Defining Concurrence in a Legal Context
Concurrence, in relation to the crimes committed by the accused as set out in this indictment, is a situation where one and the same act can give rise to the commission of more than one criminal offence. To illustrate, if a person evinces the intention to murder a person and acts on that intention, that person commits the crime of murder as well as the crime of attempted murder. The person may also commit the crime of unlawful possession of the firearm used to assist him or her to act on the intention to commit the murder by shooting the other person . However, rather than having been committed in sequence, all three offences have been committed at one and the same time.
The common cause of the three offences is the simpliciter act of unlawfully and intentionally causing the death of another human being. It is the mind-set of the State that drives all three offences to be prosecuted in one case before one court of law.
Concurrence as a concept is not unique to criminal law. In civil law, Concurrence is a form of contemporaneous outbreak of liability that rests on one or more breach of duty (cause) and damage (harm suffered).
Categories of Concurrence
There are three categories of concurrence that the rival consent must exist at the time of the commission of the offense. These are factual, legal, and psychological in character.
Factual Concurrence exists where the doing and the forbidding elements of the act or acts constituting the offense are in fact simultaneous. In other words, when the life, animal, health, physical, moral or property interests of a victim are invaded or endangered by the doing and forbidding elements of an offense, there is factual concurrence between the doing and forbidding elements at the time the deed is done. For example, where the defendant may be guilty of both criminal negligence (negligent homicide) and of killing the victim with malice aforethought, the defendant is not exempt from liability. A person is not exempt from liability for negligent homicide simply because he also killed the victim maliciously.
Legal Concurrence means that the doing and forbidding elements of the act or acts constituting the offense are the same. Legal concurrence occurs in two situations where the forbidden act cannot be committed without also committing some act not forbidden or in circumstances constituting a lesser degree of the forbidden offense. A partner in the management of the business affairs of another commits the crime of embezzlement if he fraudulently converts any of the property of the other to his own use and benefit without the latter’s knowledge or consent, whether or not the property converted has been entrusted to him singly or jointly with another.
Psychological Concurrence is the concurrence of the mental element of the act and the act itself. Where a person causes a result constituting the crime knowingly or purposely, he must do so with the requisite purpose or knowledge existing at the moment of the commission of the act or acts causing the result. Both purpose and knowledge are subjective mental states. The offense is not committed unless the mental state accompanies the proscribed act.
Concurrence within the Criminal Justice System
In criminal law, the term "concurrence" refers to the requirement that the actus reus occur contemporaneously with the mens rea and to the extent to which they combine in order to constitute a crime. "Concurrence" refers to the necessity that the culpable intent and the act occurs together, not at separate times. The concurrence requirement is intimately tied to the principle of "actus non facit reum nisi mens sit rea," or "an act does not make a person guilty of a crime unless there is a guilty mind." An underlying tenet of criminal law is that there must be a mens rea, or culpability, in addition to an actus reus which, combined, constitutes the crime.
There are certain exceptions to the concurrence requirement. For example, in a conspiracy charge, the actus reus is the agreement to commit the crime. The conspiracy act will satisfy the requirement of concurrence if a defendant is charged with the substantive offense which the conspiracy was decided upon by the co-conspirators.
Concurrence in Civil Litigation
In the field of civil law, the concept of concurrence may manifest in various forms. For instance, a common instance of concurring cause is the joint negligence of multiple actors. For example, if two cars collide with a plaintiff in the middle and the defendant’s actions were intended to get the plaintiff and his car, then the actions of both may be considered concurring causes. For example, suppose that a defendant negligently caused an accident which led to the plaintiff being ejected from his car. A second driver, however, acting with a principal intent to drive without concern for public safety and/or recklessly, strikes the plaintiff and his car as he lay in a position of danger with knowledge of the precise previous accident that led to the plaintiff being in a position of danger.
An important distinction to recognize in the area of concurrence is that of proximate cause. The reasons that a particular result was brought about is the proximate cause. Among the various proximate causes that could have contributed to the harm, there is only one that was concurring. A concurring proximate cause that leads to the result is said to be concurrent cause.
Court Opinions Involving Concurrence
Judicial opinions often reference concurring opinion rules as well, and they have a significant bearing on the overall interpretation of the law. In these opinions, which are written most frequently when the same court functions with multiple judges, one or more judges may agree with the ultimate verdict or decision reached by the other judges on the case. With their concurrence, these judges list their rationales for this decision. Their reasoning may differ from that of other judges, perhaps by number of laws or regulations involved, or by how broadly or narrowly these laws or regulations are interpreted.
