What Is Concurrence In Criminal Law?
The basic requirement of a criminal act is that, in order to be guilty, the defendant has to both commit the act and have the requisite intention to commit the act. If either element is lacking, there is no crime. Simply put, the defendant must have the necessary mens rea (intent) when committing the act (actus reus).
On the off chance that you’ve made it this far without a dictionary, modus operandi is underlined here for emphasis: it is a Latin term meaning "method of operation": "a pattern of criminal behavior used by known criminals to help in the commission of their crimes". Like any other formal legal definition, it is best considered in context, and the context in this case is criminal liability.
In order for a court to hold a person liable in criminal law, it must be established that the defendant is the perpetrator of (or involved as an accessory to) a crime. It is not sufficient to show that a crime occurred-in other words, that someone committed a criminal act. There must be not just a crime, but a crime by the defendant. That someone else committed the crime does not absolve the real perpetrator from criminal liability. This is the basic principle of concurrence in criminal law.
More formally, the doctrine of concurrence in criminal law requires a union of the intent and the act: the intent must be shown to have led to the act, which must have been completed. Put another way, the defendant’s intent must have played an integral role in the commission of the act. In most cases , the act must have been committed after the intent was formed. Simply forming a criminal intent but germinating no plan, or carrying out another’s plan without any intention, is insufficient to support a finding of guilt.
Some courts have described the concept of concurrence as the "doctrine of union or joint operation of the equal culpability of act and intent". Although concurrence is often discussed in connection with assault crimes (and the American Model Penal Code has codified a definition of concurrence for purpose of assault crimes), it can also be applied to homicide and other crimes (including sexual assault offenses).
Many courts have used the concurrence principle in addressing the actus reus and mens rea elements of aggravated assault crimes. This case law shows how the doctrine of concurrence is varied in theory and application throughout the States.
On the other hand, where the defendant has inflicted serious bodily injury, courts tend to require additional proof of intent. One case, for example, likened the nature of the injury to the concept of mens rea: it "concern[s] the characteristic of culpability of a person committing a crime." The Supreme Court of Maine selected whether the defendant inflicted serious bodily injury based on the fact that the defendant "probably knew that [his conduct] was well within the range of substantial risk of serious bodily injury."
As the examples below illustrate, there are numerous factors courts may consider in determining whether the actus reus and mens rea elements of a crime were concurrent.
Overview of Elements Of Concurrence
In order for concurrence to exist, two elements must be satisfied. The first element involves the exercise of the will, purpose, or design to commit a crime on the part of the defendant. The second element of concurrence requires that the actual commission of the offense must occur with the formulation of intent by the defendant to commit the crime. This means that the act of the offense and intent of the defendant must happen at the same time in order for concurrence to exist. It is quite possible for both elements of two-prong test for concurrence to exist but still result in a finding that it does not exist. If a defendant has the large amount of heroin in his possession or on his person at a time when the defendant is charged with conspiracy to possess with intent to distribute heroin, it is likely that the two-prong test for concurrence may in fact exist. Causation, however, may complicate important issues surrounding concurrence.
The Effect of Concurrence on Cases
The principle of concurrence plays a critical role in the court’s decision-making process in criminal proceedings. The courts have gone so far as to state that a defendant cannot be found guilty of an offense unless the prosecution has provided proof of every element of that offense. In other words, proof of every element of the charge must be present in some form before a defendant can be convicted of that charge. The prosecution has a duty to ensure that each element is proved beyond a reasonable doubt. Failure to show all of the elements has been the basis for outright dismissal of a case or an acquittal. There have been occasions when a court determined that there was insufficient proof to show that the defendant acted with the required state of mind for a conviction. Concurrence issues have resulted in outright acquittal when the defendant’s conduct was found to fall outside the scope of the statute under which he was charged. For instance, in State v. Lowrance (2017), the trial court granted the defendant’s motion for acquittal when it determined that the state had failed to prove that he acted knowingly for the crime of failing to register as a sex offender under a 2010 statute because that statute did not apply to individuals who were sentenced pursuant to a plea agreement in 2009. In Baker v. State (2020), the trial court denied the state’s motion for reconsideration of its order granting the defendant’s motion to vacate his conviction for battery against a family or household member when it determined that the evidence did not show the requisite intent element for fulfilling the crime. The defendant in that case, Hardy, and his girlfriend, Moore, had lived together for ten months prior to the incident, but at the time of the incident, he and his wife were separated and he was trying to reconcile with Moore. Furthermore, Moore suffered from a mental disability that limited her ability to rationally understand and perceive the nature of the harmful contact.
Case Examples Deal With Concurrence
In this section, we provide a selection of notable case studies where concurrence played a critical role.
"Because the issue [of concurring] wasn’t raised, I’m not sure it fits with that particularly charge," Judge Richard Posner, Martin v. McPadden, 592 F.3d 715 (7th Cir. 2010).
"Under Illinois law, if the defendant lacked the requisite mental state when he completed one element of the offense, then the crime remains an intact unit not subject to modification by the jury’s rejection of any particular element as insubstantial," People v. Brown, 2011 IL 111347 (Illinois Supreme Court Oct. 6, 2011).
