Attendant circumstance
Encyclopedia
Attendant circumstance is a legal
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

 concept which Black's Law Dictionary
Black's Law Dictionary
Black's Law Dictionary is the most widely used law dictionary in the United States. It was founded by Henry Campbell Black. It is the reference of choice for definitions in legal briefs and court opinions and has been cited as a secondary legal authority in many U.S...

defines as the "fact
Fact
A fact is something that has really occurred or is actually the case. The usual test for a statement of fact is verifiability, that is whether it can be shown to correspond to experience. Standard reference works are often used to check facts...

s surrounding an event."

In the criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

 in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

, the definition of a given offense generally includes up to three kinds of "elements": the actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...

, or guilty conduct; the mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...

, or guilty mental state; and the attendant (sometimes "external") circumstances. The reason is given in Powell v. Texas
Powell v. Texas
Powell v. Texas, 392 U.S. 514 , was a United States Supreme Court case which ruled that a Texas statute criminalizing public intoxication did not violate the Eighth Amendment protection against cruel and unusual punishment. It was a 5-4 decision, and the majority opinion was by Justice Thurgood...

, 392 U.S. 514, 533 (1968):
...criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing.

The burden of proof is on the prosecution to prove each "element of the offense" in order for a defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...

 to be found guilt
Guilt (law)
In criminal law, guilt is entirely externally defined by the state, or more generally a “court of law.” Being “guilty” of a criminal offense means that one has committed a violation of criminal law, or performed all the elements of the offense set out by a criminal statute...

y. The Model Penal Code
Model Penal Code
The Model Penal Code is a statutory text which was developed by the American Law Institute in 1962. The Chief Reporter on the project was Herbert Wechsler. The current form of the MPC was last updated in 1981. The purpose of the MPC was to stimulate and assist legislatures in making an effort to...

 §1.13(9) offers the following definition of the phrase "elements of an offense": such conduct or (ii) such attendant circumstances or (iii) such a result of conduct as
(a) is included in the description of the forbidden conduct in the definition of the offense; or
(b) establishes the required kind of culpability; or
(c) negatives an excuse or justification for such conduct; or
(d) negatives a defense under the statute of limitations; or
(e) establishes jurisdiction or venue;

MPC §1.13(9)(a)/(c)

In United States v. Apfelbaum, 445 U.S. 115, 131 (1980)http://www.justia.us/us/445/115/case.html, Rehnquist J. states the general rule that:
In the criminal law, both a culpable mens rea and a criminal actus reus are generally required for an offense to occur.

For these purposes, the term "actus reus" does not have a single definition, but it represents the general principle that before an individual may be convicted of an offense, it must be shown that there was an overt act
Overt Act
In criminal law, an overt act , an open act, one that can be clearly proved by evidence, and from which criminal intent can be inferred, as opposed to a mere intention in the mind to commit a crime...

 in pursuance of any intention. Otherwise, a person might be held liable for his or her thoughts alone. Model Penal Code §2.01(1):
A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.

But there are exceptions. For example, according to United States v. Dozal, 173 F.3d 787, 797 (10th Cir. 1999) a conspiracy in violation of 21 U.S.C. §846 consists of four elements:
  1. an agreement with another person to violate the law,
  2. knowledge of the essential objectives of the conspiracy,
  3. knowing and voluntary involvement, and
  4. interdependence among the alleged conspirators.

But, according to United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994) (citing United States v. Shabani, 513 U.S. 10 (1994)) drug conspiracies under 21 U.S.C. §846 are unique because the prosecution need not prove an overt act. Instead, the government must "prove that the defendant knew at least the essential objectives of the conspiracy and knowingly and voluntarily became a part of it." Consequently, withdrawal before an overt act has been committed cannot relieve a defendant of criminal responsibility. The policies that justify drug enforcement laws require this exception so that anyone who deliberately acquires knowledge of drug-related activities and thereby represents a social danger, may be convicted.

When analysing an offense, the normal rules of interpretation require the identification of the policies that informed the creation of the offense, an assessment of the factual context within which the offense must be committed and the consequences prohibited by the law. Thus, as the MPC §1.13(9) definition indicates, the attendant circumstances will be the evidence that must be adduced to prove all the elements required to constitute the offense and, under §1.13(9)(c) to disprove any excuse or justification
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...

