How to prove “intent” in court – A defense lawyer explains

An intent to commit a crime can be proven with either direct evidence or with circumstantial evidence. Proving that a criminal defendant intended to commit a crime is often one of the most important parts of a case. It has to be proven beyond a reasonable doubt. This is even more difficult for specific intent, rather than general intent, crimes.

How does law enforcement prove criminal intent?

Police and prosecutors prove criminal intent with either:

• direct evidence, or
• indirect evidence, also known as circumstantial evidence.

Law enforcement does not need direct evidence to secure a conviction. In fact, many cases rely entirely on circumstantial evidence of a defendant’s intent.

The necessary level of intent is important. In legal terminology, this is known as mens rea. It is Latin for “guilty mind.” Many crimes require both a culpable mens rea as well as an actus reus, or guilty act.

Some criminal laws require the defendant to act intentionally. Others, only recklessly or even negligently. Some criminal laws do not require any necessary mental state, at all. These criminal laws fall into 3 categories:

1. specific intent crimes,
2. general intent crimes, and
3. strict liability crimes.

Only the first 2 require mens rea, or a culpable mental state. Generally, state criminal laws follow the Model Penal Code and distinguish between 4 types of culpable mental states:

• intent or purpose,
• knowledge,
• recklessness, and
• negligence.¹

Prosecutors find it more difficult to prove that someone acted intentionally, while it is relatively easy to show that a defendant acted negligently. In either case, the burden of proof is overcome by direct or circumstantial evidence.

Direct evidence

Direct evidence proves something without the need for a logical inference or a presumption.² It often takes the form of:

• testimony from someone who says that the defendant told them that he or she intended to commit the crime,
• an eyewitness saying that the defendant acted deliberately, or
• the defendant’s confession that he or she intended to act.

In each of these examples, the statement directly goes toward showing the defendant’s intent to commit a crime. The only thing that the jury has to do is believe the speaker.

Circumstantial evidence

Circumstantial evidence suggests that the defendant intended to commit the crime, but requires an inference of presumption. Put another way, circumstantial evidence proves something other than the defendant’s intent, but that other thing makes it reasonable to infer or presume the defendant’s intent.

Examples that shed light on a defendant’s intent can include:

• the defendant was loitering in the area of a crime before it occurred,
• the defendant was found with an item that was stolen, or
• the defendant had plane tickets to leave the country right after the crime occurred.

None of these things, itself, proves that the defendant intended to commit the crime, or even that he or she committed it. However, they are enough for someone to make reasonable inferences that he or she committed the crime intentionally.

What is a specific intent crime?

According to the Supreme Court, a specific intent crime is a criminal offense that requires the defendant to commit an unlawful act with a special mental state beyond just a culpable mens rea.³ Generally, this requires the defendant to act not just intentionally, but with the intention to cause a certain effect or a specific result. The required mental state is set out in the criminal statute. Proving this state of mind is necessary for the defendant to be liable for the offense.

In California, robbery (Penal Code 211 PC) is an example of a specific intent crime. It requires proof that the defendant acted not just intentionally but with the intent to deprive the owner of the property permanently.⁴ This intent element is similar to the requirement for larceny or theft in other jurisdictions. Prosecutors have to prove this mental element beyond a reasonable doubt.

Another example is forgery (Penal Code 470 PC). For that offense, prosecutors have to show that the defendant acted not just intentionally, but with the intent to defraud.⁵

A person may intentionally forge someone else’s signature and not be liable for forgery if he or she did not act with the intent to defraud someone.

A crime requiring a specific intent means that it can be more difficult for the prosecutor to secure a conviction on the criminal charges. A criminal defense lawyer from a reputable law firm can challenge the evidence being presented to show that the defendant committed the criminal act with the required mental culpability. Getting the legal advice of a lawyer is often the best way of getting a not guilty verdict or having the charges dropped.

What is a general intent crime?

A general intent crime is one that requires the defendant to act with a culpable mens rea, but not for the purpose of causing a specific consequence. This generally means that the prosecutor merely has to show, depending on the criminal statute, that a person act with the required:

• intent,
• knowledge,
• recklessness, or
• negligence.

An example in California is assault (Penal Code 242 PC). Assault is “any willful and unlawful use of force or violence upon the person of another.”⁶

Note how the general intent crime of assault is different from the specific intent crime of forgery. Forgery requires an intentional act, done with the intent to defraud. Assault requires a willful act. It does not require that willful act has to be done, for example, with an intent to hurt someone.

Not all general intent crimes require intent, though. Reckless driving (Vehicle Code 23103 VC) requires a willful and wanton disregard for the safety of others or of property in California.⁷ In many other states, this is simply defined as recklessness.

Keeping the prosecutor from proving the necessary level of intent is something that a criminal defense attorney can do.

Do all crimes require intent?

No, not all crimes require intent. Not only are there crimes that punish lesser forms of intent, like recklessness, but there also strict liability crimes. These are criminal offenses that punish an act, alone, even if it was done without a culpable state of mind.

Driving under the influence (DUI) is a good example of a strict liability crime. People commit DUI when they have a blood alcohol content (BAC) at or above the legal limit, usually 0.08%. They do not have to do this intentionally or even negligently because a culpable mental state is not an element of the crime. All that prosecutors have to show is the BAC level.

Because strict liability crimes do not require a mens rea, they are generally for minor criminal cases and infractions, like parking or traffic tickets.

Additional reading

For more in-depth information, refer to these scholarly articles:

• On Strict Liability Crimes: Preserving a Moral Framework for Criminal Intent in an Intent-Free Moral World – Michigan Law Review.
• Intent in the Criminal Law – Law Society Journal.
• On Being Angry and Punitive: How Anger Alters Perception of Criminal Intent – Social Psychological and Personality Science.
• Criminal and legal characteristics of criminal intent – Journal of Financial Crime.
• Concocting Criminal Intent – Georgetown Law Journal.

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