party in the action of the defendant, and second, due to the occurrence of unforeseeable events between the action of the defendant and the end result.
  • Substantial factor test: In order to determine the causation that was caused by the defendant, many states use substantial factor tests. This test was established by the American Law Institute in order to determine whether the defendant’s action inflicted any harm or injury. Under this rule, the courts examine whether the actions or omissions of the defendant can be considered substantial factors that resulted in injury. The test of substantial factor directly contributes materially to the happening of an event. For example; if a driver who is driving a truck full of explosives crashes into another vehicle, thereby causing death of the truck driver, then in this case, the factor that the driver was not driving appropriately with full focus shall be considered a substantial factor.

Criminal legislation in the USA

A criminal offense is one that harms the peace of society and individuals. It is not committed against only the victim but also against society. One of the key differences between criminal and civil law is that in civil proceedings, there are two parties involved in a dispute, whereas in criminal law, the government is involved and decides whether an individual should be punished for a grave offense or not. Some of the crimes that are grave in nature and cause tremendous stress and injury to a person are prohibited and illegal in every state and country. For example: murder is an offense that is considered grave and serious in every part of the world and the punishment of the same is serious. The procedures and punishments differ from one state to another.

In the USA, every state has its own criminal legislation that provides the procedure and severity of the offenses. Therefore, here in the USA, most of the criminal proceedings are conducted at the state level. The federal government in the USA takes up a criminal case only when the concerned state is not able to adjudicate the matter properly or lacks jurisdiction to investigate such matters. 

The criminal system in the USA has been evolving for thousands of years. This evolution of the criminal system has been based on the requirements and needs of the people in society. As development improved and inflation rose, the rate of commission of crimes also increased.

The main foundation of US criminal law is its Constitution, consisting of the Bill of Rights. This Bill of Rights guarantees the people living in America the right to live their lives freely without any hindrance; they are entitled to their privacy and liberties. These rights are granted to every individual, including the accused persons against whom there are allegations of the offense. It is the duty of the prosecution or government to establish the fact that a specific offense was committed by the defendant. Therefore, the government is responsible for proving the specific charges against the accused without any reasonable doubt. The accused has been provided with several rights to protect them from situations like double jeopardy and testifying against themselves. The defendants in criminal cases have the right to consult appropriate counsel in order to prepare their defense.

The US criminal justice system refers to the institutions, methods, procedures, rules, and regulations that are implemented during or after the commission of a crime. These policies help in the investigation of crime in an effective and efficient way. The modern criminal justice system is based on two factors:

  1. There exists specific rights for the persons accused or convicted and victims of the crime of a certain offense 
  2. The state should establish a set of laws and procedures while prosecuting the accused person and they must be punished as per the state laws.

The criminal system of the USA has evolved a lot since ancient times. In ancient times, there was no effective criminal legislation in place; therefore, whenever any criminal activity used to occur, private individuals used to solve it as they liked, that is, by involving themselves in ‘blood feuds’. This means private individuals used to believe in the phrase “an eye for an eye.” Since then, the criminal system has evolved for the betterment of society. The current legal system is supported by the theories of law, politics, and society. Now in the modern world, there is no place for private individuals to take charge when some crime occurs; it automatically becomes the duty of the government to initiate the legal proceedings and investigate the criminal matter. In order to create stability and peace in society, the government established courts and proper legislation to investigate the matter. 

The criminal justice system is the background of every country. The criminal system provides justice to the victims by deciding the fate of the criminal. The government differentiates the types of crimes depending on the severity of the offense, and accordingly, punishments are also provided for the same.

The criminal system of the USA follows a series of rules and regulations in a criminal case. One of the first steps in a criminal case begins with a police investigation and then goes into the trial. The criminal procedure is provided in the Federal Rules of Criminal Procedure and also under Title 18 of the U.S. Code, which provides substantive procedure in the criminal case. The legislation in every state is different. Procedural rules are important as they make sure that a criminal matter is adjudicated in a consistent manner that safeguards the interests of individuals. There are various stages in a criminal proceeding that need to be followed in a diligent manner.

