Criminal
Law Class Notes
We’ve
talked about voluntary acts, we’ve talked about
social harm, and now we will talk about…
The
issue with mens rea goes to social harm. If I pull the trigger of a gun and someone
runs in front of the gun, I may have had the intent to pull the trigger,
but I didn’t have the intent to harm the person. Mens rea speaks to the latter form of
intent. Think: “Mens rea =
thought about harm, NOT thought about act”.
Today,
we’ll make an important distinction between the “culpability” meaning and the “elemental”
meaning of mens rea. Note 1 on
page 132 is one of the most important notes in the casebook. Whenever you talk about mens rea,
think about whether you mean the “culpability” meaning or the “elemental”
meaning.
Why
do we require a mens rea for most crimes? It’s a bedrock concept in Anglo-American criminal
law.
Would
retributivists favor a mens rea requirement in the law? Yes.
They would be offended by a justice system that punishes without finding
a person blameworthy. Retributivists
believe you need both blameworthiness and social harm in order for punishment
to rightly follow.
Why
would a utilitarian favor a mens rea requirement? How would punishing a person without intent
change the incentives of another person who doesn’t intend to do wrong?
There
is no retributive argument for abolishing the mens rea requirement, however, there are arguments that have been
developed for abolishing the requirement.
Cunningham
broke into a gas meter (which was coin operated) and failed to turn off a tap
where gas was escaping. Some of the gas
threatened the life of his future mother-in-law. He was convicted of “malicious administration”
of poison.
What
parts of the statute are the actus
It
is suggested that we ignore the word “unlawful” in the statute at hand. The only real mens rea in this statute
is the word “maliciously”. The actus
The
defendant claims that the trial judge incorrectly instructed the jury of the
meaning of the word “malice”. Malice
basically amounts to “knowingly unlawfully”.
The word “unlawfully” was already in the statute.
Under
this definition, shouldn’t Cunningham be found guilty? Sure!
But the appellate court tells us that the jury instructions were
incorrect. How should the trial court
have defined the word “malice”? It
should have used the modern understanding of the term “malice”, that is:
Malice is an actual
intention to do the particular harm that in fact was done or recklessness as to
whether such harm should occur or not.
Let’s
shorthand this:
Malice is an actual
intention to cause the social harm of the crime or to recklessly cause the
social harm of the crime.
Another
crime you should memorize the definition of is common-law arson:
Arson is defined as the
malicious burning of the dwelling house of another.
Or,
in other words:
Arson is defined as the intentional
or reckless burning of the dwelling house of another.
So,
remember: malice means intentional or reckless. It doesn’t mean “wicked”.
In
this case, did the trial court use the culpability approach or the elemental approach
to mens rea? The trial court uses
culpability.
In
this particular case, it’s easy to convict if the person did the act and did it
in a morally culpable manner. In other
words, he was doing something he shouldn’t have been doing and caused a certain
social harm.
The
appellate court, on the other hand, is not interested in a general “bad state
of mind” on the part of the defendant.
The appellate court wants to know if the social harm in question was
committed with intent or recklessness. Did Cunningham have the element of intent
or recklessness? Probably not.
This
is a very important general idea. The
elemental approach requires a more precise analysis than the culpability
approach.
What
did Conley do? He is accused of
aggravated battery.
An
aggravated battery is a special kind of battery.
What
are the defendant’s arguments?
1. The defendant
claims that he didn’t cause a permanent disability—this is an actus
2. The defendant
makes a mens rea argument that he did not intend to inflict any
permanent disability. The State claims
that it showed intent because they proved that the defendant intentionally
struck the victim. This is general
intent; what you need to prove is specific intent.
Permanent
disability is the result of the defendant’s conduct. To show intent, you must show that the defendant’s
conscious objective was to cause that result, that is, permanent
disability. There’s no way that Conley
had permanent disability as the specific conscious objective of
his action.
In
fact, you’ll never know exactly what was in the defendant’s mind at the time of
the event. Even the defendant himself
may never know. How does the prosecutor
go about proving intent?
The
only way the defendant can disprove intent is to show that he is not a reasonable person. As long as
he is reasonable, the natural probable consequence is great bodily harm,
permanent disability, or disfigurement.
This is how the prosecutor does it.
The prosecutor reasons by how any other normal person would reason through
the situation.
The defendant can be convicted if he does the act
intentionally or knowingly. Maybe it wasn’t done intentionally. Was the defendant consciously aware that the
result was practically certain to occur?
Then the act was done knowingly, and he can be found guilty.
What is the definition of intent at common
law? How does it differ from the
At common law:
Intent = Purposefully or Knowingly
Transferred
intent
Common
law talks about transferred intent, and Dressler argues that it’s stupid.
The
transferred intent doctrine says that in a sense, “intent follows the bullet”. Dressler says transferred intent is
unnecessary.
Think
of the case of D trying to kill X by stabbing, not knowing she was
pregnant. The fetus is harmed, but is
born alive and then dies from wounds suffered from D. Can we transfer intent from X to the fetus?
From
the point of view of D, he’s being charged with killing something that he didn’t
know existed. It was a transferred
intent case, but it was a hard case.
General
versus specific intent
There
are at least three different definitions of general and specific intent. These terms are very, very important, yet
they are fuzzy.
Specific
intent can mean the requirement of:
1. intent to
commit a future act
2. proof of a
special motive
3. proof of the
actor’s awareness of an attendant circumstance
Take,
for example, larceny: The actus
Is
larceny a specific intent or a general intent crime? It is a specific intent crime, where the
specific intent is the special motive of permanently depriving the person of
their stuff.
How
about rape? Is it a specific intent or
general intent crime? What’s the actus
If
you go back to early common law in 1600, all crimes consisted only of actus
Today,
as a general matter, we include mens rea words in most statutes.
Friday’s
assignment is very important but very short.