When most of the judges agree with the decision, but one or more issues doesn’t sit as well with them, those judges who disagree may write their concurring opinion so that it is published alongside the official verdict or decision. This way, no matter how the majority may decide to publish the record , the readers and future courts will see all of the written opinions on the case.
Concurrence can be especially important in cases where one or two judges may feel that an issue in question is mostly the result of a legal gray area that has yet to be resolved. Their concurring opinion may be important to read because it essentially says to others on the bench "We understand the legal argument you’re making and believe it might have merit, but we have to go according vs how the law is written, not how it might be interpreted." This can discourage judges from attempting to rule in the favor of the person on the losing side of a legal argument in the future, instead of simply putting down the legal precedent.
And for other judges in the future, concurring opinions keep that judge’s line of thought on the case available and accessible, should future cases involve appeals to that line of thought.
Concurrence and Dissent
While oftentimes the majority of courts will agree with one another on the outcome of a case, it is also not uncommon to have a certain number of judges dissent regarding the decision of the majority. Although concurrence and dissent are used synonymously in many non-legal circumstances, they carry very different definitions in the legal world.
Concurrence is when a judge agrees with the outcome of a case, but for any reason aside from those mentioned in the majority opinion. In this case, the concurrence does not have any controlling impact on future legal precedent, as it has no universal impact on future cases. In essence, it has no force of law.
Just like concurrence, a dissent is an expression of disagreement. A dissent, however, is more formal than a concurrence and is used to outline the disagreement with the majority’s reasoning in a particular case. While a dissenter may believe that the outcome of a case was correct, they believe that the majority used the wrong reasoning to get there. Dissents of this type do not have any controlling weight, and the legal system does not require courts to follow them.
Oftentimes, however, dissents can result in changes to law based on their impact on judges’ future decisions and the legal principles discussed in the dissent. Although dissents are not deciding law, they are sometimes used in future cases. Because of this, they can oftentimes be very impactful.
Generally, it is a good sign for the opposing party if their lawyer can exploit the dissension of justices in a case. This shows that the court may be more likely to overrule the higher court’s decision if they are in front of them.
Global Application of Concurrence
Beyond domestic law, concurrence is also an important aspect of international law. Cooperation between states can be formal or informal, but it is the formalized types of cooperation—non-binding agreements, treaties, memoranda of understanding, and international conventions—that commonly involve the concept of concurrence. Multistate agreements often require concurrence as a direct result of domestic laws in the United States. For example, the Council of Economic Advisers provides a more detailed definition of the term: Under the United Nations’ International Law Commission (ILC) Draft Articles on the Responsibility of States for Internationally Wrongful Acts: "[State] acts [are] internationally wrongful…[i]f and only if they are attributable to the State under international law and…[i]f they constitute a breach of an international obligation of the State." The Draft Articles underwent oversight by the Working Group on State Responsibility, but after long debate were accepted as a compilation of existing law and not a set of legal principles. The Draft Articles formed the basis for the Convention on the Responsibility of States for Internationally Wrongful Acts of 2001 adopted by the ILC, but never actually entered into force. Although not legally binding, these Draft Articles are reflected in multistate agreements that have been entered into by the United States. The issue of concurring treaty terms gave rise to the case of Pulp Mills on the River Uruguay (Argentina v. Uruguay) in the International Court of Justice (ICJ). In addition to Uruguay’s dispute with Argentina over the construction of two pulp mills , the ICJ was asked to determine the meaning of a concurring treaty term. The United States had raised the same issue in its statement of interest in the case. Accordingly, the court looked to the United States’ Supreme Court for guidance in interpreting the term "due regard" in the 1975 Statute of the International Court of Justice: The obligation to have ‘due regard’ to the rights of others is an independent obligation of paramount importance, an obligation which operates as both a cause of action and a limitation on state conduct. Although the precise scope of such an obligation is not susceptible to a broad definition, in general, it requires that States respect both their own interests and the interests of their neighbor or neighbors…. [A]n undertaking to have ‘due regard’ to the rights of other states requires that the state in question carefully consider how its proposed actions may interfere with the rights of its neighbors when the proposed actions are likely to have a significant effect on the neighboring states’ use of an estuary. Such an undertaking does not require a state to adopt specific substantive outcomes in dispute resolution or permit other states to impose their own approaches concerning the weighing of the objectives and values of the state in question. Accordingly, the consistent meaning of "due regard" under international law places positive limitations on state sovereignty. Cross-border and area impact laws also have the potential for creating multi-state concurrence issues, though these efforts have not evolved into full-blown disputes. Thus, the meaning and application of concurrence involves a variety of competing state interests, from environmental concerns to legal interpretation.