The Ins and Outs of Concurrence in Criminal Law

What is Concurrence in Criminal Law?

Concurrence refers to the necessity that both the criminal act (actus reus) and the criminal intent (mens rea) occur simultaneously to constitute a crime. This principle underlies the requirement that to secure a conviction of criminal behavior, the state must prove that the criminal act and criminal intent occurred simultaneously based on the circumstances of the crime. Thus, concurrence under the law is the relationship between the act and the intent in the commission of a crime. Concurrence is not merely an obvious fact, however. It is the linchpin that binds together disparate elements of a criminal offense into a cohesive whole.
For example, a battery (the unlawful touching of another’s body) may involve pushing someone on the sidewalk and bumping into them in a crowded bus aisle . Although in either case the alleged aggressor may touch someone against their will, this element may not be enough to criminalize the act. What distinguishes a simple bump from battery is the apparent intent to cause harm. If A runs into B innocently, but B is physically or emotionally harmed by the act, A has not committed battery because the intent to do harm is a requisite component to battery. The same distinction may not be as clear in the bus aisle example if A was carrying an origami knife and B was the intended victim. Thus, in the case of a bus incident, even if B was physically or emotionally harmed, A could be convicted of battery if it was proved that A intended to harm B. Without the requisite intent, A would likely be shielded from liability.

Elements of Concurrence

To prove the crime, the unlawful action must take place at the same time as the intent to commit the crime or else there would be no crime. At first glance, it can appear that concurrence is merely a redundancy. However, consider the following example: A person pushes a jogger off the sidewalk, causing that person to break a leg. What would have happened had the jogger not been there? There is no question that the act of pushing was intentional, albeit very stupid considering the circumstances. Intuitively, it is clear that there would be no crime if there was no jogger to be pushed. This intuition is correct; concurrence is a necessary component of the actus reus and mens rea of a crime.
Concurrence can be defined as the simultaneous occurrence of the mens rea and the actus reus. Without concurrence, there cannot be a crime. This concept of concurrence helps differentiate a crime from an accident or mistake. There are many situations where an accidental act has a harmful result. For example, an individual might jump into the ocean to save someone who has begun to drown, but the rescuer drowns in the process. Did the rescuer intend to drown? No. Thus, there is no crime. Generally, the only time that a person will be held accountable for causing harm to another without wanting to do so is where the law presumes concurring mens rea.
The best example of this in California law is the crime of involuntary manslaughter. Generally, the crime of manslaughter involves the unlawful killing of a person without the intent to kill. If the involuntary manslaughter results from the commission of an unlawful act that does not amount to a felony (generally a misdemeanor), then the person performing the act must be committing it with criminal negligence. Criminal negligence is the mens rea required for the involuntary manslaughter statute. So what exactly does criminal negligence require? According to CALCRIM 580, criminal negligence is generally a "sufficiently extreme departure from the standard of care that a reasonable person would use in the same situation." This meant that in California, a person who is driving a car that hits somebody could end up being charged with involuntary manslaughter even if he or she is driving good, law-abiding manner. This was because the driver would not be intending to kill that person, but he or she would still be performing the act of killing without any regard to a person’s safety.
Not only must the mens rea and the actus reus occur simultaneously, the two must also be causally linked. The idea here is that the mens rea, or intent, makes the act of pushing someone, the actus reus, a crime. In our example above, the action of the push was not a crime because there was no harm to be caused by the action.
How can concurring mens rea and actus reus be demonstrated? The case of People v. Sanchez gives some good examples. In that case, Sanchez attempted to kill his wife by stabbing her with a knife. Sanchez got angry after talking to a friend and thought that his wife was seeing somebody. He got a knife from the drawer and went into the living-room where his wife was watching television. He confronted her, then pointed the knife at her stomach and tried stabbing her but the knife missed and he stabbed her in her side, which did not cause any damage to vital organs. Sanchez then went outside and committed suicide.
In discussing concurrence, the court found that: "the jury was properly instructed that it could not convict defendant of attempted murder unless it found that defendant intended to kill his wife and took one direct but ineffective step toward killing her." As we can see, not only is concurrence present, but the part about a direct step excusing the lack of mens rea is a great explanation of how one can demonstrate concurrence.

