C hapter 3
Mens Rea
Traditionally, the criminal law looked to a person’s mental state (his or her
“mens rea”) and the associated notion of that person’s presumed “blameworthiness” in assessing the existence or absence of criminal culpability. From this
perspective, intentional criminal conduct has classically been viewed as more
serious—more wicked, more immoral, more blameworthy—than unintentional
criminal conduct. Indeed, Oliver Wendell Holmes made this same point more
than a century ago when he observed that “even a dog distinguishes between
being stumbled over and being kicked.” Oliver Wendell Holmes, Jr., The Common
Law 3 (1881).
_______________
A. Levels of Criminal Intention
At common law, a number of different mental states were used as elements
of different crimes. In addition to the mental state used in the following case
(“maliciously”), courts often referred to other types of criminal intentions, such as
“fraudulently,” “corruptly,” “willfully,” “feloniously” and “intent to steal.”
Regina v. Faulkner
13 Cox Crim. Cas. 550 (1877).
[The prisoner was indicted for setting fire to the ship Zemindar, on the high
seas, on June 26, 1876. The indictment charged that he “feloniously, unlawfully,
and maliciously” burned a ship with the intent “to prejudice the owner of the ship
and the owners of certain goods and chattels then laden, and being on board said
ship.” The ship was carrying a cargo of rum, sugar, and cotton, worth £50,000.
The facts showed that the prisoner, a seaman on the ship, went into the bulk
head, and forecastle hold, opened the sliding door in the bulk head, to steal rum.
The facts further showed that he bored a hole in the cask with a gimlet, that the
rum ran out, that when trying to put a spile in the hole out of which the rum was
Criminal Law A Contemporary Approach
78
running, he had a lighted match in his hand; that the rum caught fire; that he was
burned on the arms and neck; and that the ship caught fire and was completely
destroyed. At the close of the Crown’s case, counsel for the prisoner asked for a
direction of an acquittal on the ground that on the facts proved the indictment
was not sustained, nor the allegation that the prisoner had unlawfully and maliciously set fire to the ship proved. The Crown contended that inasmuch as the
prisoner was at the time engaged in the commission of a felony, the indictment
was sustained, and the allegation of intent was immaterial].
At the second hearing of the case before the Court for Crown Cases Reserved,
the learned judge made the addition of the following paragraph to the case stated
by him for the court.
“It was conceded that the prisoner had no actual intention of burning the
vessel, and I was not asked to leave any question as to the jury as to the prisoner’s
knowing the probable consequences his act, or as to his reckless conduct.”
The learned judge told the jury that although the prisoner had no actual
intention of burning the vessel, still if they found he was engaged in stealing
the rum, and that the fire took place in the manner above stated, they ought to
find him guilty. The jury found the prisoner guilty on both counts, and he was
sentenced to seven years penal servitude. The question for the court was whether
the direction of the learned judge was right, if not, the conviction should be
quashed....
Dowse, B., gave judgment to the effect that the conviction should be
quashed.
Barry, J.—A very broad proposition has been contended for by the Crown,
namely, that if, while a person is engaged in committing a felony, or, having committed it, is endeavouring to conceal his act, or prevent or spoil waste consequent
on that act, he accidently does some collateral act which if done wilfully would be
another felony either at common law or by statute, he is guilty of the latter felony.
I am by no means anxious to throw any doubt upon, or limit in any way, the legal
responsibility of those who engage in the commission of felony, or acts mala in se;
but I am not prepared without more consideration to give my assent to so wide a
proposition. No express authority either by way of decision or dictum from judge
or text writer has been cited in support
Non constat
of it.... [I consider myself bound] by
jus civile
a posteriori
the authority of Reg. v. Pembliton (12
It’s Latin to Me
Cox C. C. 607). That case must be
Malum in se. A crime or an act that is
taken as deciding that to constitute an
inherently immoral, such as murder,
offence under the Malicious Injuries to
arson, or rape.
Property Act, sect. 51, the act done
ex aequo et bono
Chapter 3 Mens Rea
must be in fact intentional and wilful, although the intention and will may (perhaps) be held to exist in, or be proved by, the fact that the accused knew that the
injury would be the probable result of his unlawful act, and yet did the act reckless of such consequences. The present indictment charges the offence to be under
the 42nd section of the same Act, and
it is not disputed that the same construction must be applied to both secTake Note
tions.... The jury [was] directed to give
Do you agree? Whatever the law is,
a verdict of guilty upon the simple
simply as a matter of sound policy,
ground that the firing of the ship,
why shouldn’t someone who commits
a bad act simply be responsible for
though accidental, was caused by an
any harm that follows, whatever his
act done in the course of, or immedior her intent was?
ately consequent upon, a felonious
operation, and no question of the prisoner’s malice, constructive or otherwise, was left to the jury. I am of opinion that, according to Reg. v. Pembliton, that
direction was erroneous, and that the conviction should be quashed.
Fitzgerald, J.—I concur in opinion with my brother Barry, and for the reasons
he has given, that the direction of the learned judge cannot be sustained in law,
and that therefore the conviction should be quashed. [In] order to establish the
charge of felony under sect. 42, the intention of the accused forms an element in
the crime to the extent that it should appear that the defendant intended to do the
very act with which he is charged, or that it was the necessary consequence of
some other felonious or criminal act in which he was engaged, or that having a
probable result which the defendant foresaw, or ought to have foreseen, he, nevertheless, persevered in such other felonious or criminal act. The prisoner did not
intend to set fire to the ship; the fire was not the necessary result of the felony he
was attempting; and if it was a probable result, which he ought to have foreseen,
of the felonious transaction on which
he was engaged, and from which a
malicious design to commit the injuriFood for Thought
ous act with which he is charged might
If the jury had been properly charged
have been fairly imputed to him, that
that a showing of recklessness would
view of the case was not submitted to
have sufficed here to establish
the jury.... Counsel for the prosecution
Faulkner’s culpability for this offense, do you agree that recklessness
in effect insisted that the defendant,
was made out on these facts?
being engaged in the commission of,
or in an attempt to commit a felony,
was criminally responsible for every
result that was occasioned thereby, even though it was not a probable consequence
of his act or such as he could have reasonably foreseen or intended. No authority
has been cited for a proposition so extensive, and I am of opinion that it is not
warranted by law....
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O’Brien, J.—I am also [of the] opinion that the conviction should be
quashed.... [A]t the trial, the Crown’s counsel conceded that the prisoner had no
intention of burning the vessel, or of igniting the rum; and raised no questions
as to prisoner’s imagining or having any ground for supposing that the fire would
be the result or consequence of his act in stealing the rum.... The reasonable
inference from the evidence is that the prisoner lighted the match for the purpose
of putting the spile in the hole to stop the further running of the rum, and that
while he was attempting to do so the rum came in contact with the lighted match
and took fire....
Keogh, J.—I have the misfortune to differ from the other members of the
Court.... [I am] of [the] opinion, that the conviction should stand, as I consider
all questions of intention and malice are closed by the finding of the jury, that
the prisoner committed the act with which he was charged whilst engaged in the
commission of a substantive felony....
Palles, C.B.—I concur in the opinion of the majority of the Court.... The
Lord Chief Justice of the Common Pleas, who, in consequence of illness, has been
unable to preside to-day, has authorized me to state that he considers that the case
before us is concluded by Reg. v. Pembliton.
Deasy, B., and Lawson, J., concurred.
Conviction quashed.
_______________
Points for Discussion
a. Model Penal Code
The drafters of the Model Penal Code chose to abandon most of the common
law mental states, and to focus upon only four standard mens rea terms:
§ 2.02. General Requirements of Culpability.
(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely,
knowingly, recklessly or negligently, as the law may require, with respect
to each material element of the offense.
(2) Kinds of Culpability Defined.
Chapter 3 Mens Rea
(a) Purposely. A person acts purposely with respect to a material
element of an offense when:
(i) if the element involves the nature of his conduct or a result
thereof, it is his conscious object to engage in conduct of that
nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is
aware of the existence of such circumstances or he believes or
hopes that they exist.
(b) Knowingly. A person acts knowingly with respect to a material
element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that
nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware
that it is practically certain that his conduct will cause such a
result.
(c) Recklessly. A person acts recklessly with respect to a material
element of an offense when he consciously disregards a substantial
and unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree that,
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.
(d) Negligently. A person acts negligently with respect to a material
element of an offense when he should be aware of a substantial and
unjustifiable risk that the material element exists or will result from
his conduct. The risk must be of such a nature and degree that the
actor’s failure to perceive it, considering the nature and purpose of
his conduct and the circumstances known to him, involves a gross
deviation from the standard of care that a reasonable person would
observe in the actor’s situation.
(3) Culpability Required Unless Otherwise Provided. When the
culpability sufficient to establish a material element of an offense is
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Criminal Law A Contemporary Approach
not prescribed by law, such element is established if a person acts
purposely, knowingly or recklessly with respect thereto.
(4) Prescribed Culpability Requirement Applies to All Material
Elements. When the law defining an offense prescribes the kind of
culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a
contrary purpose plainly appears.
(5) Substitutes for Negligence, Recklessness and Knowledge.
When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts
purposely, knowingly or recklessly. When recklessness suffices to
establish an element, such element also is established if a person
acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts
purposely.
(6) Requirement of Purpose Satisfied if Purpose Is Conditional.
When a particular purpose is an element of an offense, the element
is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law
defining the offense.
(7) Requirement of Knowledge Satisfied by Knowledge of High
Probability. When knowledge of the existence of a particular fact is
an element of an offense, such knowledge is established if a person
is aware of a high probability of its existence, unless he actually believes that it does not exist.
(8) Requirement of Wilfulness Satisfied by Acting Knowingly.
A requirement that an offense be committed wilfully is satisfied if a
person acts knowingly with respect to the material elements of the
offense, unless a purpose to impose further requirements appears.
(9) Culpability as to Illegality of Conduct. Neither knowledge
nor recklessness or negligence as to whether conduct constitutes
an offense or as to the existence, meaning or application of the law
determining the elements of an offense is an element of such offense,
unless the definition of the offense or the Code so provides.
Chapter 3 Mens Rea
(10) Culpability as Determinant of Grade of Offense. When the
grade or degree of an offense depends on whether the offense is
committed purposely, knowingly, recklessly or negligently, its grade
or degree shall be the lowest for which the determinative kind of
culpability is established with respect to any material element of the
offense.
b. Jurisdictional Variation in Mens Rea Definitions
Although there are often similarities between the definitions of various mens
rea terms in different jurisdictions and, sometimes these terms were borrowed (at
least initially) from the Model Penal Code, it is nonetheless important for criminal
law practitioners to discern the precise meaning—and judicial interpretation—of
each mens rea term for each criminal offense in the Crimes Code in his or her
jurisdiction. There is great—and often significant—variation in the definition of
the same mens rea term of art in different jurisdictions. See, e.g., Jerome Hall,
General Principles of Criminal Law 142 (2d ed. 1960) (“there must be as many
mentes reae as there are crimes”).
_______________
State v. Jackowski
181 Vt. 73, 915 A.2d 767 (2006).
JOHNSON, J.
Defendant Rosemarie Jackowski appeals her conviction for disorderly conduct. Defendant argues that the trial court improperly instructed the jury to consider whether defendant was “practically certain” that her conduct would cause
public inconvenience or annoyance, when she was charged with intentionally
causing public inconvenience or annoyance. [We] reverse and remand.
Defendant was arrested on March 20, 2003, during an anti-war demonstration
at the intersection of Routes 7 and 9 in Bennington. During the demonstration,
protesters blocked traffic at the intersection for approximately fifteen minutes.
Defendant stood in the intersection, praying and holding a sign bearing anti-war
slogans and newspaper clippings, including an article accompanied by a photograph of a wounded Iraqi child. Police officers repeatedly asked defendant to
leave the intersection, and when she refused, she was arrested, along with eleven
other protesters. The State charged them with disorderly conduct, alleging that
defendant and the other protesters, “with intent to cause public inconvenience
and annoyance, obstructed vehicular traffic, in violation of 13 V.S.A. § 1026(5).”
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Criminal Law A Contemporary Approach
Defendant’s intent was the only issue contested during her one-day jury trial.
After several police officers testified for the State, defendant took the stand, admitting to blocking traffic, but stating that her only intention in doing so was to
protest the war in Iraq, not to cause public inconvenience or annoyance. [At] the
conclusion of the trial, the court instructed the jury on the issue of intent. The
court first instructed the jury that the State could establish defendant’s intent to
cause public inconvenience or annoyance by proving beyond a reasonable doubt
that she acted “with the conscious object of bothering, disturbing, irritating, or
harassing some other person or persons.” The court then added, “This intent may
also be shown if the State proves beyond a reasonable doubt that the defendant
was practically certain that another person or persons ... would be bothered,
disturbed, irritated, or harassed.” The jury convicted defendant of disorderly
conduct. Defendant appeals.
Defendant ... argues that the jury charge was improper because the trial court
failed to instruct the jury to consider whether defendant acted with the requisite criminal intent. [Defendant] relies on State v. Trombley to draw a distinction
between offenses that require purposeful or intentional misconduct and those
that require only knowing misconduct. 174 Vt. 459, 462, 807 A.2d 400, 404-05
(2002). In Trombley, we held that it was error for the trial court to instruct the jury
to consider whether the defendant in an aggravated assault case acted “knowingly”
or “purposely,” when he was charged with “purposely” causing serious bodily
injury. The aggravated assault statute in Trombley had been amended in 1972 to
adopt the Model Penal Code’s approach to mens rea, which distinguishes among
crimes that are committed “purposely,” “knowingly,” and “recklessly.” Under this
approach, a person acts “purposely” when “it is his conscious object to engage in
conduct of that nature or to cause such a result.” A person acts “knowingly” when
“he is aware that it is practically certain that his conduct will cause such a result.”
[Thus,] the trial court in Trombley erred in instructing the jury that it could find
that the defendant acted “purposely” if “he was practically certain that his conduct
would cause serious bodily injury.”
Defendant argues that Trombley controls here, as the trial court used a similarly worded jury charge, and the disorderly conduct statute was amended at the
same time, and for the same reasons, as the aggravated assault statute in Trombley.
The State attempts to distinguish Trombley based on differences in the language
of the aggravated assault and disorderly conduct statutes. Unlike the aggravated
assault statute, the disorderly conduct statute contains the words “with intent”
and not “purposely.” This is a purely semantic distinction, and it does not indicate
a departure from the Code’s approach to mens rea, the adoption of which was “the
major statutory change” accomplished by the Legislature’s 1972 amendments.
The Code does not differentiate between “with intent” and “purposely”; instead, it
uses the two terms interchangeably, explaining in its definitions that “ ‘intention-
Chapter 3 Mens Rea
ally’ or ‘with intent’ means purposely.” There is no indication that the Legislature
used the phrase “with intent” to register disagreement with the Code’s approach
to disorderly conduct, and such disagreement seems unlikely in the context of an
otherwise unqualified adoption of the Code’s approach.
The State cites several cases supporting the proposition that both “purposely”
and “knowingly” causing harm involve some element of “intent,” and thus, that
Trombley ‘s distinction between “ purposely” and “knowingly” is illusory. Each
of these cases predates our decision in Trombley, however, and each adheres to
an outmoded distinction between “specific intent” and “general intent” crimesthe distinction that the Legislature rejected in adopting the Code’s approach to
mens rea. At common law, crimes committed “purposely” and those committed
“knowingly” would both have been specific intent offenses. [These] cases provide
no basis for distinguishing or limiting Trombley here. It was therefore error for
the trial court to charge the jury to consider whether defendant was “practically
certain” that her actions would cause public annoyance or inconvenience.
[Intent] was the only issue defendant contested at trial. Defendant claimed
that she intended only to protest the war in Iraq, not to cause public annoyance
or inconvenience. The State is correct that defendant could have had multiple
intents, and a jury could certainly have convicted defendant based on the evidence presented at trial. The law
makes a distinction between intentional and knowing acts, however, and
Food for Thought
defendant was entitled to have a jury
Where a mens rea requirement
decide whether causing public annoycontains a subjective element, how
ance or inconvenience was her condoes the prosecution prove the existence of such an element, particuscious object. The trial court’s instruclarly when the accused testifies that
tion prevented the jury from
he or she did not actually hold the
considering that question, effectively
prescribed intent? What type of
evidence might the prosecution inremoving the element of intent from
troduce to make such a showing?
the crime, if not directing a guilty verShould a jury be able to infer a pardict. [We] cannot say that this error
ticular mens rea from circumstantial
evidence even where the accused has
was harmless beyond a reasonable
testified to the contrary?
doubt, so we must reverse defendant’s
conviction.
[Reversed.]
BURGESS, J., dissenting.
Confident that the trial court’s misdescription of the intent element in this
particular case was harmless beyond a reasonable doubt, I respectfully dissent.
The majority is correct that the trial court erred in allowing the jury the option to
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Criminal Law A Contemporary Approach
find defendant guilty of disorderly conduct by acting either “with the conscious
object,” that is “with intent,” to cause public inconvenience or annoyance, or
by acting with “practical certainty,” or “knowingly,” that public inconvenience or
annoyance would result from her actions. The majority is also correct that . . .
the element of “ intentional” action in a criminal statute derived from the Model
Penal Code, such as the disorderly conduct statute, means to act not “knowingly,”
but “ purposely.” The State was required to prove, as it expressly charged, that
defendant obstructed traffic “with intent to cause,” rather than “knowingly” cause,
public inconvenience and annoyance. Nevertheless, given the overwhelming evidence of defendant’s actual intent to cause public inconvenience by obstructing
traffic, the error was harmless because “we can say beyond a reasonable doubt that
the result would have been the same in the absence of the error.”
[Defendant’s] testimony proved the elements of disorderly conduct as
charged: that she obstructed vehicular traffic “with intent to cause public inconvenience or annoyance, in violation of 13 V.S.A. § 1026(5),” and did so “purposely” under the Model Penal Code applied in Trombley. The Code states that a
person acts “purposely” when: [“]if the element involves the nature of his conduct
or a result thereof, it is his conscious object to engage in conduct of that nature or
to cause such a result[.”]
Food for Thought
Was Jackowski’s claim that it was not
her conscious object to block traffic
so ridiculous that it shouldn’t matter
if the jury was misinstructed about
mens rea?
Defendant’s intentional obstruction of traffic was not disputed.... That
defendant was also motivated by a
noncriminal urge to communicate and
show political opposition does not
mutually exclude a contemporaneous
and, in this case, manifest criminal
intent to cause public inconvenience
and annoyance.
