Guilty Act, Guilty Mind: establishing Actus Reus

and Mens Rea in situations of conspiracy

and accessory.

Courtney Klein

CRJ710

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Though the law has been written in order to protect the people, it was not often written with the intent
of appealing to the people. Superfluous, convoluted language muddles up the annals of Common Law
and a necessity to understand small, equivocal details makes it difficult for the layperson to grasp the
exact concepts of the legislature. Though the release of the Model Penal Code has made some
headway in minimizing the jargon inherent to law, the sheer volume of information can still be a
daunting task for anyone hoping to understand their legal rights, culpability, or the definition of
potentially obscure crimes. Accessory and conspiracy are two charges which populate this list - we
often hear these terms thrown around in popular culture, but have trouble understanding why
"obviously insidious" individuals seem to go free in real life. In the vast majority of cases, this
phenomenon can be attributed to Actus Reus and Mens Rea, two elements of a crime that must be
present in order for an individual to be culpable.
We will begin by discussing the elements of a criminal act - two relatively complicated concepts that
have undergone several revisions. Next, these concepts will be examined as to their applicability to
the crimes of accessory and conspiracy. Finally, a discussion will follow about two opposing models
of the criminal process, and how they might suggest altering the law to allow better satisfaction of
their ultimate vision.
Elements of a Crime
The notions of Actus Reus and Mens Rea are derived from the principles set forward by Sir Edward
Coke in his Institutes of the Laws of England (1797). Particularly pertinent, is the phrase "actus non
facit reum, nisi mens sit rea (An act does not make a person guilty unless the mind is also guilty).”
This basic principle suggests that there are two elements which must be present in order for a crime to
exist, and delineates between 1) a physical act which occurred and caused a criminal outcome(Actus
Reus) and 2) an element of fault or intent(Mens Rea), (Sir Edward Coke 1797).

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ACTUS REUS

The Model Penal Code defines three different breeds of Actus Reus, or guilty acts as; Commission,
Omission and Possession (Baker, 2012).
Actus Reus-Commission
Commission is defined as a bodily movement whether voluntary or involuntary which results in a
criminal act (Model Penal Code Act SXN 1.13[2]). Generally, in order to be culpable or one’s behavior
the initial action must be voluntary but in several landmark cases involuntary actions have also been
deemed sufficient. The Model Penal Code however outlines four types of actions which do not constitute
guilt (Model Penal Code SXN 2.01[3]). The first of these is ;Reflexes or Convulsions which stipulates
that an episode of paroxysmal flailing such as those present in a seizure which result in an injury to a
second party does not satisfy the necessary elements of Actus Reus (Holland,1982). If however the
individual is engaging in an activity which they know can be dangerous in light of a known history of
seizure then may be held culpable. For example in People v. Decina, 2 N.Y.2d 133 (1956) Emil Decina
was convicted of negligible homicide after suffering and epileptic seizure while driving which ultimately
resulted in the death of four school girls. Decina appealed arguing that he did not intentionally cause the
deaths of the children. The court held that, Having adequate knowledge of dangers presented by his
disease, Decina was still culpable for resulting homicides, Justice Charles Frossels wrote” to hold
otherwise would be to say that a man freely indulge himself in liquor in the same hope that it will not
affect his driving, and if it later develops that ensuing intoxication causes dangerous and reckless driving
resulting in death, his unconsciousness or involuntariness at that time would relieve him from
prosecution under Statute”

Bodily movements during unconsciousness or sleep comprise the second category ruled out as
“voluntary” actions. This element was initially decided in the case of Hill v. Baxter (1958) 1 QB 277.
Ultimately, the presiding judge maintained that only a voluntary act can satisfy Actus Reus, and states
of unconsciousness or sleep count as automatism (Blair, 1997). Included are the states of
somnambulism, fugue, metabolic disorder, and convulsive or reflexive disorders (Schoop, 2008). In
these situations “one who engages in what would be criminal conduct is not guilty of a crime if he/she
does so in a state of unconsciousness [.] (State v. Caddell, 215 S.E.2d 348, 360 [N.C. 1975])” In court,
the various forms of automatism may be included as part of an insanity defense or a breed thereof
(Schoop, 2008).

