Crimespeak: Understanding the Language of Criminal Laws

I will help you interpret criminal law. Criminal laws are often hard to understand because:

• They may include unfamiliar concepts, such as the term "malice aforethought" in many murder statutes.
• Familiar concepts, such as "maliciously," are often what lawyers call terms of art. This is, they can take on special meaning when used in criminal laws.
• The legal definition of a crime is often different from its popular meaning. For example, if Yolanda comes home to find that her house was broken into, she's likely to yell, "I've been robbed!" No, she hasn't. Yolanda's house may have been burgled, but technically Yolanda wasn't robbed.
• Laws often vary from one state to another. For instance, "drunk driving" may consist of driving with a blood alcohol in excess of .08 in State A; with a level of .10 in State B; and with a level in excess of .10, but only if driving is affected, in State C.
• Verdicts often depend on how judges and jurors subjectively interpret vague, abstract rules regarding defendants' mental states. For example, a killing may not be a crime at all or it may be first-degree murder, depending on how a jury evaluates the defendant's pre-killing thought process

As a result, though "ignorance of the law is no excuse," people are often justifiably uncertain about the meaning of many criminal rules.

To help you understand criminal laws, I will begin by explaining the concept of "mens rea" ("guilty mind"). Mens rea is the premise upon which our society thinks is fair and just to punish wrong-doers. I want you to understand:

The meaning of the legal language in common criminal statutes;

• How to distinguish similar offenses such as murder and manslaughter from each other; and
• How to work backward from a statute's legal language to the type of evidence that a prosecutor is likely to offer to prove a violation of the statute.

Section I: Mens Rea

1. What does mens rea mean?

Mens rea is Latin for "guilt mind". The mens rea concept expresses a belief that people should be punished (fined or imprisoned) only when they have acted with an intent or purpose that makes them morally blameworthy.

2. Will I find the term mens rea in criminal laws?

No, Mens Rea is never identified as a distinct element of a crime. Instead, moral blame is almost always the underlying justification for the enactment of a criminal law. In the legal system's eyes, people who intentionally engage in the behavior prohibited by a law have mens rea; they are morally blameworthy. For example, a murder law may prohibit "intentional and unlawful killing of one human being by another human being." Under this law, one who intentionally and unlawfully kills another person had the mental state or mens rea at the time of the killing to make him or her morally blameworthy.

3. Can a criminal law be valid even if it doesn't require mens rea?

Yes, though such laws are relatively few in number. Laws that don't require mens rea—that is, laws that punish people despite their state of mind—are called "strict liability laws." The usual justification for a strict liability law is that the social benefits of stringent enforcement outweigh the harm of punishing a person who may be morally blameless. Examples of strict liability laws include:

• Statutory rape laws which in some states make it illegal to have sexual intercourse with a minor, even if the defendant honestly and reasonably believed that the sexual partner was old enough to consent legally to sexual intercourse;
• Sale of alcohol to minors laws which in many states punish store clerks who sell alcohol to minors even if the clerks reasonably believe that the minors are old enough to buy liquor.

Strict liability laws like these punish defendants who make honest mistakes and therefore may be morally innocent. Because the legal consequences of innocent mistake can be so great in certain circumstances, people who find themselves in situations governed by strict liability rules need to take special precautions before acting.

4. Do people who commit an illegal act by mistake have mens rea?

Not necessarily. In most cases, moral blame attaches when a person intentionally engages in conduct that is illegal. The corollary of this principle is that people who unintentionally engage in illegal conduct may be morally innocent. People can unintentionally break the law when they make a mistake of fact. A person who breaks the law because the person honestly misperceives reality lacks mens rea and should not be charged with or convicted of a crime. (Mistake of fact is often irrelevant of guilty under strict liability laws, since they are not based on mens rea).

5. Can careless behavior amount to mens rea?

In some situations, yes. Ordinary carelessness is not a crime. For example, negligent drivers are not usually criminally prosecuted, though they may have to pay civil damages to those harmed by their negligence.

However, more-than-ordinary carelessness can demonstrate mens rea. Common terms for morally blameworthy carelessness are recklessness and criminal negligence. Unfortunately, no clear line separates non criminal negligence from recklessness and criminal negligence. In general, carelessness can amount to a crime when a person recklessly disregards a substantial and unjustifiable risk. Indefinite language like that cannot always rationally draw a line between ordinary and criminal carelessness. Police officers and prosecutors have to make the initial decisions about whether to charge a carelessness person with a crime. At the point, it's up to the judges and juries to evaluate a person's conduct according to community standards and decide whether the carelessness is serious enough to demonstrate a morally blameworthy mental state (mens rea).