[Accordingly,] I would affirm the conviction . . ..
_______________
Chapter 3 Mens Rea
Hypo 3.1: Tire Blow Out
Amanda was driving on a city street when her the left front tire of
her car blew out. Despite her best efforts, the car swerved off the road
and killed a pedestrian. If she is charged with a homicide offense which
uses a MPC mens rea – purpose, knowledge, recklessness or negligence
– would she be found guilty in any of the following circumstances:
• if she was driving at or near the speed limit (35 mph) on new
tires and had no reason to believe that there were any problems
with the tires?
• if she was driving at or near the speed limit but her tires were
old and bald?
• if she was driving at a speed of 65 mph in a 35 mph zone
when the blow out occurred?
Hypo 3.2: The Epileptic Driver
Amir is an epileptic who periodically has seizures. One day, while
he was driving his car on an interstate highway, he had a seizure and ran
into another car killing the passenger. If Amir is charged with homicide,
can a jury conclude that he acted with purpose, knowledge, recklessness
or negligence?
Hypo 3.3: Russian Roulette
Two teenage boys are playing Russian Roulette. They place one bullet in the chamber of a gun, spin it, hold it to one of their heads, and pull
the trigger. The gun discharges, killing one of the boys instantly. Can it
be said that the surviving boy acted purposely, knowingly, recklessly or
negligently in causing the death of the other boy?
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Criminal Law A Contemporary Approach
88
State v. Ducker
1999 WL 160981 (Tenn. Crim.App. 1999), aff’d, 27 S.W.3d 889 (Tenn. 2000).
Hayes.
The appellant, Jennie Bain Ducker, was indicted [on] two counts of first
degree murder resulting from the aggravated child abuse of her two children, ages
13 months and 23 months. [A jury] found the appellant guilty of two counts of the
lesser charged offense of aggravated child abuse. Concurrent sentences of eighteen
years were imposed for each of the class A felony convictions. [We affirm.]
[The] events leading to the tragic deaths of thirteen month old Dustin Ducker
and twenty-three month old Devin Ducker began in the early evening hours of
June 5, 1995.... At approximately 3:45 a.m., the appellant arrived at Room 222
of the Holiday Inn in McMinnville. This was the temporary residence of Micah
Majors, another boyfriend of the appellant. With [her] children securely strapped
in their car seats, the appellant closed the windows and locked the doors. [Others]
were already in the room with Micah when the appellant arrived. The four men
were playing a Sega video golf game and drinking alcoholic beverages. The men
continued to play their video game, paying little or no attention to the appellant. They did notice, however, that the appellant poured herself a glass of wine.
Additionally, they observed her leave the room on two occasions, once to get ice
and once to get BC powders from Micah’s car. The appellant never mentioned
that her children were in her car or that she needed to check on the children. All
four men testified that, despite her usual “dingy” attitude, the appellant did not
appear intoxicated. [The others] left Micah’s room around 5:00 a.m. The appellant
followed the three men to the parking lot, but never checked on her children. As
they were pulling out of the parking lot, Pepper noticed that the appellant was
already back on the second floor balcony near Micah’s room.
[Micah] had changed into boxer shorts and gotten into bed. The appellant
knocked on his door and he let her back in the room. Micah testified that he was
trying to go to sleep, but the appellant sat next to him on the bed trying to talk
to him about a “commitment” in their relationship. Micah then fell asleep. When
his alarm went off the next afternoon around twelve or one o’clock, the appellant
was still there. She patted Micah on the side of the leg and said, “I have to go.” She
never mentioned her children.
At 1:03 p.m., the appellant arrived at the emergency room of the River Park
Hospital in McMinnville. While she was attempting to get one child out of the
car, David Smith, a bystander, heard her say, “Somebody help me. My babies have
been in the car for four hours.” He responded to her plea for assistance. When
he reached the appellant, he observed that the child she was carrying appeared
Chapter 3 Mens Rea
89
lifeless. [The] appellant told Fults that the children had been left in a car for
three hours with the windows closed. She explained that she had fallen asleep at
a friend’s house on Lucky Road. At this point, the appellant became frantic, “she
was pacing the floor,” “wringing her hands,” “running her hands through her
hair.”
[The appellant] testified that she did not see any danger in leaving her thirteen month old and twenty-three month old sons in her locked car for over nine
hours while she visited with [Micah] in his motel room. [A]ppellant claimed that
“[she] checked on the kids four to five times.” However, she could not explain
why she did not tell the others that her children were in her car or that she needed
to check on them. [Based] upon this evidence, the jury returned guilty verdicts as
to two counts of aggravated child abuse.
[The] appellant [contends] that the evidence is insufficient to support her
convictions for aggravated child abuse because the State failed to prove “knowing
conduct” beyond a reasonable doubt, i.e., that she “was actually aware that her
conduct was reasonably certain to cause the resulting injury to her children.”
Specifically, the appellant challenges the trial court’s instructions to the jury as
they relate to the requisite mental state of “knowing” as the definition of this term
applies to the offense of aggravated child abuse. She argues that the erroneous
charge altered the State’s burden of proving the elements of the offense beyond a
reasonable doubt.
[Central] to the concept of criminal liability is that, before there can be a
crime, there must be an act, or actus reus, which must be accompanied by a criminal mind, or mens rea. The early concept of mens rea meant little more than a
“general notion of blameworthiness,” or an “evil meaning mind.” Over time, this
general concept shifted from this vague notion of wickedness to a more definite
requirement of a specific state of mind to do that which is prohibited by the criminal law. Thus, no longer could the requirement of “wickedness” suffice. Rather,
a different state of mind was required for each crime. This development in the
common law culminated in the creation of eighty or so culpability terms....
The plethora of mentes reae originating from the common law created much
confusion and ambiguity. Thus, in 1955, the drafters of the Model Penal Code
sought to eliminate this confusion and
Non constat
narrowed the multitude of existing
jus civile
a posteriori
culpability terms to four: purpose,
It’s Latin to Me
knowledge, recklessness, and negliMentes reae is simply the plural form
gence. In furtherance of this concept,
of mens rea.
the Model Penal Code and, subsequently the Tennessee Criminal Code,
ex aequo et bono
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Criminal Law A Contemporary Approach
provide that, with the exception of strict liability offenses, some mental culpability “must be faced separately with respect to each material element of the crime,”
otherwise, no valid conviction may be obtained. Moreover, the Model Penal Code
and the Tennessee Criminal Code both require that one of four levels of culpability must be proven with respect to each “material element” of the offense which
may involve “(1) the nature of the forbidden conduct; (2) the attendant circumstances; or (3) the result of the conduct.”
[The] first element, conduct, involves the nature of the proscribed act or
the manner in which the defendant acts, e.g., the physical act of committing an
assault, or the physical restraint of another person (kidnapping). The second element, circumstances surrounding the conduct, refers to a situation which relates
to the actor’s culpability, e.g., lack of victim’s consent or stolen status of property.
The result of the defendant’s conduct constitutes the final element, in other words,
the accused’s conduct must at least be a physical cause of the harmful result, e.g.,
causing the death of another.
Many crimes are made up of not only one, but of several “conduct elements,”
including not only an act or omission, but also some specific result of that act or
omission, or some prescribed attendant circumstances, or perhaps both result and
circumstances. In other words, an offense may contain one or more of these conduct elements which, alone or in combination with the others, form the overall
behavior which the Legislature has intended to criminalize, and it is those essential
conduct elements to which a culpable mental state must apply. Correspondingly,
each culpability term is defined with respect to each of the three kinds of “conduct
elements”: conduct, circumstances, and result. For example, where a specific act
is criminalized because of its very nature, a culpable mental state must apply to
committing the act itself, i.e., awareness of conduct. On the other hand, unspecified conduct which is criminalized because of the result requires culpability as to
that result, i.e., result of conduct. Finally, where otherwise innocent behavior is
criminalized due to the circumstances under which it occurs, a culpable mental
state is required as to those surrounding circumstances, i.e., awareness of circumstances. In other words, the analysis of the applicable mens rea varies according
to the conduct elements of the offense.
In the present offense, the applicable mens rea is “knowingly.” Tenn.Code
Ann. § 39–11–302(b) defines “knowing” as:
[A] person who acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the
conduct or that the circumstances exist. A person acts knowingly with respect
to a result of the persons conduct when the person is aware that the conduct is
reasonably certain to cause the result.
Chapter 3 Mens Rea
91
When a criminal statute requires a mens rea of knowingly, it may speak to
conduct, or to circumstances, or to result, or to any combination thereof, but not
necessarily to all three. In essence,
three theories of “knowingly” exist, i.e.,
(1) conduct; (2) circumstances; and (3)
Take Note
result of conduct, to correspond to the
Note that the mens rea for a crimithree conduct elements of a criminal
nal offense may be different for each
offense. Since a crime may consist of
separate element of the same criminal offense.
more than one “conduct element,”
there may be different mens rea
requirements as to the different “conduct elements” that constitute the crime, even if the required culpability is the
same, e.g. “knowingly.”
Because the applicable definition of “knowing” is element specific, a blanket
instruction as to each theory, generally, will invite error. In other words, the court
cannot instruct the jury that it could employ either (1) conduct or (2) circumstances; or (3) result of conduct. To do so would effectively alter the State’s burden
of proving each element of the offense beyond a reasonable doubt. For example,
the offense of second degree murder is a result of conduct offense, that is, the
intent of the legislature is to punish a person for the killing of another. The trial
court may only instruct the jury as to the result of conduct theory of knowingly.
If the court instructed the jury as to “awareness of conduct” or “awareness of
circumstances,” the jury could find a defendant guilty on less proof than that
needed to show that the defendant engaged in conduct with knowledge that his
conduct is reasonably certain to cause the result.
[The appellant] relies upon the decision of the Texas Court of Criminal
Appeals [in] Alvarado which held that the trial court, in instructing the jury, must
limit its charge of the applicable mental state to the “conduct element” or elements
of the offense charged, because to provide a blanket charge as to the applicable
culpability requirement would effectively alter the State’s burden of proof. [While]
we acknowledge that Tennessee is now at the same crossroads previously confronted by the Texas court, we decline to adopt the explicit holding in Alvarado as
this holding may be distinguished under the circumstances of the case sub judice....
We agree with the appellant that
to provide the jury with the option
that the appellant was aware of her
conduct, aware of the circumstances,
or was reasonably aware that her conduct was reasonably certain to cause
the result, is to relieve the State of their
Take Note
The trial court must make sure that
the charge it gives the jury reflects
precisely the requisite mens rea for
each element of the offense.
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Criminal Law A Contemporary Approach
burden of proof. To prove that a defendant is aware of her conduct is one thing;
to prove that the defendant’s conduct is reasonably certain to produce a certain
result is, although subtle, another. The court cannot give the jury the choice of
which definition to apply to the crime charged, rather the statute defining the
crime dictates which definition of “knowingly” is appropriate as to each element.
The appellant asserts that the offense of “aggravated child abuse,”... as charged
in the present case, only contains the element of “result of conduct,” as was determined in Alvarado. We do not agree. Upon analysis of our statutory provision, a
purview into the legislative intent behind the enactment of the offense leads us to
conclude that the offense, as charged in the case presently before this court, contains the elements of (1) awareness of conduct, (2) awareness of circumstances;
and (3) result of conduct.
The trial court provided the jury with the following instruction:
Any person who commits the offense of aggravated child abuse is guilty
of a felony. For you to find the Defendant guilty of this offense, the State
must have proven beyond a reasonable doubt the existence of the following essential elements:
(1) The Defendant acted knowingly; AND
(2) That the Defendant did:
(a) Other than by accidental means, treat a child in such a manner as to inflict injury; OR
(b) Other than by accidental means, neglect a child so as to
adversely affect the child’s health and welfare; AND
(3)(a) The Defendant used a deadly weapon to accomplish the act
of abuse; OR
(b) The act of abuse resulted in serious bodily injury to the child
The requirement of “knowingly” is also satisfied if it is shown that the
Defendant acted intentionally.
A person acts “knowingly” if that person acts with an awareness
either:
Chapter 3 Mens Rea
(1) That his or her conduct is of a particular nature; or
(2) That a particular circumstance exists.
A person acts knowingly with respect to a result of the person’s conduct
when the person is aware that the conduct is reasonably certain to cause
a result.
A reading of this instruction implies that, for a jury to find that the defendant
acted knowingly, the jury must find
that the defendant was (1) aware of her
conduct or aware of the circumstances
Practice Pointer
and (2) aware that the conduct was
No trial is ever perfect. A prosecutor
reasonably certain to cause a certain
need not win every issue on appeal
result as to each material element of
in order to have a trial court conviction affirmed. Where the prosecuthe offense. Although this instruction
tor is able to establish that whatever
is erroneous in that it did not charge
errors that may have existed at trial
the specific mens rea definition appliwere “harmless,” i.e. they did not afcable to each “conduct element,” we
fect the result, they are not grounds
for reversal.
conclude that any such error is harmless.
The prejudice in not providing a “conduct element” specific definition of the
applicable mens rea is the alteration of the State’s burden of proof. The instruction in the present case did not relieve the State’s burden of proof. The jury was
instructed that it must find each element of the offense beyond a reasonable doubt.
The definition of “knowingly” provided by the court supplied a two-prong definition of the term, resulting in an added burden of proof upon the State, for which
the appellant cannot now complain. Although the preferred instruction would be
one that is “conduct element” specific, we conclude that the instruction provided
in the present case did not prejudice the appellant. Accordingly, any such error in
the instruction is harmless.
Because we have determined that the jury instruction constitutes harmless
error, we must determine whether the evidence is sufficient to sustain the conviction. ... It is the appellate court’s duty to affirm the conviction if the evidence
viewed under these standards was sufficient for any rational trier of fact to have
found the essential elements of the offense beyond a reasonable doubt. On appeal,
the State is entitled to the strongest legitimate view of the evidence and all legitimate or reasonable inferences which may be drawn therefrom.
Before a jury can find a defendant guilty of aggravated child abuse as charged
in the present case, the State must prove beyond a reasonable doubt that the
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Criminal Law A Contemporary Approach
defendant “knowingly, other than by accidental means, treats a child under eighteen (18) years of age in such a manner as to inflict injury or neglects such a child
so as to adversely affect the child’s health and welfare ... “ and such abuse results
in serious bodily injury. “Knowing” is applicable to the situations in which the
accused, while not having the actual intent to accomplish a specific wrongful
purpose, is consciously aware of the existence of facts which makes his conduct
unlawful. “Knowing” is ordinarily established by circumstantial evidence rather
than by direct proof. The undisputed proof reveals that the appellant strapped
her two children, Dustin and Devin, into their car seats, secured the windows and
doors, and left her children alone in the car for over nine hours, never returning to
check on them. The children died as a result of systemic hyperthermia triggered by
being locked in the hot vehicle. Obviously, by returning a guilty verdict, the jury
did not accredit the appellant’s theory of the case that the deaths of her children
were an accident. Nor did the jury accredit defense testimony of the appellant’s
psychological problems. We conclude that a rational trier of fact could find that
the appellant knew the ages of her children (circumstances), knowingly strapped
her children in the car (conduct), knowingly neglected them over the next nine
hours (conduct), and was aware that her conduct was reasonably certain to cause
harm or injury to her children (result of conduct). Thus, the facts are sufficient
to support a conviction for aggravated child abuse on each count. This issue is
without merit.
[Finding] no reversible error committed by the trial court, we affirm the
appellant’s convictions and sentences imposed for two counts of aggravated child
abuse.
_______________
Points for Discussion
a. Homicide with a Different Mens Rea: As Charges Change, Results
May Change
Ducker was acquitted on two counts of first-degree murder. Under Tenn.
Code § 39–13–210(1), it is the offense of second-degree murder for an individual
to commit “[a] knowing killing of another.” Similarly, if Ducker had been charged
and convicted by a jury of second-degree murder on the facts set out above, would
the jury verdict have been upheld? What would have happened if the prosecutor
had charged her with manslaughter (which you can assume is defined to require
either “recklessness” or “negligence”). Did she have the requisite mental state for
that crime?
Chapter 3 Mens Rea
b. As Facts Change, Results May Change
Do you think that the result in this case would have been different if Ducker
had in fact returned to her car four or five times in the night (as she claimed) to
check on her children and found that they were asleep and in good health? What
if she had checked only once?
Hypo 3.4: Bad Dad
Ralph was supposed to drive his daughter to day care on his way to
work. Obviously very absent minded, he forgot to drop her off and left
her in the car all day in the parking lot next door to his office. The day
was very hot and the child suffocated to death. Can it be said that Ralph
purposely, knowingly, recklessly or negligently caused her death?
Hypo 3.5: Real or Virtual Porn
Orlando was prosecuted under a state statute that criminalizes possession of images of children other than that person’s own children in
“a state of nudity . . . including a lewd exhibition or a graphic focus on
the genitals.” Orlando claims that he thought that the graphic images
of naked children engaging in sexual activity that were found on his
computer were not images of real children, but rather were images of
virtual children. If a jury believes Orlando’s claim, can he be found
guilty of purposely, knowingly, recklessly, or negligently possessing such
images in violation of this statute? Cf. State v. Videen, 990 N.E. 2d 173
(Ohio Ct. App. 2 Dist. 2013).
_______________
Flores-Figueroa v. United States
556 U.S. 646 (2009).
Justice BREYER delivered the opinion of the Court.
A federal criminal statute forbidding “[a]ggravated identity theft” imposes a
mandatory consecutive 2-year prison term upon individuals convicted of certain
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Criminal Law A Contemporary Approach
other crimes if, during (or in relation to) the commission of those other crimes, the
offender “knowingly transfers, possesses, or uses, without lawful authority, a means
of identification of another person.” The question is whether the statute requires the
Government to show that the defendant knew that the “means of identification”
he or she unlawfully transferred, possessed, or used, in fact, belonged to “another
person.” We conclude that it does.