Being in a state of hypnosis also absolves an individual from culpability and is the third of the four
involuntary states. Though general consensus holds that hypnosis cannot lead an individual to engage
in uncharacteristic or abnormal conduct (Bonnema, 1993) the Model Penal Code, and penal codes of
Montana, New York and Kentucky all provide clauses for hypnosis as negative volition, thus
precluding Actus Reus (Bonnema, 1993). The fourth and final involuntary clause simply negates
voluntariness in any “bodily movement otherwise not a product of the effort or determination of the
actor, either conscious or habitual.”

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Actus Reus – Omission

Omission the second breed of Atus Reus is considered a voluntary choice to fai toengage in some act that
causes injury or results in another criminal commission. Though the notion of not acting may intuitively go
against what one may expect under the definition of Atus Reus, Omission is usually defined as a “purposeful,
reckless or negligent absence of action (US Legal, 2001)”. When deciding in cases of omission, the But
approach is usually used. That is, but not for having acted, Xwould have failed to occur thus this eliminating a
criminal result (Blare 1997). The Model Penal Code outlines two different specifications: 1) omission is
expressly made sufficient by any law defining such an offense, or 2) when the duty to perform is outlined by
law - such as in the case of filing a tax return (Model Penal Code SXN 1.13[2])

Actus Rea-Possession

The final breed of Actus Rea is possession, a special case in so much as it has been criminalized, but under
common law does not constitute an act (Regina v Dugdale, 1 El. & Bl. 435, 439 [1853]). In the US, this has
been redefined as a voluntary act: allowing possession to satisfy Actus Reus (Model Penal Code SXN 2.01[3]).

MENS REA
In determining culpability, it is certainly easier to prove the presence of an Actus Reus since it is far more
simplistic to point to any particular situation and prove its existence. Demonstrating the presence of the
traditional conception of Mens Rea or guilty mind, was a more difficult task. In these situations, the court had to
prove that the accused intended to commit the crime - a modern reconceptualization of Mens Rea has made
this task a less subjective one. Like the traditional view, however, Criminal liability still does not attach to a
person who acted- for whatever reason-with an absence of mental fault, with the exception of strict liability
crimes (Martin, 2003)
The modern concept of Mens Rea includes “levels” called modes of culpability, which have changed
traditional thought. Now, the guilty mind is actually dependent upon three circumstances surrounding the act;-1)
the conduct, 2) the (attendant) circumstances, 3) the result (Baker 2012).
In this modern approach, the attendant circumstances tend to replace traditional Mens Rea by indicating an
individual’s level of culpability and other surrounding circumstances (Samaha. 2010). This reconceptualization
helps to minimize instances of superfluous (extra) language inherent to common law and also allows for a
broader range of coverage for the defined statutes.

Modes of Culpability
The Model Penal Code (MPC) has helped to clarify the modes of culpability a bit further by providing five
distinct elements which may comprise any one instance of Mens Rea. At least one of these elements must be
present.

1. Strict Liability: the individual engaged in the crime and the mental state is irrelevant. Strict liability crimes
include driving while intoxicated, selling alcohol to a minor and statutory rape. In all these offenses,
whether or not the individual was aware they were committing a crime is of no concern. It simply has to be
shown that individual is guilty of the crime.

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2. Negligence: the individual is unaware of the dangers presented by the situation and/ or attendant
circumstances and their resulting consequences, but a reasonable person would have been

3. Recklessness: the individual was aware of the attendant circumstances and the resulting dangers and chose
to engage in the activity nonetheless, whereas a reasonable person would not have.

4. Knowingly: the individual is practically certain that the action will produce the criminal act.

5. Purposefulness: the criminal result was the “conscious object” of engaging in the conduct and the
individual believed or hoped that the necessary circumstances existed so as to produce said results. (Samaha
2010)

Tests of Mens Rea

The tests offered to help determine whether or not a circumstance is enough to satisfy Mens Rea can
be either subjective, objective, or a hybrid of both.
In subjective tests of Mens Rea the, court need only be satisfied that the individual have the requisite
mental element outlined in the modes of culpability at the time of the crime occurred (Baker, 2012).
Such situations often occur in conjunction of admissions of guilt or written communication. It is rare,
however, that this be readily (if ever) available in a case.
In these situations, objective tests are instead implemented in which Mens Rea is imputed on the basis
that a reasonable person would have had the requisite mental elements in such a situation (Baker,
2012). It is safe to assume that a typically functioning individual is aware of their surroundings and
understands the basic theory of cause and effect. As such, when an individual is deciding what to do
they have a sound understanding of where the results would fall on a sliding scale from “inevitable”
(e.g. if one drops a rock, it will fall to the ground) to “impossible” (e.g. if one drops a rock, it will turn
into a turkey). The closer the expected results are to inevitable the more likely it is that the individual
foresaw and desired the consequences of their actions, making it easier to afford intent.