6. Can a young child have mens rea?

It depends on the age of the child and the state in which a crime was committed. Laws in all states exempt some young children from criminal responsibility. These laws assume that very young children do not have the capacity for mens rea. However, the mens rea age limit varies from state to state. Some states exempt only children under the age of seven. Other states have a presumption that even older children (perhaps up to age 14) lack mens rea, but leave room for judges to determine that a particular youthful offender did have mens rea.
Children who are legally old enough to have mens rea may be guilty of crimes, but be eligible to be treated as juveniles rather than as adults.

Section II. The Meaning Of Frequently Used Legal Language

7. What does the term "knowing" or "knowingly" mean?

Many laws punish only violators who knowingly engage in illegal conduct. The knowingly requirement indicated that a crime involves mens rea, and prevents people who make innocent mistakes from being convicted of crimes. What a person has to know to be guilty of a crime depends on the behavior that a law makes illegal. For example:

• A drug law makes it illegal for a person to knowingly import and illegal drug (often referred to as a controlled substance) into the United States. To convict a defendant of this crime, the prosecution would have to prove that a defendant know that what he brought into the United States was an illegal drug;
• Another drug law makes it illegal to furnish drug paraphernalia with knowledge that it will be used to cultivate or ingest an illegal drug;
• Another drug law makes it illegal to furnish drug paraphernalia with knowledge that it will be used to cultivate or ingest an illegal drug to convict a defendant of this crime, the prosecution would have to prove that a defendant who sold or supplied drug paraphernalia knew the improper purposes for which the paraphernalia would be used;
• A perjury law makes it illegal for a person to testify to any material matter which she or he knows to be false. To prove perjury, the prosecution would have to prove that the defendant knew at the time he/she testified that his/her testimony was false;
• A school safety law makes it illegal for a person to knowingly possess a firearm in a school zone. To prove a violation of the law, the prosecution would have to prove both that the defendant knew that he was carrying a gun and that he was in a school zone.

8. How can the government possibly prove what a defendant knew?

A defendant might confess to a police officer, or admit knowledge in a phone call or letter. However, in most cases the government has to offer circumstantial evidence of a defendant's knowledge. That is, the government offers evidence of circumstances surrounding the defendant's actions and asks the judge or jury to infer the defendant's knowledge from those circumstances. For example, the government might offer the following circumstantial evidence to show that a defendant knew that a satchel contained illegal drugs:

• Others has on an earlier occasion asked the defendant to carry presents across the border in a satchel; on this earlier occasion, the defendant found out that the satchel contained illegal drugs;
• The defendant tried to conceal the satchel in his car;
• The satchel was too heavy or too light to account for what the defendant was told was in the satchel;
• The satchel emitted a strong order of drugs;
• The defendant is a drug user; and
• The defendant was aware that the friend who owns the satchel is a drug user.

9. What are "specific intent" crimes?

Specific intent laws require that government to do more than show that a defendant acted knowingly. Specific intent laws require the government to prove that a defendant had a particular purpose in mind when engaging in illegal conduct. Each specific intent law identifies the particular purpose that the government has to prove. For example:

• Many theft laws require the government to prove that a defendant took property with the intent to permanently deprive a person of the property. To convict a defendant of theft, the government has to prove that a thief's plan was to forever part a victim from his or her property. For example, a culprit who drives off in another's car without permission and returns it a few hours later might be convicted only of joyriding. However, the same culprit who drives off in another's car without permission and takes it across the country probably demonstrates a specific intent to permanently deprive the owner of the car and would be guilty of the more serious crime of car theft.
• Insurance fraud laws often require proof that a defendant destroyed insured property with the intent to defraud the insurer. To convict a defendant of insurance fraud, a prosecutor had to prove that a defendant's purpose in destroying insured property was to collect money from the property's insurer. For instance, a prosecutor might offer evidence that the owner of a decaying factory hired an arsonist to set fire to it and then filed an insurance claim.
• A serious drug crime involves possession to drugs with the intent to sell them. To prove his crime, a prosecutor would have to prove that the defendant intended to sell the drugs found in the defendant's possession rather than keep them for his own use. For example, the prosecutor might offer evidence that the drugs found in the defendant's apartment were bundled into separate packages, that the defendant also owned a set of scales commonly used by drug pushers to weigh drugs and that customers were frequently seen going in and out of the apartment.

