M3: Mens Rea

Question 1

What are the two meanings of mens rea?

Answer 1

Broad: “guilty mind” “vicious will” “immorality of motive”
It’s the culpable part –> guilty by committing a social harm with any morally blameworthy state of mind

Narrow: elemental
A defendant is not guilty of an offense, even if she has a culpable frame of mind, if she lacks any mental state specified in the definition of the crime

Question 2

H: Jacob wanted to kill Vanessa, his wife. He drove his car at a very high speed into Vanessa, who was holding Xavier, their infant son, in her arms. Jacob fervently hoped that Xavier would survive the collision. The car struck Vanessa and Xavier, killing them both instantly.

According to §2.02 of MPC, what form of culpability did Jacob kill Vanessa? With what form did he kill Xavier?

Answer 2

Vanessa: Purposefully
“it is his conscious object to engage in conduct of that nature or to cause such a result… he is aware of the existence of such circumstances or he believes/hopes they exist”

Xavier: Negligently
“considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation”

Question 3

H: Roberta despised modern architecture. She decided to burn down Sam’s “modern” residence. Sam was inside, as Roberta knew. Roberta also knew there was a very good chance Sam would die in the ensuing fire, so she tossed salt over her left shoulder immediately before she torched the residence. This convinced her that Sam would be completely protected from harm. Much to her surprise, Sam burned to death in the fire.

With what MPC form of culpability did Roberta kill Sam?

Answer 3

Negligently –> for some reason Roberta was unaware that throwing salt over her shoulder would not protect Sam, but she should have known

Had Roberta had any doubt that the salt over her shoulder wouldn’t protect Sam, this would probably make her culpability more reckless or knowingly.

Question 4

What are the four levels of culpability and how do you know the difference between them?

Answer 4

1) Purposefully –> “conscious object to perform an action of that nature or to cause such a result”
2) Knowingly –> “simply aware that his conduct is of the required nature”
3) Recklessly –> Conscious risk creation (substantial and unjustifiable)
4) Negligently –> “creates a substantial and unjustifiable risk of which he out to be aware”

Question 5

Articulate the difference between the general culpability approach to mens rea and the elemental approach.

Answer 5

The general culpability approach to mens rea looks to see whether the actor had any blameworthy state of mind in what they were doing. It does not require a specific state of mind, nor does it require that the state of mind be attached to a particular act or result.

In contrast, the elemental notion of mens rea requires a mental state be attached to each element of the crime, particularly the actus reus or the result.

Question 6

Explain the difference between the common law definition of “intent” and the MPC definition of “purposely”

Answer 6

The common law definition of intent includes “having the conscious object or desire to engage in the prohibited conduct or cause the prohibited result” AND “knowing that the prohibited result is virtually certain to occur.” In other words, if one knows something will happen as a result, even if one doesn’t really want it to happen, that would still satisfy the common law definition of intent.

In contrast, the MPC definition of purposely only includes when it is someone’s conscious object or desire to engage in the prohibited conduct or cause the prohibited result. It does not include knowing that a result is virtually certain to occur. Mere knowledge, without desire, is under knowingly in the MPC.

Question 7

Explain the difference between the common law definition of “knowledge” or “knowingly” and the MPC definition of “knowingly”

Answer 7

Under the common law, acting with the knowledge that something is practically certain to occur will be subsumed under intent, but if a statute specifically calls for knowledge, then being willfully blind as to its existence can satisfy knowledge.

In contrast, under the MPC, purposely does not include knowledge, and will only be satisfied by having a conscious object or desire to achieve the prohibited result. Knowledge will be satisfied either by knowing that something is virtually certain to occur, or by being willfully blind to its existence.

Question 8

Discuss the conditions under which the doctrine of transferred intent does and does not apply.

Answer 8

Transferred intent is a legal fiction that we employ to assist in cases of bad aim. When we aim at A, and shoot, but our bullet hits B, we transfer the intent to kill A to our shooting of B. Our intent follows the bullet we could say. (The truth is that this isn’t needed, because the crime of murder only requires the intent to kill a human being, not a specific human being.)

There are 4 circumstances when transferred intent does not apply:

1) When the social harm is different (ppty v. personal injury) v. Pembliton (1874)
2) When intended harm occurs and additional harm also occurs (jurisdictions are split on this)
3) When statute prohibits it (mayhem, or cases where intended victim is special (eg. Pres or Queen))
4) In misidentification cases (meant to shoot Jordan A, but got confused and shot Jordan B) because we don’t need it here!

Question 9

Articulate the distinction between general and specific intent.

