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Criminal Law 101






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Dec 11, 2019

Criminal Law 101

When discussing criminal offenses, one must take into account the classification of the crime, standards of proof, factual elements of the conduct and state of mind if the crime is mens rea offense, as well as defenses available to the defendant. Many of these terms are confusing to lay people so the purpose of this section is to educate the people who are either curious about Maine’s criminal law or find themselves facing criminal charges.

Burdens of Proof

Preponderance of the Evidence

Proof by preponderance of the evidence is the lowest standard of proof in our legal system and is generally reserved for civil proceedings… think lawsuits. Preponderance of the evidence means that “it is more likely than not that the offense was committed.”

Oftentimes, preponderance of the evidence is used in specific criminal, legal proceedings such as probation revocation hearings. It can also be used at administrative proceedings that are quasi-criminal in nature such as BMV administrative license hearingsfor OUIcharges.

Clear and Convincing Evidence

Clear and convincing evidence is usually used in civil parental rights and responsibilities actions. These are cases where the State is seeking to terminate the rights of parents with respect to their children, IE, to take the children away from the parents.

Beyond a Reasonable Doubt

Proof beyond a reasonable doubt is the highest burden or proof in our legal system. There are numerous definitions for this standard of proof that can be found with a simple internet search. However, in Maine, proof beyond a reasonable doubt is commonly defined as follows:“Proof beyond a reasonable doubt means that the charges, to a moral certainty, are almost certainly true. The State does not have to prove the case to a mathematical certainty as that is nearly an impossible standard.”

Anytime a case proceeds to a criminal trial, the State bears the burden of proof. That means that the defendant doesn’t have to prove his innocence as his innocence is presumed. The defendant does not have to put on any evidence in his defense, call witnesses in his defense, take the stand or cross-examine the witness. Instead, the presumption of evidence is enough and unless the State can overcome that presumption, by providing evidence the charges are almost certainly, to a moral certainty, the defendant must walk free.

Elements of a Crime Culpable State of Mind

In Maine, as in most other jurisdictions, the State must prove each and every element of the crime by proof beyond a reasonable doubt.This means that they must prove not only the conduct but also the mens reaor criminal mind concerning the crime.In Maine, many crimes are defined asmens reacrimes, which are crimes of intent, knowledge, recklessness or criminal negligence. These are state of mind crimes. A culpable state of mind encompasses intent, knowledge, recklessness and criminal negligence.

In Maine, we also have crimes based on strict liability, which means a person’s state of mind is irrelevant as to whether or not they are liable for the crime committed. That means that the State does not have to prove you committed a crime with requisite culpable state of mind. An example of a crime of strict liability is Operating Under the Influence. In a DUI charge, the fact that you actually thought you were sober or didn’t mean to drive drunk are no defense to the crime since it is a crime of strict liability.


A person has a culpable state of mind if they act to intentionally cause a specific result. An example would be someone who intends to shoot another person and kill them.It is that persons’ conscious desire and intention to commit a murder by shooting the person in the head.


A person has a culpable state of mind if they act with knowledge that their conduct will almost certainly produce a specific result.An example would be a man who has AIDs and continues to sleep with other women but doesn’t wear protection and doesn’t warn them of his disease. While he may not intend to transfer the disease to the women, he is virtually certain that his conduct will result in those women becoming infected with the AIDs virus.


A person has a culpable state of mind when they consciously disregard the risk that their conduct will produce a certain result. An example would be swinging a baseball in a crowded room. While you may not intend or know that the conduct will injure or kill someone, you are certainly consciously disregarding the risk that you may in fact injure or kill someone when swinging the bat. Basically, you don’t really care about the consequences.

Criminal Negligence

A person has a culpable state of mind when they fail to be aware of a risk that the conduct will produce a specific result. An example would be spinning donuts in a snowy parking lot. While the parking lot may be virtually empty of people (it’s a snow storm), you fail to be aware of the risk that you could lose control of your car and crash, injuring yourself, another person or cause damage to your car or another’s property. A police officer could charge you with a class E misdemeanorfor Driving to Endanger.

Culpable State of Mind Defenses

Ignorance or Mistake

Ignorance as to the law or a mistake of fact may provide a complete defense to the crime as charged. However, ignorance or mistake of fact is not an available defense if the defendant would have been guilty had the facts or law been as the defendant supposed them to be.


Self-intoxication is a complete defense in all cases where the culpable state of mind is either intent or knowledge.However, if the culpable state of mind contains an element of recklessness, then self-intoxication is not a defense. Many, many crimes have elements of recklessness as part of the culpable state of mind, including assaults, thefts, and sex crimes.

If, however, you suffered from involuntary intoxication, IE, someone slipped you a “Mickey” at the bar, that would be a complete defense to the culpable state of mind of recklessness.


In Maine, we have both a mental abnormality and insanity defense available to defendants in very narrowly defined circumstances. Many defendants claim insanity but few are actually found insane and therefore, are not entitled to the defense. There have been a few notorious cases in Maine where the insanity defense was claimed, but none more shocking in recent memory than the Nielsen murders. In 2006, Christian Nielsen, a cook at a local B&B in Newry, Maine, committed 4 grisly murders and in each case, burned the bodies. From all accounts, Nielsen was insane.;However, the forensic psychiatrist brought in by the State found him to be completely sane and able to stand trial. The decision was upheld by the Law Court.

According to Maine law, a defendant is not criminally responsible for his actions by reason of insanity, if, at the time of the commission of the crime, the defendant suffered from a mental disease or defect and as a result, the defendant lacked the ability to appreciate the wrongfulness of the crime.