The Model Penal Code

The Model Penal Code was established to lay out guidelines and procedures regarding criminal law. This Code was established to guide the trial of criminal procedure. The Model Code was established in 1962 by the American Legal Institute. The Model Code is divided into four parts; general principles regarding liability, specific offenses, legal provisions regarding treatment and correction, and provisions governing institutes governing correction departments. Majority of the states used the drafts of the Model Penal Code to draft their criminal legislature.

This criminal code consists of general principles that include liabilities that are to be applied, defense principles, etc. The Code provides for the offenses in detail and covers almost all the criminal activities. One of the most important features of the Model Penal Code is that it provides an explanation of criminal intention. In trials, one of the essential conditions that a prosecutor has to prove against the defendant is his intention to commit the act. This Code also states that any act that is not explicitly prohibited by the legislature is legal.

The Model Penal Code aimed to rationalize the criminal system of the USA by using a logical framework consisting of general principles and defense.

Amendment rights under US Constitution

Right of Fourth Amendment

This amendment to the U.S. Constitution safeguards individuals from searches and seizures that are unreasonable in nature. This right protects an individual’s privacy by putting an obligation upon the police to first secure a warrant from the competent authority in order to search anyone’s premises. Without a warrant, police cannot enter any place for an investigation. The police authority has to show the judge that a reasonable doubt and cause exist to secure a warrant for search and seizure.

Right of Fifth and Sixth Amendment

The most famous constitutional right is the right to remain silent at the time of police interrogation. We have seen several television shows where, when the police arrest any person, they specifically state, ‘you have a right to remain silent’. This right is also known as the Miranda Right, which safeguards the interest of the people arrested. This principle right was established in the case of Miranda v, Arizona (1966). In this case, the Supreme Court observed that, as the nature of police interrogation is very coercive, it advised police authorities that at the time of arrest they should recite Fifth and Sixth Amendment rights to the defendants. It was stated in this case that when an accused asserts their right to remain silent, the investigation must stop.

Some of the other rights  that are provided in this amendment are

  • Confrontation provision: this right is provided in the Sixth Amendment, and it allows a criminal accused to confront their accuser face to face. If the witness is not able to testify against the defendant in trial, then any statements offered as evidence to incriminate the defendant will not be acceptable in the court of law and would be deemed as hearsay.
  • Speedy and Public Trial: this right under the Sixth Amendment provided assurance to the defendants of speedy trials. This provision is included so that the government or the accuser does not delay the proceedings unnecessarily. In order to determine whether the defendant’s right to speedy trial is violated or not, the Supreme Court of the USA formulated a four-part test that should be applied depending upon the facts of the case. This four parts test includes:
  1. The duration of the delay
  2. The explanations and reasons submitted by the government for the delay
  3. Whether the right to a fair trial was appropriately asserted by the defendant?
  4. Whether rights of the defendant were prejudiced due to delay?
  • Fair and impartial jury members: when a criminal case goes to trial, one of the deciding factors of the case is the jury. Under the Sixth Amendment rights, the defendant is entitled to a trial in front of an impartial jury. In the federal courts, amicable settlement by the jury is important for arriving at any decision, but in the state courts, in order to arrive at a verdict, it is not important for the jury to agree unanimously. This right to an impartial jury is not applicable to crimes that are of a petty nature where the maximum possible punishment is six months or less. This right can only be availed of when the offense is of a serious and grave nature.
  • Clause of Double Jeopardy: The provision of double jeopardy is provided under the right of the Fifth Amendment. This clause states that no person shall be tried twice for the same offense. This means that the government must not hold any person liable for the same offense after that person is acquitted, convicted, or mistreated. The whole point of this provision is that if a person commits a crime once, then their punishment should also be one. In the case of Blockburger v. United States (1992), the Court stated that in order to prove two separate offenses, if the same evidence is provided, then the provision of double jeopardy may prevent the prosecution for one crime if, in the other offense, jeopardy has already been attached. 