The statutory provision in question references a set of predicate crimes,
including, for example, theft of government property, fraud, or engaging in various unlawful activities related to passports, visas, and immigration. It then
provides that if any person who comGo Online
mits any of those other crimes (in
The Department of Justice’s Bureau
doing so) “knowingly transfers, posof Justice Statistics has reported that
sesses, or uses, without lawful author8.6 million households, representing
ity, a means of identification of another
7.0% of households in the United
States, had at least one member age
person,” the judge must add two years’
12 or older who experienced one
imprisonment to the offender’s underor more types of identity theft viclying sentence. All parties agree that
timization. Among households in
which at least one member experithe provision applies only where the
enced one or more types of identity
offender knows that he is transferring,
theft, 64.1% experienced the misuse
possessing, or using something. And
or attempted misuse of an existing
credit card account in 2010. For
the Government reluctantly concedes
more information about the scope of
that the offender likely must know that
identity theft, see http://www.bjs.gov/
he is transferring, possessing, or using
index.cfm?ty=pbdetail&iid=2207.
that something without lawful authority. But they do not agree whether the
provision requires that a defendant
also know that the something he has unlawfully transferred is, for example, a real
ID belonging to another person rather than, say, a fake ID (i.e., a group of numbers that does not correspond to any real Social Security number).
Petitioner Ignacio Flores-Figueroa argues that the statute requires that the
Government prove that he knew that the “means of identification” belonged to
someone else, i.e., was “a means of identification of another person.” The Government argues that the statute does not impose this particular knowledge requirement. The Government concedes that the statute uses the word “knowingly,” but
that word, the Government claims, does not modify the statute’s last phrase (“a
means of identification of another person”) or, at the least, it does not modify the
last three words of that phrase (“of another person”).
The facts of this case illustrate the legal problem. Ignacio Flores-Figueroa is
a citizen of Mexico. In 2000, to secure employment, Flores gave his employer
Chapter 3 Mens Rea
a false name, birth date, and Social Security number, along with a counterfeit
alien registration card. The Social Security number and the number on the alien
registration card were not those of a real person. In 2006, Flores presented his
employer with new counterfeit Social Security and alien registration cards; these
cards (unlike Flores’ old alien registration card) used his real name. But this time
the numbers on both cards were in fact numbers assigned to other people.
Flores’ employer reported his request to U.S. Immigration and Customs
Enforcement. Customs discovered that the numbers on Flores’ new documents
belonged to other people. The United States then charged Flores with two predicate crimes, namely, entering the United States without inspection and misusing
immigration documents. And it charged him with aggravated identity theft, the
crime at issue here.
Flores moved for a judgment of acquittal on the “aggravated identity theft”
counts. He claimed that the Government could not prove that he knew that the
numbers on the counterfeit documents were numbers assigned to other people.
The Government replied that it need not prove that knowledge, and the District
Court accepted the Government’s argument. After a bench trial, the court found
Flores guilty of the predicate crimes and aggravated identity theft. The Court of
Appeals upheld the District Court’s determination....
There are strong textual reasons for rejecting the Government’s position. As
a matter of ordinary English grammar, it seems natural to read the statute’s word
“knowingly” as applying to all the subsequently listed elements of the crime. The
Government cannot easily claim that the word “knowingly” applies only to the
statute’s first four words, or even its first seven. It makes little sense to read the
provision’s language as heavily penalizing a person who “transfers, possesses, or
uses, without lawful authority” a something, but does not know, at the very least,
that the “something” (perhaps inside a box) is a “means of identification.” Would
we apply a statute that makes it unlawful “knowingly to possess drugs” to a person
who steals a passenger’s bag without knowing that the bag has drugs inside?
The Government claims more forcefully that the word “knowingly” applies
to all but the statute’s last three words, i.e., “of another person.” The statute,
the Government says, does not require a prosecutor to show that the defendant
knows that the means of identification the defendant has unlawfully used in fact
belongs to another person. But how are we to square this reading with the statute’s
language?
In ordinary English, where a transitive verb has an object, listeners in most
contexts assume that an adverb (such as knowingly) that modifies the transitive
verb tells the listener how the subject performed the entire action, including the
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Criminal Law A Contemporary Approach
object as set forth in the sentence. Thus, if a bank official says, “Smith knowingly
transferred the funds to his brother’s account,” we would normally understand
the bank official’s statement as telling us that Smith knew the account was his
brother’s. Nor would it matter if the bank official said “Smith knowingly transferred the funds to the account of his brother.” In either instance, if the bank
official later told us that Smith did not know the account belonged to Smith’s
brother, we should be surprised.
Of course, a statement that does not use the word “knowingly” may be
unclear about just what Smith knows. Suppose Smith mails his bank draft to
Tegucigalpa, which (perhaps unbeknownst to Smith) is the capital of Honduras. If
the bank official says, “Smith sent a bank draft to the capital of Honduras,” he has
expressed next to nothing about Smith’s knowledge of that geographic identity.
But if the official were to say, “Smith knowingly sent a bank draft to the capital of
Honduras,” then the official has suggested that Smith knows his geography.
Similar examples abound. If a child knowingly takes a toy that belongs to his
sibling, we assume that the child not only knows that he is taking something, but
that he also knows that what he is taking is a toy and that the toy belongs to his
sibling. If we say that someone knowingly ate a sandwich with cheese, we normally assume that the person knew both that he was eating a sandwich and that it
contained cheese. Or consider the Government’s own example, “‘John knowingly
discarded the homework of his sister.’” The Government rightly points out that
this sentence “does not necessarily” imply that John knew whom the homework
belonged to. But that is what the sentence, as ordinarily used, does imply.
At the same time, dissimilar examples are not easy to find. The Government
says that “knowingly” modifies only the verbs in the statute, while remaining
indifferent to the subject’s knowledge of at least part of the transitive verb’s object.
In certain contexts, a listener might understand the word “knowingly” to be used
in that way. But the Government has not provided us with a single example of
a sentence that, when used in typical fashion, would lead the hearer to believe
that the word “knowingly” modifies only a transitive verb without the full object,
i.e., that it leaves the hearer gravely uncertain about the subject’s state of mind in
respect to the full object of the transitive verb in the sentence. The likely reason
is that such sentences typically involve special contexts or themselves provide a
more detailed explanation of background circumstances that call for such a reading. As Justice Alito notes, the inquiry into a sentence’s meaning is a contextual
one. No special context is present here.
The manner in which the courts ordinarily interpret criminal statutes is fully
consistent with this ordinary English usage. That is to say courts ordinarily read a
phrase in a criminal statute that introduces the elements of a crime with the word
“knowingly” as applying that word to each element.
Chapter 3 Mens Rea
[The] Government also considers the statute’s purpose to be a circumstance
showing that the linguistic context here is special. It describes that purpose as
“provid[ing] enhanced protection for individuals whose identifying information
is used to facilitate the commission of crimes.” And it points out that without the
knowledge requirement, potential offenders will take great care to avoid wrongly
using IDs that belong to others, thereby enhancing the protection that the statute
offers.
The question, however, is whether Congress intended to achieve this
enhanced protection by permitting conviction of those who do not know the ID
they unlawfully use refers to a real person, i.e., those who do not intend to cause
this further harm. And, in respect to this latter point, the statute’s history (outside
of the statute’s language) is inconclusive.
[Finally,] and perhaps of greatest practical importance, there is the difficulty
in many circumstances of proving beyond a reasonable doubt that a defendant
has the necessary knowledge. Take an instance in which an alien who unlawfully
entered the United States gives an employer identification documents that in fact
belong to others. How is the Government to prove that the defendant knew that
this was so? The Government may be able to show that such a defendant knew the
papers were not his. But perhaps the defendant did not care whether the papers
(1) were real papers belonging to another person or (2) were simply counterfeit
papers. The difficulties of proof along with the defendant’s necessary guilt of a
predicate crime and the defendant’s necessary knowledge that he has acted “without lawful authority,” make it reasonable, in the Government’s view, to read the
statute’s language as dispensing with the knowledge requirement.
We do not find this argument sufficient, however, to turn the tide in the
Government’s favor. For one thing, in the classic case of identity theft, intent is
generally not difficult to prove. For example, where a defendant has used another
person’s identification information to get access to that person’s bank account, the
Government can prove knowledge with little difficulty. The same is true when the
defendant has gone through someone else’s trash to find discarded credit card and
bank statements, or pretends to be from the victim’s bank and requests personal
identifying information. Indeed, the examples of identity theft in the legislative
history (dumpster diving, computer hacking, and the like) are all examples of the
types of classic identity theft where intent should be relatively easy to prove, and
there will be no practical enforcement problem. For another thing, to the extent
that Congress may have been concerned about criminalizing the conduct of a
broader class of individuals, the concerns about practical enforceability are insufficient to outweigh the clarity of the text. [But] had Congress placed conclusive
weight upon practical enforcement, the statute would likely not read the way it
now reads. Instead, Congress used the word “knowingly” followed by a list of
offense elements. And we cannot find indications in statements of its purpose
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Criminal Law A Contemporary Approach
or in the practical problems of enforcement sufficient to overcome the ordinary
meaning, in English or through ordinary interpretive practice, of the words that
it wrote.
We conclude that [the aggravated identity theft statute] requires the Government to show that the defendant knew that the means of identification at issue
belonged to another person....
Justice SCALIA, with whom Justice THOMAS joins, concurring in part and
concurring in the judgment.
I agree with the Court that to convict petitioner for “knowingly transfer[ring],
possess[ing], or us[ing], without lawful authority, a means of identification of
another person,”the Government must prove that he “knew that the ‘means of
identification’ he ... unlawfully transferred, possessed, or used, in fact, belonged
to ‘another person.’” “Knowingly” is not limited to the statute’s verbs. Even the
Government must concede that. But once it is understood to modify the object of
those verbs, there is no reason to believe it does not extend to the phrase which
limits that object (“of another person”). Ordinary English usage supports this
reading, as the Court’s numerous sample sentences amply demonstrate.
But the Court is not content to stop at the statute’s text, and I do not join that
further portion of the Court’s opinion. [The] statute’s text is clear, and I would
reverse the judgment of the Court of Appeals on that ground alone.
Justice ALITO, concurring in part and concurring in the judgment.
[I] think that the Court’s point about ordinary English usage is overstated.
Examples of sentences that do not conform to the Court’s rule are not hard to
imagine. For example: “The mugger knowingly assaulted two people in the parkan employee of company X and a jogger from town Y.” A person hearing this
sentence would not likely assume that the mugger knew about the first victim’s
employer or the second victim’s home town. What matters in this example, and
the Court’s, is context. [In] interpreting a criminal statute such as the one before
us, I think it is fair to begin with a general presumption that the specified mens
rea applies to all the elements of an offense, but it must be recognized that there
are instances in which context may well rebut that presumption.
[Indeed,] the Government’s interpretation leads to exceedingly odd results.
Under that interpretation, if a defendant uses a made-up Social Security number without having any reason to know whether it belongs to a real person, the
defendant’s liability under [this statute] depends on chance: If it turns out that
the number belongs to a real person, two years will be added to the defendant’s
sentence, but if the defendant is lucky and the number does not belong to another
person, the statute is not violated.
Chapter 3 Mens Rea
I therefore concur in the judgment and join the opinion of the Court except
insofar as it may be read to adopt an inflexible rule of construction that can rarely
be overcome by contextual features pointing to a contrary reading.
_______________
Point for Discussion
Congress Gets the Last Word
If Congress disagree’s with the Flores-Figueroa majority’s holding, it is not
difficult for that body to effectively “reverse” that ruling. All Congress would need
to do is to enact an amendment to the federal aggravated identity theft statute that
would make it absolutely, expressly clear that someone may be convicted under
it who did not know that the “means of identification” he or she “transfer[red],
possesse[d], or use[d]” actually belonged to “another person.” Is that what Congress should do in your opinion?
Parenthetically, that’s not what Congress has done. As of 2013, this statute,
18 U.S.C.A. § 1028A, has not been amended in any way.
_______________
B. Strict Liability
Staples v. United States
511 U.S. 600 (1994).
Justice Thomas delivered the opinion of the Court.
[The] National Firearms Act (Act), 26 U.S.C. §§ 5801–5872, imposes strict
registration requirements on statutorily defined “firearms.” The Act includes
within the term “firearm” a machine gun, and further defines a machine gun as
“any weapon which shoots, [or] can be readily restored to shoot, automatically
more than one shot, without manual reloading, by a single function of the trigger,”
§ 5845(b). Thus, any fully automatic weapon is a “firearm” within the meaning
of the Act. Under the Act, all firearms must be registered in the National Firearms
Registration and Transfer Record maintained by the Secretary of the Treasury. Section 5861(d) makes it a crime, punishable by up to 10 years in prison for any
person to possess a firearm that is not properly registered.
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Criminal Law A Contemporary Approach
Upon executing a search warrant at petitioner’s home, local police and agents
of the Bureau of Alcohol, Tobacco and Firearms (BATF) recovered, among other
things, an AR–15 rifle. The AR–15 is the civilian version of the military’s M–16
rifle, and is, unless modified, a semiautomatic weapon. The M–16, in contrast, is
a selective fire rifle that allows the operator, by rotating a selector switch, to choose
semiautomatic or automatic fire. Many M–16 parts are interchangeable with those
in the AR–15 and can be used to convert the AR–15 into an automatic weapon.
No doubt to inhibit such conversions, the AR–15 is manufactured with a metal
stop on its receiver that will prevent an
M–16 selector switch, if installed, from
rotating to the fully automatic posiSee It
tion. The metal stop on petitioner’s
Wonder what these rifles look like?
rifle, however, had been filed away,
See, e.g. pictures at http://www.
and the rifle had been assembled with
dsarms.com/AR15-M16%20Rifles/
an M–16 selector switch and several
products/10/ or watch a video at
other M–16 internal parts, including a
http://www.youtube.com/watch?
v=790ddS4egeY.
hammer, disconnector, and trigger.
Suspecting that the AR–15 had been
modified to be capable of fully automatic fire, BATF agents seized the weapon. Petitioner subsequently was indicted
for unlawful possession of an unregistered machine gun in violation of § 5861(d).
At trial, BATF agents testified that when the AR–15 was tested, it fired more
than one shot with a single pull of the trigger. It was undisputed that the weapon
was not registered as required by § 5861(d). Petitioner testified that the rifle had
never fired automatically when it was in his possession. He insisted that the AR–15
had operated only semiautomatically, and even then imperfectly, often requiring
manual ejection of the spent casing and chambering of the next round. According to petitioner, his alleged ignorance of any automatic firing capability should
have shielded him from criminal liability for his failure to register the weapon.
He requested the District Court to instruct the jury that, to establish a violation
of § 5861(d), the Government must prove beyond a reasonable doubt that the
defendant “knew that the gun would fire fully automatically.”
The District Court rejected petitioner’s proposed instruction and instead
charged the jury as follows: “The Government need not prove the defendant
knows he’s dealing with a weapon possessing every last characteristic [which
subjects it] to the regulation. It would be enough to prove he knows that he is
dealing with a dangerous device of a type as would alert one to the likelihood of
regulation.”
Petitioner was convicted and sentenced to five years’ probation and a $5,000
fine. The Court of Appeals affirmed. [T]he court concluded that the Government
need not prove a defendant’s knowledge of a weapon’s physical properties to
Chapter 3 Mens Rea
obtain a conviction under § 5861(d). We granted certiorari to resolve a conflict in
the Courts of Appeals concerning the mens rea required under § 5861(d).
Whether or not § 5861(d) requires proof that a defendant knew of the characteristics of his weapon that made it a “firearm” under the Act is a question of
statutory construction. As we observed in Liparota v. United States, 471 U.S. 419
(1985), “[t]he definition of the elements of a criminal offense is entrusted to the
legislature, particularly in the case of federal crimes, which are solely creatures of
statute.” Thus, we have long recognized that determining the mental state required
for commission of a federal crime requires “construction of the statute and ...
inference of the intent of Congress.” United States v. Balint, 258 U.S. 250, 253
(1922).
The language of the statute, the
starting place in our inquiry, provides
Take Note
little explicit guidance in this case.
This
is
an
important point. All of
Section 5861(d) is silent concerning
the justices agree that the fact that a
the mens rea required for a violation.
criminal statute does not contain an
It states simply that “[i]t shall be
explicit mens rea element does not
necessarily mean that it is strict liunlawful for any person ... to receive
ability. Keep reading!
or possess a firearm which is not registered to him in the National Firearms
Registration and Transfer Record.” 26
U.S.C. § 5861(d). Nevertheless, silence on this point by itself does not necessarily
suggest that Congress intended to dispense with a conventional mens rea element,
which would require that the defendant know the facts that make his conduct
illegal. On the contrary, we must construe the statute in light of the background
rules of the common law, in which the requirement of some mens rea for a crime
is firmly embedded. As we have observed, “[t]he existence of a mens rea is the
rule of, rather than the exception to, the principles of Anglo–American criminal
jurisprudence.”
There can be no doubt that this established concept has influenced our interpretation of criminal statutes. Indeed, we have noted that the common-law rule
requiring mens rea has been “followed in regard to statutory crimes even where
the statutory definition did not in terms include it.” Relying on the strength of the
traditional rule, we have stated that offenses that require no mens rea generally
are disfavored, and have suggested that some indication of congressional intent,
express or implied, is required to dispense with mens rea as an element of a crime.
Morissette v. United States, 342 U.S. 246, 250 (1952).
According to the Government, [the] nature and purpose of the Act suggest
that the presumption favoring mens rea does not apply to this case. The Government argues that Congress intended the Act to regulate and restrict the circulation
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of dangerous weapons. Consequently, in the Government’s view, this case fits in a
line of precedent concerning what we have termed “public welfare” or “regulatory”
offenses, in which we have understood Congress to impose a form of strict criminal
liability through statutes that do not require the defendant to know the facts that
make his conduct illegal. In construing such statutes, we have inferred from silence
that Congress did not intend to require proof of mens rea to establish an offense.
For example, in Balint, we concluded that the Narcotic Act of 1914, which
was intended in part to minimize the spread of addictive drugs by criminalizing
undocumented sales of certain narcotics, required proof only that the defendant
knew that he was selling drugs, not that he knew the specific items he had sold
were “narcotics” within the ambit of the statute. Cf. United States v. Dotterweich,
320 U.S. 277, 281 (1943) (stating in dicta that a statute criminalizing the shipment of adulterated or misbranded drugs did not require knowledge that the
items were misbranded or adulterated). As we explained in Dotterweich, Balint
dealt with “a now familiar type of legislation whereby penalties serve as effective
means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct—awareness of some wrongdoing.”