"The jury instruction given was not erroneous because, as discussed above, there was sufficient evidence presented to support the conviction without the need for the defense to present an element of a lesser included offense,"People v . Nonhyeong Choi, slip copied., 2013 WL 4535738 at 5, n.12 (N.M.C.A. Aug. 26, 2013) (emphasis added).
"Because the defendant did not preserve this issue by objecting to the jury instructions the trial court gave, we review for plain error." State v. Guillen, 122 A.3d 39 (Conn. 2015).
"Therefore, we conclude that, even assuming that Preedy did preserve his claim of instructional error, he would not prevail under our standard of review." Miller v. State, 396 P.3d 336 (Okla. Crim. App. 2017) (emphasis added).
"…the panel reviewed these claims as plain error, rather than proactive." United States v. Diamond, 2019 WL 2523943 (4th Cir. Jun. 19, 2019).
Concurrence Can Be Difficult and Misunderstood
A common misconception a lot of people have is that if a particular criminal offense requires a concurrence of some mental state and a prohibited act, then if a prosecutor can prove one of those two things, that’s good enough to sustain a conviction. For example, let’s say there’s a question about whether the defendant acted with premeditation when committing murder in the first degree. Oftentimes a prosecutor will get up during their case-in-chief and ask a witness about what the defendant did that day. The witness may testify that he saw the defendant obtain a weapon from a cabinet and walk down the street towards the victim. The jury may think, "welcome to my ‘No Brainer’ seminar – clearly our defendant walked towards the victim with the weapon and shot him without any doubt in my mind." However, regardless what the laymen thinks, a prosecutor cannot prove the defense committed murder just because one of these elements happened. The prosecutor must prove the defendant both did the necessary act and had the requisite mental state (or mens rea) at the same time.
Often times the prosecutor, especially if they’re trying to get around a reasonable mistake argument, will ask a witness, "did the defendant point the weapon at the victim?" If the victim says "yes", the prosecutor will think they have proven that element. But, as mentioned previously, this is not enough. The mens rea also has to be proven. The shorter version: yes, the defendant pointed the weapon, but did he do it with a purpose to purposely kill the victim? If he did it with a purpose to scare the victim (which would be unreasonable, but still a non-criminal mistake of fact), then he wouldn’t be guilty of murder.
Another common misconception relates to sexual offenses, specifically those involving children. In many jurisdictions, these offenses have strict liability; that is, they do not require any mens rea whatsoever. This can be very difficult for a prosecutor to prove when the allegation is confused or deliberately false, as is often the case between children and parents. For example, it would be senseless to claim that a parent intended to violate the law when he gave his child a bath. Sometimes ignorance is bliss, just as long as it isn’t of a criminal nature.
Final Thoughts on Concurrence
As new technologies and legal theories continue to develop, the principle of concurrence will confront new applications and challenges. The application of inchoate crimes to convergence media, such as allowing the prosecution of acts that exceed the scope of a contract (involving both Dissemination of Obscene or Indecent Matter to Minors and Enticing Child to Engage in Sexual Activity) is a recent example of how concurrence adapts to changes in the character of criminal acts.
Other unresolved issues and contradictions in the concept of concurrence are bound to emerge as well. One question for courts to consider is what culpability should be required as a prerequisite to finding concurrence in statute. The state of mens rea is largely unsettled since the Supreme Court’s recent decisions interpreting the Constitution as requiring conjunction of mens rea and act. Statutory language such as "intentionally," and "knowingly" have been held to "conjoin the elements of mens rea and act," but the Fifth Circuit recently cautioned in United States v. Negron that "not all mens rea terms have meaningfully similar/congruent meanings." In other words, there may be no reason to assume that Congress intended to use terms interchangeably. In addition, while Krieger argued that mens rea terms like ‘willfully,’ and ‘knowingly’ refer to different levels of culpability and that Congress used them as part of "a specific Congressional intent to distinguish between different culpable mental states , " the Eleventh Circuit in Gibbs flatly rejected this argument and stated unequivocally that Congress’ use of different mens rea terms in different statutes does not establish that those terms are interchangeable.
The future application of concurrence will also be affected by the Supreme Court’s decision in Chao v. JPMorgan Chase, which will soon define the mens rea applied to the Sarbanes-Oxley Act, and whether Chao will allow the government to convict under Sarbanes-Oxley of failing to create internal controls, while overwhelmingly rejecting the notion that it is also necessary and sufficient to create adequate internal controls. This decision could broaden the government’s ability to more easily find and convict individuals for individual violations of the statute.
Courts will also have to continue to grapple with how to apply the concurrence doctrine when each element of an offense is committed by a different individual or at different times. Many states have opted for flexibility in applying what is sometimes described as a "timing" or "one transaction" test, but some states have barred such an approach. Biolsi codified this approach in 1953 when the provision became law and provided the first explicit statutory requirement that there be an "independent volitional act of the mind" under the concurrence requirement, and further codified the "same time" requirement. It is unlikely that any new developments will make courts abandon this flexibility in practical application of the doctrine.