Concurrence in Various Jurisdictions

While the requirements of concurrence are relatively uniform across most jurisdictions, the application of the doctrine is not necessarily so. In the Anglo-American tradition, concurrence has been enshrined in case law and codified practice since colonial times. The famous 1798 decision of Commonwealth v. Hunt held that for a conviction of breaking, entering and intent to commit a misdemeanor, the elements had to be charged and proven discretely, and the act must be that of the same person. No party may be convicted of attempting to commit a crime without a clear intention to commit the crime, and the intended result must be consistent with those intentions. A contrary system could allow the government to hold someone liable for a crime committed by a confederate. An October 1975 ruling in State v. Decker refined the Commonwealth v. Hunt test to four elements that have been codified into law since. The probative elements include: (1) that the elements must be the same perpetrator of the crime, (2) that the elements must occur simultaneously, (3) that there can be no "in absentia" convictions (elements of a prima facie case being met in the absence of the accused), and (4) that elements of intent and act be met. Other jurisdictions have varied significantly from the progenitors of the British common law system in which most American law had its foundation. In Japan, a concurrence requirement was enshrined in a law enacted as part of the Meiji "Modernization" process in 1882. Called the Giri code, the system required that a criminal culpable act be accompanied by the intent to commit that act. If a person intended to create a state of being of which a prohibited act was an element, the concurrence doctrine would apply and the trial court would analyze if all aspects were present. A major difference between this template and modern American law is that the Giri code applied only to prohibited acts, and not mens rea as well. This would result in the conviction of a person who intended to commit a crime that was a prohibited act, but the elements of the respective crime were not present. German Law has similarly varied from Anglo-American traditions. The Landgericht in Frankfurt, Germany in 1979 explicitly stated that "The application of the principle of ‘concurrence’ to inchoate offenses is unsatisfactory under German Law." This discontent bears a significant distinction with regards to the Anglo-American concurrence doctrine, in which statutes and case law have defined the test, and demands that the law be followed as such.

Concurrence & Causation

Proving concurrence requires the prosecutor to prove both the requisite intent and the act or even the omission all together. In other words, the intent and the act of the defendant must coincide in both time and location. This is contrasted with proving causation in a criminal case which requires that the prosecutor have a nexus of an intervening link between the defendant’s conduct and the resulting legal harm. For example, in State v. Division of Child Protection and Permanency (A-0049-17T3)(2018), the accused argued that the Division of Child Protection and Permanency ("DCP&P") needed to prove nexus between the diagnosis of physically abusive head trauma and the abusive act; however , there was no nexus between the specific act of abuse—holding a baby by its feet, upside down—causing the traumatic brain injury resulting from shaking the infant. On the contrary, in State v. Stokes (A-0093-13T4) (2015), the New Jersey appellate court held that causation applied because "the role of Stokes as an active participant, that his interest was specifically targeted by Trey’s assailant, and given that his cooperation was repeatedly demanded by threats to Trey, Stokes was inextricably linked to the act of Testa’s physical assault on Trey."