Such public welfare offenses have been created by Congress, and recognized
by this Court, in “limited circumstances.” Typically, our cases recognizing such
offenses involve statutes that regulate potentially harmful or injurious items. In
such situations, we have reasoned that as long as a defendant knows that he is
dealing with a dangerous device of a character that places him “in responsible
relation to a public danger,” he should be alerted to the probability of strict regulation, and we have assumed that in such cases Congress intended to place the burden on the defendant to “ascertain at his peril whether [his conduct] comes within
the inhibition of the statute.” Thus, we essentially have relied on the nature of the
statute and the particular character of the items regulated to determine whether
congressional silence concerning the mental element of the offense should be
interpreted as dispensing with conventional mens rea requirements.3
3 By interpreting such public welfare offenses to require at least that the defendant know that he is
dealing with some dangerous or deleterious substance, we have avoided construing criminal statutes
to impose a rigorous form of strict liability. See, e.g., United States v. International Minerals & Chemical
Corp., 402 U.S. 558, 563–564 (1971) (suggesting that if a person shipping acid mistakenly thought
that he was shipping distilled water, he would not violate a statute criminalizing undocumented shipping of acids). True strict liability might suggest that the defendant need not know even that he was
dealing with a dangerous item. Nevertheless, we have referred to public welfare offenses as “dispensing
with” or “eliminating” a mens rea requirement or “mental element,” and have described them as strict
liability crimes. While use of the term “strict liability” is really a misnomer, we have interpreted statutes
defining public welfare offenses to eliminate the requirement of mens rea; that is, the requirement of a
“guilty mind” with respect to an element of a crime. Under such statutes we have not required that the
defendant know the facts that make his conduct fit the definition of the offense. Generally speaking,
such knowledge is necessary to establish mens rea, as is reflected in the maxim ignorantia facti excusat.
Cf. Queen v. Tolson, 23 Q.B. 168, 187 (1889) (Stephen, J.) (“[I]t may, I think, be maintained that in
every case knowledge of fact [when not appearing in the statute] is to some extent an element of
criminality as much as competent age and sanity”).
Chapter 3 Mens Rea
The Government argues that § 5861(d) defines precisely the sort of regulatory offense described in Balint. In this view, all guns, whether or not they are
statutory “firearms,” are dangerous devices that put gun owners on notice that
they must determine at their hazard whether their weapons come within the
scope of the Act. On this understanding, the District Court’s instruction in this
case was correct, because a conviction can rest simply on proof that a defendant
knew he possessed a “firearm” in the ordinary sense of the term.
The Government seeks support for its position from our decision in United
States v. Freed, 401 U.S. 601 (1971), which involved a prosecution for possession of unregistered grenades under § 5861(d). The defendant knew that the
items in his possession were grenades, and we concluded that § 5861(d) did not
require the Government to prove the defendant also knew that the grenades were
unregistered. To be sure, in deciding that mens rea was not required with respect
to that element of the offense, we suggested that the Act “is a regulatory measure
in the interest of the public safety, which may well be premised on the theory that
one would hardly be surprised to learn that possession of hand grenades is not an
innocent act.” Grenades, we explained, “are highly dangerous offensive weapons,
no less dangerous than the narcotics involved in United States v. Balint.” But that
reasoning provides little support for dispensing with mens rea in this case.
As the Government concedes, Freed did not address the issue presented here.
In Freed, we decided only that § 5861(d) does not require proof of knowledge that
a firearm is unregistered. The question presented by a defendant who possesses
a weapon that is a “firearm” for purposes of the Act, but who knows only that
he has a “firearm” in the general sense of the term, was not raised or considered. And our determination that a defendant need not know that his weapon is
unregistered suggests no conclusion concerning whether § 5861(d) requires the
defendant to know of the features that make his weapon a statutory “firearm”;
different elements of the same offense can require different mental states. Moreover, our analysis in Freed likening the Act to the public welfare statute in Balint
rested entirely on the assumption that the defendant knew that he was dealing
with hand grenades—that is, that he knew he possessed a particularly dangerous
type of weapon (one within the statutory definition of a “firearm”), possession of
which was not entirely “innocent” in and of itself. The predicate for that analysis
is eliminated when, as in this case, the very question to be decided is whether the
defendant must know of the particular characteristics that make his weapon a
statutory firearm.
Notwithstanding these distinctions, the Government urges that Freed’s logic
applies because guns, no less than grenades, are highly dangerous devices that
should alert their owners to the probability of regulation. But the gap between
Freed and this case is too wide to bridge. In glossing over the distinction between
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grenades and guns, the Government ignores the particular care we have taken to
avoid construing a statute to dispense with mens rea where doing so would “criminalize a broad range of apparently innocent conduct.” In Liparota, we considered
a statute that made unlawful the unauthorized acquisition or possession of food
stamps. We determined that the statute required proof that the defendant knew
his possession of food stamps was unauthorized, largely because dispensing with
such a mens rea requirement would have resulted in reading the statute to outlaw
a number of apparently innocent acts. Our conclusion that the statute should not
be treated as defining a public welfare offense rested on the commonsense distinction that a “food stamp can hardly be compared to a hand grenade.”
Neither, in our view, can all guns be compared to hand grenades. Although
the contrast is certainly not as stark as that presented in Liparota, the fact remains
that there is a long tradition of widespread lawful gun ownership by private individuals in this country. Such a tradition did not apply to the possession of hand
grenades in Freed or to the selling of dangerous drugs that we considered in Balint.
In fact, in Freed we construed § 5861(d) under the assumption that “one would
hardly be surprised to learn that possession of hand grenades is not an innocent
act.” Here, the Government essentially suggests that we should interpret the section under the altogether different
assumption that “one would hardly be
surprised to learn that owning a gun is
Food for Thought
not an innocent act.” That proposition
Do you agree? Do you believe that
is simply not supported by common
“guns in general are not ‘deleteriexperience. Guns in general are not
ous devices or products or obnoxious waste materials,’ that put their
“deleterious devices or products or
owners on notice that they stand ‘in
obnoxious waste materials,” that put
responsible relation to a public dantheir owners on notice that they stand
ger’”? What would the significance
“in responsible relation to a public
have been if a majority of the justices
in Staples had not believed that?
danger.”
The Government protests that
guns, unlike food stamps, but like grenades and narcotics, are potentially harmful devices. Under this view, it seems that Liparota’s concern for criminalizing
ostensibly innocuous conduct is inapplicable whenever an item is sufficiently
dangerous—that is, dangerousness alone should alert an individual to probable
regulation and justify treating a statute that regulates the dangerous device as
dispensing with mens rea. But that an item is “dangerous,” in some general sense,
does not necessarily suggest, as the Government seems to assume, that it is not
also entirely innocent. Even dangerous items can, in some cases, be so commonplace and generally available that we would not consider them to alert individuals
to the likelihood of strict regulation. As suggested above, despite their potential
for harm, guns generally can be owned in perfect innocence....
Chapter 3 Mens Rea
On a slightly different tack, the Government suggests that guns are subject
to an array of regulations at the federal, state, and local levels that put gun owners on notice that they must determine the characteristics of their weapons and
comply with all legal requirements. But regulation in itself is not sufficient to place
gun ownership in the category of the sale of narcotics in Balint. The food stamps
at issue in Liparota were subject to comprehensive regulations, yet we did not
understand the statute there to dispense with a mens rea requirement. Moreover,
despite the overlay of legal restrictions on gun ownership, we question whether
regulations on guns are sufficiently intrusive that they impinge upon the common
experience that owning a gun is usually licit and blameless conduct. Roughly 50
percent of American homes contain at least one firearm of some sort, and in the
vast majority of States, buying a shotgun or rifle is a simple transaction that would
not alert a person to regulation any more than would buying a car.
If we were to accept as a general rule the Government’s suggestion that dangerous and regulated items place their owners under an obligation to inquire at
their peril into compliance with regulations, we would undoubtedly reach some
untoward results. Automobiles, for example, might also be termed “dangerous”
devices and are highly regulated at both the state and federal levels. Congress
might see fit to criminalize the violation of certain regulations concerning automobiles, and thus might make it a crime to operate a vehicle without a properly
functioning emission control system. But we probably would hesitate to conclude
on the basis of silence that Congress intended a prison term to apply to a car
owner whose vehicle’s emissions levels, wholly unbeknownst to him, began to
exceed legal limits between regular inspection dates.
Here, there can be little doubt that, as in Liparota, the Government’s construction of the statute potentially would impose criminal sanctions on a class of
persons whose mental state—ignorance of the characteristics of weapons in their
possession—makes their actions entirely innocent. The Government does not dispute the contention that virtually any semiautomatic weapon may be converted,
either by internal modification or, in some cases, simply by wear and tear, into
a machinegun within the meaning of the Act. But in the Government’s view, any
person who has purchased what he believes to be a semiautomatic rifle or handgun, or who simply has inherited a gun from a relative and left it untouched in an
attic or basement, can be subject to imprisonment, despite absolute ignorance of
the gun’s firing capabilities, if the gun turns out to be an automatic.
We concur in the Fifth Circuit’s conclusion on this point: “It is unthinkable
to us that Congress intended to subject such law-abiding, well-intentioned citizens to a possible ten-year term of imprisonment if ... what they genuinely and
reasonably believed was a conventional semi-automatic [weapon] turns out to
have worn down into or been secretly modified to be a fully automatic weapon.”
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As we noted in Morissette, the “purpose and obvious effect of doing away with the
requirement of a guilty intent is to ease the prosecution’s path to conviction.”11 We
are reluctant to impute that purpose to Congress where, as here, it would mean
easing the path to convicting persons whose conduct would not even alert them
to the probability of strict regulation in the form of a statute such as § 5861(d).
The potentially harsh penalty attached to violation of § 5861(d)—up to 10
years’ imprisonment—confirms our reading of the Act. Historically, the penalty imposed under a statute has been a significant consideration in determining
whether the statute should be construed as dispensing with mens rea. Certainly, the
cases that first defined the concept of the public welfare offense almost uniformly
involved statutes that provided for only light penalties such as fines or short jail
sentences, not imprisonment in the state penitentiary. See, e.g., Commonwealth
v. Raymond, 97 Mass. 567 (1867) (fine of up to $200 or six months in jail, or
both).... In rehearsing the characteristics of the public welfare offense, we, too,
have included in our consideration the punishments imposed and have noted that
“penalties commonly are relatively small, and conviction does no grave damage to
an offender’s reputation.”...
Our characterization of the public welfare offense in Morissette hardly seems
apt, however, for a crime that is a felony, as is violation of § 5861(d). After all,
“felony” is, as we noted in distinguishing certain common-law crimes from public
welfare offenses, “ ‘as bad a word as you can give to man or thing.’ “ Close adherence to the early cases described above
might suggest that punishing a violation as a felony is simply incompatible
Food for Thought
with the theory of the public welfare
Do you agree with the view that –
offense. In this view, absent a clear
absent a clear statement from the
legislature – any felony offense
statement from Congress that mens rea
should be presumed to possess a
is not required, we should not apply
mens rea element? What would be
the public welfare offense rationale to
the significance of such a rule, for
interpret any statute defining a felony
example, for sex offenses?
offense as dispensing with mens rea.
11 The Government contends that Congress intended precisely such an aid to obtaining convictions,
because requiring proof of knowledge would place too heavy a burden on the Government and
obstruct the proper functioning of § 5861(d). But knowledge can be inferred from circumstantial
evidence, including any external indications signaling the nature of the weapon. And firing a fully
automatic weapon would make the regulated characteristics of the weapon immediately apparent to its
owner. In short, we are confident that when the defendant knows of the characteristics of his weapon
that bring it within the scope of the Act, the Government will not face great difficulty in proving that
knowledge. Of course, if Congress thinks it necessary to reduce the Government’s burden at trial to
ensure proper enforcement of the Act, it remains free to amend § 5861(d) by explicitly eliminating a
mens rea requirement.
Chapter 3 Mens Rea
We need not adopt such a definitive rule of construction to decide this case,
however. Instead, we note only that where, as here, dispensing with mens rea
would require the defendant to have knowledge only of traditionally lawful conduct, a severe penalty is a further factor tending to suggest that Congress did not
intend to eliminate a mens rea requirement. In such a case, the usual presumption
that a defendant must know the facts that make his conduct illegal should apply.
In short, we conclude that the background rule of the common law favoring
mens rea should govern interpretation of § 5861(d) in this case. Silence does
not suggest that Congress dispensed with mens rea for the element of § 5861(d)
at issue here. Thus, to obtain a conviction, the Government should have been
required to prove that petitioner knew of the features of his AR–15 that brought
it within the scope of the Act.
We emphasize that our holding is a narrow one. As in our prior cases, our
reasoning depends upon a commonsense evaluation of the nature of the particular
device or substance Congress has subjected to regulation and the expectations
that individuals may legitimately have in dealing with the regulated items. In
addition, we think that the penalty attached to § 5861(d) suggests that Congress
did not intend to eliminate a mens rea requirement for violation of the section.
As we noted in Morissette: “Neither this Court nor, so far as we are aware, any
other has undertaken to delineate a precise line or set forth comprehensive criteria
for distinguishing between crimes that require a mental element and crimes that
do not.” We attempt no definition here, either. We note only that our holding
depends critically on our view that if Congress had intended to make outlaws of
gun owners who were wholly ignorant of the offending characteristics of their
weapons, and to subject them to lengthy prison terms, it would have spoken more
clearly to that effect.
[Reversed.]
Justice Ginsburg, with whom Justice O’Connor joins, concurring in the judgment.
[Conviction] under § 5861(d), the Government ... concedes, requires proof
that Staples “knowingly” possessed the machine gun. The question before us is not
whether knowledge of possession is required, but what level of knowledge suffices:
(1) knowledge simply of possession of the object; (2) knowledge, in addition, that
the object is a dangerous weapon; (3) knowledge, beyond dangerousness, of the
characteristics that render the object subject to regulation, for example, awareness
that the weapon is a machine gun.
Recognizing that the first reading effectively dispenses with mens rea, the
Government adopts the second, contending that it avoids criminalizing “apparently innocent conduct,” because under the second reading, “a defendant who
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possessed what he thought was a toy or a violin case, but which in fact was a
machinegun, could not be convicted.” The Government, however, does not take
adequate account of the “widespread lawful gun ownership” Congress and the
States have allowed to persist in this country. Given the notable lack of comprehensive regulation, “mere unregistered possession of certain types of [regulated
weapons]—often [difficult to distinguish] from other, [non-regulated] types,” has
been held inadequate to establish the requisite knowledge.
The Nation’s legislators chose to place under a registration requirement only
a very limited class of firearms, those they considered especially dangerous. The
generally “dangerous” character of all guns, the Court therefore observes did not
suffice to give individuals in Staples’ situation cause to inquire about the need
for registration. Only the third reading, then, suits the purpose of the mens rea
requirement—to shield people against punishment for apparently innocent activity.
[I] conclude that conviction under § 5861(d) requires proof that the defendant knew he possessed not simply a gun, but a machinegun. The indictment in
this case, but not the jury instruction, properly described this knowledge requirement. I therefore concur in the Court’s judgment.
Justice Stevens, with whom Justice Blackmun joins, dissenting.
To avoid a slight possibility of injustice to unsophisticated owners of machine
guns and sawed-off shotguns, the Court has substituted its views of sound policy
for the judgment Congress made when it enacted the National Firearms Act (or
Act). Because the Court’s addition to the text of 26 U.S.C. § 5861(d) is foreclosed
by both the statute and our precedent, I respectfully dissent.
The Court is preoccupied with guns that “generally can be owned in perfect
innocence.” This case, however, involves a semiautomatic weapon that was readily
convertible into a machine gun—a weapon that the jury found to be “ ‘a dangerous device of a type as would alert one to the likelihood of regulation.’ “ These
are not guns “of some sort” that can be found in almost “50 percent of American
homes.” They are particularly dangerous—indeed, a substantial percentage of
the unregistered machineguns now in circulation are converted semiautomatic
weapons.
The question presented is whether the National Firearms Act imposed on the
Government the burden of proving beyond a reasonable doubt not only that the
defendant knew he possessed a dangerous device sufficient to alert him to regulation, but also that he knew it had all the characteristics of a “firearm” as defined in
the statute. Three unambiguous guideposts direct us to the correct answer to that
question: the text and structure of the Act, our cases construing both this Act and
similar regulatory legislation, and the Act’s history and interpretation.
Chapter 3 Mens Rea
Contrary to the assertion by the Court, the text of the statute does provide
“explicit guidance in this case.” The relevant section of the Act makes it “unlawful
for any person ... to receive or possess a firearm which is not registered to him in
the National Firearms Registration and Transfer Record.” Significantly, the section
contains no knowledge requirement, nor does it describe a common-law crime.
The common law generally did not condemn acts as criminal unless the
actor had “an evil purpose or mental culpability,” and was aware of all the facts
that made the conduct unlawful. In interpreting statutes that codified traditional
common-law offenses, courts usually followed this rule, even when the text of
the statute contained no such requirement. Because the offense involved in this
case is entirely a creature of statute, however, “the background rules of the common law,” do not require a particular construction, and critically different rules of
construction apply.
In Morissette, Justice Jackson outlined one such interpretive rule: “Congressional silence as to mental elements in an Act merely adopting into federal statutory law a concept of crime already ... well defined in common law and statutory
interpretation by the states may warrant quite contrary inferences than the same
silence in creating an offense new to general law, for whose definition the courts
have no guidance except the Act.”
Although the lack of an express knowledge requirement in § 5861(d) is not
dispositive, its absence suggests that Congress did not intend to require proof that
the defendant knew all of the facts that made his conduct illegal.
The provision’s place in the overall statutory scheme confirms this intention.
In 1934, when Congress originally enacted the statute, it limited the coverage of
the 1934 Act to a relatively narrow category of weapons such as submachineguns
and sawed-off shotguns—weapons characteristically used only by professional
gangsters like Al Capone, Pretty Boy Floyd, and their henchmen. At the time,
the Act would have had little application to guns used by hunters or guns kept at
home as protection against unwelcome intruders. Congress therefore could reasonably presume that a person found in possession of an unregistered machinegun or sawed-off shotgun intended to use it for criminal purposes. The statute as
a whole, and particularly the decision to criminalize mere possession, reflected a
legislative judgment that the likelihood of innocent possession of such an unregistered weapon was remote, and far less significant than the interest in depriving
gangsters of their use. ...
“Public welfare” offenses share certain characteristics: (1) they regulate “dangerous or deleterious devices or products or obnoxious waste materials,” (2) they
“heighten the duties of those in control of particular industries, trades, properties
or activities that affect public health, safety or welfare,” and (3) they “depend on
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no mental element but consist only of forbidden acts or omissions.” Examples of
such offenses include Congress’ exertion of its power to keep dangerous narcotics,
hazardous substances, and impure and adulterated foods and drugs out of the
channels of commerce.
