Criminal Law Class Notes 9/15/03


State v. Nations


A 16-year-old girl was found dancing at a club.  Cops approached the defendant and asked her about the girl’s age.  The defendant claimed that she had checked, but she hadn’t.  She is convicted of child endangerment.


Nations claims the defense that the state must prove that she knew the girl was underage.  In Missouri, knowledge means awareness of facts; here we’re talking about knowledge of an attendant circumstance.  This is not the Model Penal Code formulation.


The court says that the Model Penal Code is the source for the Missouri Criminal Code.  If this were a Model Penal Code case, how could the prosecutor strengthen the argument that Nations did what she did knowingly?  Model Penal Code § 2.02(7) tells us that “wilful blindness” is tantamount to knowledge.


In the Model Penal Code, if the issue is whether a defendant had knowledge of an attendant circumstance, you must study Model Penal Code § 2.02(2)(b)(i), which looks a whole lot like the Missouri statute.  But then you have to add on § 2.02(7), which adds to the meaning of the term “knowledge”.  Missouri finds that the Model Penal Code is the source for their code, however, the legislature of Missouri did not choose to include the “wilful blindness” provision in their version of the Code.


Why did the Model Penal Code add this provision?  We want to be able to hold people responsible for deliberately shielding themselves from knowledge that would otherwise go towards proving an offense.


We want to prevent the “ostrich phenomenon”.  This is especially important for prosecutors of white collar crime cases.  The higher-ups will protect themselves by prosecution by avoiding knowing the offenses being done to try to avoid prosecution.  However, the “wilful blindness” provision makes it less likely this stratagem will succeed.


What argument can be put forward again this “wilful blindness” provision?  It blurs the like between knowledge and recklessness.  What is the mental state of a person who is aware of a high probability that, for example, a female dancer is under the age of 17?  Isn’t that very similar to the definition of recklessness, which talks about disregarding a substantial and unjustifiable risk?  Many critics say this provision is no good because it defies understanding what it means to “know” something when in fact you don’t know it.


If, on the other hand, you require actual knowledge, as in Missouri, it will be harder to get convictions in cases like this.  We could attack this two ways: we could knock down the standard of culpability in the statute to recklessness, or else you can, by statute, ratchet up the mental state of “wilful blindness” to knowledge, as the Model Penal Code does.


The court makes a mistake in this case.  It reverses the terms in the Model Penal Code in an inappropriate way: the court says that there must be a “high probability” that the defendant was aware, whereas the Model Penal Code says that the defendant must be aware of a “high probability”.  It wouldn’t have made a difference in this case, however, if you’re in a jurisdiction with a “wilful blindness” provision, and a judge has stated the Model Penal Code § 2.02(7) this way and you miss it, you could lose the case for your client.


If Model Penal Code § 2.02(7) were in effect in Missouri, there is a plausible argument that Nations could have been found guilty.


So make sure to read very carefully.


United States v. Morris


Morris wrote a worm that wasn’t meant to be damaging, but was.  He was convicted and punished of a relatively lenient sentence.


Morris doesn’t deny his actions, but he says that the word “intentionally” applies to each part of the crime, and thus the prosecution must prove he intentionally accessed, intentionally prevented authorized use, and intentionally damaged the computer.


This is a common question of real-world lawyering.  How do we interpret this statute?  The trial court said this statute is unambiguous, while the appellate court decided that the statute was ambiguous and that it was necessary to resort to legislative history to clarify the statute’s intent.


The prosecution would like to see a semi-colon between the first phrase with “intent” and the second bit that talks about “conduct” that “alters, damages, or destroys information”.  As a lawyer, you must be very sensitive to language and how statutes are drafted.


The legislative history suggests that other subsections have retained the “dual” use of intent, while this particular part of the statute there is just one “intent”.  It is found that the use of the word intent was meant to limit punishment only to those who purposely access federal computers.


If it used to say “(1) knowledge, (2) knowledge” and now it says “(1) intent, (2) nothing”, we think they meant only for the first element to require a mens rea.


Keep in mind that Congress has not adopted the Model Penal Code into the U.S. Code.


The problem of Y (Note 3, pp. 154-155)


Y provided false information to Lockheed in connection with a Department of Defense security questionnaire.  Lockheed sent the information to the Department of Defense.  Y admitted he was lying, but requested a jury instruction that required the government to prove that he knew his statements were under the jurisdiction of a federal agency.


Let’s say the Model Penal Code was applicable in the federal system.  What would be the result?


What does the statute say?  The word knowingly is stuck right in the middle of the statute, and if I were the prosecutor, I would argue that the plain language of the statute contradicts the concept that this “knowingly” is meant to apply to all elements.  The prosecutor would say there is no mens rea as to the matter being within the jurisdiction of a federal agency.


The defendant would point to Model Penal Code § 2.02(4) and say that the “knowledge” requirement must apply to all elements of the offense.  However, the prosecutor could say that the writers of the statute plainly had a different purpose.


If you take out the content of this statute, you can make a plausible argument that “knowingly” does not apply to the first part of the statute.  The prosecution could argue that if the legislature had intended knowledge to apply to everything, they would have put the knowingly at the very beginning of the sentence and maybe would have rearranged some of the terms.


Therefore, this seems to be a case where the Model Penal Code would make an exception to its default position that if a kind of culpability is stated in one place, it applies everywhere.


If the Model Penal Code applied the statute under which Morris was prosecuted, Morris would have won.


What mens rea is required as to the words “in any matter within the jurisdiction of any department or agency of the U.S.”?  It’s “purposely, knowingly, or recklessly”.  When there is no specific kind of culpability given, you assume “P, K, or R”.


The Model Penal Code drafters don’t like the idea of ever punishing a person whose culpability is mere negligence.  If a legislature wants to punish a negligent person, they have to be totally explicit about it.


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