Terroristic Threats (Title 18, Section 2706) and Recklessly Endangering Another Person (Title 18, Section 2705) (REAP) are misdemeanors with some exception (yelling fire in a movie theater as a prank – felony of the third degree). While both of these crimes involve communication (words or acts) each focuses on different situations and therefore requires the District Attorney (prosecution) to prove different elements beyond a reasonable doubt to support a conviction. This is the evidentiary standard in any criminal trial.
REAP is a misdemeanor of the second degree and it is committed when the accused person “recklessly engages” in conduct which puts or threatens to put another person in fear of death or serious bodily injury. It is important to understand that this crime focuses not only on the actions of the accused but also on the reaction of the alleged victim. If you are charged with REAP it is critical that your criminal defense attorney attempt to show that the alleged victim didn’t exhibit any sign of fear or apprehension during the incident. Your criminal defense lawyer can do this through a cross examination of the victim which demonstrates that this person initiated an argument or a fight or at the very least acted aggressively during the incident.
The prosecution won’t be able to establish the elements of REAP if the defense can show that the alleged victim was not in fear of death or serious bodily injury. Remember that the defense only has to establish reasonable doubt and that type of doubt exists if a fact finder (judge or jury) has to “pause” when considering whether a person is guilty of a crime. If your criminal defense attorney only focuses on the action of the accused and doesn’t consider the reaction of the victim, he is putting together a weak defense because in most situations the accused person has demonstrated some show of force either through words or actions.
A show of force or communication of force is also an element of Terroristic Threats which, again, is a misdemeanor unless it involves a communication which threatens a group of people in a building or public area (yelling fire in a movie theater). The crime of terroristic threat, unlike REAP, focuses exclusively on the actions of the accused and the reaction of the victims isn’t part of the elements of this criminal charge. If you are charged with terroristic threats it is important that your criminal defense lawyer focus on the Mens Rea element of this crime.
Mens Rea is the intent part of this crime while Actus Rea refers to the actual physical act. Your criminal defense attorney can establish reasonable doubt if he can show that the alleged terroristic threat was a “spur of the moment” reaction which resulted from some argument or fight (“I’m going to punch you in the face or shoot you”). A spur of the moment reaction doesn’t equate to a terroristic threat and the prosecution won’t be able to establish guilt beyond a reasonable doubt if they can only show that the threat was made without demonstrating that the accused intended to “terrorize” the victim with that threat.
A self-defense argument can assist with the defense of a REAP or a Terroristic Threat charge but it is still important that your attorney focus on the elements of these charges to avoid a criminal conviction. REAP and Terroristic Threats are usually charged with other crimes such as Simple Assault and Aggravated Assault. If you have more questions about criminal defense strategy, you should read one of my free books in the free resource section of the website.