Eighth Amendment Right

This amendment right safeguards the interests of the people just after the arrest, which is during the initial stage of the investigation. This provision deals with the concept of excessive bail that a defendant needs to submit to the court at the time of bail. It states that a judge is not under an obligation to grant bail to the accused person after their arrest, so the amount that is set for bail shall not be unreasonable or excessive in any manner. This right also prohibits “cruel and unusual punishments.” The Supreme Court stated four principles that should be considered while determining whether a punishment violates the Eighth Amendment or not:

  1. Severity of punishment is such that it degrades human dignity
  2.  The punishment should not be arbitrary
  3. Society does not accept the punishment
  4. The specific punishment is unnecessary in nature

Criminal trial process

When a crime is committed and a person who has been accused of the specific offense is arrested, the criminal investigation and trial process begins. After the arrest, the first and foremost step is to prepare charges against the accused in a formal way. The defendant is informed about their charges in the first court appearance, known as arraignment. The trial is the process where the facts and arguments are presented by those who filed the criminal case in front of the jury. The trial is done to determine whether the facts that are presented can support the guilt of the defendant or not. In order to establish the case against the defendant, the prosecutor uses various witnesses and presents evidence to establish the guilt of the defendant. The judge in the trial is responsible for deciding what type of evidence and arguments can be presented to the jury by both parties to make their case. Following are the steps of a criminal trial:

  1. Selection of the jury: one of the first steps in a criminal trial is selecting an impartial jury. The jury selection is done by both the party’s prosecutor and the defense attorney. The facts of the case are presented in front of the jury by way of witnesses and evidence. From the federal district, twelve jurors are selected randomly from the pool. The jury is responsible for determining the verdict of the case.
  2. Opening statements: these statements are presented in the initial hearings, where both the prosecutor and the defense narrate their part of the story in front of the jury and the judge. The opening statements are like briefs of the case and do not include any evidence at this stage. The first chance of an opening statement is provided to the prosecutor, as the burden of proof in criminal cases lies upon the one who is making an allegation.
  3. Case presentation: the case is presented after the opening statement is over. The presentation of the case comprises different stages like:
  • Examination of witnesses: after the opening stage is over, the prosecutor is given an opportunity to examine their witnesses directly. While the prosecutor is cross-examining the witnesses, the defense has the right to cross-examine the witnesses. At the end of the examination, the prosecution rests its case, and beyond this point, the prosecutor is not allowed to examine any more witnesses. The defendant does not have the burden to prove their innocence; it is the other party who needs to show that the defendant is guilty. When the examination is conducted, both parties are provided the chance to object to the fact or the evidence based upon two factors: hearsay and objection. The final decision to overrule the objection lies with the judge.
  • Closing Arguments: when the defense has cross-examined the witnesses, presented their part of evidence, and given their part of testimony, the defense rests their case. At the end of trial, when both parties have presented their part of the story, both parties give their closing statements. The closing statements are the last chance provided to both parties to impress the jury and influence them.
  1. Decision: the last stage of a criminal trial is the decision where the jury decides upon the fact whether the defendant is guilty or not. When the jury is making their decision, neither of the parties is allowed to approach the members of the jury or communicate with them in any way.