10. A statute makes it illegal to maliciously deface a building. What does the term "maliciously" mean?

In everyday usage people often use the term malicious to mean spiteful or wicked. In most criminal cases, however, malicious is simply synonymous with intentionally and knowingly. As a result, the term maliciously usually adds to nothing to the general mens rea requirement.

11. How does the tern "willfully" affect the meaning of the statute?

As with maliciously, the term willfully usually adds nothing to the general mens rea requirement. In most statutes, to commit an illegal act willfully is simply to commit it intentionally. For example, consider these statutes:

• "It is unlawful to willfully disturb another person by loud an unreasonable noise."
• "Anyone who willfully encourages another to commit suicide is guilty of a felony."

Each of these statues merely requires the government to show that a person intentionally committed the act made illegal by the statute.

12. How does the term 'feloniously" affect the meaning of a statute?

The term feloniously is sometimes included in a law when prohibited conduct can in some circumstances be legal. Its presence is a reminder that a law applies only to a prohibited form of conduct. However, the term amounts to what lawyers often call surplusage, because it adds nothing to the meaning of the statues. For example, consider this law:

• "Anyone who feloniously takes the property of another is guilty of theft."

Taking another's property is often perfectly legal. For example, one sister may give another sister general permission to wear her sweaters. And shoppers certainly commit no crime when they take an item off a shelf when deciding whether to buy it. The statue makes only felonious taking illegal—that is, taking property without permission and with the intent to permanently deprive another of the property. The legal interpretation of the statute would be exactly the same in the absence of the term feloniously.

13. What does the term "motive" mean?

Motive refers to the reason why a person committed an illegal act. For example, a person's need to raise money quickly to pay off a bookie may be the motive or a robbery; revenge for a personal affront may be the motive for a physical attack. Prosecutors often offer motive evidence as circumstantial evidence that a defendant acted intentionally or knowingly. The reason is that, like most people, judges and jurors believe in cause and effect. They are more likely to believe that a defendant had mens rea if they know that the defendant had a motive to commit an illegal act.

14. Does the government have to prove motive?

No. While prosecutors frequently do offer motive evidence, they are not required to do so. By the same token, defendants may offer evidence showing that they had no motive to commit a crime, and then argue that the lack of a motive demonstrates reasonable doubt.

15. Who is an accomplice?

An accomplice is one who intentionally helps another to commit a crime. Even in an accomplice does not participate in carrying out the crime, in the eyes of the law the accomplice just guilty as the person who does carry out the crime. For example, assume that Lars Senny breaks into a warehouse and steals property belonging to the warehouse owner. Hal Perr would be Lar's accomplice and just as guilty as Lars if Hal took any of the following steps to assist Lars to commit the theft.

• Hal works in the warehouse, and drugged the warehouse night watchman before leaving work on the day of the theft.
• Hal cut the wires to the burglar alarm (or cut a hole in the fence) so that Lars could enter the warehouse without being detected.
• Hal has a blueprint of the warehouse, and he met with Lars a week before the theft to review warehouse layouts and exit routes.
• Hal rented a U-Haul and left it parked outside the warehouse on the night of the robbery.
• Hal agreed to baby sit for Lar's infant child while Lars went off to the warehouse.

16. Does an accomplice need mens rea to be guilty of a crime?

Yes. To prove that a defendant is an accomplice, the government must prove that the defendant intentionally aided in the commission of a crime. This means that the defendant must realize that the principal is going to commit a crime and that the accomplice intends to assist in the committing in a crime.

17. Who is an accessory after the fact?

An accessory after the fact is someone who, knowing that a felon has finished committing a crime (and generally the crime has to be a felony), helps the felon avoid arrest or trial. Perhaps, because by the time an accessory after the fact becomes involved a crime has already occurred, in most states, accessories after the fact far less punishment than accomplices or principals.

18. Who are conspirators?

Conspirators are two or more people who agree to commit a crime. (Distinction between accomplices and conspirators is that the former are helpers, while each conspirator is a principal.) Conspiracy is a controversial crime, in part because conspirators can be guilty even if the crime that they agree to commit never occurs. As a result, conspirators can be punished for their illegal plans rather than for what they actually do. But, as some protection against convicting people purely for their private thoughts, in most states, conspirators are not guilty of the crime of conspiracy unless at least one of them commits an overt act. An "overt act" is an activity which, in some way, moves a conspiracy into action.

