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Attendant circumstance (sometimes external circumstances) is a legal concept which Black's Law Dictionary defines as the "facts surrounding an event."
In the criminal law in the United States, the definition of a given offense generally includes up to three kinds of "elements": the actus reus, or guilty conduct; the mens rea, or guilty mental state; and the attendant (sometimes "external") circumstances. The reason is given in Powell v. Texas, 392 U.S. 514, 533 (1968):
The burden of proof is on the prosecution to prove each "element of the offense" in order for a defendant to be found guilty. The Model Penal Code §1.13(9) offers the following definition of the phrase "elements of an offense":
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In United States v. Apfelbaum, 445 U.S. 115, 131 (1980)[1], Rehnquist J. states the general rule that:
For these purposes, the term "actus reus" does not have a single definition, but it represents the general principle that before an individual may be convicted of an offense, it must be shown that there was an overt act in pursuance of any intention. Otherwise, a person might be held liable for his or her thoughts alone. Model Penal Code §2.01(1):
But there are exceptions. For example, according to United States v. Dozal, 173 F.3d 787, 797 (10th Cir. 1999) a conspiracy in violation of 21 U.S.C. §846 consists of four elements:
But, according to United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994) (citing United States v. Shabani, 513 U.S. 10 (1994)) drug conspiracies under 21 U.S.C. §846 are unique because the prosecution need not prove an overt act. Instead, the government must "prove that the defendant knew at least the essential objectives of the conspiracy and knowingly and voluntarily became a part of it." Consequently, withdrawal before an overt act has been committed cannot relieve a defendant of criminal responsibility. The policies that justify drug enforcement laws require this exception so that anyone who deliberately acquires knowledge of drug-related activities and thereby represents a social danger, may be convicted.
When analysing an offense, the normal rules of interpretation require the identification of the policies that informed the creation of the offense, an assessment of the factual context within which the offense must be committed and the consequences prohibited by the law. Thus, as the MPC §1.13(9) definition indicates, the attendant circumstances will be the evidence that must be adduced to prove all the elements required to constitute the offense and, under §1.13(9)(c) to disprove any excuse or justification. So, as in State of North Carolina v Vernon Jay Raley 155 NC App 222 (01-1004)[2], if a citizen intentionally utters a profanity at the police, the charges would be preferred under N.C.G.S. §14-288.4 which defines "disorderly conduct" as:
Under N.C.G.S. §14-288.4 (2001), the componential element of "public disturbance" is defined in G.S. §14-288.1(8) as follows:
In order for a person to be found guilty of this crime, the evidence must prove that the defendant uttered a profanity (the act) in a public place (the contextual attendant circumstance) with the intention of provoking a violent reaction (the mental element demonstrating the right type of culpability) and thereby causes a breach of the peace (the result prohibited by law). There are no attendant circumstances that might invoke an excuse or other general defence. Indeed, the fact that, in this instance, the victim was a police officer would probably increase the penalty for the crime and, as such, it is known as an aggravating circumstance; (when verification of an attendant circumstance decreases the penalty, it is known as a mitigating or extenuating circumstance).
The elements of a crime may also require proof of attendant circumstances that bring the conduct within time for the purposes of any statute of limitation or before an appropriate venue. Such circumstances are completely independent from the actus reus or mens rea elements. In the federal system, for example, a crime may require proof of jurisdictional facts, which are not defined in the statute creating the offense. See generally LaFave & Scott at 273.3. Thus, the Sixth Amendment calls for trial “by an impartial jury of the State and district wherein the crime shall have been committed.” Within the federal court system, Rule 18 of the Federal Rules of Criminal Procedure specifies which federal court may hear a particular criminal case:
In United States v. Cabrales, 118 S. Ct. 1772 (1998)[3] a jurisdiction issue on venue was invoked by the attendant circumstance that the relevant acts of money laundering occurred in Florida where the case was to be tried, but the funds were derived from the unlawful distribution of cocaine in Missouri. The offense is defined as:
The attendant circumstance of a transborder exercise is not referred to in the definition, but is a critical factual circumstance which will determine whether the accused can be tried as charged. The case was held more properly within the Missouri jurisdiction. This jurisdictional problem would not arise in relation to conspiracy charges.
Wayne R. LaFave & Austin W. Scott, Jr. Substantive Criminal Law (West 1986)