Theories of criminal punishment

Criminal theory is based on social science, which provides useful principles and tools that help to explain human behavior and the phenomena of society. Criminal law consists of various kinds of theories that explain the causes and consequences of criminal acts and behavior. Several jurists presented different forms of theories that explained the criminal law and why a crime is committed. In order to control crime, the state frames legal rules and regulations that consist of punishments. Some of the theories of criminal law are enumerated below: 

  1. Deterrent Theory: The deterrent theory was established by Jeremy Bentham. As per him, if the applicable punishment is certain and severe, then the man would hesitate or be deterred from committing a crime. There should exist a relationship between the crime that is committed and the punishment that is provided for that specific crime. Punishment for a crime depends on the severity of the crime. This theory is proven to be ineffective in the real world as it is not able to check the crimes happening. This theory is often considered way too harsh for the criminals. This theory does not give a chance to the accused to reform their behavior. Also, it is not a proven fact that once a deterrent punishment is given, the crimes will not happen.
  2. Retributive theory: this theory is based upon the ancient practice of seeking criminal justice, which is, “eye for an eye.” This theory states that the aggrieved party must cause or inflict similar kinds of pain or injury on the other party or defendant. In the practical world, this theory is unrealistic, as it would only cause chaos and harm to society. This theory does not consider the balance that needs to be achieved while seeking justice. If everyone who has been the victim of a criminal act follows in the footsteps of the criminal just to seek justice, the entire legal system and principles of natural justice will collapse, resulting in conflict in society.
  3. Preventive theory: as the name suggests, this theory aims to stop the crime from happening rather than focusing on taking revenge. Preventive theory is also known as disablement theory. The whole concept of this theory aims to eliminate the person who committed a crime from society in order to avoid the repetition of the offense. Elimination of the criminals is done by giving them death punishment or life imprisonment, as these punishments keep the criminals away from society. This theory prevents the accused from making a bad impact in society by giving them rigorous punishments; it is often deemed to infringe on the basic human rights of the accused.
  4. Reformative theory: the reformative theory aims to transform or reform the criminals to be law-abiding citizens of the country. This theory is based on the logic that a criminal is not a born criminal; a crime is committed due to some accidents or situations. This theory tries to understand the behavior of the criminal and tries to reform them by understanding them and putting them in correctional homes or juvenile homes for minors. Though this theory understands all the circumstances of the crime and criminal behavior, it can only be applied to juveniles or criminals who are first-time offenders. Also, when this theory is applied, the justice of the aggrieved party is compromised.

Criminal defense 

When the criminal trial begins, the burden of proving the criminal act falls on the plaintiff or prosecution. The prosecution has to show that mens rea and actus rea elements are there. The prosecution has to show that there exists a guilty act behind the criminal act. While the trial is going on, the defense also has the right to present their case and story in front of the jury. In the trial, both the prosecution and defendant present facts about the case and several pieces of evidence to the jury so that they can determine whether the defendant is guilty or not. The prosecution has to prove the act of the defendant was beyond a reasonable doubt. In defense, the defendant’s lawyer uses several defenses to find loopholes in the plaintiff’s case and show that the defendant has a reasonable defense for doing such an act.

Defense can be explained as the act of safeguarding one’s own interests. Generally, the defendant uses defense to prevent the obligation provided in the legal provision or reduce the punishment sentence. Accepting the defense of the defendant depends upon the discretion of the judge and the jury. Some of the defenses that an accuser uses to prevent liability are enumerated below:


One of the most common defenses that a defendant goes for is that guilt cannot be established as the defendant did not understand his or her actions or had no idea about what they were committing. The defense tries to show that the defendant was not in the right frame of mind as he or she was suffering from insanity. The defense of insanity is considered a complete defense, as an insane person is not capable of forming any criminal intention. 

The concept of insanity was established by the House of Lords in 1843 in the case of M’Naghten’s. The accused in this case was suffering from a delusion that the Prime Minister of Britain had caused him some harm or injury. Then the accused wanted to shoot the Prime Minister, but instead of him, he ended up shooting the secretary of the PM. The defendant filed the plea, stating that he was suffering from insanity. The Court accepted this appeal as the medical evidence proved that M’Naghten was suffering from a mental illness known as morbid delusion, which made any act out of his control. Therefore, the court in this case held the accused not guilty because of insanity. In this case, the House of Lord’s provided some principles regarding the concept of insanity:

  • Until the contrary is established, every person is presumed to be sane and to have sufficient knowledge about the crime they have committed.
  • In order to plead insanity, it needs to be proven that, at the time of the act’s commitment, the defendant was insane and did not have any idea about the nature of the act, what he was doing, or what the consequences would be.