THE CRIMES
Now that clear definitions of Actus Reus and Mens Rea have been established, we will undertake a similar
discussion of the crimes in question: accessory and conspiracy

Conspiracy: According to the MPC, a person may be found guilty of conspiracy if, with the purpose of
promoting or facilitating the commission of a crime, he agrees with another party that they will engage in
conduct which constitutes the afore mentioned crime, or an attempt at or solicitation to commit said crime
(Samaha, 2010). Even if the primary or planned offense is never committed, conspiracy is still a valid
charge as long as;
1) A plan has been made,
2) At least one overt act toward the crime has been committed by at least one member of the group
(National Paralegal College, 2003). This “overt” act may merely be preparation for the crime, and does not
need to be a criminal act in itself. It is important to note that it is unnecessary for all members involved in
the conspiracy to know each other. For an individual to effectively terminate his or her part in the
conspiracy and relinquish culpability, the individual must advise others of their abandonment or inform law
enforcement of the conspiracy (Baker, 2012).

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Let us consider an example of how Mens Rea and Actus Reus can be applied to conspiracy;
Bruce and Clark are planning a bank robbery. The two men pool their resources and buy a gun, and work on
drafting a demand letter. Bruce solicits the aid of Diana and explains the aid of Diana and explains the plan.
He only asks her to visit the bank to assess security. Diana reluctantly agrees. Clark contacts his good
friend Arthur and asks him to be their getaway driver. Arthur gleefully agrees.
If, in this hypothetical situation, the robbery stops here, all four individuals are guilty of conspiracy. Bruce
and Clark have purchased a gun with the intent of using it during the commission of their planned crime and
have started to ready a demand letter. An identifiable Actus Reus is present since they voluntarily prepared
for the robbery through these overt acts. Mens Rea is indicated through an objective test of the modes of
culpability. The two had the intent to illegally obtain and permanently deprive money from a financial
institution. They knowingly prepared for the crime - a reasonable person would certainly suspect that in
light of the presented evidence, it was their intent to commit robbery. The robbery was too the “conscious
object” in engaging in this conduct, so it can also be said that the two were behaving purposefully. Indeed, a
subjective test may also be satisfied, depending on the context of the demand letters.
Diana and Arthur are also in this situation, culpable for much the same reasons even though there is reason
to believe that they never met each other nor their initial contact’s partner. Though Diana never explicitly
engaged in an overt action herself, she is essentially guilty by association since she did agree to participate
thus, being implicated in the group’s Mens Rea and Actus Reus. The same can be said for Arthur. Either of
these individuals have the chance to negate Mens Rea (thus relieving them of all culpability) if they
abandon the group or preferably contact law enforcement.