Public welfare statutes render criminal “a type of conduct that a reasonable
person should know is subject to stringent public regulation and may seriously
threaten the community’s health or safety.” Thus, under such statutes, “a defendant
can be convicted even though he was unaware of the circumstances of his conduct
that made it illegal.” Referring to the strict criminal sanctions for unintended violations of the food and drug laws, Justice Frankfurter wrote:
“The purposes of this legislation thus touch phases of the lives and health
of people which, in the circumstances of modern industrialism, are
largely beyond self-protection. Regard for these purposes should infuse
construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words.
The prosecution ... is based on a now familiar type of legislation whereby
penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct—awareness
of some wrongdoing. In the interest of the larger good it puts the burden
of acting at hazard upon a person otherwise innocent but standing in
responsible relation to a public danger.” United States v. Dotterweich, 320
U.S. 277, 280–281 (1943).
The National Firearms Act unquestionably is a public welfare statute. Congress fashioned a legislative scheme to regulate the commerce and possession of
certain types of dangerous devices, including specific kinds of weapons, to protect
the health and welfare of the citizenry. [We have] read a knowledge requirement
into public welfare crimes, but not a requirement that the defendant know all
the facts that make his conduct illegal. Although the Court acknowledges this
standard, it nevertheless concludes that a gun is not the type of dangerous device
that would alert one to the possibility of regulation.
Both the Court and Justice GINSBURG erroneously rely upon the “tradition[al]”
innocence of gun ownership to find that Congress must have intended the Government to prove knowledge of all the characteristics that make a weapon a
statutory “firear[m].” We held in Freed, however, that a § 5861(d) offense may be
committed by one with no awareness of either wrongdoing or of all the facts that
constitute the offense. Nevertheless, the Court, asserting that the Government
“gloss[es] over the distinction between grenades and guns,” determines that “the
gap between Freed and this case is too wide to bridge.” As such, the Court instead
reaches the rather surprising conclusion that guns are more analogous to food
stamps than to hand grenades. Even if one accepts that dubious proposition, the
Chapter 3 Mens Rea
Court founds it upon a faulty premise: its mischaracterization of the Government’s
submission as one contending that “all guns ... are dangerous devices that put gun
owners on notice....” Accurately identified, the Government’s position presents
the question whether guns such as the one possessed by petitioner “ ‘are highly
dangerous offensive weapons, no less dangerous than the narcotics’ “ in Balint or
the hand grenades in Freed.
Thus, even assuming that the Court is correct that the mere possession of an
ordinary rifle or pistol does not entail sufficient danger to alert one to the possibility of regulation, that conclusion does not resolve this case. Petitioner knowingly
possessed a semiautomatic weapon that was readily convertible into a machinegun.
The “ ‘character and nature’ “ of such a weapon is sufficiently hazardous to place
the possessor on notice of the possibility of regulation. No significant difference
exists between imposing upon the possessor a duty to determine whether such a
weapon is registered, and imposing a duty to determine whether that weapon has
been converted into a machinegun....
The enforcement of public welfare offenses always entails some possibility of
injustice. Congress nevertheless has repeatedly decided that an overriding public
interest in health or safety may outweigh that risk when a person is dealing with
products that are sufficiently dangerous or deleterious to make it reasonable to
presume that he either knows, or should know, whether those products conform
to special regulatory requirements. The dangerous character of the product is reasonably presumed to provide sufficient notice of the probability of regulation to
justify strict enforcement against those who are merely guilty of negligent, rather
than willful, misconduct....
This case presents no dispute about the dangerous character of machine guns
and sawed-off shotguns. Anyone in possession of such a weapon is “standing in
responsible relation to a public danger.” In the National Firearms Act, Congress
determined that the serious threat to health and safety posed by the private ownership of such firearms warranted the imposition of a duty on the owners of dangerous weapons to determine whether their possession is lawful. Semiautomatic
weapons that are readily convertible into machineguns are sufficiently dangerous
to alert persons who knowingly possess them to the probability of stringent public
regulation. The jury’s finding that petitioner knowingly possessed “a dangerous
device of a type as would alert one to the likelihood of regulation” adequately
supports the conviction.
Accordingly, I would affirm the judgment of the Court of Appeals.
_______________
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Points for Discussion
a. Model Penal Code
Consider the MPC’s approach to strict liability:
§ 2.05. When Culpability Requirements Are Inapplicable to Violations and to Offenses Defined by Other Statutes; Effect of Absolute
Liability in Reducing Grade of Offense to Violation.
(1) The requirements of culpability prescribed by Sections 2.01 and 2.02
do not apply to:
(a) offenses that constitute violations, unless the requirement involved is included in the definition of the offense or the Court determines that its application is consistent with effective enforcement
of the law defining the offense; or
(b) offenses defined by statutes other than the Code, insofar as a
legislative purpose to impose absolute liability for such offenses or
with respect to any material element thereof plainly appears.
(2) Notwithstanding any other provision of existing law and unless a
subsequent statute otherwise provides:
(a) when absolute liability is imposed with respect to any material
element of an offense defined by a statute other than the Code and
a conviction is based upon such liability, the offense constitutes a
violation; and
(b) although absolute liability is imposed by law with respect to one
or more of the material elements of an offense defined by a statute
other than the Code, the culpable commission of the offense may
be charged and proved, in which event negligence with respect to
such elements constitutes sufficient culpability and the classification of the offense and the sentence that may be imposed therefor
upon conviction are determined by Section 1.04 and Article 6 of
the Code.
b. Morissette Facts
In Staples, the Supreme Court referred extensively to its seminal decision in
Morissette v. United States, 342 U.S. 246 (1952). The underlying facts in Morissette
were as follows: On a large tract of uninhabited and untilled land in a wooded
Chapter 3 Mens Rea
and sparsely populated part of Michigan, the federal government established a
practice bombing range over which the Air Force dropped simulated bombs at
ground targets. These bombs consisted of metal cylinders about forty inches long
and eight inches wide filled with sand and enough black powder to cause a smoke
puff by which the strikes could be located. Signs read “Danger—Keep Out—
Bombing Range.” Despite the signs, the range was known as deer country and was
extensively hunted. Spent bomb casings were cleared from the targets and thrown
into piles “so that they would be out of the way.” They were not sacked or piled in
any order but were dumped in heaps, some of which had been accumulating for
four years or upwards. They were also exposed to the weather and rusting away.
Jackson went hunting in this area but did not bag a deer. He decided to meet his
expenses by salvaging some of the casings. He loaded three tons of them on his
truck and took them to a nearby farm, where they were flattened by a tractor, and
then trucked to Flint where he obtained $84 for them. Morissette was indicted
under a federal law which provided that:
Whoever embezzles, steals, purloins, or knowingly converts to his use or
the use of another, or without authority, sells, conveys or disposes of any
record, voucher, money, or thing of value of the United States or of any
department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof;
Shall be fined not more than $10,000 or imprisoned not more than ten
years, or both; but if the value of such property does not exceed the sum
of $100, he shall be fined not more than $1,000 or imprisoned not more
than one year, or both.
c. Balint Facts
In Staples, the Supreme Court referred extensively to its decision in United
States v. Balint, 258 U.S. 250 (1922). The underlying facts in Balint were as follows: Congress enacted a law that provided that those dealing in the production,
importation, manufacture, compounding, dealing in, dispensing, selling, distributing, or giving away of opium or coca leaves must register with the Internal
Revenue Service and pay a tax. The statute read as follows:
It shall be unlawful for any person to sell, barter, exchange, or give away
any opium or cocoa leaves except in pursuance of a written order of the
person to whom such article is sold, bartered, exchanged, or given, on
a form to be issued in blank for that purpose by the Commissioner of
Internal Revenue. Every person who shall accept any such order, and in
pursuance thereof shall sell, barter, exchange, or give away any of the
aforesaid drugs, shall preserve such order for a period of two years for
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Criminal Law A Contemporary Approach
inspection by any officer, agent, or employee of the Treasury Department
duly authorized for that purpose, and the state, territorial, district, municipal, and insular officials who are similarly authorized.
Balint admitted that he sold an opium-based substance, but he denied that
he knew its content.
d. Exxon Valdez
Captain Joseph Hazelwood ran
his ship, the Exxon Valdez, aground off
Bligh Reef off the coast of Alaska and
reported he was “leaking some oil.” In
fact, eleven million gallons eventually
poured into Prince William Sound as a
result of this accident. Hazelwood was
charged under an Alaska statute that
provided as follows:
A person may not discharge,
cause to be discharged, or permit
the discharge of petroleum [into],
or upon the waters or land of the
state except in quantities, and at
times and locations or under circumstances and conditions as the
department may by regulation
permit....
Go Online
How did federal agencies respond
to the problems posed in cleaning up this massive oil spill? And
how did Congress react with respect to changing applicable laws?
See the Environmental Protection
Agency’s discussion at http://www.
epa.gov/osweroe1/content/learning/
exxon.htm. How did this oil spill
compare with the BP Gulf Coast oil
spill in 2010? See the National Wildlife Federation’s comparison at http://
www.nwf.org/What-We-Do/ProtectHabitat/Gulf-Restoration/Oil-Spill/
E ff e c t s - o n - Wi l d l i f e / C o m p a re Exxon-Valdez-and-BP-Oil-Spills.
aspx.
Using the logic of Staples, should this statute be construed to impose strict
liability? See Alaska v. Hazelwood, 946 P.2d 875 (Alaska 1997).
e. Demonstrating at the White House
Political activist Cindy Sheehan was arrested in September 2005 for demonstrating without a permit on the White House sidewalk during an antiwar
protest involving more than 200 people. She was charged with violating 36 C.F.R.
§ 7.96(g)(2), a National Park Service regulation governing demonstrations in all
park areas in the National Capital Region, including the White House sidewalk.
Following a bench trial, Sheehan was convicted and assessed a $50 fine and a $25
administrative fee.
36 C.F.R. § 7.96(g)(2) provides that “[d]emonstrations and special events
may be held only pursuant to a permit issued in accordance with the provisions of
Chapter 3 Mens Rea
this section.” Under applicable regulations, demonstrations involving more than
25 people may be held only pursuant to a permit. The term “demonstrations”
is defined as “includ[ing] demonstrations, picketing, speechmaking, marching,
holding vigils or religious services and all other like forms of conduct which
involve the communication or expression of views or grievances, engaged in by
one or more persons, the conduct of which has the effect, intent or propensity
to draw a crowd or onlookers. This term does not include casual park use by
visitors or tourists which does not have an intent or propensity to attract a crowd
or onlookers.”
At trial, the judge allowed the Government to prosecute the case against Ms.
Sheehan on the premise that the disputed regulations imposed strict liability for
her alleged expressive activity, and sustained the prosecutor’s objections when
defense counsel for Sheehan sought to advance a defense based on her knowledge and intent. On appeal, Sheehan argued that she was entitled to a new trial
because the Government was required to prove a culpable mens rea on Sheehan’s
part and the judge’s rulings and instructions eliminated the prosecutor’s burden
to prove this mens rea and barred her from presenting a defense on that issue.
Should Sheehan’s conviction be reversed on this ground? What arguments – if
any – can she make based on the Staples opinion to support her contention? See
United States v. Sheehan, 512 F.3d 621, 379 U.S. App. D.C. 187 (2008).
Hypo 3.6: A Minor Mistake
A Pennsylvania criminal statute provided that “[a] person who lures
a child into a motor vehicle without the consent, express or implied,
of the child’s parent or guardian, unless the circumstances reasonably
indicate that the child is in need of assistance, commits a misdemeanor
of the first degree.” 18 Pa.C.S. § 2910. Defendant Gallagher, charged
under that statute, argues that he is not guilty of this crime because he
did not know that 17-year-old M.N., who he invited into his car to drink
and then to engage in oral sex, was only seventeen years old, i.e. he was
a minor. Is this a good defense? See Pennsylvania v. Gallagher, 592 Pa.
262, 924 A.2d 636 (2007).
_______________
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118
C. Intoxication & Drugged Condition
Criminals often commit criminal acts while they are “high” on alcohol and/or
drugs. Where a criminal offense is not a strict liability offense, it is easy to imagine
situations where such a defendant does not (sometimes, virtually cannot) possess
the mens rea required for the criminal offense in question. Nonetheless, courts
have been extremely reluctant to acquit on this basis. Common law jurisdictions
have traditionally taken the position that an intoxication or drugged condition
can negative the mens rea for a “specific intent” crime, but it does not negative the
mens rea of a “general intent” crime. Just what general and specific intent mean in
this setting has been the subject of considerable controversy.
People v. Atkins
25 Cal. 4th 76, 18 P.3d 660, 104 Cal. Rptr. 2d 738 (2001).
Chin, J.
Is evidence of voluntary intoxication admissible [on] the issue of whether
defendant formed the required mental state for [arson]? We conclude that such
evidence is not admissible because arson is a general intent crime. Accordingly, we
reverse the judgment of the Court of Appeal.
[On] September 26, 1997, defendant told his friends that he hated Orville
Figgs and was going to burn down Figgs’s house.
On the afternoon of September 27, defendant and his brother David drove by
Figgs’s home on the Ponderosa Sky Ranch. Defendant “flipped the bird” at Figgs
as they passed by.
Later that day, around 5:00 p.m., a neighbor saw David drive a white pickup
truck into the Ponderosa Sky Ranch canyon, but could not tell if he had a passenger. Around 9:00 p.m., the same neighbor saw the pickup truck drive out of
the canyon at a high rate of speed. A half-hour later, a fire was reported. Shortly
after 10:00 p.m., Figgs was awakened by a neighbor. Because the fire was rapidly
approaching his house, Figgs set up a fire line. The fire came within 150 feet of
his house.
At 9:00 or 9:30 p.m., one of defendant’s friends saw defendant at David’s
apartment. He was angrily throwing things around. When asked if defendant was
heavily intoxicated, the friend replied, “Yes. Agitated, very agitated.”
Chapter 3 Mens Rea
The county fire marshall, Alan Carlson, responded to the fire around 1:30
a.m. and saw a large fire rapidly spreading in the canyon below the ranch. He
described fire conditions on that night as “extreme.” Both the weather and the
vegetation were particularly dry. The wind was blowing from 12 to 27 miles per
hour, with gusts up to 50 miles per hour. The canyon had heavy brush, trees,
grass, and steep sloping grades. The fire could not be controlled for three days and
burned an area from 2.5 to 2.8 miles long.
The fire marshall traced the origin of the fire to an approximately 10 footsquare area that was completely burned and smelled of “chainsaw mix,” a combination of oil and gasoline. A soil sample taken from that area tested positive for
gasoline. About 40 feet away, the marshall found defendant’s wallet, which was
near a recently opened beer can, and tire tracks. He also found a disposable lighter
nearby and two more beer cans in other parts of the canyon. All the cans had the
same expiration date.
Several days later, defendant spoke with the fire marshall. After waiving his
Miranda rights, defendant told the marshall that he and his brother had spent
much of the day drinking. They then drove in David’s white pickup to the Ponderosa Sky Ranch canyon, where they drank some more and stayed between three
and one-half to five hours. Defendant saw that the area was in poor condition and
decided to burn some of the weeds. His family had once lived there. He pulled out
the weeds, placed them in a small pile in a cleared area, retrieved a plastic gasoline
jug from David’s truck, and from the jug poured “chainsaw mix” on the pile of
weeds. Defendant put the jug down a few feet away and lit the pile of weeds with
a disposable lighter. The fire quickly spread to the jug and got out of hand. He and
David tried to put the fire out, unsuccessfully. They panicked and fled while the
jug was still burning. Defendant told the marshal that he meant no harm, claimed
the fire was an accident, but admitted that he and his family had hard feelings
with the Figgs family.
The marshall testified that the fire had not been started in a cleared area. The
area was covered with vegetation, and there was no evidence that the fire started
accidentally during a debris burn or that someone had tried to put it out. The
marshall opined that the fire was intentionally set.
An information charged defendant with arson of forest land. The trial court
instructed on arson and on the lesser offenses of arson to property, unlawfully
causing a fire of forest land, and misdemeanor unlawfully causing a fire of property. It described arson and all lesser offenses as general intent crimes and further
instructed that voluntary intoxication is not a defense to arson and the lesser
crimes and does not relieve defendant of responsibility for the crime. The jury
found defendant guilty as charged.
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Criminal Law A Contemporary Approach
Defendant appealed, arguing that evidence of voluntary intoxication was
admissible to show that he lacked the requisite mental state for arson. The Court
of Appeal agreed. It reasoned that [the] mens rea for arson is the intent to set fire
to or burn or cause to be burned forest land, a specific mental state, as to which
voluntary intoxication evidence is admissible under section 22, subdivision (b).
The court reversed because the instruction that voluntary intoxication was not
a defense to arson “denied defendant the opportunity to prove he lacked the
required mental state.”
[Section] 22 provides, as relevant:
“(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition.
Evidence of voluntary intoxication shall not be admitted to negate the
capacity to form any mental states for the crimes charged, including, but
not limited to, purpose, intent, knowledge, premeditation, deliberation,
or malice aforethought, with which the accused committed the act.
“(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific
intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.”
Evidence of voluntary intoxication is inadmissible to negate the existence
of general criminal intent. In People v. Hood (1969) 1 Cal. 3d 444, 82 Cal. Rptr.
618, 462 P.2d 370, we first addressed the question whether to designate a mental
state as a general intent, to prohibit consideration of voluntary intoxication or a
specific intent, to permit such consideration. There, we held that intoxication was
relevant to negate the existence of a specific intent, but not a general intent, and
that assault is a general intent crime for this purpose. We stated:
“The distinction between specific and general intent crimes evolved as a
judicial response to the problem of the intoxicated offender. That problem is to reconcile two competing theories of what is just in the treatment of those who commit crimes while intoxicated. On the one hand,
the moral culpability of a drunken criminal is frequently less than that of
a sober person effecting a like injury. On the other hand, it is commonly
felt that a person who voluntarily gets drunk and while in that state commits a crime should not escape the consequences.