A mental disease or defect is defined as a severe mental abnormality or condition that grossly impacts the defendant’s perception of reality. A severe mental abnormality or condition brought on by repetitive alcohol or drug abuse does not constitute a mental defect or disease.

As this is an affirmative defense, the defendant bears the burden of proof to prove by preponderance of the evidence that he is in fact insane.  If the defendant meets his burden, then the State is responsible to disprove the insanity by proof beyond a reasonable doubt.

Accomplice Liability

In Maine, a person can be held liable for the crime of another under the theory of accomplice liability.In Maine, a person is defined as an accomplice if that person assists in the accomplishment of the crime in any meaningful way, including acting as a lookout, assisting with planning the crime, or aids in the commission of the act in a meaningful way such as acting as a getaway driver. So, for example,if you act as the lookout while a person burglarizes a home, even if you don’t enter the home, you can be found guilty of burglary under accompliceliability.

Affirmative Defenses Available in Criminal Cases

In Maine, there are a number of defenses classified as affirmative defenses.In these cases, if the defendant raises the defense through the generation of evidence, it becomes the State’s burden to prove that the defendant wasnotentitled to the defense by proof beyond a reasonable doubt.

The defendant in these cases has the burden to prove by preponderance of the evidence that he or she is entitled to the affirmative defense instruction at the conclusion of trial.

Defense of Self & Others

Non-Deadly Force

A person is justified to use areasonableamount of non-deadly force to defend himself if that person reasonably believes that the use of non-deadly force will be imminently used against him or a 3rd party. The use of reasonable force is just enough force necessary to defend oneself or another.

An example of a reasonable use of non-deadly force would beif you’re walking at night in the Old Port and a drunk comes up to you and begins pushing you and shouting how he’s going to “kick your ass”, you have a right to push him back, strike him, restrain him or use any other reasonable amount of force necessary to defend yourselfIF you reasonably believe the drunk was going to attack you.

In certain situations, a person is not entitled to use non-deadly force to defend himself or a 3rd party if:

  • YOU>attempt to cause another person physical harm or threaten physical harm to another person and that person uses non-deadly force against you;
  • The person was the initial aggressor but backs down or withdraws, you are no longer entitled to use non-deadly force against the aggressor;
  • YOUand the aggressor are involved in mutual combat.
  • YOUare subject to arrest by a police officer, even if the arrest is unlawful, you do not have the right to use non-deadly force to prevent your own arrest.
Deadly Force

In Maine, the use ofdeadly forceis authorized in situations where a person reasonably believes that the aggressor is going to employ deadly force against him or a 3rd party. A person is also authorized to use deadly force to prevent the commission of the following crimes against himself or a 3rd party:robbery,gross sexual assault,kidnapping. A person is also justified to use deadly force in cases where the aggressor has burglarized the home while you’re present and it is necessary to use deadly force to prevent the aggressor from harming the occupants of the home.

A person isnotentitled to use of deadly force to defend himself or a 3rd party if:

  • YOUuse force to provoke the other person to employ deadly force against you;
  • YOUknow that you can safely perform the following:
    • You can retreat from the situation;
      • NEVER required to retreatfrom your own home
    • Surrender property to a person who has a legitimate claim;
    • Comply with a demand to abstain from an act, which you are not required to perform.

An example of where you would not be entitled to use deadly force is in a situation whereyour on someone’s property and they approach you carrying a shotgun, demanding that you leave. Since you can safely retreat from the encounter and you’ve received a lawful order to vacate the property, you cannot use deadly force to defend yourself.

Use of Force to Defend Property or Premises

Defense of Property

You may ONLY employ non-deadly force in order to protect destruction of, damage to or theft of your property. You may also employ non-deadly force to recover your property immediately following its theft.

The reason you can only use non-deadly force in property cases is that society places a higher value on human life vs. material possessions. While it may be difficult to replace a stolen TV, the law would find you absolutely at fault and unjustified if you shot the thief who stole the TV while trying to recover your property.

Defense of Premises
  • To prevent someone from committing arson;
  • To expel someone who has remained in your home without your permission and you reasonably believe that person will commit a crime (this is the classic definition of burglary)
    • Under this scenario, you must first make a demand that the intruder leave unless you reasonably believe that by doing so, puts you in harm’s way.

Competing Harms

The competing harms defense comes into play when a person is forced to choose between two harms and chooses to commit an act that is justified in lieu of the other choice.

Competing harms defense is not available if the underlying crime you commit has the elements of recklessness of criminal negligence.


Duress is a complete defense when a person commits a crime because he or she is forced to do so by the threat of imminent bodily injury. An example of the application of the duress defense would beif you were kidnapped and the kidnapper threatened to shoot you unless you robbed a liquor store.

Duress is not an available defense if in the above example, the kidnapper threatened to shoot you unless you committed a murder. In that case, if you committed the murder, you would be precluded from raising that defense.


When a person has someone’s consent to perform an act, that would otherwise be considered criminal, the defense of consent can be employed. An example would be ifthe “victim” told you to punch him in the stomach as hard as possible. You punch him in the stomach and he calls the cops. You can raise the defense of consent.

Consent is never a valid defense in the following instances:

  • You commit serious bodily injury against someone, even though you have their consent to strike them;
  • The person giving you consent is not competent to give his or her consent due to a mental disability, the consent is invalid;
  • You use the threat of force or deception in order to obtain the person’s consent, that consent is invalid.

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