Answer 9

Specific intent crimes are those where the mens rea required is beyond that to complete the actus reus. For instance, burglary has the additional intent to commit a felony in the residence.

In contrast, general intent crimes only require the intent necessary to perform the physical act - the actus reus.

Question 10

Identify the 4 primary mens rea terms for common law and the MPC and explain the differences.

Answer 10

The 4 primary mens rea terms under the common law are: intent, knowledge, recklessness, and negligence.

The 4 primary mens rea terms under the MPC are: purposely, knowingly, recklessly, and negligently.

The majority of these terms mean the same from the common law to the MPC. However, under the common law, intent includes not only having the conscious object or desire to achieve the prohibited result or engage in the prohibited conduct, but also knowing that the prohibited result is virtually certain to occur. Under the MPC, purposely does not include knowing the prohibited result is virtually certain to occur. Knowingly is a separate state of mind.

Question 11

Identify which mens rea terms are subjective and which are objective.

Answer 11

The first 3 mens rea terms, in either the common law or the MPC, intentionally or purposely, knowingly, and recklessly, are determined subjectively. We ask what the defendant thought, even if it is not what most people would have thought.

In contrast, the last term, negligently, is determined objectively. We ask whether the defendant’s failure to be aware of the risk constitutes a gross deviation from the standard of care.

Question 12

Explain why mens rea is essential to almost all crimes.

Answer 12

Mens rea is essential to most crimes because our system of punishment and accountability is based on the defendant’s “free will violation of the social contract.”

Question 13

Articulate the MPC rule for when a mental state is not specified in the offense.

Answer 13

Under the MPC, culpability for those crimes in which a mens rea is not specified may be satisfied by purposely, knowingly or recklessly.

Question 14

Take apart a statute – identifying the actus reus, mens rea and attendant circumstance (if any) portions.

Answer 14

IL dog bite statute (from our LP memo last semester): If a dog or other animal, without provocation, attacks, attempts to attack, or injures any person who is peaceably conducting himself or herself in any place where he or she may lawfully be, the owner of such dog or other animal is liable in civil damages to such person for the full amount of the injury proximately caused thereby.

Actus reus: attacks, attempts to attack, or injures

Mens rea: Without provocation

Attendant circumstances: Peacefully conducting him/herself, in any place that she/he may lawfully be.

Question 15

Identify the difference between the MPC definition of “knowledge” and the common law definition of “knowledge”

Answer 15

The common law definition of knowledge covers those cases where the defendant knows the result is virtually certain to occur and those cases where they are willfully blind to the existence of an attendant circumstance.

Question 16

Define the four MPC mens rea terms – purposely, knowingly, recklessly, negligently

Answer 16

Purpose: intention to do the act or cause the forbidden result (subj)

Knowledge: if D is aware a) his conduct is practically certain to cause the result or b) of the nature of the act or omission or the result to follow or the attendant circumstances (subj) (and includes willful blindness)

Recklessness: if D consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct (subj)

Negligence: if the D should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct (objective)

Question 17

Articulate the MPC standard for “willful blindness”

Answer 17

Under the MPC, willful blindness is established if:
D is aware of a high probability that the circumstances exist, UNLESS he actually believes that the circumstances do not excust
(note how the focus remains subjective)

Question 18

Articulate the common law standard for “willful blindness”

Answer 18

Under the common law, willful blindness requires that:
D must be aware of a high probability that the circumstances exist; and
the D must deliberately fail to investigate to avoid confirmation of the facts.
(note how the rule includes an objective part)

Question 19

Identify the subtle difference between the MPC and common law standards for “willful blindness”

Answer 19

The MPC version of willful blindness retains a subjective focus. As a result, one can never be willfully blind if they truly believed the circumstances did not exist, no matter how unreasonable the belief might be.

Question 20

Recall at least 3 sources that courts may use in interpreting a statute.

Answer 20

Dictionary
Previous statutes
Similar statutes from other jurisdictions
Model Penal Code
common law
common understanding
case law

Question 21

Identify the major difference between the majority and minority positions in U.S. v. Jewell

Answer 21

The major difference between the common law and MPC versions of willful blindness is the focus.

The common law test retains an objective focus and includes the actions of the defendant, and the defendant could be convicted even if they believed the circumstance did not exist.

The MPC only asks if the defendant was aware of a high probability that the circumstances existed and can result in a conviction without any accompanying act, so long as they did not actually believe the circumstances did not exist.

Question 22

Identify the 3 components of “recklessness”

Answer 22

Recklessness is the “conscious disregard of a substantial and unjustifiable risk.”