The defense of intoxication also works on the theory that the defendant was not in the condition to understand anything he was doing. Alcohol and violence are often associated together. The impact of alcohol is such that it deadens the higher control center, thus weakening the inhibitions that normally keep a human being in a civilized manner. The condition of intoxication impairs perception, reasoning, and the ability to anticipate any situation. It is presumed that if the man had not been under the influence of intoxication, he would have led a normal and responsible life. In order to avail themselves of this defense, the defendant has to prove that the intoxication was involuntary. In the cases of voluntary intoxication, if an individual does an act that he had no knowledge or intention about, then in these cases, the defendant can avail himself of this defense. The defense of intoxication can be availed when the defendant is not in a condition to understand the nature of the act he has committed.

Mistake of law and fact

The condition of mistake implies that a person who was ignorant of the existing relevant factors or law has mistaken them and committed some wrongful act that he neither intended nor foresaw the result of, which was an illegal act.  The mistake of law is not a defense that can be applied or pleaded in every case. The defendant cannot just say that he was not aware of the law. On the other hand, a mistake of fact is an excuse, as it shows that the defendant had no mens rea to commit an illegal act. For example: in the case where an accused is charged with the offense of larceny, he can plead that he mistakenly thought that the victim had given up ownership of the property to him. This can be a case of a mistake of fact, as the defendant had good faith.


Self-defense can be defined as an act that is committed to safeguard the life of the defendant. The defendant commits the act of self defense when they are justified in doing so. One example of self defense is any act committed when the life of the defendant was at stake. For example: A tries to kill B with a knife in this B to save his life hits the head of A with a rod. In this fight, he loses his life. Here, the act committed by B was in self defense therefore he cannot be held liable for murder of A.

In order to use this defense the defendant has to show that there was imminent threat, reasonable fear, and the force that was used was proportional. Though the courts do not recognise the use of force against anyone, but in the cases where the question is concerning the life of anyone, then an individual has a right to use reasonable force to defend themselves.

Criminology: overview

Criminology is the concept of scientific studies that studies the criminal actions and behavior of the criminal who commits these actions. The study of criminology is based on society. Criminology studies crime, its causes, prevention, and why it occurred. The people who study criminal behavior are known as criminologists. The whole gist of a criminological study is to figure out the root cause of the crime. The criminologist studies the mind of the criminal with respect to the society they live in.

Some of the theories related to criminology are enumerated below:

  1. Classical theory: this theory was formulated at a time when all the individuals in society were considered equal and there was no discrimination based on any caste, sex, or religion. Classical theory is also known as Beccaria theory as it was propounded by Cesare Beccaria. As per him, crime is the result of free will and the choosing the right decision. He said that people have their own free will and assumed as reasonable they can choose their actions and the consequences of actions.

The classical theory states that an individual commits a crime due to irrational decisions, and the commitment of the act is the choice of that specific individual. Under this theory, the government has the authority to establish legislation that punishes the offenders and also treats everyone equally. As per the scholar Jeremy Bentham, “behavior of a human is based upon the features of pain and pleasure; the act of a human is based upon in such a way that it reduces the burden and maximizes the pleasure.” The classical theory states that punishments are the way to prevent crimes from happening, as they increase the pain of the accused.