Accessory and accomplice Liability: according to the definition laid out by MPC, an individual may be
found guilty of accomplice liability when they;
1) Solicit another person to commit a crime
2) Aid, agree or attempt to aid in the planning or commission of a crime
3) Have the legal duty to prevent the commission of a crime but fail to do so
4) The Law establishes such conduct as complicity
This definition is relatively short compared to “accessory” laws laid out by Common Law
(which also differentiates between varying degrees as well as a before/after the fact accessory), but
encompasses the same basic idea. An accessory or accomplice is an individual who is not the principle
offender in the commission of a crime, but facilitates its completion (Samaha 2010).
In order to satisfy Mens Rea in an accessory case, the court must demonstrate that;
1) The accomplice had the same mode of culpability to commit the principle crime
2) The accomplice intended for their actions to facilitate the crime (Heaton, 2006 b). To demonstrate Actus
Reus, it must be shown that the individual either directly or indirectly facilitated the commission of a
crime (Heaton 2006). This can be done by providing material means or through inciting which is
providing verbal encouragement as facilitation (as in Hicks v US 150 US 442 [1983]).
Example:
Dick is upset with Tim, who feels stole his position at work. He intends to rectify this injustice by killing
Tim, however he has long thought of Tim as a younger brother and does not wish to have his blood on his
hands, so, he contacts Jason and asks for his help, and Jason has committed similar crimes in the past, so he
accepts. Damian, who is secretly in love with Jason and wants to prove himself, overhears the plot and
decided to help, on the night that Jason is supposed to kill Tim, Damian hides in the bushes outside of Tim’s
house. He knocks on Tim’s door when he hears Jason approaching the house then hides again. Tim opens
the door just as Jason arrives. Jason shoots Tim twice in the head, then leaves.
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In this hypothetical, both Dick and Damian can be charged with accomplice liability, and Jason with
homicide. When considering the tests for Mens Rea as outlined above, it can be safely said that Dick and
Jason both knowingly and purposefully set out to end Tim's life, thus they shared the same modes of
culpability. One can also be sure that Dick intended for Tim's death to be the ultimate result, since that was
his direct request in no uncertain terms. Though Dick provided no physical or material means to this crime,
he directly facilitated its commission through inciting Jason to pull the trigger - Dick's Actus Reus. Love
struck Damian's Mens Rea can be defined through the same means as Dick. Though he had no specific
reason to wish Tim dead, he intended for his actions to help Jason reach this exact result. Similarly,
Damian's Actus Reus rests in the fact that he helped lure Tim to his death.
Even though Jason and Dick were both unaware of Damian's help, and Jason would likely have found a way
to kill Tim anyway, Damian is directly culpable through his actions. It may also be interesting to note that in
the previous example of robbery, if Arthur were to wait outside the bank until the robbery was completed
then drive Bruce and Clark to the police station instead of to a getaway point, one would no longer be able
to implicate him as an accessory because this action would negate his Actus Reus

Policy implications-Crime Controls vs. Civil Liberties

One of the strongest theories of the criminal process is the Two Models construction by Herbert Packer
(1968). Packer outlines two different models ;
1) the Due Process (which is very similar to the Civil Liberties model)
2) Crime Control - which take opposing sides in the argument about how the Criminal Process should
function. Kent Roach (1999) offers a marvelous and in- depth discussion of these two opposing models,
for reference. We move on, now, to discuss what kinds of changes proponents of each model would
suggest to better suit their own frame work.

Civil Liberties Model

Ultimately, the Civil Liberties model is most concerned with fairness under the law and the rights of the
accused; advocates support minimizing police powers in order to allow for more fact-finding power in the
courts, which they feel are ultimately more reliable (Roach, 1999). As such, it is most likely that these
advocates would support changing various elements that relate to the tests to establish Mens Rea and Actus
Reus, eliminating the subjective nature of proving guilt and allowing only for manifest objectivity. This
would help in protecting the accused against politically or culturally charged misrepresentations of guilt,
and cause a trial more based on fact than speculation-purportedly Civil Liberties’ tantamount natural enemy.

Crime Control Model

The crime control model on the other hand, is most concerned with the repression of crime and rights of the
victims; advocates push for allowing more leniency in the rules surrounding police investigations, arrest,
search, seizure and conviction (Roach, 1999). Subscribers to Crime Control would likely suggest changing
the definitions of Actus Reus and Mens Rea to allow investigators more fact finding power that could better
satisfy a broader definition of these elements. Crime Control advocates see the legislature as the ultimate
word on what constitutes a crime, so any revisions made would, by necessity, be to the written law. Since
Crime Control advocates also wish to vest the most power in the police officer and his duties of proving
factual guilt, the suggested changes would take some of this power away and allow for more subjectivity
during the police investigation as to establishing guilt.

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WHO IS CORRECT?

Packer's model represents two dichotomous extremes. As such, most modern day students and practitioners
of the criminal process would suggest that neither of these models is sufficient in answering questions of
applicability to the discussed crimes. Civil Liberties advocates, who are ever so concerned with protecting
the rights of the accused, would potentially twist the tests required to demonstrate culpability in to such a
tight rope, that no hangman could ever use it for a noose. Without objective tests it would often be nearly
impossible to pursue cases of accessory and conspiracy in which a key player (especially the principle
catalyst) pulls the strings. Many of the most heinous crimes throughout history have been orchestrated at
the hands of a mastermind who still managed to keep his conscience clean by never directly touching a
soul. If tests of Mens Rea and Actus Reus are made too objective then there is the potential for allowing
truly iniquitous individuals to roam free. After all, by legal definition Adolf Hitler was “only" an
accomplice. Were it not for objective tests of the legal elements, it would have been difficult to establish
beyond a reasonable doubt, Charles Manson's Mens Rea (Parafrey, 2011), and he could have possibly
escaped without even seeing trial.