“Before the nineteenth century, the common law refused to give any effect to the fact that an accused committed a crime while intoxicated. The
judges were apparently troubled by this rigid traditional rule, however,
Chapter 3 Mens Rea
for there were a number of attempts during the early part of the nineteenth century to arrive at a more humane, yet workable, doctrine. The
theory that these judges explored was that evidence of intoxication could
be considered to negate intent, whenever intent was an element of the
crime charged. As Professor Hall notes, however, such an exculpatory
doctrine could eventually have undermined the traditional rule entirely,
since some form of mens rea is a requisite of all but strict liability offenses. To limit the operation of the doctrine and achieve a compromise
between the conflicting feelings of sympathy and reprobation for the intoxicated offender, later courts both in England and this country drew a
distinction between so-called specific intent and general intent crimes.”
Although we noted in Hood that specific and general intent have been notoriously difficult terms to define and apply, we set forth a general definition distinguishing the two intents: “When the definition of a crime consists of only the
description of a particular act, without reference to intent to do a further act or
achieve a future consequence, we ask
whether the defendant intended to do
the proscribed act. This intention is
Food for Thought
deemed to be a general criminal intent.
Does this distinction between genWhen the definition refers to defeneral and specific intent crimes make
dant’s intent to do some further act or
sense to you?
achieve some additional consequence,
the crime is deemed to be one of specific intent.” The basic framework that
Hood established in designating a criminal intent as either specific or general for
purposes of determining the admissibility of evidence of voluntary intoxication
has survived.
Defendant argues that arson requires the specific intent to burn the relevant
structure or forest land, a mental state that may be negated by evidence of voluntary intoxication. The People argue that arson is a general intent crime with a
mental state that cannot be negated by such evidence. The Courts of Appeal have
disagreed on the intent requirement for arson.
[In] this case, the [Court of Appeal held] that the mens rea for arson, [the]
intent to set fire to or burn or cause to be burned forest land—is a “required
specific intent” for which evidence of voluntary intoxication is admissible under
section 22, subdivision (b).
[We] agree with the People that arson requires only a general criminal intent
and that the specific intent to set fire to or burn or cause to be burned the relevant
structure or forest land is not an element of arson.
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Criminal Law A Contemporary Approach
[As] relevant here, the proscribed acts within the statutory definition of arson
are to: (1) set fire to; (2) burn; or (3) cause to be burned, any structure, forest
land, or property. Language that typically denotes specific intent crimes, such as
“with the intent” to achieve or “for the purpose of” achieving some further act, is
[absent]. “A crime is characterized as a ‘general intent’ crime when the required
mental state entails only an intent to do the act that causes the harm; a crime is
characterized as a ‘specific intent’ crime when the required mental state entails an
intent to cause the resulting harm.” The statute does not require an additional specific intent to burn a “structure, forest land, or property,” but rather requires only
an intent to do the act that causes the harm. This interpretation is manifest from
the fact that the statute is implicated if a person “causes to be burned ... any structure, forest land, or property.” Thus, the intent requirement for arson fits within
the Hood definition of general intent, i.e., the description of the proscribed act fails
to refer to an intent to do a further act or achieve a future consequence....
Defendant reasons that, since arson is the more serious crime, it should have
a more culpable mental state than the recklessness requirement of [the lesser
offense of recklessly causing a fire]. From that premise, he infers that the more
culpable mental state of arson must be a specific intent. However, the lesser
offense requires mere recklessness; arson requires the general intent to perform
the criminal act. This is a continuum that does not support specific intent. The
fact that a crime requires a greater mental state than recklessness does not mean
that it is a specific intent crime, rather than a general intent crime. The fact that
reckless burning is a lesser offense of arson is also not dispositive....
In arson, as with assault, there is generally no complex mental state, but only
relatively simple impulsive behavior. A typical arson is almost never the product
of pyromania, it often is an angry impulsive act, requiring no tools other than a
match or lighter, and possibly a container of gasoline. “Arson is one of the easiest
crimes to commit on the spur of the moment ... it takes only seconds to light a
match to a pile of clothes or a curtain.”
The apparent legislative policy concerns are consistent with studies that have
shown the following: that revenge and vindictiveness are principal motives for;
that there is a strong relationship between alcohol intoxication and arson; and
that recidivist arsonists committing chronic or repetitive arson have high levels of
alcohol. Thus, the motivations for most arsons, the ease of its commission, and
the strong connection with alcohol reflect the crime’s impulsiveness. “It would
therefore be anomalous to allow evidence of intoxication to relieve a man of
responsibility for the crime[ ] of [arson], which [is] so frequently committed in
just such a manner.”...
We reverse the judgment of the Court of Appeal and remand the cause to the
Court of Appeal for further proceedings consistent with this opinion.
Chapter 3 Mens Rea
Concurring Opinion by Mosk, J.
[Although] they apparently recognize that “general intent” should be affixed
to the crime of arson because arson is itself closely linked to voluntary intoxication in its commission, the majority deny that the mental state required could
readily be deemed to be one of specific intent. Their denial is inexplicable. It
is also incorrect. They seem to rest on the premise that the perpetrator’s intent
must be inceptive, aiming to start a fire, and apparently need not be resultative,
aiming to burn down an indicated object. Even if their premise is sound, it gives
them no aid. For, even if the perpetrator’s intent must be inceptive rather than
resultative, the required mental state could readily be deemed to be one of specific
intent—again, an intent to engage in proscribed conduct involving setting fire
to an indicated object, burning it, or causing it to be burned, for the purpose
of bringing about, or allowing, a proscribed result involving any other wrong,
including vexation, fraud, annoyance, or injury to another person. At the end of
the day, all that the majority have to justify their denial seems to be an assumption
that the perpetrator’s intent must be resultative rather than inceptive. Hood itself
is plain: “When” a crime “refers to” the perpetrator’s “intent to do some further act
or achieve some additional consequence” beyond the “description of a particular
act,” the “crime is deemed to be one of specific intent.” The majority’s assumption
is that, beyond referring to the perpetrator’s setting fire to an indicated object,
burning it, or causing it to be burned, arson must refer to an intent on his part
to achieve a particular additional consequence, that is, to burn the object down,
as opposed to doing any other wrong, including vexation, fraud, annoyance, or
injury to another person. Their assumption is unsupported. Hence, it falls of its
own weight....
_______________
Points For Discussion
a. Eliminating Intoxication Defense
Some jurisdictions have eliminated (or virtually eliminated) intoxication or
drugged condition as a defense. See, e.g., 18 Pa. C.S. A. § 308 (“Neither voluntary
intoxication nor voluntary drugged condition is a defense to a criminal charge,
nor may evidence of such conditions be introduced to negative the element of
intent of the offense, except that evidence of such intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant
to reduce murder from a higher degree to a lower degree of murder.”). Is this a
sensible approach? Doesn’t this approach mean that some defendants who truly
do not possess the mens rea specified for the offense with which they are charged
will be convicted in any event? If so, is this a problem?
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b. Model Penal Code
Consider the MPC’s approach to the problem of intoxication and drugged
condition:
§ 2.08. Intoxication.
(1) Except as provided in Subsection (4) of this Section, intoxication of
the actor is not a defense unless it negatives an element of the offense.
(2) When recklessness establishes an element of the offense, if the actor,
due to self-induced intoxication, is unaware of a risk of which he would
have been aware had he been sober, such unawareness is immaterial.
(3) Intoxication does not, in itself, constitute mental disease within the
meaning of Section 4.01.
(4) Intoxication that (a) is not self-induced or (b) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of
his conduct lacks substantial capacity either to appreciate its criminality
[wrongfulness] or to conform his conduct to the requirements of law.
(5) Definitions. In this Section unless a different meaning plainly is
required:
(a) “intoxication” means a disturbance of mental or physical capacities resulting from the introduction of substances into the body;
(b) “self-induced intoxication” means intoxication caused by substances that the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know,
unless he introduces them pursuant to medical advice or under such
circumstances as would afford a defense to a charge of crime;
(c) “pathological intoxication” means intoxication grossly excessive
in degree, given the amount of the intoxicant, to which the actor
does not know he is susceptible.
c. Involuntary Intoxication
Unlike voluntary intoxication or drugged condition, involuntary intoxication
or drugged condition is typically considered a viable and complete defense. Generally, this defense is treated as an involuntary act rather than as a matter relating
to a defendant’s mental state.
Chapter 3 Mens Rea
d. Degree of Intoxication
In jurisdictions where an intoxication or drugged condition defense exists, it
is not sufficient simply to demonstrate the use of alcohol or drugs or even the fact
that a defendant was demonstrably “high.” Rather, to be able to successfully use
this defense, the defendant must be so intoxicated and/or drugged that he or she
is not capable of possessing the specific intent at issue. On this point, consider
the next case.
_______________
Tennessee v. Hatcher
310 S.W.3d 788 (Tenn. 2010).
CORNELIA A. CLARK, J.
[This] case arises from Shawn Hatcher’s participation in the shooting death
of Marcel Mackey and the gunshot injuries to Anitra Flowers and Randall White/
Moore (“Red”) on April 3, 2001, in Memphis, Shelby County, Tennessee. Shawn
Hatcher (“Defendant”) was charged with alternative counts of first degree premeditated murder and first degree felony murder, and two counts of attempted
first degree premeditated murder. Also charged were Defendant’s older brother,
Christopher Hatcher (“Chris”), and Defendant’s friend, Cornelius Jefferson (“Cornelius”)....
The proof at trial established that Defendant, seventeen years old at the time,
was released from juvenile custody on the afternoon of April 3, 2001. That evening, Defendant, Cornelius, and a man named Dan Smith accompanied Chris to
an apartment at 756 East Raines. There, the men opened fire with multiple guns,
killing Mackey and injuring Flowers and Red. Defendant was arrested, and he
subsequently gave a statement in December 2001[. He] admitted to being present
at the shooting [and when] asked to describe the events surrounding the shooting, Defendant responded as follows:
I came home that day and came in the house and that’s when my brother
told me that he got into it with Red. He said that Red tried to kill him,
then he pulled out the .38 and said “I got this for him, if he decides to
come to the house looking for me.[”] I went to sleep, woke up, helped
my mom bring groceries in the house. Cornelius came over, we drunk
and they smoked, whatever, sit in the backyard. I stepped in the house
for a minute talking to my mom and my brother came in the house and
told me to come here.
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Criminal Law A Contemporary Approach
So I went back to the backyard, I seen [Chris’ rifle] laying [sic] on the
ground. I asked him what was it for and he said protection. So I told him
I was going back in the house for a minute to talk to my mom. Then after
I got through talking to her, I left. I went to the backyard, my brother was
gone. I asked Cornelius where he was, he said he was gone to the Raintree to meet Dan. After that me and Cornelius walked to the store, on the
way we seen my brother and Dan in the shortcut with the guns. I asked
him “what’s up”; he asked me “what’s up”. He said he was about to take
care of some business. I said I was going to the store, so as we walked to
the store he talked to some females, they said they were walking up to
Black Store so we walked to the Black Store.
We departed from them. Went back to my house, finished drinking,
smoking or whatever. We wanted some more weed so we went and got
my brother to get some weed from him. But instead of getting some weed
from him, he didn’t give us no weed. He was like he was fixing to go take
some [sic] of some business. At that time he wanted us to go with him so
we walked towards Randle’s [sic] house. On the way we ran across three
kids, I guess he thought one of the kids was Randle. So he walked up to
him and asked who he was and the boy replied that he knew my brother
then my brother pulled [his rifle] up on him.
Then the boy ran behind me and I told my brother no. I don’t know if
he intended to shoot the boy or not but after I told him no, the boy ran.
Chris continued to walk towards Randle’s house. He and Dan walked to
the door, knocked on the door and began to open fire. Chris ran and I
assumed Dan ran in the house because I could hear a change in the shots
fired. So I guess Dan realized he was by himself, so he ran.
Cornelius shot in the air as other shots were being fired. After that all
of us ran together through the shortcut. Dan caught up with us and ran
through the shortcut and then we went our separate ways. Me and Cornelius paid someone $10.00 to take us to a hotel on Third. We stayed
there a couple of night and he left and went home. I stayed in the motel.
[Co-defendant] Cornelius, also seventeen years old in April 2001, testified at
trial. He explained that he and Defendant had been at Defendant’s house before
the shootings, “smoking [weed] and drinking ... a little liquor.” Chris came over
with some “long rifles” and had Cornelius and Defendant “go with him” to some
nearby apartments....
Chapter 3 Mens Rea
The jury convicted Defendant of the first degree premeditated murder of
Marcel Mackey, the alternative count of first degree felony murder, and the
attempted first degree premeditated murders of Anitra Flowers and Randall White/
Moore. ... [He was sentenced to life imprisonment on the murder conviction, and
15 years on each of the attempted first degree murder convictions.]
[The] defense complains about the trial court’s failure to instruct the jury
about voluntary intoxication. As provided by our criminal code, “[voluntary]
intoxication itself is not a defense to prosecution for an offense. However, intoxication, whether voluntary or involuntary, is admissible in evidence, if it is
relevant to negate a culpable mental
Food for Thought
state.” Proof of voluntary intoxication
If intoxication negatives one of the
is therefore akin to proof of a mental
elements of the crime, how can the
disease or defect that prevents a defencourt say that it is not a defense?
Does this make sense?
dant from forming the culpable mental
state required for the offense under
consideration. [However,]
[p]roof of intoxication alone is not a defense to a charge of committing
a specific intent crime nor does it entitle an accused to jury instructions
...; there must be evidence that the intoxication deprived the accused
of the mental capacity to form specific intent.16 ... The determinative
question is not whether the accused was intoxicated, but what was his
mental capacity.
The only proof in the instant case concerning Defendant’s intoxication came
from Cornelius, Aja Brown, and Defendant’s statement to the police. Cornelius
testified that, on the afternoon of the crimes, he and Defendant smoked “weed”
and drank “a little liquor.” Aja Brown was of the opinion that Defendant appeared
“drunk” when she saw him at the store that evening several hours before the
shootings. Defendant told the police that he and Cornelius had consumed liquor
that afternoon and also intimated that he had smoked some “weed.”
None of this evidence demonstrated that Defendant’s alleged intoxication was
such that, hours later, it deprived him of the mental capacity to form the culpable
mental state required for premeditated murder or attempted premeditated murder. Moreover, Defendant’s statement to the police reflects that Defendant had
16 [This] Court has recognized that our legislature has “abandoned the ‘confusing distinction between
general and specific intent.’ ” Thus, the current statute regarding proof of intoxication for defense purposes refers to “culpable mental state.” The point remains that a jury instruction about a defendant’s
alleged voluntary intoxication at the time he or she committed the offense under consideration is
required only if the intoxication was such that it compromised the defendant’s capacity for whatever
culpable mental state the offense required.
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Criminal Law A Contemporary Approach
128
clear memories about his actions both preceding and during the shootings, belying any claim that he was so intoxicated as to be unable to form the culpable mens
rea of intent and premeditation. Accordingly, we hold that Defendant has failed
to demonstrate that the trial court breached a clear and unequivocal rule of law
when it failed to instruct the jury about Defendant’s alleged voluntary intoxication. Defendant is not entitled to relief on this issue.
[Affirmed.]
_______________
Hypo 3.7: The Drunken Umbrella Thief
Upon leaving a bar, defendant picks up another customer’s umbrella.
Defendant is so intoxicated that she does not realize that she has an
umbrella, much less that it is not her own. Defendant is charged with
theft of movable property which state law defines in the following way:
“A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive
him thereof.” Can defendant be convicted of this crime? How does her
intoxication affect her culpability?
Hypo 3.8: Intoxicated Partygoers
In the following situations, is intoxication a defense to criminal
charges brought in these circumstances:
• Where defendant, a heavy drinker, drank excessively in a bar,
staggered out, climbed into his car, and attempted unsuccessfully to drive home. Defendant was so drunk that he did not
realize that his intoxicated state presented a risk to the lives of
others.
• Where defendant attended a party at which she consumed
only non-alcoholic beverages, but where another person
slipped drugs into her drink, putting her into a hallucinatory
state. Oblivious to that fact, thinking she was ill rather than
drugged, she got in her car and drove away.
Chapter 3 Mens Rea
• Where defendant who had never consumed alcoholic beverages before, drank a gin and tonic at a party and became so
drunk that, getting into her car to drive home, she did not realize that her intoxicated state presented a risk to the lives of
others.
Hypo 3.9: Seeing Bears
Ormond, heavily intoxicated, shot two people with his high-powered rifle. The evidence reveals that he was so drunk that he thought
the two victims were bears rather than people. Is his intoxication a good
defense to homicide charges?
D. Mistake of Fact
Hopson v. Texas
2009 WL 1124389 (Tex. App.-Hous. (14 Dist.) 2009).
KENT C. SULLIVAN, Justice.
Appellant, Karissa Lou Hopson, was arrested at a house in Lufkin on July 7,
2007 and was charged with two offenses: (1) burglary, by entering a habitation
without the owners’ consent and with the intent to commit theft; and (2) criminal
mischief, by intentionally or knowingly damaging or destroying tangible property
without the owners’ consent. A jury convicted appellant of both offenses.
On appeal of her burglary conviction, appellant insists that the evidence
raised a fact issue as to whether she mistakenly believed she was preventing, not
committing, a theft. She contends that this evidence required the trial court to
submit a mistake-of-fact instruction to the jury, and that she was harmed by the
trial court’s refusal to do so. Because we hold that the requested instruction was
not necessary, the trial court’s judgment is affirmed.
On July 7, 2007, police officers were summoned to a residence to investigate
a suspected burglary in progress. Upon arrival, the officers saw appellant standing on the front porch of the house, holding a large television. Appellant set the
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Criminal Law A Contemporary Approach
television on the porch and approached the officers, claiming that she knew the
house owners and that she had their permission to be on the property. However,
the officers noticed that several of the house windows had been broken and that
appellant had blood on her shirt and hand. The officers also saw that portions of
the interior of the house, including furniture, had been damaged.
Appellant was arrested at the scene. The owners of the house arrived at the
scene roughly thirty minutes later. Both owners indicated that they did not know
appellant, and they denied giving her permission to enter the premises or to
remove their television from the house.
The State charged appellant with burglary and criminal mischief. Appellant
pleaded “not guilty” to both offenses, and a jury trial ensued. Appellant testified
on her own behalf and, although she acknowledged that she had entered the residence and that she was carrying the owners’ television when the police arrived,
she offered a different interpretation of these undisputed facts. That is, she contended that she believed that, through her actions, she was actually thwarting a
burglary that was being committed by another man, Cayetano Padierna.
In support of this contention, appellant testified that she had stopped at the
house to visit the owners, who were her friends. When she arrived, both owners
were gone. In their place was Padierna, whom she did not know, who was removing items from the house. Thinking that Padierna was stealing from the owners,
appellant confronted him and he left.2 Appellant then walked to the side of the
porch, where she found the television. She picked the television up, claiming that
she meant to return it to the house, when the police-who had been summoned by
Padierna-arrived and arrested her.
