Substantive law includes laws that define crime. They tell us what elements the government needs to prove in order to establish that this crime has been committed. Substantive law also includes the definitions of inchoate crimes (incomplete crimes) of conspiracies, solicitations, and attempts. Substantive law also sets forth accomplice liability or when a person will be held responsible when they work in concert with others to complete a crime. Substantive law also identifies the defenses that a person may raise when they are charged with a crime. Finally, substantive law indicates the appropriate penalties and sentences for crimes. Today, the great majority of substantive law has been codified and is found in the state’s particular criminal code or in the federal code.

Elements of the Crime

In the legal world, proving someone is guilty of a crime involves two key elements: actus reus and mens rea. Actus reus, or the “guilty act,” focuses on the physical actions or behaviors that constitute a criminal offense. This means the government has the responsibility to show that the person did something illegal or failed to act when there was a legal duty to do so. It could be a deliberate action, like stealing or damaging property, or a failure to act, such as not helping someone in danger when legally obligated.

On the other hand, mens rea, or the “guilty mind,” deals with the mental state or intent behind the act. The government must demonstrate that the person had a criminal intent, meaning they purposely did something wrong. This could involve knowingly engaging in an unlawful act, like stealing with the awareness that it’s against the law. Understanding both actus reus and mens rea is crucial in determining whether someone is legally responsible for a crime, as it considers both the physical act and the state of mind behind it.

Inchoate Offenses: Attempt, Conspiracy, and Solicitation

In order to prevent future harm, state and federal governments have enacted statutes that criminalize attempts, solicitations, and conspiracies to commit crimes. The common law also recognized these inchoate offenses or incomplete offenses. With each of the inchoate crimes, the state must prove that the defendant intended to commit some other crime, the highest level of criminal intent.

For example, there is no crime of attempt, but there is a crime of attempted theft. State laws vary in their approach to whether the defendant has taken enough steps to be charged with an attempt, but all agree that mere preparation does not constitute an attempt. Conspiracies involve an agreement between at least two parties to commit some target crime.

Some jurisdictions also require an overt act in furtherance of the crime, which reaffirms a meeting of the minds between the co-conspirators. Solicitations involve a person asking another to commit a crime on his or her behalf, and they do not even require an agreement by the person requested to do so.

Accomplice Liability: Aid and Abet

Individuals involved in criminal activities often receive assistance, and substantive criminal law outlines when a person can be held accountable for the actions of another. In the past, common law recognized four roles in a crime: principal in the first degree, principal in the second degree, accessory before the fact, and accessory after the fact. To address the severity of common law’s treatment, where many crimes were considered capital offenses, complex legal rules emerged.

In modern times, statutes acknowledge both accomplices—those who assist before and during a crime—and accessories after the fact—those who aid the offender in escaping responsibility post-crime. Accomplices are considered equally responsible as the main perpetrator, following the principle that “the hand of one is the hand of them all.”

On the other hand, accessories after the fact, charged with hindering prosecution or obstructing justice, face less severe punishment compared to the main perpetrators. Understanding these distinctions is crucial for grasping the complexities of criminal law and the shared responsibility of those involved in criminal activities.

Vicarious Liability

A few states have enacted vicarious liability statutes seeking to hold one person responsible for another’s actions, even when they did not provide any assistance and may not even know about the other’s behavior. These statutes generally violate our belief in individual responsibility that only people who do something wrong should be blamed for the crime. Vicarious liability imputes (transfers) both the criminal intent and the criminal act of one person to another. Courts generally invalidate these purported vicarious liability statutes but have at times upheld liability based upon an employer/employee relationship or a parent/child relationship. Imagine a situation where a teenager, who has a driver’s license, is driving the family car with the parent’s permission. While driving, the teenager accidentally causes a car accident. In this scenario:

• Primary Liability: The teenager is primarily responsible for their actions. They were the one driving the car and involved in the accident.
• Vicarious Liability: The parent may be vicariously liable for the teenager’s actions.
• Vicarious liability, in this context, arises because the teenager was using the family car with the parent’s permission. The parent, as the car owner, may be held responsible for the consequences of the teenager’s actions while driving with authorization.

This concept is often applied in cases where an individual (such as a child) is acting on behalf of or with the permission of someone else (such as a parent). In the example, even though the parent did not directly cause the accident, they may bear legal responsibility due to the principle of vicarious liability. It’s a legal concept that recognizes the accountability of one person for the actions of another in specific circumstances.

Defenses

Assuming the government has proven all the elements of a crime, defendants may nevertheless raise defenses that may result in their acquittal. Defense is a general term that includes perfect and imperfect defenses, justifications and excuses, and procedural defenses.

