Concurrence: Legal Definition & Exceptions

Concurrence: Legal Definition & Exceptions
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  • 2:36 Exceptions
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Lesson Transcript
Instructor: Brittany McKenna

Brittany is a licensed attorney who specializes in criminal law, legal writing, and appellate practice and procedure.

Concurrence in the law is the requirement that a guilty mental state coincide with a guilty act. Learn about the general elements of a crime and the theory of concurrence as it relates to criminal law.

Definition of Concurrence

Imagine that you are celebrating the Fourth of July at a local block party. As the fireworks crescendo, you take out your trusty handgun and begin shooting wildly into the sky. You've had a bit to drink, and your aim isn't that great. Suddenly, you fire into a crowd of people, striking another partygoer. You rush to his side, only to realize it's your sworn enemy that you've killed. You let out a shout of excitement, thrilled that your enemy has been killed.

Can you be convicted of intentionally murdering your sworn enemy? Or does the fact that his death was an accident lessen your criminal liability?

In general, a crime consists of two elements: a guilty mental state (the mens rea) and a guilty act (the actus reus). There must be concurrence between the guilty mental state and the guilty act. This means that both elements must occur at the same time, or at essentially same time. In a criminal trial, the prosecution must prove that the defendant's guilty mental state coincided with his criminal action (the guilty act). This theory is also known as contemporaneity or simultaneity.

Under the concurrence theory, a retroactive or retrospective application of one of the criminal elements cannot be used to prove guilt. In other words, the act and state of mind must occur in unison. Consider again the example from the introduction of this lesson. A prosecutor should have no trouble proving that you acted recklessly when you shot your sworn enemy - you discharged a firearm into a crowd of people, after all! But just because you delighted in accidentally killing your nemesis doesn't mean that you possessed the requisite mental state to be convicted of a more serious crime, like intentional murder.

In this example, the guilty act (the shooting and killing of your sworn enemy) did not coincide with a guilty mental state. But change the scenario just a bit, and you will see concurrence in the law in action:

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