James R. Balmforth: Criminal Defense Lawyer Herriman Utah

Utah criminal law is complex. If you have been charged with a crime, never attempt to self represent yourself in a court of law. Always hire the services of an experienced Herriman Utah criminal defense lawyer.

A person acts “purposely” with respect to a result if his or her conscious object is to cause such a result. This is a demanding requirement that is often difficult to prove. The offense of indecent exposure, for example, requires more than showing that the defendant exposed himself or herself to another, knowing that it would alarm the person; it must be proved that the conduct was motivated by a desire to gain sexual gratification or arousal by the conduct. Doing it just to annoy or alarm the victim would not satisfy the offense’s gratification purpose requirement, even if the offender did experience unplanned for gratification.

Purposely versus Knowingly

A person acts “purposely” with respect to a result if it is his or her conscious object to cause the result. A person acts “knowingly” with respect to a result if it is not his or her conscious object, but he or she is practically certain that the conduct will cause that result. An antiwar activist who sets a bomb to destroy a draft board’s offices may be practically certain that the bomb will kill the night watchman, but may wish that the watchman would go on a coffee break so that he would not be killed. The essence of the narrow distinction between these two culpability levels is the presence or absence of a positive desire to cause the result; purpose requires a culpability beyond the knowledge of a result’s near certainty. In the broader sense this distinction divides the vague notion of “callousness” from the more offensive “maliciousness” or “viciousness.” The latter may simply be an aggressively ruthless form of the former.

Knowingly versus Recklessly

A person acts “knowingly” with respect to a result if he or she is nearly certain that his or her conduct will cause the result. If he or she is aware only of a substantial risk, he or she acts “recklessly” with respect to the result. The narrow distinction between knowledge and recklessness lies in the degree of risk—“practically certain” versus “substantial risk”— of which the defendant is aware. The distinction between recklessness (and lower levels of culpability) and the two higher levels of culpability (purposely and knowingly) is that we tend to scold a reckless person for being “careless,” while we condemn an offender who falls within one of the higher culpability categories for “intentional” conduct.

Purpose as Independent of Likelihood

While knowing and reckless culpability focus on the likelihood of causing the result— “practically certain” versus “substantial risk”— purposeful culpability pays no regard to the likelihood of the result. This characteristic of the purpose requirement reflects an instinct that trying to cause the harm, whatever the likelihood, is more condemnable than acting with the belief that the harm will or might result without desiring it. The practical effect of this is that reckless conduct, as manifested in risk taking, can be elevated to purposeful conduct if the defendant hopes that the risk will come to fruition. This characteristic of purpose also illustrates how specially demanding it is. A requirement of a particular belief is something a jury might logically deduce from other facts: the defendant “must have known” the certainty or the risk of harm if he or she knew this fact or that. A purpose requirement requires the jury to determine a defendant’s object or goal, a somewhat more complex psychological state. To find this, a jury may have to dig deeper into the defendant’s psyche and his or her general desires and motivations to reach a conclusion. If a jury is conscientious in adhering to the proof-beyond-a-reasonable-doubt standard constitutionally required for offense elements, this may be a difficult conclusion to reach.

Recklessly versus Negligently

A person acts “recklessly” with respect to a result if he or she consciously disregards a substantial risk that his or her conduct will cause the result; he or she acts only “negligently” if he or she is unaware of the substantial risk but should have perceived it.16 The recklessness issue focuses not on whether he or she should have been aware of the risk, but instead on whether he or she was, in fact, aware (and whether it was culpable for him or her to disregard the risk).

Recklessness as Conscious Wrongdoing

The narrow distinction between recklessness and negligence lies in the defendant’s awareness of risk. The difference between negligence and the three higher levels of culpability is one of the most critical distinctions in U.S. criminal law. A person who acts purposely, knowingly, or recklessly is aware of the circumstances that make his or her conduct criminal or is aware that harmful consequences may result and is therefore both blameworthy and deterrable. A defendant who acts negligently, in contrast, is unaware of the circumstances or consequences and therefore, some writers argue, is neither blameworthy nor deterrable. Although writers disagree over whether negligence ought to be adequate to support criminal liability, it is agreed that negligence represents a lower level of culpability than, and is qualitatively different from, recklessness in that the negligent person fails to recognize, rather than consciously disregards, the risk. For this reason, recklessness is considered the norm for criminal culpability, while negligence typically is punished in American jurisdictions only in exceptional situations, such as where a death is caused.