Based on her testimony, appellant contended that she reasonably, but mistakenly, believed Padierna was stealing from the owners and that, by picking up the
owners’ television, she was acting with the intent to prevent, not commit, a theft.
Appellant asked the trial court to submit the following mistake-of-fact instruction
to the jury:
A defendant who thought she was performing activity may lack the necessary criminal intent where she reasonably believes she acted to prevent
a crime. If you believe that at the time of the offense charged, [appellant]
reasonably believed that she acted to prevent a[t]heft, then you must find
her not guilty.
The trial judge refused the requested instruction.
2 In his testimony, Padierna explained that he had the owners’ permission to enter the house and pick
up coolers that he used to sell drinks and refreshments at a nearby soccer field.
Chapter 3 Mens Rea
The jury found appellant guilty of burglary and Class A misdemeanor criminal mischief. The trial court assessed punishment as follows: (1) for burglary,
twelve years’ incarceration in the Texas Department of Criminal Justice, Institutional Division; and (2) for criminal mischief, confinement in the Angelina
County jail for one year, with both sentences to run concurrently....
Generally, a defendant is entitled
to submission of an affirmative defenTake Note
sive instruction on every issue raised
Note that the Texas mistake-of-fact
by the evidence even if the trial court
defense statute contains an objective
thinks that the testimony could not
element, i.e. the accused’s mistaken
be believed. In this case, appellant
belief must be reasonable. MPC
§ 2.04 (Ignorance or Mistake) does
contends that she raised a fact issue as
not contain such an objective, reato the mistake-of-fact defense, which
sonableness element. Would it make
is set forth by section 8.02 of the Texas
a difference in this case if Texas followed the Model Penal Code apPenal Code: “It is a defense to prosecuproach?
tion that the actor through mistake
formed a reasonable belief about a
matter of fact if his mistaken belief
negated the kind of culpability required for commission of the offense.” Appellant
contends her testimony, if believed, would negate a finding that she acted with the
intent to commit theft, that is, the degree of culpability required to convict her of
burglary. Therefore, she argues that the trial court erred by refusing to submit a
mistake-of-fact instruction. However, we hold that the requested instruction was
not necessary because appellant’s defense-that she lacked the requisite intent to
commit theft because of a mistaken belief-was adequately covered by the charge
submitted to the jury. Therefore, we conclude the trial court did not err by refusing to submit a defensive issue that merely denied the existence of an essential
element of the State’s case.
To support her argument, appellant directs us to Bang v. State, in which the
Thirteenth Court of Appeals held that a mistake-of-fact instruction should be submitted whenever raised by the evidence. 815 S.W.2d 838, 841 (Tex. App.- Corpus
Christi 1991). However, Bang was closely followed by Bruno v. State, in which the
Texas Court of Criminal Appeals indicated that a trial court is not always required
to submit an unnecessary mistake-of-fact instruction if the defense is adequately
covered by the charge as given. 845 S.W.2d 910, 913 (Tex. Crim. App. 1993).
In Bruno, the defendant was accused of unauthorized use of a motor vehicle
but testified that he believed he had the owner’s permission to drive the car. The
Court of Criminal Appeals noted that, in some unauthorized-use cases, the defendant alleges that he was given permission to operate the vehicle by a third party he
mistakenly believed to be the vehicle’s owner. Under those facts, a mistake-of-fact
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Criminal Law A Contemporary Approach
instruction becomes necessary because the jury could find that (1) the defendant
believed he had the consent of the third party to use the vehicle, and (2) the true
owner of the vehicle had not given him permission. However, in the absence of
such a third party, the Court of Criminal Appeals determined that a mistake-offact instruction was unnecessary:
In the absence of this third party, the jury could not believe both the
testimony of [the] true owner of the vehicle and the testimony of appellant.... Only one of the incompatible stories could be believed....
The jury heard both stories. As they would have necessarily been required
to disbelieve appellant’s story before they could find sufficient evidence
to convict, the instruction need not have been given in the instant case.
Simply because appellant testified that he had the consent of the owner
of the vehicle does not entitle him to a mistake of fact instruction.
[Here,] the jury heard appellant’s story. The effect of her testimony, and the
thrust of her requested instruction, amounted to an attempt to convince the jury
that her intent was something other than the criminal intent-that is, the intent
to commit theft-that was necessary for the commission of a burglary. However,
to convict her of that offense, the State was already required to prove beyond a
reasonable doubt that appellant entered the house, without the effective consent
of the owners, with the intent to commit theft. To that end, the jury received the
following instruction:
[I]f you believe from the evidence beyond a reasonable doubt, that the
defendant, ... on or about the 7th day of July, 2007, in the County of
Angelina, and State of Texas, as alleged in the indictment, did then and
there, with intent to commit theft, enter a habitation, without the effective
consent of Gregorio Cartagena or Cayetano Ramirez, the owner thereof,
you will find the defendant guilty of the offense of Burglary of a Habitation and so say by your verdict, but if you do not so believe, or if you
have a reasonable doubt thereof, you will acquit the defendant and say
by your verdict “Not Guilty.”
The jury was also specifically instructed that it had to acquit the appellant
if the State failed to prove, beyond a reasonable doubt, each and every element
of the charged offense. Thus, unless the jury found that appellant intended to
commit theft, it was required to acquit her of burglary.
Therefore, under these facts, the trial court was not required to submit a
defensive issue that, in the context of this case, did no more than recast the
required element of criminal intent as a defensive issue. As in Bruno ..., appellant
Chapter 3 Mens Rea
could not have been convicted under the charge given had the jury believed her
story that she lacked the intent to commit theft. Apparently, they did not.
The facts of this case may be contrasted with Bang, in which the defendant
acted on a mistaken belief that his friend, Jesse Mouton, the principal actor in the
burglary, actually owned the property in question. In that case, Jerry Bang agreed
to drive Mouton, a minor, to a particular location and pick him up later. When
Bang returned, Mouton had an amplifier, a guitar case, and other items which
Mouton claimed he owned. The items were placed in the trunk of Bang’s vehicle
and driven to another location. Ultimately, it was determined that the property
had been stolen from a church, and Bang was charged with burglary.
Bang admitted that he intentionally performed certain acts that resulted in a
burglary and theft of property. However, he claimed not to know that, through his
conduct, he was participating in a burglary and theft. Specifically, not knowing
that the church was the true owner of the stolen items, Jerry Bang intended to
appropriate property in a manner that deprived the actual owner-the church-of its
property, and such appropriation was unlawful because it was done without the
owner’s consent. Under those facts, as in the unauthorized-use cases highlighted
in Bruno, a mistake-of-fact instruction was necessary in Bang because the jury
could have convicted him of the elements of the crime, while still believing that he lacked the requisite culpaFood for Thought
ble mental state.
Does this distinction that the court
makes between the facts in Bruno
and in Bang make sense to you?
Here, by contrast, the jury was
squarely required to decide whether
appellant acted with either the intent
to commit theft or, under her version
of the facts, with the intent to prevent a theft. [The] absence of a mistake-of-fact
instruction did not deprive appellant of the right to have the jury consider her
defense. Therefore, we hold that the trial court was not required to submit a
separate mistake-of-fact instruction to the jury. We overrule appellant’s only issue
on appeal.
Accordingly, we affirm the judgment of the trial court.
_______________
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Criminal Law A Contemporary Approach
Hypo 3.10: The Gambling Ex-Girlfriend
Charles Anderson was convicted of false imprisonment by means of
violence after he dragged his intoxicated former girlfriend, Sylvia Olsen,
out of the Chicken Ranch Casino while she was fighting and resisting him
because she did not want to leave. Olsen later explained that she wanted
the charges dropped against Anderson because they had just broken up
over her gambling problem the day before and she and Anderson had
made an agreement a month earlier that “[i]f he caught me in the casino,
he was to take me home.” Anderson knew Olsen had a limited amount
of money that she was to use for her son’s birthday, and that she was
gambling it away. Although Olsen was clearly not consenting to being
dragged out of the casino at the time that act occurred, Anderson argues
that he was entitled to a mistake of fact instruction on the issue whether
or not he reasonably believed Olsen was consenting to his actions based
on their earlier agreement. Was he entitled to such an instruction? See
People v. Anderson, 2008 WL 570798 (Cal.App. 5 Dist. 2008).
Hypo 3.11: The Homicidal Clown
As part of a circus act, a clown is supposed to point a gun loaded
with blanks at another clown and pull the trigger. One day, unbeknownst
to the clown who pulled the trigger, the gun was loaded with real bullets.
When he pulled the trigger, he shot and killed the other clown. Does this
clown have a good defense to potential homicide charges? Why?
Iowa v. Freeman
450 N.W.2d 826 (Iowa 1990).
McGiverin, Chief Justice.
The facts of this case are not disputed. The defendant, Robert Eric Freeman,
agreed to sell a controlled substance, cocaine, to Keith Hatcher. Unfortunately for
Freeman, Hatcher was cooperating with the government. Hatcher gave Freeman
$200, and Freeman gave Hatcher approximately two grams of what was supposed
to be cocaine. To everyone’s surprise, the “cocaine” turned out to be acetaminophen. Acetaminophen is not a controlled substance.
Chapter 3 Mens Rea
Freeman was convicted at a bench trial of delivering a simulated controlled
substance with respect to a substance represented to be cocaine * * *. The sole
question presented by Freeman’s appeal is whether he can be convicted of delivering a simulated controlled substance when, in fact, he believed he was delivering
and intended to deliver cocaine.
Our review is to determine whether any error of law occurred. Finding no
error, we affirm the conviction.
[Iowa] Code section 204.401(2) provides, in relevant part:
[I]t is unlawful for a person to create, deliver, or possess with intent to
deliver ... a simulated controlled substance....
The term “simulated controlled substance” is defined by Iowa Code section 204.101(27):
“Simulated controlled substance” means a substance which is not a controlled substance but which is expressly represented to be a controlled
substance, or a substance which is not a controlled substance but which
is impliedly represented to be a controlled substance and which because
of its nature, packaging, or appearance would lead a reasonable person
to believe it to be a controlled substance.
[Our] cases indicate that knowledge of the nature of the substance delivered is
an imputed element of section 204.401(1) offenses[, offenses involving real, nonsimulated controlled substances].... Proof of such knowledge has been required to
separate those persons who innocently commit the overt acts of the offense from
those persons who commit the overt acts of the offense with scienter, or criminal
intent. In general, only the latter are criminally responsible for their acts....
Seizing upon the similarity of the statutory prohibitions, Freeman argues that
he cannot be convicted of delivering a simulated controlled substance because he
mistakenly believed he was delivering and intended to deliver an actual controlled
substance.
We disagree. Freeman’s construction of section 204.401(2) would convert
the offense of delivery of a simulated controlled substance into one requiring
knowing misrepresentation of the nature of the substance delivered. The statute
clearly does not require knowing misrepresentation of the nature of the substance
delivered.
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Criminal Law A Contemporary Approach
[The] gist of [the 204.401(2)] offense is knowing representation of a substance to be a controlled substance and delivery of a noncontrolled substance,
rather than knowing misrepresentation and delivery.
[Freeman’s]
mistaken
belief
regarding the substance he delivered
Food for Thought
cannot save him from conviction. MisA mistake-of-fact defense is inapplitake of fact is a defense to a crime of
cable to strict liability offenses as no
scienter or criminal intent only where
mens rea is required, hence, a misthe mistake precludes the existence of
taken intention is simply irrelevant.
Did the Freeman court interpret the
the mental state necessary to commit
simulated controlled substances statthe crime. In this case, Freeman would
ute as strict liability?
not be innocent of wrongdoing had the
situation been as he supposed; rather,
he would be guilty of delivering a controlled substance. His mistake is no defense.
The scienter required to hold him criminally responsible for committing the overt
acts of the charged offense is present regardless of the mistake. Freeman knowingly represented to Hatcher that the substance he delivered was cocaine.
In conclusion, we hold that a person who delivers a substance that is not a
controlled substance, but who knowingly represents the substance to be a controlled substance, commits the offense of delivery of a simulated controlled substance regardless of whether the person believed that the substance was controlled
or not controlled.
[Freeman] attempted and intended to sell cocaine. The fact that Freeman was
fooled as much as his customer is no defense to the charge in this case.
AFFIRMED.
_______________
Points For Discussion
a. Sale of Controlled Substances
After this decision in Freeman, can a mistake-of-fact defense be presented
where an accused is charged with sale of controlled substances (not simulated
controlled substances)?
b. Attempted Sale of Controlled Substances
Could Freeman have been convicted of attempted sale of a controlled substance? If so, why did the prosecutor not charge that offense?
_______________
Chapter 3 Mens Rea
North Carolina v. Breathette
690 S.E.2d 1 (N.C. 2010).
ROBERT C. HUNTER, Judge.
Defendant Yasmin Pecolia Breathette appeals her convictions for taking indecent liberties with a minor. Defendant argues on appeal that the trial court erred
by not giving the jury her requested instruction that mistake of age is a valid
defense to the offense of indecent liberties. We conclude that mistake of age is not
a defense applicable to the charge, and, therefore, the trial court properly refused
to instruct the jury on the defense. Consequently, we find no error.
The State presented evidence at trial tending to establish the following facts:
B.W. (“Beth”) was born in March 1995 and lived in Taylors, South Carolina with
her mother. When Beth was 13 years old she met defendant, who was 19 at the
time, on the social networking website MySpace and the two began messaging.
Beth’s MySpace page indicated that she was 99 years old because she did not
“want people to know [her] real age.” When defendant asked how old Beth was,
Beth told her that she was 17. The two discussed “chilling” together at defendant’s
apartment, exchanged cell phone numbers, and began texting and calling each
other on a daily basis. Defendant, whose MySpace page indicated that she was a
lesbian, asked Beth whether she was a lesbian, and Beth told her that she was gay.
When texting or talking, they would sometimes discuss “sexual stuff.” Sometimes
Beth would initiate the sexual conversations and sometimes it was defendant.
Defendant and Beth decided that they wanted to meet in person, so defendant drove from her apartment in Winston-Salem, North Carolina on 4 June
2008, picked up Beth at a designated spot, and drove back to Winston-Salem for
the weekend. When defendant and Beth got back to defendant’s apartment, they
watched TV together and “[t]ongue kiss[ed].”
The next day, 5 June 2008, defendant took Beth over to her friend Francesca’s
house, where they stayed most of the day. While watching TV, defendant and
Beth “made out” on the couch and kissed. Later that night, defendant and Beth
went back to defendant’s apartment, where they ordered pizza and watched TV
and movies. Defendant and Beth later got into defendant’s bed, where Beth gave
defendant a “hickey” on her neck. Defendant kissed Beth’s breast, digitally penetrated her vagina, and performed oral sex on her. After about 10 minutes, they
went to sleep.
Defendant and Beth got into an argument on Friday, 6 June 2008, because
Beth was “acting childish” and “getting on [defendant’s] nerves.” Although defendant told Beth that she could not spend the night at defendant’s apartment, Beth
ultimately spent the night there. Defendant left for work on Saturday morning
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Criminal Law A Contemporary Approach
before Beth woke up and Beth texted and called defendant several times during
the day, asking for a ride home. Defendant did not want to drive Beth home and
the two fought over the phone while defendant was at work. When defendant’s
supervisor overheard her yelling loudly on the phone at work, she was fired from
her job. Defendant came home, yelling at Beth that she made her lose her job.
Defendant collected Beth’s things, threw them out into the front yard, and locked
her out of the apartment. Beth contacted Amanda, one of defendant’s friends that
she had met during the weekend, and Amanda let Beth spend Saturday night at
her house.
The next day, 8 June 2008, Amanda dropped Beth off at Francesca’s house,
where Beth told Francesca’s mother about her fight with defendant and that they
had done “sexual stuff.” Francesca’s mother called the police, who came to get
Beth. While there, the police interviewed Beth and she told them that she was
17. Officers took Beth to the police station, where she told them that nothing had
happened. Beth’s mother arrived in Winston-Salem that evening and drove her
home.
Officer J.A. Sheets interviewed defendant on 9 June 2008, at her apartment.
Defendant told him that she met Beth on MySpace and that they had met in
person because they were interested in dating each other. Defendant also told
Officer Sheets that Beth’s MySpace page had been changed to indicate that she was
18, although it had originally indicated that she was 21. Defendant told Officer
Sheets that they had “fingered” each other, but that only she had performed oral
sex. Defendant later texted Beth, asking her why she did not tell defendant her
“real age.” When Beth responded that she did not know why, defendant texted
back that “[Beth] was wrong.”
Defendant was charged with two counts of taking indecent liberties with a
minor and one count each of first degree kidnapping, first degree sexual offense,
and attempted second degree sexual offense. Defendant pled not guilty and a
jury trial was conducted 13-15 April 2009. At the close of the State’s evidence,
defendant moved to dismiss all five charges. The trial court dismissed the charges
of kidnapping, first degree sexual offense, and attempted second degree sexual
offense, but denied the motion as to the two counts of taking indecent liberties.
Defendant then testified that she first came into contact with Beth through MySpace in May 2008. Defendant also found Beth on “downylink.com,” a “straight,
gay, lesbian, and bisexual Website for people over the age of eighteen.” Defendant
explained that when she saw Beth on downylink.com, she believed that Beth was
over 18 because the website requires all users to verify that they are 18 years old or
over. The jury convicted defendant of both charges and the trial court sentenced
defendant to two consecutive presumptive-range sentences of 14 to 17 months
imprisonment, but suspended the second sentence and imposed 36 months of
supervised probation. Defendant timely appealed to this Court.
Chapter 3 Mens Rea
In a written request, defendant asked the trial court to instruct the jury that
[i]f you do find that the defendant was both acting under a belief that the
alleged victim was older than 15 years old and that such belief was reasonable, albeit mistaken, then it would be your duty to render a verdict
of not guilty to the charges of taking indecent liberties with a child as
the defendant lacked the requisite guilty mind to formulate the specific
intent to commit the crime.
Defendant argues that the trial court committed reversible error by not
instructing the jury that mistake of age is a defense to the charge of taking indecent liberties with a minor.
If a request is made for an instruction that is a correct statement of the law
and is supported by the evidence, the trial court must give the instruction, at
least in substance. Failure to instruct on a substantive or material feature of the
evidence and the applicable law generally results in reversible error. Any defense
raised by the evidence is deemed a substantial feature of the case and requires an
instruction....
