harm. Although generally not included in the listed elements, to prove a crime of causation, the government 
must also prove that the defendant is the actual cause of the harm (actual or but/for cause) and that it is fair 
to hold him or her responsible (that the defendant is the legal or proximate cause of the harm). 
Statutes are generally silent on the other elements of crimes of conduct or crimes of causation: legality and 
concurrence. The legality element is met when a law is validly enacted and puts people on notice that 
certain behavior is illegal. Laws are presumed to be valid, and the state generally does not have to begin each 
case by proving that proper procedure was followed when the law was enacted. The concurrence element
requires the state must also prove that the criminal intent triggered the criminal act–that the mens rea and 
actus reus occurred at the same time. 
Occasionally, a statute will be silent as to the mens rea  element. When this occurs, courts need to decide 
whether the legislature has intended to create a strict liability crime or has just been sloppy in drafting the 
law. Strict liability crimes are ones where the government does not have to prove criminal intent. Courts 
are disinclined to find in favor of strict liability statutes unless there is a clear indication that the legislature 
intended to create strict liability. The courts will examine legislative history, the seriousness of harm caused 
by the crime, whether the crime is male in se  or mala prohibitum, and the seriousness of the punishment in 
deciding whether the state should be relieved of its obligation to prove criminal intent of the defendant. As 
a general rule, the courts are more likely to find that a crime is a strict liability one when there is a small 
punishment and when the crime is more of a recent, regulatory offense (mala prohibitum crime). 
Inchoate Offenses: Attempt, Conspiracy, and Solicitation 
In order to prevent future harm, state and federal governments have enacted statutes that criminalize 
attempts to commit crimes, solicitations to commit crimes, 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 
the approaches and tests of whether the defendant has taken enough steps to be charged with 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 that there be an overt act in 
furtherance of the crime (some outward movement towards the commission of the target crime) which 
reaffirms there is 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: Aiders and Abetters 
People who commit crimes frequently do so with assistance. Substantive criminal law describes when a 
person can be found guilty for the acts of another. For example, the common law recognized four parties 
to a crime: principal in the first degree, principal in the second degree, accessory before the fact, and 
accessory after the fact. Many complicated legal rules developed to offset the harsh common law treatment of 
most crimes as capital offenses (death penalty eligible). The modern statutory trend has been to recognize 
accomplices, people who render assistance before and during the crime, on one hand, and accessories after 
the fact, people who help the offender escape responsibility after the crime has been committed, on the other. 
Accomplices, as treated as equally liable as the main perpetrator as “the hand of one, is the hand of them all.” 
Accessories after the fact, under the modern trend, are charged with hindering prosecution or obstructing 
justice after the crime are punished to a lesser extent than the main perpetrators. 
Vicarious Liability 
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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