Perfect and Imperfect Defenses

A perfect defense is one that completely exonerates the defendant. If the defendant is successful in raising this defense, meaning the jury believes him or her, the jury should find the defendant not guilty. An imperfect defense is one that reduces the defendant’s liability to that of a lesser crime. If the jury believes the defendant, it should find the defendant guilty of a lesser charge.

Negative Defenses and Affirmative Defenses

Sometimes, the government is unable to prove all the elements of the crime charged. When this happens, the defendant may raise a negative defense claim. For example, when charging a defendant with theft, the state must prove that the defendant intentionally took the property of another. If the jury finds that the defendant did not intend to take the property, or took property that was rightfully theirs, then the defendant is not guilty. Negative defenses, at their essence, are claims that there are “proof problems” with the state’s case.

In the legal world, when someone faces criminal or civil charges, they may use something called an affirmative defense. Unlike simply denying the allegations, an affirmative defense is like saying, “Yes, I did what they’re saying, but here’s why I think it’s okay.” It’s a way for the person to provide a legal justification or excuse for their actions. For instance, if someone claims self-defense, they’re saying they did what they did to protect themselves from immediate harm. Other examples include arguing insanity, stating that they weren’t mentally responsible at the time, or claiming duress, which means they were forced to do something under the threat of serious harm. Affirmative defenses require the person to present evidence supporting their claim, and the success of these defenses can depend on the specific circumstances of the case and the laws in place. So, it’s a way to say, “Yes, I did it, but here’s why I think I shouldn’t be held fully responsible.”

These defenses require the defendant to present evidence to support their claim, and the burden of proof may shift to the defendant for affirmative defenses. The availability and success of an affirmative defense can vary based on the specific circumstances of a case and the relevant laws in the jurisdiction.

Justifications

Sometimes, doing the right thing results in harm. Society recognizes the utility of doing some acts in certain circumstances that unfortunately result in harm. In those situations, the defendant can raise a justification defense. Justification defenses allow criminal acts to go unpunished because the resulting harm is outweighed by the benefit to society. For example, if a surgeon operates to remove a cancerous growth, the act is beneficial even though it results in pain and scarring. In raising a justification defense, the defendant admits he did a wrongful act but argues that the act was the right thing to do under the circumstances. Justification defenses include self-defense, defense of others, defense of property, defense of habitation, consent, and necessity, also called choice of evils. Justifications are affirmative defenses. The defendant must produce some evidence in support of these defenses. In most cases, the defendant must also convince the jury that it was more likely than not that their conduct was justified. For example, the defendant may claim that they acted in self-defense and, at trial, would need to call witnesses or introduce physical evidence that supports the claim of self-defense.

Excuses

Excuses are defenses to criminal behavior that focus on some characteristic of the defendant. With excuses, the defendant is essentially saying, “I did the crime, but I am not responsible because I was . . . insane or too young, intoxicated, mistaken, or under duress.” Excuses include: insanity, diminished capacity, automatism, age, involuntary intoxication, duress, mistake of fact, and a variety of non-traditional syndrome excuses. Like justifications, excuses are affirmative defenses in which the defendant bears the burden of putting on some evidence to convince the jury that they should not be held responsible.

Procedural Defenses

Procedural defenses are challenges to the state’s ability to bring the case against the defendant for some valid reason. Procedural defenses include:

• Double jeopardy: the defendant claims that the government is repeatedly prosecuting them for the same crime.
• Speedy trial: the defendant claims the government took too long to get their case to trial.
• Entrapment: the government in some way enticed them into committing the crime.
• Statute of Limitations: the government did not charge him or her within the required statutory period.
• Several types of immunity: they are immune from being prosecuted.

Although procedural defenses are considered procedural criminal law, many states include the availability of these defenses in their substantive criminal codes.

Licenses and Attributions for Substantive Law: Defining Crimes, Inchoate Liability, Accomplice Liability, and Defenses

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“Substantive Law: Defining Crimes, Inchoate Liability, Accomplice Liability, and Defenses” is adapted from “3.7. Substantive Law: Defining Crimes, Inchoate Liability, Accomplice Liability, and Defenses” by Lore Rutz-Burri in SOU-CCJ230 Introduction to the American Criminal Justice System by Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore Rutz-Burri, and Shanell Sanchez, licensed under CC BY-NC-SA 4.0. Modifications by Sam Arungwa, revisions by Roxie Supplee, licensed CC BY-NC-SA 4.0 include revising for clarity and readability.