  1. Positivist theory: the positivist theory studies criminology in two ways; first, what made an individual commit a specific crime and what gave him the idea to commit that offense, and second, why an individual wanted to skip the norms established by society. The positivist theory focuses more on the accused and the society he lives in. This theory conducts a societal study to determine what made an individual commit an offense that is morally prohibited by society. Cesare Lombroso was a noted criminologist who supported positivist theory. He divided criminals into various categories based on their behavior and physical conduct. As per Lombroso “criminals are born criminals as their behavior is determined by biological factors”. Categories of criminals as per Lombroso are enumerated below:
  • Crimnals by birth 
  • Insane criminals
  • Occasional criminals
  • Crminaloids
  1. Strain theory: strain theory was the result of work done by Emile Durkheim. Based upon his work Robert Merton propounded this theory. As per Merton anomie is a result of relationship between cultural goals and appropriate means to implement them. He stated that obstacle to attain wealth and success exists in every class. In the lower class community, the strain towards anomie is illiteracy and lack of job opportunities. 

Crime was a result of the phenomenon of society and its influence; this was first observed in strain theory. Strain theories are based on the norms, culture, rules, regulations, and morals stated by society. As per the theorists who supported the strain theory, an individual commits an offense prohibited by society because of inequality and little or no access to basic resources like food, clothes, and house. This theory focused upon the establishment of social rehabilitation institutes that could help these individuals who are harassed by society

  1. Critical theory: Critical theory is based upon Marxist theory. Some of the other jurists who supported this were theory George Rusche and Otto Kirchheimer. This theory states that power and authority always lie with the people who are rich and powerful, which forces the marginalized group of the community to commit the crime. This theory is divided into two more categories, i.e., structuralists and the post modernists. 

Important case laws on elements of crime

Morissette v. United States (1952)


In this case, the defendant was the junk dealer who took castings of bombs from Air Force premises that were just lying on their premises for several years unused. The defendant sold these bomb castings for some profit. When the authorities learned about this sale, they filed a case against the defendant. The government accused the defendant of “knowingly converting the property of the government for its own profit.”

In the defense, the defendant said that the castings that he took were left over there for several years. The defendant said that the government was not using the bomb castings and had abandoned them. Therefore, the defendant claimed that he had no intention to convert the government property into his own.


The issue in front of the court and the jury was 

  • Whether the defendant had an intention to steal government property.
  • Whether the defendant had any knowledge that the government did not abandon the said bomb castings and they are still to be used by the government? 

Judgment of the court 

  • The court observed that in order to establish an offense of embezzlement, stealing or knowingly converting the property of the government shall be held liable for imprisonment and fine. This is provided under provisions 18 U.S. Code & 641.
  • In this case, the prosecution needs to establish the fact that the defendant had knowledge about the fact that bomb castings were abandoned by the government, and despite knowing this, the defendant converted the property of the USA and earned profit from them. Then only intention, which is the mens rea, will be established.
  • The Court said a mens rea and intention are the inherent features necessary to establish the offense of stealing or any other activity.
  • The lower courts held the defendant guilty by stating that the bomb castings were lying on the premises of the government. Therefore, the defendant filed an appeal in the Supreme Court to review the judgment passed by the lower court, stating that the defendant neither had any intention nor any knowledge to steal the property of the government.
  • The Supreme Court rejected the judgment passed by the lower courts and stated that in order to build a case against any individual, the prosecution must prove the presence of intention and knowledge, as these are the essentials of any offense. Therefore, the defendant was held not guilty in the present case.

Rehaif v. United States (2019)


In this case, Rehaif was studying in Florida on a student visa. Due to the expiration of his immigration status, he was academically dismissed from his university. During this time, he rented fire ammunition for one hour at the shooting range. The government charged Rehaif with possession of a firearm without any license and accused him by stating that the defendant had knowledge about the fact that it was illegal to possess any ammunition without  a license in the country. The lower court held Rehaif guilty of illegal possession of firearms. Therefore, the defendant filed an appeal in front of the Supreme Court.


One of the major issues that arose in this case was whether the feature of knowledge can be made applicable to both possession elements  and criminal elements, or whether it is only applicable to the element of the possession.