19. How does the government prove that a conspiracy exists?

Few conspiracies are reduced to writing. Usually, as when trying to prove intent or knowledge, a prosecutor relies on circumstantial evidence. Just as a person might infer the existence of a fire from smoke, prosecutors ask judges and juries to infer from conspirators' behavior that illegal agreement that gave rise to that behavior.

20. Can conspirators receive double punishment?

Yes. Conspiracy is itself a crime. As a result, conspirators can be convicted both of conspiracy and of the crime which they carry out in furtherance of the conspiracy. For instance, assume that Bonnie and Clyde conspire to rob a bank, then actually rob it. Bonnie and Clyde can be convicted and separately punished for conspiracy and for the bank robbery.

21. Can a conspirator be convicted of crime committed by co-conspirators regardless of whether the conspirator agreed to those crimes in advance?

Yes. Another broad feature of conspiracy law in most states is that each conspirator is legally responsible for crime committed by any other conspirators—so long as those crimes fall within the scope of the conspiracy. Because the precise goal of a conspiracy is rarely written down, a conspirator's criminal liability can easily be much more than the conspirator anticipated. A conspirator may intend to take part only in a single crime, yet be responsible for additional crimes committed by conspirators who intended for the conspiracy to perpetrate a number of crimes.

Section IV. Murder and Manslaughter

22. Is homicide the same thing as murder?

No. A homicide is any killing of a human being by another human being. Many homicides are legal, such as a justifiable killing of a suspect by the police and a killing done in self-defense.

23. What is the definition of murder?

Murder is an intentional killing that is:

• Unlawful (in other words,, the killing isn't legally justified); and
• Committed with "malice aforethought."

Malice aforethought doesn't mean that a killer has to have acted out of spite or hate. Malice aforethought exists if a killer intends to kill a person. However, in most states malice aforethought isn't limited to intentional killings. Malice aforethought can also exist if:

• A killer intentionally inflicts very serious bodily harm which causes a victim's death.
• A killer's behavior, which demonstrates extreme reckless disregard for the value of human life, results in a victim's death.

Under this scheme, intent to do serious bodily harm and extreme reckless disregard become legal equivalents to intent to kill. To be consistent, from here on we'll refer to murders as "intentional" killings.

24. If a victim is dead in any event, why distinguish between first degree and second degree murder?

Even within the universe of those who kill unlawfully and with malice aforethought, the law regards some killers as more dangerous and morally blameworthy than others; this group can be convicted of first degree murder.

The rules vary somewhat from state to state as to what circumstances make an intentional killing first degree. The following circumstances are common:

• The killing is deliberate and premeditated. In other words, the killer plans the crime ahead of time. For example, premeditation exists if a wife goes to the store, buys a lethal dose of rat poison and puts in her husband's tea.
• The killing occurs during the course of a dangerous felony. This is often known as the felony murder rule. A felon can be guilty of murder whenever a death occurs in the course of a dangerous felony, even if the felon is not the killer. For example, assume that A and B commit an armed bank robbery. As they attempt to flee with the loot, a police officer shoots and kills A. B could be convicted of first degree murder because a death occurred in the course of a dangerous felony—even thought the killer was a police officer and the dead person was B's co-conspirator.
• The killer uses an explosive devise like a bomb.

25. Is the punishment for first degree murder usually more severe than for second degree murder?

Yes. Many states have mandatory minimum sentences for murder, and the mandatory minimum for first degree is almost always higher than for second degree murder can also be eligible for a state's ultimate penalty. Currently, in 38 states and under some federal laws, the ultimate penalty is death. In others, it is life in prison without the possibility of parole (LWOP). Defendants convicted of second degree murder are often sentenced to a term of years rather than to life in prison, and are almost always eligible for parole.

26. What is the difference between murder and manslaughter?

Manslaughter (in some states called third degree murder) is an unlawful killing that does not involve malice aforethought. The absence of malice aforethought means that manslaughter involves less moral blame than either first or second degree murder. Thus, while manslaughter is a serious crime, the punishment for manslaughter is generally less than for murder.

27. Do degree of manslaughter exist, as they do for murder?

Yes, though the two types of manslaughter are usually referred to as voluntary and involuntary manslaughter.

