Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Attorney Sam’s Take: “But, Officer, It Was Not My Intent To Assault Him (That Badly)!”

You may have noticed that many Massachusetts crimes are ones in which the defendant had to have had the pre-requisite intent to commit the crime. The element of intent is not, however, necessary for all criminal acts.

For example, let’s say that I had a really bad day today and so, it being Friday and all, I decided to go down to my favorite watering hole and down an alcoholic beverage or five of my choosing. I then made the colossal mistake of trying to drive home. There is an accident and I hit another vehicle and kill them. This is what is known as vehicular homicide.

True, I did have a few drinks, but I certainly did not mean to hurt, much less kill, anybody. Further, I was certainly not in my right mind when I got behind the wheel. I was drunk.

So…what can I be guilty of…just drinking?

Of course not. The law presumes that we intend the natural result of our actions. It also holds that we accept a certain amount of risk under certain circumstances. When I went out to drink, I knew I would, or may, get drunk. Voluntary intoxication is not a defense to an act you commit simply because you were drunk. Therefore, I am guilty of drunk driving. By the same logic, I am also guilty of vehicular homicide.

Specific intent is not a necessary element. It is sad. It is tragic. But it is a guilty verdict, assuming the Commonwealth can prove all the elements it must prove in order to earn said conviction.

Similarly, If I walk up to Andy Annoying, who is sitting on a park bench right next to a cliff and swat him on his head and he, as a result, tumbles over the cliff, I am responsible for the homicide.

What if I throw a rock at Tommy Toughman and he ducks so that the rock hits Sister Irene Innocent square in the face. I did not mean to hit poor Sister Innocent, I wanted to whack that pain in the neck Toughman. The law says, “too bad, Sam!” It is called transferred intent. I meant to hit one person and accidently hit the other person. Guilty of assault and battery with a dangerous weapon (to wit: the rock).

This all seems to make sense, right? The real issue with intent, though, is the question of what was really going on in a person’s mind.

Willie Whitecollar moves a decimal point as he is doing the financials for Dewy, Screwem and Howe. The misplaced decimal point translates to a loss of thousands of dollars for DS&H.

Does the law care if this was an error or on purpose? Yes, of course it does. If it was simply a mistake, then there was no crime. However, if it was done on purpose it probably is.

How will investigators decide which it was? Usually, the surrounding facts. Well, that and a particular predisposition.

I have often said that while there may be a presumption of innocence, there is an assumption of guilt. So will it be with this investigation. The big question will be who profited from the “mistake”. Was it Willie? A friend of his with whom he may have been involved in a conspiracy to defraud the company?

You would be surprised to see how suspicious investigators can be. This would be the same issue with other white collar matters, such as tax fraud, insurance fraud and embezzlement.

Such suspicious minds also play a part when police investigate a violent crime. For example, we all know that Randy Racist and Mikey Minority do not get along. They are always arguing about bigotry and other political issues.

One day, Mikey is working as a waiter at a restaurant wherein Randy is seated. Randy, naturally, is seated in the most inconvenient place possible for Mickey who has to go back and forth with a large tray of soup. Each time he goes by, Mikey requests, in a not-so-pleasant tone, for Randy to move her rotund underside in a bit so he can get through.

Randy snorts back something about it being a “free country” and stays where she is.

Finally, Randy hears, “Oh, Dammit!” spring from behind her. It sounds like Mike’s familiar loud voice. Suddenly, she is wearing a mixture of three different soups which have splashed over her head.

“I told you to get out of the way!”, yells Mikey, as Randy screams that she feels like she is engulfed in flame.

The police come a-running.

You can see where this is heading. Randy claims it was an intentional battery with a dangerous weapon (to wit: hot soup). Mikey says it was an accident.. He tripped.

The truth? Who knows? Which way do you think the police will likely go? Keep in mind that if they decide it was intentional, this was likely a hate crime.

Questions of intent, like most issues in the criminal justice system, can be more complicated than you would think. We have developed all kinds of arguments, statutes and caselaw to make up for the fact that we cannot yet read minds.

If you are on the receiving end of a criminal complaint or indictment, you want to face it with someone who is used to dealing with those complexities.

Should you wish to discuss a criminal case with me, please feel free to call me to arrange a free initial consultation at 617-492-3000.

In the meantime, have a great, safe and law-abiding weekend!

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