Culpability for Each Element

Culpability for Each Element

The phrase “with respect to each material element” carries the whole procedure, so the first task is to be exact about what an element is. Under the Code’s general definitions, an element of an offense is any conduct, attendant circumstance, or result of conduct that appears in the description of the forbidden conduct, that establishes the required kind of culpability, that negates an excuse or justification, or that negates a limitations defense or establishes jurisdiction or venue.¹ A material element is the narrower group left after the technical matters are set aside: it is an element that does not relate exclusively to limitations, jurisdiction, venue, or some other matter unconnected with the harm the offense targets or with justification or excuse.² The screen follows from what culpability measures. Blame is assessed for the wrong an offense punishes, so the Code does not ask whether a defendant also had a guilty mind about procedural facts, such as the place where a prosecution may be brought, that have nothing to do with that wrong.

Every material element also has a type, and the type matters because the Code defines each level of culpability differently for each one. An element may involve the nature of the forbidden conduct, an attendant circumstance, or the result of the conduct.³ Conduct is what the defendant does. An attendant circumstance is a fact that must exist when the defendant acts, such as that the property belongs to someone else, and a result is the harm the conduct produces, such as a death. The next section supplies the definitions for each type; here the only skill needed is sorting the pieces of an offense into these three groups.

With the elements identified, the rule itself can be stated. A person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense (the Code’s own numbering calls this opening provision § 2.02(1)).⁴ The commentary draws the consequence directly: which level suffices must be decided separately for each material element, and guilt cannot rest on proof that the defendant carried out the physical side of the offense in a morally blameworthy way.⁵ This is what makes the Code’s approach element by element. A defendant can be fully culpable toward one element and entirely innocent of mind toward another, and because every material element must be matched, the missing link defeats liability for any offense that requires it.

The reason is easiest to see by imagining the alternative. If the law asked a single question about the defendant’s mind for the offense as a whole, a prosecutor could show that the defendant acted deliberately in some loose sense and let the jury carry that impression over to every element. Yet the fact that makes many acts criminal is one the defendant may never have perceived, such as that the thing carried away belongs to someone else. Blame attaches to what a person chose or perceived, and a person who does not perceive the fact that makes the act wrong has not chosen the wrong, however deliberate the physical act was. Assessing each element separately closes that gap. It also gives the jury a concrete question for each element, and it presses the legislature to say which mental state goes with which element, which tells people in advance what the law demands of them. Justice Frankfurter, dissenting in Leland v. Oregon, put the underlying idea in homicide terms: a bodily movement that happens to cause a death is not murder unless culpability stands behind it.⁶

The third step is where the legislature’s choices enter, and the fifth is where problems are lost. Students lose these problems when they ask one global question about the defendant’s state of mind and answer it from the most vivid fact in the stem, usually the deliberate act, instead of repeating the question for the element that actually carries the wrongfulness.

The Code’s definitions turn this same contrast into text. A charge of purposely destroying a book shows the routine at work: the required culpability is purpose, and “book” is an attendant circumstance, so the Code’s definition of purpose for that element asks whether the defendant was aware that the circumstance existed or believed or hoped that it did.⁷ A defendant named Red who burns a package with no idea or suspicion that it contains a book is not guilty, whatever she meant to do with the package, because she lacks the required connection to the book element.⁸ A defendant named Herman who knows he is burning a book, and whose conscious object is to destroy it, is guilty.⁹ The same matching appears outside the Code. In the Eleventh Circuit’s decision affirming Van Buren Lee’s conviction for knowingly receiving child pornography, the court agreed with both sides that the statute required Lee to have believed the package delivered to his home contained child pornography, and it found that belief in his months of effort to obtain such images, the report that they had been sent, and his eagerness to collect the package.¹⁰ Red shows a missing mental link defeating liability, while Lee shows the link established by circumstantial evidence.

The words “as the law may require” leave the choice of level with the legislature. The element-by-element rule says that some level of culpability must be shown for every material element, and the definition of the offense says which one, so nothing in the rule forces the same level onto every element of an offense.¹¹ When a definition is silent, the silence does not free the prosecution from proving a mental state. In Morissette v. United States the Court refused to treat the mere omission of any mention of criminal intent from a federal statute as dispensing with it, and later decisions repeat the point.¹² The Code supplies its own default as well: where the law prescribes no culpability for an element, purpose, knowledge, or recklessness suffices to establish it.¹³ That default and the other gap-filling subsections come later in this chapter. The one exception to the general requirement, in § 2.05, covers violations and offenses defined outside the Code where a legislative purpose to impose absolute liability plainly appears, and this chapter leaves it aside.¹⁴

Whichever level the law selects, the mental state is part of what the prosecution must prove beyond a reasonable doubt, exactly as with any other element. In Sandstrom v. Montana, deliberate homicide required that the defendant act purposely or knowingly, and the Court treated that mental state as a fact necessary to constitute the crime. An instruction telling the jury that the law presumes a person intends the ordinary consequences of his voluntary acts therefore relieved the State of its burden on the one question the defendant was contesting, and that violated due process.¹⁵ The justices in Montana v. Egelhoff later divided over whether keeping voluntary-intoxication evidence from the jury made that burden too easy to carry, but the opinions on both sides assumed that the State must prove purpose or knowledge beyond a reasonable doubt when the statute demands it.¹⁶ In Apprendi v. New Jersey the Court described a defendant’s intent as about as close as one can come to a core element of a criminal offense.¹⁷

With the method in hand, what remains is to learn what each level of culpability demands. The next section defines purposely, knowingly, recklessly, and negligently, and shows how each definition shifts depending on whether the element it is applied to is conduct, a circumstance, or a result.