. So, as in State of North Carolina v Vernon Jay Raley 155 NC App 222 (01-1004)http://www.aoc.state.nc.us/www/public/coa/opinions/2002/unpub/011004-1.htm, if a citizen intentionally utters a profanity at the police
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...

, the charges would be preferred under N.C.G.S. §14-288.4 which defines "disorderly conduct" as:
a public disturbance intentionally caused by a person who:
(1) Engages in fighting or other violent conduct or in conduct creating the threat of imminent fighting or violence; or
(2) makes or uses any utterance, gesture, display or abusive language which is intended and plainly likely to provoke violent retaliation and thereby causes a breach of the peace.

Under N.C.G.S. §14-288.4 (2001), the componential element of "public disturbance" is defined in G.S. §14-288.1(8) as follows:
Any annoying, disturbing, or alarming act or condition exceeding the bounds of social toleration normal for the time and place in question which occurs in a public place or which occurs in, affects persons in, or is likely to affect persons in a place to which the public or a substantial group has access. The places covered by this definition shall include, but not be limited to, highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.

In order for a person to be found guilty of this crime, the evidence must prove that the defendant uttered a profanity (the act) in a public place (the contextual attendant circumstance) with the intention of provoking a violent reaction (the mental element demonstrating the right type of culpability) and thereby causes a breach of the peace (the result prohibited by law). There are no attendant circumstances that might invoke an excuse or other general defence. Indeed, the fact that, in this instance, the victim was a police officer would probably increase the penalty
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....

 for the crime and, as such, it is known as an aggravating
Aggravation (legal concept)
Aggravation, in law, is "any circumstance attending the commission of a crime or tort which increases its guilt or enormity or adds to its injurious consequences, but which is above and beyond the essential constituents of the crime or tort itself."...

 circumstance
; (when verification of an attendant circumstance decreases the penalty, it is known as a mitigating or extenuating circumstance
Extenuating circumstances
In law, extenuating circumstances in criminal cases are unusual or extreme facts leading up to or attending the commission of the offense which, though an offense has been committed without legal justification or excuse, mitigate or reduce its gravity from the point of view of punishment or moral...

).

MPC §1.13(9)(d)/(e)

The elements of a crime may also require proof of attendant circumstances that bring the conduct within time for the purposes of any statute of limitation or before an appropriate venue. Such circumstances are completely independent from the actus reus or mens rea elements. In the federal system, for example, a crime may require proof of jurisdictional
Criminal jurisdiction
Criminal jurisdiction is a term used in constitutional law and public law to describe the power of courts to hear a case brought by a state accusing a defendant of the commission of a crime...

 facts, which are not defined in the statute creating the offense. See generally LaFave & Scott at 273.3. Thus, the Sixth Amendment calls for trial “by an impartial jury of the State and district wherein the crime shall have been committed.” Within the federal court system, Rule 18 of the Federal Rules of Criminal Procedure
Federal Rules of Criminal Procedure
The Federal Rules of Criminal Procedure are the procedural rules that govern how federal criminal prosecutions are conducted in United States district courts, the general trial courts of the U.S. government. As such, they are the companion to the Federal Rules of Civil Procedure...

specifies which federal court may hear a particular criminal case:
Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant and the witnesses, and the prompt administration of justice.

In United States v. Cabrales, 118 S. Ct. 1772 (1998)http://supct.law.cornell.edu/supct/html/97-643.ZO.html a jurisdiction issue on venue was invoked by the attendant circumstance that the relevant acts of money laundering occurred in Florida where the case was to be tried, but the funds were derived from the unlawful distribution of cocaine in Missouri. The offense is defined as:
Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which involves the proceeds of specified unlawful activity—(i) with the intent to promote the carrying on of specified unlawful activity; or
(ii) with intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986; or knowing that the transaction is designed in whole or in part—
(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or
(ii) to avoid a transaction reporting requirement under State or Federal law,
shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both.

The attendant circumstance of a transborder exercise is not referred to in the definition, but is a critical factual circumstance which will determine whether the accused can be tried as charged. The case was held more properly within the Missouri jurisdiction. This jurisdictional problem would not arise in relation to conspiracy charges.
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