Problems with Proving Concurrence

Proving Concurrence, or the nexus between multiple acts, can be a difficult task for a prosecutor in a criminal trial. While there are occasions where an individual may be charged with committing one offense at one point in time (for example, a DUI arrest), frequently there is not only a series of events in which there is a fact pattern that leads to a conviction, but those events occur at different time intervals and over a period of time. For example, if you are charged with a DUI, the offense may have occurred on Saturday night, but the arrest did not occur until Sunday morning, when the charged offense was filed with a court.
The arraignment and preliminary hearing might occur in the following week. The preparation of the case might take additional months. The trial date set in advance of trial might be vacated when the charged offense is resolved by plea bargaining prior to trial. Once the case finally makes it to trial, depending on the length and complexity of the evidence and witness testimony, the jury might not receive the case until weeks after the arraignment and arrest.
In this scenario, if the driver received a traffic ticket for a moving violation on Saturday night, was involved in a hit-and-run accident on Sunday evening, and was pulled over, arrested and charged with DUI early Monday morning, coupling the moving violation and accident together with the DUI arrest might be difficult to prove factually by a prosecutor. Doing so can be even more difficult if the citation is for speeding and the hit-and-run accident is for a fender-bender accident in which there is no vehicular damage done to the other vehicle, and there are no damages that require insurance coverage, so no vehicles need to be inspected by an adjuster for repair estimates.
Of course, the importance of the actual cause of the arrest and proof the "accident" occurred cannot be understated. Prosecutors will often attempt to couple together facts and will not disagree with the argument that they are comingled together at the arraignment and preliminary hearing stages. However, once the time intervals stretch from hours into days or even weeks of time, the evidence presented must be considered carefully. If the arraignment is held only four days after the arrest, and the accused spends that time away from freedom, e.g., in jail, it is imperative that the necessity of his/her incarceration is proven beyond a reasonable doubt. Unless there is justification for that incarceration, the accused should be released.
The payment of bail is a means of "short-circuiting" the need to hold the accused for a set length of time, and the bail money will be refunded when the case is resolved. If the accused is held on bail for a matter of weeks, the test is whether there was evidence of the concurrence being discussed and the accused did not need to remain incarcerated. In fact, the thought is that the accused could have easily been released, and appears to be, based on the evidence, innocent.
In the above scenario, defense counsel will attack the evidence presented by the prosecutor and argue that, because there is a 24-hour gap between the arrest and the filing of the DUI charge, the two events were cumulatively not connected. The defense will argue that the arrest at the police station should have been the beginning of the prosecution and that the cited events earlier in time are not sufficient evidence of concurrence.
Without clear proof of proof of the concurrence for a single charged offense (DUI) having occurred, the trial court will not support the prosecutor’s argument, and there will be demonstrated inefficiency on the part of the prosecutor to justify the incarceration.
Of course, the danger is that the defense will focus on the argument that the accused did not commit the offense charged, but that the fear of a third-factor implicated in the case (e.g., personal injury) should motivate the prosecutor to overly combine the events that happened over a period of time.
To a large degree, the fact finder (judge, jury) is expected to apply the law to the facts in a case, but that is only in theory. The fact finder should ordinarily view the element of concurrence and not become involved in the discussion of whether the defendant was guilty or innocent.
Instead, the focus on the concurrence should be to identify the act in question and to avoid the impression that the arrest of the driver for DUI could have been accomplished without the moving violation or accident. This is especially the case if the only way in which the driver could be arrested for DUI was through the sequence of events in question.
Even when the facts are clear and uninterrupted, however, the danger presented by the prosecution’s argument that those facts were negatively influenced by third-party criminal activity and the arrest of the defendant should be viewed with skepticism by the fact finder. By revealing this danger, the standard of proof has been lowered and the argument at trial has lost its sufficiency.

Concurrence’s Role in Justice

In the intricate dance of the criminal justice system, concurrence plays a pivotal role in ensuring that justice is served and not miscarried. By mandating that all elements of a crime occur simultaneously, it helps protect individuals from wrongful convictions and ensures the integrity of legal proceedings.
Concurrence is crucial in safeguarding against wrongful convictions. If the legal system allowed for a situation where an individual could be found guilty of a crime if only one element of that crime were proven to have occurred, it could lead to a person being wrongfully punished for deeds they did not commit. Concurrence acts as a safeguard against this, ensuring that only those who fulfill all components of a crime should be guilty of it.
Furthermore, the importance of this doctrine extends beyond preventing wrongful convictions . It also plays a vital role in maintaining the overall integrity of legal proceedings and ensuring fair trials. Without it, courts would be subjected to a quagmire of confusing and convoluted legal arguments as to when the "moment of crime" actually occurred. In cases of theft, for instance, the timing of the concurrence between the act of taking and the intent to deprive the owner could be open to endless interpretation. Thus, concurrence not only protects individuals but also maintains the process and function of justice itself.
The issue of concurrence is just one of many facets of criminal law, and like most, it is mired in complexity. However, it is undeniably significant, and that is why it is always wise to consult a criminal defense lawyer.