#17102 - Mens Rea Non Mpc Jurisdictions - Criminal Law

Mens Rea: Basic Conceptions and Applications In Non-MPC Jurisdictions

• Requirement of a certain mental state (awareness/intent) during the criminal act

• Underlying idea that conscious choice is party of culpability/blameworthiness

• Common Law - subjective culpability is bedrock principle of common law MR approach

  • Term: "maliciously"

    • Subjective awareness

    • Cunningham - malice is not wickedness, but foresight of consequences of the act (and subsequent disregard of risk by committing the act)

      • In MPC, this is the "recklessness" definition

    • Faulkner: intended to set rum but accidently set ship on fire; conviction quashed because jury did not inquire into malice

    • Policy (why using subjective standard is good)

      • Retributivist concern: should not punish person if no conscious wrongdoing

        • Ex. Cunningham genuinely did not know that removal of gas meter would cause a gas leak that endangered life > not punish

  • Term: "negligently"

    • Objective standard of reasonable person: reasonable person under circumstances should/would have been aware of the risk (even though defendant was actually not aware)

    • Policy

      • Utilitarian concern: this standard would incentive people to take extra steps to raise their behavior to the level of reasonable person's exercise of due care

    • Criminal VS. Civil Negligence (ordinary vs. gross deviation)

      • Both involves failure to perceive a substantial/unjustifiable risk that a result will occur

      • Criminal: requires a greater risk, the failure to perceive of which is a gross deviation from the behavior and standard of care a reasonable person would exercise under the circumstances [grossly unreasonable]

        • Santillanes

        • Policy: Retributive justice requires moral culpability

      • Civil: lesser showing of carelessness required, deviation from standard of care a reasonable person would exercise under the circumstances [unreasonable]

        • Hazelwood

        • Policy: utilitarian justification in encouraging reasonable care when conduct can be deterred

      • How to decide which to use if statute says "negligence"?

        • Penalty?

          • (retributive justice requires moral culpability) The higher penalties of the crime, the higher the standard of proof should be, not use a civil negligence standard

        • Possibility of deterrence?

          • (utilitarian encouragement of due care) Are the targets of crime sophisticated actor who is informed of punishment and can be deterred/Can the conduct be deterred? If so, use of civil negligence would incentivize people to refrain from wrongful act

  • When there is no MR term > read it in!

    • Based on bedrock principle that wrongdoing must be conscious to be criminal

    • Elonis - D did not intend to constitute true threat, gov did not prove awareness, reverse conviction (done on negligence standard)

    • Court does not provide MR term to read in (Alito suggests recklessness default)

• Common law Framework for Willful Blindness

  • Two approaches on case-by-case basis

    • 1) [federal/Global tech] High probability of K + deliberate avoidance (take aff. act to avoid truth)

    • 2) High probability of K + passive avoidance (fail to investigate) (Jewell – “conscious purpose to avoid”)

    • Consider actual belief of D

  • Global Tech/ federal standard

    • High probability of knowledge + take deliberate/affirmative action to avoid gaining knowledge (deliberate avoidance)

  • Other approach

    • High probability of knowledge + failure to investigate/gain positive knowledge (passive avoidance/deliberate ignorance)

    • Criticism: this imposes legal duty on people to investigate

    • U.S. v. Jewell

      • D avoided positive knowledge of marijuana in car to avoid liability + had high probability of knowledge (knowledge of facts indicating the compartment contained marijuana)

      • Court says deliberate ignorance in learning about contents of the secret compartment when he probably knows it contains drugs satisfies knowledge requirement of statute

  • ** for non-MPC, can argue any combination of deliberate avoidance, passive avoidance, high probability, actual belief

• Argument for willful blindness

  • Deliberate avoidance or ignorance is equally as...