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45.3 Proof Of Intent

    45.3.1 Proof of Intent: Circumstantial Evidence Sufficient
    45.3.2 Proof Of Intent Instruction: Improper Comment On Defendant's 5th Amendment Privilege Against Self Incrimination
    45.3.3 Criminal Liability: After-Acquired Intent Insufficient

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    See FORECITE National™ 25.12.5 [Proof Of Intent: Circumstantial Evidence Sufficient].

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PRACTICE NOTE: An instruction on proof of intent or mental state based on circumstantial evidence may improperly remind the jury that the one person who could provide direct evidence on this issue -- the defendant -- has elected not to testify. (See FORECITE National™ 300.23 [Privilege Against Self Incrimination (5th Amendment)].) For example, in U.S. v. Gambina (8th Cir. 1977) 564 F2d 22, 25 fn 2, the following instruction was given:

    "Intent may be proved by circumstantial evidence. Indeed, it can rarely be establish by any other means. We simply cannot look into the head or mind of another person. It is impossible physically to do that. So, while witnesses may see and hear and so be able to give direct evidence of what a defendant does or fails to do, of course, there can be no eyewitness account of the state of mind with which the acts were done or omitted. But what a defendant does or fails to do may indicate intent or lack of intent to commit the particular offense charged. You are entitled to consider in that regard, members of the jury, the evidence in the case, all of the testimony and the stipulation. In other words, yo may properly consider all the facts and circumstances properly before you which may aid determination of state of mind."

    Although the court found no error in Gambina, the argument may still be appropriate in the right case.

See Manual On Recurring Problems In Criminal Trials [5th Amendment Privilege Against Self Incrimination: General Principles].

See generally, FORECITE National™ 305.9.9 [Intent].

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PRACTICE NOTE: Concurrence of the criminal act and intent is a fundamental element of criminal liability. (See FORECITE National™  45.4.1 [Concurrence Of Act And Intent Or Mental State Is An Element Of The Charge].) Hence, if the criminal intent was not formed until after the act was committed there should be no criminal liability. (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 3.11(a) p. 378.)

    See FORECITE National™ 64.4.1 [Accomplice Liability: After Acquired Knowledge Or Intent Insufficient].

    See FORECITE National™ 64.4.2 [Post-Crime Assistance Insufficient For Accomplice Liability].

    See FORECITE National™ 64.4.3 [After Acquired Intent To Aid And Abet Robbery].

    See FORECITE National™ 67.6 [Solicitation: Defense Theory That Act And Intent Were Not Concurrent].

    See FORECITE National™ 78.3.4.2 [Burglary: Defense Theory That The Necessary Intent Was Not Formed Until After The Entry].

    See FORECITE National™ 92.7.2.4 [Concurrence Of Act And Intent: Intent To Kill].

    See FORECITE National™ 92.9.4.10 [No Felony Murder Liability Based On After-Acquired Intent To Commit Felony].

    See FORECITE National™ 100.1.11.1 [Robbery: Negation Of Felonious Intent By Duress].

    See FORECITE National™ 101.4.3.4 [Sexual Molestation: Lack Of Concurrence Of Sexual Contact And Intent As Defense Theory].

    See FORECITE National™ 103.1.3.8 [No Theft/Larceny Where Property Was Lawfully Obtained And Intent To Steal Was Formed Later].

See generally, FORECITE National™ 305.9.9 [Intent].