Criminal Law Class Notes 9/9/03


We’ve talked about voluntary acts, we’ve talked about social harm, and now we will talk about…


Mens rea


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.


Regina v. Cunningham


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 reus parts, and which are the mens rea words?


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 reus is not in doubt, but there is some question if the act was done with malice.


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.


People v. Conley


What did Conley do?  He is accused of aggravated battery.


An aggravated battery is a special kind of battery.  Battery includes intent and knowledge.  Aggravated battery is battery plus intentional or knowing great bodily harm or permanent disability.


What are the defendant’s arguments?


1.     The defendant claims that he didn’t cause a permanent disability—this is an actus reus part of the argument.  The victim had all this stuff, such as “mucosal mouth”.  The court finds that the government did show permanent disability because the victim was made “no longer whole”.

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 Illinois definition?  It’s either when you purposefully cause harm or knowingly cause harm.  It’s sort of a combination of Illinois intent and Illinois knowledge.


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 reus will be the “taking and carrying away” and the mens rea will be the “intent to steal”.  Everything is a “general intent” crime unless the intent fits one of the above three categories.


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 reus?  The whole thing is the actus reus.  No mens rea here.  Therefore, this is a classic example of a “general intent” crime.  Why is that?


If you go back to early common law in 1600, all crimes consisted only of actus reus.  If you did the act, you were punished.  Somewhere along the line, it was decided that this was too harsh.  They figured that people must be morally culpable to face punishment.  They didn’t change the definition of the crime, but they started to require a general “guilty mind”.


Today, as a general matter, we include mens rea words in most statutes.


Friday’s assignment is very important but very short.


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