The 3 ingredients are 1) conscious disregard; 2) the risk must be substantial; and 3) the risk must be unjustifiable (objectively)

Question 23

Distinguish between “negligence” and “recklessness”

Answer 23

The difference between recklessness and negligence is in the state of mind. The act itself may be the same. But recklessness requires a conscious disregard. The defendant must actually put their mind to the risk. In contrast, in negligence the defendant fails to be aware of the risk. It is the failure to be aware of the risk that is judged as the gross deviation from the standard of care, and is culpable.

Question 24

A 42-year old male starts chatting online with a female who claims to be 16 years old, but in fact is 14. After many online sexually-laced conversations, the male asks to meet her for purposes of intercourse.

Assume this request constitutes an “act of solicitation” and the man is prosecuted for “child solicitation,” a felony punishable by up to three years in prison. The statute prohibits an adult to solicit “a child (a person 16 years of age or younger) to engage in sexual conduct.”
The statute expressly states that “mistake as to age is not a defense.”

Should the male be convicted? If you represented him, what arguments would you make in his defense?

Answer 24

State v Moser Minn Ct. App. 2016

Question 25

Define “strict liability” crime

Answer 25

Strict liability crimes are those crimes which do not require a mens rea. These are aberrant in the area of criminal law, but they exist in the context of public welfare offenses.

Question 26

Identify the policy behind strict liability offenses

Answer 26

The policy behind strict liability offenses is that some kinds of offenses are so significant, and involve such danger to the public welfare, that they are deserving of punishment even if the defendant did not possess a culpable mens rea.

Question 27

Define “public welfare offense”

Answer 27

1) regulate dangerous products; 2)heighten duties of those in certain industries or activities that affect public health, safety or welfare; 3) they have no mental element, consist only of forbidden acts or omissions.

In short, a public welfare offense is one enacted for the public safety with such stringent regulation that culpability requires no mens rea element.

Question 28

Identify the two defenses to a strict liability offense

Answer 28

1) I didn’t do it (it wasn’t me, or my act did not meet the definition of the actus reus in the offense)
2) this is not intended to be a strict liability offense

Question 29

Identify the five factors that may overcome the presumption against strict liability

Answer 29

Factors that support an offense being a strict liability offense (Blackmun):

1) This is not a malum in se crime derived from the common law but a malum prohibitum crime enacted for the public welfare
2) legislative intent and policy clearly indicates strict liability or would be undermined by a mens rea requirement
3) The standard imposed by the statute is reasonable
4) The penalty is small (a fine, not imprisonment)
5) There is no moral stigma attached to the crime

Question 30

What are the differences in common law rule with respect to mistake of fact as it applies to general intent crimes vs. specific intent crimes?

Answer 30

General intent crimes can only be overcome with a reasonable mistake of fact. To some degree, the unreasonable mistake of fact is sufficient to ground culpability because it is unreasonable.

In contrast, specific intent crimes can be overcome with any mistake, even if it is unreasonable. This is consistent with the elemental approach to culpability.

Question 31

Contrast the common law approach to mistake of fact with the MPC approach to mistake of fact.

Answer 31

The MPC does not distinguish between general intent and specific intent crimes. Any mistake that negates the requisite mens rea, no matter how unreasonable, would serve as a defense.

Question 32

Explain why mistake of fact does not apply to strict liability crimes.

Answer 32

Mistake of fact does not apply to strict liability crimes because mistake of fact relates to mens rea and strict liability crimes do not require a mens rea. Therefore, it doesn’t matter how mistaken one is, so long as they committed the actus reus of the strict liability offense.

Question 33

Juxtapose the rule “ignorantia legis neminem exusat” with the mistake of law rule.

Answer 33

The rule “ignorance of the law is no excuse” is different than the mistake of law offense.

In the case of the former, the defendant is arguing that the law should not apply to them because they did not know of the law, but for the sake of an orderly society, we must presume that everyone knows the law.

The mistake of law offense asserts that the defendant tried to abide by the law, but that the law was so unclear, or the interpretation so unsettled, that the defendant should be relieved of culpability.

Question 34

Identify the three circumstances under which a mistake of law could excuse.

Answer 34

Mistake of law will excuse in 3 circumstances: i) reasonable reliance; ii) fair notice and iii) when there is a mistake about a different law that negates the mens rea for the specified offense.

Question 35

Identify the limitations on the Reasonable Reliance argument as to mistake of law under the MPC.

Answer 35

Reasonable reliance is the most common defense in the rare instances where mistake of law is successfully argued. There are two limitations on reasonable reliance under the MPC: 1) the mistake must be based on an official interpretation of the law that comes in an official manner, and 2) the mistake must otherwise be reasonable.