Crime Control advocates, on the other hand, desire to vest a great deal of power in the investigating officer.
Though typically valiant heroes, it is difficult to argue that, as a group, police officers are more well
equipped to make findings of fact or arguments pertaining to the minutiae of the law than lawyers and
judges. Particularly speaking, in cases such as conspiracy and accessory, an investigating officer may,
understandably, find it difficult to separate themselves from the attendant circumstances of their case and
weave an intricate Mens Rea in order to exact an arrest. While passion about the work is certainly a trait
desired in all officer, it should not be so if it negatively effects the absolution of justice.

As such, in this author’s opinion – and certainly in the opinions of the vast majority of present practitioners – the
most ideal school of thought would be to utilize a sliding scale in lieu of the dichotomous models discussed
here. Taking crime control stance in so far as allowing more generalized leniency in evidence gathering in
order to protect the (potential) victims of crime, while maintaining the integrity of court proceedings as
desired by Civil Liberty’s proponents is the safest option. The sanctity of the rights of the accused, though
important, pale in comparison to maintaining the personal safety of victims. Especially in crimes such as
accessory - wherein a victim (either an institution or an individual) is attacked by multiple offenders - or
conspiracy - after which a victim must continue on knowing that they were targeted – the importance
of the established social contract cannot be ignored. The simple truth that our present justice system
mandates the presence of an Actus Reus as well as a Mens Rea demonstrates an innate understanding of the
complexities of human malice; this also highlights a judicial comprehension of the devastating effect of
victimization, regardless of the type of crime. As this pertains to the crimes of accessory and conspiracy, the
aforementioned combination of two stringent models is the best means of proceeding with justice,
respecting the rights of the accused, while allowing victimized parties to convalesce.

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WORKS CITED

Baker, D. (2012). Textbook of criminal law. (3rd ed., p. 167). London: Sweet & Maxwell.
Blare, (1997). Medicolegal Aspects of Automatism, qtd. in McClain v. State, 678 N.E.2d 104,
106 Bonnema, M. C. (1993). Trance on trial: An exegesis of hypnotism and criminal
responsibility. Wayne Law Review, 39(4),
Coke, E. (1797). The third part of the institutes of the laws of England: concerning high
treason, and other pleas of the crown, and criminal causes. Retrieved from
http://ia700303.us.archive.org/25/items/thirdpartofinsti03coke/thirdpartofinsti03coke.pdf
Heaton, R. (2006a). Actus Reus. In Criminal Law Textbook (2nd ed., pp. 17-46). Oxford:
Oxford University Press.
Heaton, R. (2006b). Mens Rea and fault. In Criminal Law Textbook (2nd ed., pp. 47-86).
Oxford: Oxford University Press.
Holland, W.H. (1982). Automatism and criminal responsibility. Crim.
LQ, 25, 95. Martin, E. (2003). Dictionary of law. (6th ed.). Oxford:
Oxford University Press.
National Paralegal College. (2003). Conspiracy. Retrieved from
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er.asp
Packer, H. (1968). Two models of the criminal process. In The Limits of the Criminal
Sanction Palo Alto: Stanford University Press.
Parfrey, A. (2011). The Manson file: Charles Manson as revealed in letters, photos,
stories, songs, art, testimony and documents. Port Townsend, WA: Feral House Books
Roach, K. (1999). Four models of the criminal process. The Journal of Criminal Law &
Criminology, 89(2), 671- 716.
Samaha, J. (2010). The general principles of criminal liability: Mens rea, concurrence, causation
and ignorance and mistake. In Criminal Law (10th ed., pp. 106-121). Independence, KY:
Wadsworth Publishing.
Schoop, R. (2008). Automatism, insanity, and the psychology of criminal responsibility: A philosophical
inquiry.
Cambridge: Cambridge University Press.
USLegal. (2001). Actus reus law & legal definition. Retrieved from
http://definitions.uslegal.com/a/actus- reus

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