Voluntary manslaughter is often called the heat of passion crime. Voluntary manslaughter arises when a person is suddenly provoked (in circumstances which are likely to provoke many reasonable people) and kills in the heat of passion aroused by the provocation. That the killing is not considered murder is a concession to human weakness. Killers who act in the heat of passion may kill intentionally, but the emotional context prevents them from having the ability to fully control their behavior. As a result, the heat of passion reduces their moral blameworthiness.

Common example of voluntary manslaughter involves a husband who comes home unexpectedly to find his wife committing adultery. If the husband is provoked into such a heat of passion that he kills the paramour right then and their, a judge or jury might every well consider the killing to be voluntary manslaughter.

A killing can be involuntary manslaughter when a person's reckless disregard of a substantial risk results in another's death. Because involuntary manslaughter involves carelessness and not purposeful killing, it is a less serious crime than murder or voluntary manslaughter.

The subtleties between the degrees of murder and manslaughter reach their peak with involuntary manslaughter. Suppose that Rosencrantz is driving a car and runs over a kills Guilenstern. Rosencrantz might be:

• Not guilty of a crime at all. If Guildenstern's family sues Rosencrantz in a civil case, Rosencrantz might have to pay damages to Guilenstern;s heirs if Rosencrantz was negligent—that is, if Rosencrantz failed to use ordinary care.
• Convicted of involuntary manslaughter if Rosencrantz recklessly disregarded a substantial risk, meaning that Rosencrantz was more than ordinarily negligent. For example, a judge or jury might convict Rosencrantz of involuntary manslaughter if Rosencrantz killed Guildenstern while driving under the influence of alcohol.
• Convicted of second degree murder is Rosencrantz's behavior demonstrated such an extreme reckless disregard for human life that a judge or jury decides that Rosencrantz's behavior demonstrates malice aforethought. For example, if Rosencrantz not only kills Guildenstern as a result of drunk driving, but also stole a car to so it after his license had been taken away after previous drunk driving convictions, a judge or jury might convict Rosencrantz of second degree murder.

Section IV. Rape

28. What is rape?

Rape is unlawful (nonconsensual) sexual intercourse, often consisting of unwanted intercourse accomplished by means of force or fear. For purposes of rape laws, sexual intercourse occurs at the moment of sexual penetration, however slight.
The most typical form of rape is forcible rape, in which a rapist uses violence or threats of violence to coerce a victim into sexual intercourse. In most states, however, rape can also occur in a number of other ways. For example, rape generally also consists of sexual intercourse occurring under these conditions:

• The rapist prevents a victim from resisting by plying the victim with alcohol or drugs.
• The rapist poses as a public official and threatens to arrest or deport the victim unless the victim agrees to sexual intercourse.
• The rapist knows that the victim has a disorder or disability which prevents the victim from legally consenting to sexual intercourse.

29. Can a husband be guilty of raping his wife?

In most states, yes. If sexual intercourse is nonconsensual within the meaning of the rape laws, the fact that the parties are married is irrelevant. Of course, the fact that the alleged rapist is her husband may make it more difficult for a wife to convince the police or a judge or jury that rape rather than consensual intercourse took place.

30. Can a woman be guilty of rape?

Yes, though such cases are rare. In a few instances, females have been convicted of rape when that have been the accomplices of makes and have lured a victim to a place where a rape awaits.

31. Do degrees of rape exist?

In many states, yes. First degree rape may consist of rape accompanied by severe physical injuries. First degree rape carries a harsher punishment than second degree rape, which may involve no physical injuries beyond the rape itself.

32. What is statutory rape?

Statutory rape consists of sexual intercourse with a minor, defined in most states as someone who is under age 18. The minor's outward consent to intercourse is
irrelevant. Statutory rape laws are strict liability laws which make a minor legally incapable of consenting to sexual intercourse. The (perhaps outmoded) assumption behind statutory rape laws is that females under the age of 18 do not have the mature mental capacity to voluntary consent to intercourse.

33. Can a minor be guilty of statutory rape of another Minor?

Yes. If two 16 year olds engage in sexual intercourse, in many states each could be prosecuted for statutory rape. In other states, only males can be prosecuted for statutory rape. Of course, such cases are rarely prosecuted. Even with they are, laws in many states make concessions to the frequency of sexual intercourse among minors in modern society

Section VI: Burglary

34. What is burglary? Burglary laws protect buildings. A burglary occurs when a culprit:

• Breaks into and
• enters
• a building
• without consent and
• with the intent to commit a felony or to steal property, even is the theft itself would only be a misdemeanor.

