What is Concurrence in Criminal Law?
Concurrence is a critical component of criminal law – one that prosecutors and judges must consider when determining whether the elements of a crime have been satisfied. Even though there can be some difficulty in identifying the precise moment that a crime occurs, the basic elements of the crime must coincide with the mind of the person committing the act. In other words, that person must have the capacity to understand what is going on around them, as well as the ability to carry out the actions necessary to commit the crime. In order to determine strict causation , the relationship between the act and the result must hold true at the same time. Simply put, without this aspect, there is no crime. If this aspect was not included in criminal law, each and every person would be punished for all wrongdoings committed in their lifetime. This aspect sets the line by indicating which actions are punishable versus those that are not. The defendant in a criminal case must have possession of the required mental state necessary to commit the crime, as well as engage in that action.
Elements of a Crime: Actus Reus and Mens Rea
The elements of a crime are the criminal act (actus reus) and the mental state (mens rea) of the defendant at the time in question. The concurrence doctrine refers to the need for both of these elements to be present during the commission of the crime.
A concurrence is required for the defendant to be charged with a crime. In a case where a person commits an act, breaks a law and suffers some consequence, but the person did not have the required mental state at the time of the event, the accused won’t be charged for that particular violation.
In a robbery case, for example, a person who enters a bank to take out money and accidentally takes another person’s wallet in the process will not be charged with theft. Setting aside the defense of a "slip of the tongue," which happens when a person unknowingly utters a word or phrase usually regarded as highly offensive, to take a wallet and to take money out of one’s own account are simply distinct actions. In this case, the mens rea element, or intent to take the wallet, is missing.
Why is Concurrence Important in Criminal Cases?
Concurrence is important for fair criminal proceedings because it aids the fact finder in determining whether an accused engaged in a criminal offense. In contrast, if the State fails to prove that the accused committed the prohibited act, then the jury should find the defendant not guilty. Concurrence is not a defense, but instead it serves as a tool to assist in ascertaining whether the prosecution satisfied its burden of proof on every element of the crime charged. The Latin term "actus reus non facit reum nisi mens sit rea" translates to "the act does not make a person guilty unless there is a guilty mind." In other words, an act alone does not make someone guilty; it must be coupled with a guilty mind.
Proof of coexisting intent and conduct distinguishes an innocent act from a criminal offense. For example, an individual rolling a cigarette may not have a guilty state of mind, but an individual with the same actions, but with the intent to smoke marijuana, does have a guilty state of mind. The former will be the acquitted defendant while the latter will be a conviction. State v. Jordan, 2010-0071 (La. 3/15/10) 35 So.3d 1007.
Concurrence in Criminal Cases
To illustrate how courts determine whether the mens rea and actus reus occurred simultaneously, consider Commonwealth v. Fetterhof (1982). "[A] trial court has a duty to invalidate a conviction on the ground of a lack of concurrence between mens rea and actus reus when the defendant asserts that he did not commit the act because he was incapable of acting or even unavailable to do so at the time it occurred." Another case , Commonwealth v. Dellinger (2006) further illustrates this point: "[I]t is generally essential to the validity of a conviction that the mens rea and the actus reus of the particular crime have occurred simultaneously . . . . The actus reus must be the product of the mens rea." Now consider the case of Commonwealth v. Gibbs (2002): "[T]he test for the concurrence of mens rea and actus reus is whether the accused possessed the requisite mens rea when he acted." What these examples illustrate is that there is some leeway in how a judge approaches the concurrence issue. Some judges may favor one party over another or have their own interpretations of the rule beyond what’s presented in statutes. A criminal defense lawyer will know about current interpretations and which ones judges are likely to favor.
Issues in Proving Concurrence
One of the most significant challenges in a criminal trial is concurrently proving and disproving the jury instructions on concurrence. As jurors we are faced with the challenge of reconciling and applying potentially conflicting sets of jury instructions simultaneously. The jury instructions regarding the concurrence of the act and intent are often confusing for the jury due the dissimilarity in presentation and interpretation of the "act" and "intent" evidence. Some legal cases have been extremely problematic in the application and understanding of concurrence, leading to appeals, reversals, and resentencing, as there is often very little additional evidence available to present at retrial or resentencing.
The previous articles that have articulated the concept of concurrence have used general language such as "at the same time," "simultaneously," or "contemporaneously." However, California case law illustrates that "contemporaneous" means "in connection with the criminal act, not necessarily the same moment." (Citations and emphasis omitted). (People v Patton (1972), 27 Cal.App.3d 1, 7, 103 Cal.Rptr. 843.) California courts further explain, "The temptations of inferring a causal relationship are even slightly greater when the information is numerically specific." (Citations omitted.) (U.S. v Humphries (9th Cir., 2002), 405 F.3d 566, 580.) The California courts view concurrence as a temporal link between the act and the intention; however, the connection between the concurrence and the circumstance evidence is a chain that is difficult to establish as it is based almost entirely upon circumstantial evidence.
Concurrence in Criminal Liability
A defendant’s criminal liability is predicated on various factors, including the concurrence of intent and the act. In other words, for a defendant to be found guilty, the prosecution must prove concurrence beyond a reasonable doubt. This means that the intent on the part of the defendant to commit a crime must have prompted the actual commission of the crime. Generally, crimes consist of two elements: the intent (mens rea) and the act itself (actus reus). While most crimes require both elements, there are some where concurrence is not required. Still, in those cases, even if the mens rea has been established, the defendant cannot be convicted without evidence of an actus reus. Having a mens rea does not equate to the deed having been done.
Courts have different interpretations of what constitutes concurrence. In some cases, the courts interpret the concurrence as requiring the intent to commit a crime be present at the same time as the act. Other courts interpret the concurrence to mean that the culpable mental state must be present at the time the act or conduct would have been in order for the defendant to be found guilty. Using the example of a planned robbery, where the defendant had the intent to rob a victim but the robbery plan was thwarted before being carried out, the defendant would not be found guilty of attempted robbery because his culpable mental state (the intent to commit robbery) did not occur at the time (when he had a weapon and was about to confront the victim) the robbery was to occur. In other words , what stopped the concurrence of the "intent to commit robbery" with the "act of robbery" was the defendant being apprehended by police.
This example illustrates how important concurrence is when determining criminal responsibility. It also suggests how errant an otherwise factually supported guilty verdict can be. In some states, if the defendant is guilty of only a lesser included offense, the defendant can be convicted of the lesser included offense. However, if the lesser included offense is not available to the defendant, the defendant can be found not guilty. In the example above, if the jury or judge finds that the defendant was stopped before he had the opportunity to commit the robbery, he can only be found not guilty of the particular crime. Any lesser included crime (a crime where the prosecution abandons or drops the intent to commit a more serious crime or the defendant is charged and tried for a less serious crime) would not be available.
If the defendant is found not guilty, this has implications for the rest of the defendant’s life. The collateral consequences of either being found guilty of a lesser, included offense or being found not guilty include convictions for employment clearance, the ability to own firearms, housing options, and child custody rights. The underlying offense for which the defendant was exonerated is also important. It generally cannot be used against the defendant in any later proceedings against the defendant for a similar or different type offense.