Negligence as Normative Assessment

A person who fails to appreciate the risk that his or her conduct will cause a result is “negligent” with regard to the result if the failure “involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.”17 Thus, unless he or she grossly deviates from the standard of care that a reasonable person would observe, a person is not negligent and, at least in the eyes of the criminal law, is without cognizable fault. If a person is not aware of the risk of death, should he or she have been? Would a reasonable person in his or her situation have been aware that a risk of death existed? Was his or her failure to perceive the risk a gross deviation from the attentiveness to the possibility of risk that the reasonable person in his or her situation would have had? These are the issues that a jury considers in assessing whether the person ought to be liable for negligent homicide. They are not factual but rather normative issues. The jury is asked to judge whether the person’s failure to perceive the risk was, under the circumstances, a blameworthy failure.

Negligently versus Faultlessly

Liability imposed for faultless conduct is termed absolute or strict liability. The distinction between negligence and strict liability focuses on whether the defendant’s unawareness of the risk constituted a failure to meet the standard of the reasonable person. The broader distinction between the four categories of culpability and faultlessness is the distinction between a blameworthy and a blameless defendant. The objections to strict liability stem from an understandable reluctance to punish conduct that is not unreasonable.

Concurrence Requirement

When an offense definition requires a particular level of culpability for a particular element, it means that the required culpability for the element must exist at the time of the conduct constituting the offense. This concurrence requirement, as it is called, reflects the law’s interest in judging the culpability of the act rather than the general character of the defendant. The required concurrence between act and culpability is implicit in the Model Penal Code’s culpability definitions. It is neither necessary nor sufficient that the culpability exist at the later time of the result of the conduct. Changing one’s mind after setting a bomb, for example, does not bar liability for deaths caused by the blast, even if the intent to kill no longer exists at the time the bomb explodes or the victims die.

Doctrines of Imputation

Typically a person is liable for an offense if and only if the person satisfies the elements of an offense definition. There are two exceptions to this rule. First, a person may be liable for an offense even though he or she does not satisfy all offense elements, if a rule or doctrine imputes the missing element. Second, a person may escape liability even though the person does satisfy the elements of an offense, if he or she satisfies the conditions of a general defense.

Complicity

Complicity is not an offense in itself, as are conspiracy and solicitation for example. Rather, it is a theory of liability by which an accomplice is held liable for an offense committed by the perpetrator.21 An offense definition typically requires that the person have performed certain conduct, but a person may be held liable for the offense, although the person has not performed the required conduct, if he or she is legally accountable for the actual perpetrator’s conduct. At common law, complicity liability required that the accomplice assist the perpetrator in committing the offense. The assistance need not be necessary for successful commission of the offense, nor need it be substantial. Indeed, the accomplice need not assist in a physical sense at all; encouragement is recognized as a form of assistance.

Voluntary Intoxication

Just as a variety of rules and doctrines can impute an unsatisfied objective element of the offense charged, another group of doctrines can impute a required culpability element. The most common of these doctrines governs cases of voluntary intoxication. Even though a person does not have the awareness of risk required by the offense definition, for example, the required recklessness can be imputed to him or her by the voluntary intoxication rules.22 Because the person voluntarily intoxicated himself or herself, the reasoning goes, he or she can properly be treated as if he or she had the awareness of risk that he or she would have had if he or she had not intoxicated himself or herself at all.

Another doctrine that can impute a culpable state of mind is the doctrine of transferred intent, which imputes the required culpability to a person who intends to harm one person but actually harms another. Imputation also is accomplished through a device that may be termed substituted culpability. This doctrine uses a person’s culpability for the offense the person thought he or she was committing as the basis for imputing to the person the intention required for the offense actually committed. Thus a person who commits statutory rape but who, because of his mistake about the true identity of his partner, believes that he is instead committing incest can nonetheless be held liable for statutory rape. His missing culpability with respect to his partner being underage is imputed to him on the grounds that he thought that he was committing another offense, namely, incest. His intention to commit incest is transferred to satisfy the intent required for statutory rape. Another doctrine of imputation is apparent in those cases where courts permit suspension of the requirement of concurrence between act and intent: a person’s earlier intention to commit an act that the person believes is the offense, but is not, is relied on to impute the required intention during the later conduct that actually constitutes the offense. Finally, as with objective elements, a variety of statutory and judicial presumptions effectively impute culpability elements upon proof of a logically related fact.

Corporate Criminal Liability

Because an organization can neither act nor think except through its agents and officers, it cannot satisfy the elements of an offense except through imputation. Thus, if criminal liability for organizations is to be provided, the criminal law must specify the rules for imputation of conduct and culpability to an organization. Liability is permitted where the offense consists of an omission to perform a specific duty imposed on the organization by law. This requires no imputation and no application of special rules for liability, because liability follows directly from an organization’s failure to perform the affirmative duty placed on it by relevant legislation.

If you are charged with a criminal offense, speak to an experienced Herriman Utah criminal defense lawyer.