Criminal
Law Class Notes
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
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
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
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
So
make sure to read very carefully.
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
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.