Burglary is thus a specific intent crime. What distinguishes the felony of burglary from less serious misdemeanors such as trespassing is that with burglary the prosecution has to prove that a defendant intended to commit a felony or a theft inside a building at the very moment that the defendant entered it.

35. Does burglary require a forcible breaking and entry?

No. Years ago burglary laws were more rigid, and they required the government to prove that a defendant forced open a door, a window or some other part of a building to gain entry. Now, going into a building without consent through an open window or an unlocked door constitutes a break and entry for purposes of almost all burglary statutes. Even a partial entry can constitute a burglary. For example, assume that the police arrest a suspect just as the suspect reaches her arm through an open window. If the other requirements are met, one arm in is sufficient entry to constitute a burglary.

36. Do degrees of burglary exist?

Yes. The danger of physical injury is greatest when a burglar enters an inhabited
building, so in many states this constitutes first degree burglary. Under some
statues, entry at night rather than in the daytime also constitutes a first degree burglary, regardless of whether a building is inhabited.

37. Is it a burglary if a person enters a building intending to commit a crime, but is arrested or scared off before a crime can take place?

Yes. With burglary, the key moment is the burglar's entrance into a building. If, at the moment, the burglar intends to commit a felony or steal property inside the building, a burglary has taken place. On the other hand, it may constitute some other crime, but not burglary, if a culprit first decides to commit a crime only after entering a building.

38. A house is broken into. No one can identify who broke into the house, but the police find a suspect in possession of items taken from the house. Can the suspect be convicted of burglary?

Yes. Even in the absence of eyewitness identification, it is possible that the prosecution could offer enough circumstantial evidence to prove that it is the suspect who broke into the house. As a fall-back, the prosecutor might convict the suspect of possession of stolen property.

Section VII: Robbery

39. What is robbery?

Robbery is a crime both of theft and violence. It consists of using property directly and permanently from another person. A common example of robbery involves the holdup of a convenience store. A robber pulls a gun (thus using means of force or fear, even if it's unloaded or a toy gun) and demands money from the clerk. Purse-snatching can also constitute robbery if the victim is confronted by the robber.

40. Is robbery a specific intent crime?

Yes. Robbery is a type of theft crime. The government has to prove that a robber took property with the intent to forever deprive the victim of the stolen property.

41. How can the government prove that a thief intended to permanently deprive a victim of stolen property?

A prosecutor typically relies on circumstantial evidence to prove intent, just as was true with statues requiring proof of knowledge and other state of mind elements that can't be directly proved. In other words, a prosecutor asks a judge or jury to use common sense to infer a thief s intent from the circumstances under which property was stolen.

42. Do degrees of robbery exist?

Yes. In some states, first degree robbery consists of a robbery committed inside a residence, or against certain classes of people such as taxicab drivers or passengers. Other robberies are second degree robberies.

Section VIII: Theft

43. What is theft?

Theft (or larceny) is an umbrella term that applies to various methods of stealing another's personal property with specific intent to permanently deprive the other of possession. (Theft laws generally do not apply to land, since last can't be carried off. Of course, other laws protect landowners who are swindled out of their property.) In additional to the standard form of theft simply carrying off someone else's property two other common forms of theft are:

• Embezzlement, in which an employee or other personal representative diverts money or property intended for the employer or principal to the employee's or personal representative's personal use; and
• Fraud (or false pretenses), which typically occurs when a thief tricks a victim into voluntarily handling over money or property.

44. What is the difference between grand theft and petty theft?

Grand theft is the equivalent of first degree theft. Theft can be grand theft, and therefore more serious, for a variety of reasons. Laws in many states deem a theft to be grand theft when:

• The property taken is worth more than a minimum amount, perhaps $200-$400 depending on the state.
• Property is taken directly from a person, but by the means other than force or fear. (If force or fear were used, the crime would be robbery
• Particular types of property are taken. For example, the theft of cars and some types of animals is often grand theft regardless of their actual market value.

A theft that does not qualify as a grand theft is second or third degree, theft.