The Supreme Court of the US rejected the judgment passed by the lower courts. The Court stated that it is an obligation of the prosecution to prove that an accused has knowledge that they are in the possession of a firearm that is restricted by the government. But if the accused did not have any knowledge or intention to possess an illegal weapon, then they cannot be held liable.


A crime is an act that disturbs the balance of society. It creates panic and chaos in the minds of people living in society. To prevent criminal activities, countries around the world have codified the criminal law by providing strict punishments for them. In the USA, criminal law is based on the framework of the Model Penal Code. However, the states have formulated their own set of legislation as per their requirements. A criminal act comprises two things that is a criminal action and a guilty mind. When an accused commits a crime, he prepares and strategizes for it. A criminal with the intention of causing harm or injury to a person follows various steps to prepare for that crime. This planning shows that the accused had a mens rea present, as he or she was aware of their actions and consequences. 

The burden of proving the crime is on the prosecutor or the party who files the criminal case. The prosecution has to prove that a criminal act consisted of primarily two things: actus reus and mens rea. When these two facts are established, the court can declare the accused a criminal, depending on the other facts of the case.

A criminal act is one where the accused wants to inflict an injury upon the person. The punishment for the crime is dependent on how severe the act was. Acts like murder, rape, fraud, sexual assault, or violence attract punishment for a higher number of years, extending even to life imprisonment or the death penalty in some countries.

A person committing a crime is not a born criminal. Some situations in society or in their personal lives make them do an act that is morally wrong. It is essential to give the defendant a chance to present their story, and accordingly, the courts should deliver their verdict. The defense has the right to avail itself of any of the defenses available, like insanity or intoxication, if the defendant, at the time of committing an offense, was not in the right state of mind or was involuntarily drunk. Then the courts, at their discretion, can reduce the punishment of the defendant or exonerate them from the charges.

Frequently Asked Questions (FAQs) 

What can be considered a criminal act?

A crime is an act that prohibits the provisions of the legislature. It is an act that is done to cause harm or injury to a person or their property. Every state has its respective laws pertaining to crime.

What are the essential elements of a crime?

In order to establish that a crime has occurred, there are two essential things that need to be proven. One is actus rea (action), and the second is mens rea (guilty mind). These two are the basic foundations of any crime. These two principles are based upon the maxim actus non facit reum nisi mens sit rea. This means that without a guilty mind, a criminal act cannot be done.

What is mens rea?

Mens rea is a state of mind. It represents what a person was thinking while committing a criminal act. In order to prove that a crime was committed by the accused, the prosecution must show that the accused had the intention or a guilty mind to cause harm to the person. A guilty mind represents that a person was aware of his or her actions and could have anticipated their consequences.

What is actus rea?

Actus reus represents a criminal action. Without any action or act, a crime cannot happen. The occurrence of the event can be determined with the help of several factors, like at what place the crime occurred or at what time it occurred. The factor of actus reus varies from one case to another.

What are the rights of the accused after the arrest?

An accused person has several rights that are provided by the US Constitution. An accused person has the right to remain silent during the interrogation, the right to an attorney, protection from double jeopardy, and to present their defense. The legal system is based on the principle of innocent until proven guilty. Therefore, an accused person has a right to present their side of the story.

What are some of the defenses available for the accused?

The accused has the right to present their side of the story. While presenting their side of the story, the defendant can avail of any of the defenses available, like insanity, intoxication, self defense, mistake of fact or law. As per the facts of the case, an accused can use these defenses, respectively,  to present evidence. 

Can a person be held liable if mens rea is not present in the case?

In order to establish a criminal case, it is important for the prosecutor to prove that the accused had an intention and a guilty mind to commit a specific act. Without intention, an accused cannot be held liable. It is an essential condition in a criminal case. There are exceptions where mens rea is immaterial An accused must have known what he was doing, why he was doing it, and what the consequences of his actions would be. 



Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.


Please enter your comment!
Please enter your name here