45. Is it theft for one who finds lost property and they keep it?

Keeping lost property can qualify as theft is the find could reasonably return the property to its owner. For example, if Sue is bicycling along a deserted lane and sees a $ 100 bill floating on a puddle next to the curb, Sue would not be guilty of theft if she kept it. However, it's different if she's bicycling; Sue sees Charles drop a $100 bill as Charles is getting out of the car. Charles is unaware that he has dropped the money and begins walking away. If Sue rides over, picks it up and keeps it, Sue has committed theft. Since Sue knows that the money belongs to Charles, and she has a reasonable opportunity to return it to him, Sue commits theft by not attempting to return the money to Charles. From a legal standpoint, Sue's keeping the money when she could have easily returned it to its rightful owner is what is known as "constructive" talking.

46. Is it theft to steal property from a thief who has previously stolen it?

Yes. Theft is illegal even if the person from whom property is stolen had no right to the property in the first place. This rule is necessary to prevent successive thieves from taking the same property with no fear of punishment.

47. Is it theft to steal contraband such as illegal drugs or weapons?

Yes. Stealing contraband from one who has no right to have it is illegal. Again, the rationale is to deter the act of theft, no matter what the character of stolen property.

48. Is it illegal to buy or keep stolen property?

Yes. This crime is popularly known as receiving stolen goods. To convict a defendant of receiving stolen goods, the government has to prove that the property in the defendant's possession was stolen, and that the defendant acquired the property knowing that it was stolen. As is typical when a statute requires proof of knowledge and other state of mind elements, the government usually has to reply on circumstantial evidence to try to prove a defendant's knowledge that property had been stolen. Usually the government's case relies on evidence that would have alerted any reasonable person that the items were "hot".

Section IX: Hate Crimes

49. Do hate crime laws make it crime to hate?

No, hatred may be lamentable, but it is not against the law to have a mental attitude of hate towards specific individuals or social groups. Moreover, in many circumstances, the First Amendment to the U.S. Constitution prevents punishment for expressing hatred toward specific individuals or social groups.

50. What is a hate crime?

While hate crime laws may vary from one state to another, in general a hate crime occurs when an illegal act is committed because of a victim's race, color, religion, ancestry, national origin, disability, gender or sexual orientation. (We'll call this hate crime intent or hate crime purpose in this section so as not to have to repeatedly refer to each possible illegal purpose). This does not mean that every crime committed against a victim who belongs to one of the groups identified by hate crime law is a hate crime. A hate crime occurs when an illegal act is committed because a victim belongs to one of the groups identified in a hate crime law.

51. What is the purpose of hate crime laws?

Hate crime laws seek to protect people who belong to groups that have frequently been a target of illegal acts. Hate crime laws also send a message that targeting these victims because of their status (for example, as gays or women or Muslims) is antithetical to maintaining a free and pluralistic society.

52. What are the two forms of hate crime laws?

One form of hate crime law defines a type of illegal conduct that is punishable in and of itself. For example, interfering with a person's civil rights with a hate crime intent may itself be a crime, regardless of whether the perpetrator violates any other criminal laws. Thus, just as the crime of murder is distinct form that of theft, so may a hate crime be a separately defined crime.
A second form of hate crime law increases the punishment of those who commit other crimes with a hate crime purpose. For example, a crime that is ordinarily a misdemeanor may become a felony if a perpetrator commits it with a hate crime intent. Similarly, a felony that is ordinarily punishable by up to five years in state prison may become punishable if a perpetrator commits it with a hate crime intent.
Hate crime laws have been challenged by defendant on the ground that they violate their free speech rights, but thus far courts have generally upheld and enforced them. (See Wisconsin v. Mitchell, U.S. Sup. Ct. 1993).

53. Who decides whether a defendant had a hate crime intent?

At trial, a defendant may be convicted of committing a hate crime only if the prosecutor proves beyond a reasonable doubt that an illegal act was committed with hate crime intent. It is up to the jury and not the judge to decide whether the defendant acted with a hate crime purpose. Proving that a defendant acted with a hate crime purpose can be difficult. A prosecutor normally must find and offer evidence that the reason that a defendant committed an illegal act was the victim's belonging to a group identified in a hate crime law. The evidence might consist of a statement made by a defendant. For example, to show that an act is a hate crime because it was committed against a gay man, a prosecutor may offer evidence that a defendant told a friend something like, "I plan to attack the next person I see who is homosexual." Or, the prosecutor may offer evidence that a defendant committed a series of illegal acts against different victims, each of whom were members of an ethnic minority group identified in a hate crime law.

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