Defendant is correct that “[t]his is a case of first impression,” as North Carolina’s courts have not specifically addressed whether mistake of age is a recognized defense to a charge of taking indecent liberties with a minor. Generally, “[i]
gnorance or mistake as to a matter of fact ... is a defense if it negatives a mental
state required to establish a material element of the crime....” In turn, “[w]hether
a criminal intent is a necessary element of a statutory offense is a matter of construction to be determined from the language of the statute in view of its manifest
purpose and design.”
N.C. Gen.Stat. § 14-202.1 defines the offense of taking indecent liberties
with a minor:
A person is guilty of taking indecent liberties with children if, being 16
years of age or more and at least five years older than the child in question, he either:
(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for
the purpose of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any lewd or lascivious act
upon or with the body or any part or member of the body of any child of
either sex under the age of 16 years.
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Criminal Law A Contemporary Approach
The statute is unambiguous as to the elements of the crime: the State must
prove that (1) the defendant was at least 16; (2) the defendant was five years older
than the complainant; (3) the defendant willfully took or attempted to take an
indecent liberty with the complainant; (4) the complainant was under 16 at the
time the alleged act or attempted act occurred; and (5) the defendant’s conduct
was for the purpose of arousing or gratifying sexual desire.
Defendant argues that a defendant’s knowledge of the complainant’s age is an
element of taking indecent liberties with a minor, making mistake of age a valid
defense to the crime. The plain language of N.C. Gen.Stat. § 14-202.1, however,
does not support defendant’s contention. The statute only requires that the complainant be “under the age of 16 years” at the time of defendant’s conduct constituting the offense. There is no explicit mens rea requirement in N.C. Gen.Stat.
§ 14-202.1 as to the complainant’s age.
“When conduct is made criminal
because the victim is under a certain
Food for Thought
age, it is no defense that the defendant
Should this North Carolina court
was ignorant of or mistaken as to the
be relying to any degree at all upon
victim’s age; and it matters not that the
general statements in criminal law
defendant’s mistaken belief was reatreatises like these when they may
reflect case law holdings interpretsonable.” 1 Charles E. Torcia, Wharing very different – and much older
ton’s Criminal Law § 78, at 563-64
– statutes?
(15th ed. 1996); accord Rollin M.
Perkins & Ronald N. Boyce, Criminal
Law § 7, at 919 (3rd ed. 1982)
(explaining that “ ‘[c]rimes such as ... carnal knowledge, seduction, and the like,
where the offense depends upon the [victim]’s being below a designated age ... do
require a mens rea,’ although a reasonable mistake of fact as to [the victim’s] age
is no defense”). See also Morissette v. United States, 342 U.S. 246, 251 n. 8, 72
S.Ct. 240, 96 L.Ed. 288, 294 n. 8 (1952) (noting “[e]xceptions [to mens rea
requirement] ... include sex offenses,
such as rape, in which the victim’s
actual age was determinative despite
Take Note
defendant’s reasonable belief that the
Note that the court’s reliance on
girl had reached age of consent”).
Morissette was reliance upon the
Supreme Court’s reference in obiter
dicta to an exception to the general
rule in that case. Was such reliance
appropriate in your opinion?
In People v. Olsen, 36 Cal. 3d
638, 685 P.2d 52, 205 Cal. Rptr. 492
(1984), the California Supreme Court
confronted a virtually identical issue of
legislative intent to the one presented
in this case, holding that a good faith, reasonable mistake of age was not a defense
to a charge of “willfully” committing “lewd or lascivious acts involving children.”
Chapter 3 Mens Rea
The California statute at issue in Olsen, similar to our indecent liberties statute,
provides:
Any person who willfully and lewdly commits any lewd or lascivious act
... upon or with the body, or any part or member thereof, of a child who
is under the age of 14 years, with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of that person or the child,
is guilty of a felony....
Recognizing the “exist [ence] [of] a strong public policy to protect children
of tender years[,]” the Olsen Court concluded that a mistake of age defense was
“untenable,” and that “one who commits lewd or lascivious acts with a child, even
with a good faith belief that the child is [over the designated age], does so at his
or her peril.”
This Court has similarly noted “the legislative policy, inherent in [N.C. Gen.
Stat. § 14-202.1], to provide broad protection to children from the sexual conduct
of older persons, especially adults.” Our Supreme Court has also recognized “the
great breadth of protection against sexual contact the statute seeks to afford children and the reasons for it”:
Undoubtedly [N.C. Gen.Stat. § 14-202.1’s] breadth is in recognition of
the significantly greater risk of psychological damage to an impressionable child from overt sexual acts. We also bear in mind the enhanced
power and control that adults, even strangers, may exercise over children
who are outside the protection of home or school.
We conclude, therefore, that a defendant’s mistake as to the complainant’s age
is not a valid defense to a charge of taking indecent liberties with a minor under
N.C. Gen.Stat. § 14-202.1. As the defense is inapplicable, the trial court properly
refused to give defendant’s proffered instruction on the defense....
No Error.
_______________
Point For Discussion
Amending Statute
The Breathette Court was simply trying to ascertain the legislative intent
behind the language in N.C. Gen.Stat. § 14-202.1. The North Carolina legislature
could, of course, decide that it wanted to take a different approach with this
statute and amend it in light of the Breathette decision to provide for some form
of mistake-of-age defense. Should the legislature do that? What do you think?
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Criminal Law A Contemporary Approach
Hypo 3.12: Mistake and the Babysitter
Andre Knap was in bed, asleep in a darkened bedroom, when he felt
someone massaging his genitals. Assuming that this person was his girlfriend, Knap began engaging in sexual relations with her. At some point,
however, he realized that the person with whom he was having sex was
not his girlfriend, but was instead the 13 year-old babysitter, who had
come into his bed naked while he was sleeping. As soon as Knap realized
this fact, he desisted. Is Knap guilty of statutory rape? Commonwealth v.
Knap, 412 Mass. 712, 592 N.E.2d 747 (1992).
_______________
E. Mistake of Law
United States v. Scarmazzo
554 F. Supp. 2d 1102 (E.D.Cal. 2008).
OLIVER W. WANGER, District Judge.
The following orders on motions
in limine and for clarification of and
addressing supplemental motions in
limine have been heard and decided[.]
The following rulings are set forth for
the benefit of and as guidance to the
parties.
?
?
What’s That?
?
?
?
?
A motion in limine is a pretrial request
that certain inadmissible evidence
not be referred to or offered at trial.
[Defendants] are ordered not to introduce any evidence, questioning, or testimony, either expert or lay opinion testimony, or to argue in the presence of the
jury, to suggest: ... Defendants’ “good faith” belief that marijuana is of medical
value ...
[Erroneous] Belief Conduct Was Lawful (Irrelevant).
It is unlawful for an individual knowingly or intentionally to manufacture,
distribute, dispense, or possess with intent to manufacture, distribute, or dispense
a controlled substance.
Chapter 3 Mens Rea
Knowledge of, or intent to violate the law is not an element of this offense.
A good faith defense does not apply where the law does not require as part of its
mens rea element, proof of a Defendant’s knowledge of the legal duty. A mistake of
law element does not apply because ignorance or mistake of law is not a defense
to a crime that does not require a showing the Defendant knew the illegality of
conduct of which he is charged.
Where the crime requires only knowledge, not willfulness, the government
need only prove the Defendants knew they were performing an act, not that they
knew the act was unlawful or criminalized by statute.
[Ignorance] of the law is no defense, as statutes relating to the use and possession of drugs do not require proof of intent to violate the law. [There] is no
requirement of knowledge of the unlawfulness of Defendant’s acts under the
crimes charged. The general rule,
“deeply rooted in the American legal
system” is “that ignorance of the law or
Food for Thought
a mistake of law is no defense to
Should it matter that the defendants,
criminal prosecution.”
The government is not required
to prove that Defendant was aware
of or intended to violate the law. [A]
mistaken belief regarding what the
law allows is a mistake of law, not a
mistake of fact, and is not a defense to
a criminal charge.
who owned a medical marijuana dispensary that was organized lawfully
under California law, believed that
they were acting lawfully in possessing and distributing marijuana in reliance relying upon a California law
which permits medicinal marijuana
use? Why or why not?
[Good] faith reliance on the advice of a counsel is not relevant because such
advice can only be shown to negate a specific intent to violate the law. Here, neither good faith nor mistake as to the enforceability of the law is a defense. An
attorney’s advice about what the law is,
medical necessity, the benefits of marijuana ... would only be confusing,
Food for Thought
misleading, time consuming, and prejWhy do you think that the Scarmazudicial. Fundamentally, advice of
zo Court concluded that a person is
counsel is irrelevant.
not entitled to rely on the advice of
his or her attorney as a defense to
criminal charges? Does that make
sense? If a person can’t rely on an
attorney to figure out what the law
requires, how are people supposed
to find out what the law is? Research
it on their own?
[For] the reasons stated above, the
government’s motions in limine are
GRANTED.
_______________
143
144
Criminal Law A Contemporary Approach
Hawaii v. DeCastro
81 Haw. 147, 913 P.2d 558 (Ct.App. 1996).
Burns, Chief Judge.
Defendant Robert DeCastro (DeCastro) appeals the October 7, 1992 Judgment entered by the District Court of the First Circuit convicting him of Resisting
an Order to Stop a Motor Vehicle, Hawai’i Revised Statutes (HRS) § 710–1027(1)
(1985), which states as follows:
(1) A person commits the offense of resisting an order to stop a motor
vehicle if he intentionally fails to obey a direction of a peace officer, acting under color of his official authority, to stop his vehicle.
The district court sentenced DeCastro to probation for one year and ordered
him to contribute $100 to the State General Fund.
[We] affirm.
[DeCastro] owns Town and Country Moving headquartered in Kalihi. On
Wednesday, December 18, 1991 at about 12:30 p.m., while returning to his warehouse from a delivery in Wahiawa, DeCastro drove his van (Van) in the Koko
Head (southeasterly) direction on the H–2 freeway. DeCastro’s employee, Westley Damas (Damas), was a passenger in DeCastro’s Van. Near the Mililani exit,
DeCastro and Damas observed police officer Derek Rodrigues (Officer Rodrigues)
in a Honolulu Police Department blue and white vehicle ... nearly cause a “four
car accident” while pursuing a speeding motorist later identified as George Hernandez (Hernandez). Hernandez had no passenger in his vehicle. After Officer
Rodrigues had stopped Hernandez to issue him a citation for speeding, Officer
Rodrigues noticed a white van stop about four car lengths behind his patrol car.
Officer Rodrigues saw DeCastro in the driver’s seat and Damas in the passenger’s
seat of the Van.
DeCastro testified that he stopped because he believed Officer Rodrigues had
driven his police car in a reckless manner. DeCastro remained in the Van and
noted the license plate numbers of Officer Rodrigues’ and Hernandez’ vehicles.
The Van’s presence aroused Officer Rodrigues’ suspicions that its occupants
were friends of Hernandez. This prompted Officer Rodrigues to approach the
driver’s side of the Van and ask, “Oh. You with those guys up there?” DeCastro
replied, “No. Do we look like we’re with those guys?”
At this point, the State and DeCastro dispute what happened. DeCastro and
Damas testified that, while holding his baton or nightstick in his hand, Officer
Chapter 3 Mens Rea
Rodrigues made the following statement: “Oh, you getting pretty cocky, aren’t you?
You want to get cocky ... Eh, you fucker, you like beef? You like beef, you fucker?
Step out. Both of you. Come on, step out.” DeCastro admitted that at no point
did Officer Rodrigues strike DeCastro or the Van with his baton. Nor did Officer
Rodrigues wave his baton in the air or swing it at DeCastro. DeCastro testified that
upon hearing Officer Rodrigues’ statement, both he and Damas chuckled.
Nevertheless, DeCastro contends Officer Rodrigues’ statement led him to
be concerned for his and Damas’ safety. Thereafter, Officer Rodrigues demanded
DeCastro’s license, and vehicle registration and insurance card, which DeCastro
willingly provided. Officer Rodrigues then ordered DeCastro to “wait” while Officer Rodrigues returned to his patrol car.
Immediately after Officer Rodrigues walked away, DeCastro dialed 911 on
his cellular phone.... The transcript of the “911” conversation between the 911
operator and DeCastro discloses the following:
OPERATOR: You need a police?
DeCASTRO: No, I no need a police. I’m being harassed by a policeman.
OPERATOR: Hah?
DeCASTRO: I’m being harassed by a policeman.
OPERATOR: Where is the policeman?
DeCASTRO: Where are we in between?
OTHER: Waipio [Waipi’o] and Mililani.
DeCASTRO: Waipio [Waipi’o] and Mililani, and he’s—I hope someone comes
fast. He went ask us if, uh, we like fight with him.
OPERATOR: You have his license number?
DeCASTRO: H–P–D 734. He was reckless driving. We went go pull off on
the side of the road—
OPERATOR: What’s his number?
DeCASTRO:—to get his, uh, license plate.
OPERATOR: What is it?
145
146
Criminal Law A Contemporary Approach
DeCASTRO: And now he’s out here with his nightstick.
OPERATOR: What is it?
DeCASTRO: You know what, I just—I should just go to my warehouse
already.
OPERATOR: What’s the license number?
DeCASTRO: His—his number is H–P–D—
[OPERATOR:] “D?”
DeCASTRO: H–P–D 734. This guy wants to fight us.
OPERATOR: You want the police right now?
DeCASTRO: Uh, well, I like just go to my warehouse, and you can send a
policeman over there.
OPERATOR: Okay. When you get to the warehouse, call back.
DeCASTRO: You know what, he’s gonna chase me once I leave.
OPERATOR: No, go ahead and just, uh, we got the license.
DeCASTRO: You got ‘um?
OPERATOR: Yeah. Just go to the warehouse, and then call back.
DeCASTRO: Okay.
OPERATOR: Okay....
DeCASTRO: Now he’s in back of me, and he wants to pull me over. And this
guy wants to fight with me.
OPERATOR: Is he—is—is—well, do you wanna stay on the line?
DeCASTRO: Yeah, I wanna stay on the line. I want another policeman. I want
another policeman at my warehouse ‘cause I’m not gonna pull over.... I’m afraid if
I pull over, he’s—he’s gonna arrest me, or what do you want me to do?
OPERATOR: I don’t know. Is he in a blue-and-white?...
Chapter 3 Mens Rea
DeCASTRO: He’s in a blue-and-white. I want a policeman at 94–478 Ukee
[‘Uke’e] Street.
OPERATOR: But are you there now?
DeCASTRO: No, I’m on the freeway....
SUPERVISOR: This is the 911 Supervisor. May I help you?
DeCASTRO: Yeah, about an officer who I pulled over on the side of the road.
I pulled him on the side of the road to take his license-plate number down. He
asked me if I wanted to fight, and he came out with his nightstick.
SUPERVISOR: He couldn’t be an officer....
DeCASTRO: Now there’s three of ‘um....
DeCASTRO: Now, now they’re all coming out with their clubs. All of them
have their clubs....
[DeCASTRO:] Now they’re arresting me. Get—get the—get the chief—get
the chief over here.
The State’s evidence showed that before Officer Rodrigues returned to the
Van, DeCastro drove it off in the same direction he was heading before he had
stopped. Officer Rodrigues gave chase, using his automobile’s horn, siren, and
flashing lights, while maintaining a distance of about two car lengths behind
DeCastro. Officer Rodrigues simultaneously called dispatch to inform them that
he was pursuing DeCastro and asked for a backup unit to assist him. During the
chase, Officer Rodrigues observed DeCastro “look in his rearview mirror at least
ten times.”
[Upon] stopping DeCastro, Officer Rodrigues and Sergeant Dow approached
the driver’s side and Officer Grilho approached the passenger’s side. DeCastro
refused to open the door, the window remained locked, and he continued talking
on his cellular phone. Officer Rodrigues kept knocking on the window telling
DeCastro to open the door. DeCastro eventually did step out of his Van. Officer
Rodrigues testified that the first remark that DeCastro made was “the chief told”
him “not to stop.” While being handcuffed, DeCastro put up a slight struggle.
[DeCastro] contends that he lacked the requisite specific intent to commit
the crime because he consulted with and relied on the 911 telephone operator’s
permission to leave the scene.
147
148
Criminal Law A Contemporary Approach
HRS § 702–220 (1985) states in relevant part as follows:
Ignorance or mistake of law; belief that conduct not legally prohibited.
In any prosecution, it shall be an affirmative defense that the defendant
engaged in the conduct or caused the result alleged under the belief that
the conduct or result was not legally prohibited when he acts in reasonable reliance upon an official statement of the law, afterward determined
to be invalid or erroneous, contained in:...
(3) An ... administrative grant of permission; or
(4) An official interpretation of the public officer or body charged by law
with responsibility for the interpretation, administration, or enforcement
of the law defining the offense.
Clearly, a 911 telephone operator is not “the public officer or body charged
by law with responsibility for the interpretation, administration, or enforcement
of the law defining the offense” of Resisting an Order to Stop a Motor Vehicle.
Therefore, the HRS § 702–220(4) affirmative defense is not applicable.
The district court found that “the Court does not see anything in the information that could lead a reasonable person to conclude that somehow he was being
given permission to leave the scene[;]” and “[DeCastro’s] attempt to make a phone
call via 911 was a rather calculating act, and, actually, an attempt to bootstrap
some sort of defense.” In contrast, DeCastro asserts, as an HRS § 702–220(3)
affirmative defense, that the 911 telephone operator authorized him to proceed to
his warehouse and he acted on the belief that he was legally authorized to leave.
Assuming DeCastro’s assertion is true, the dispositive question is whether
DeCastro has introduced evidence in satisfaction of his burden of proving that
a 911 telephone operator’s authorization is an “official statement of the law, ... ,
contained in: ... [a]n administrative grant of permission[.]” Our answer is no.
[The] affirmative defense stated in HRS § 702–220 is a relatively recent limited exception to the following very old general rule.
A defendant’s error as to his authority to engage in particular activity, if
based upon a mistaken view of legal requirements (or ignorance thereof),
is a mistake of law. Typically, the fact that he relied upon the erroneous
advice of another is not an exculpatory circumstance. He is still deemed
to have acted with a culpable state of mind.
United States v. Barker, 546 F.2d 940, 946–47 (D.C.Cir. 1976).
Chapter 3 Mens Rea
In his concurring opinion in Barker, District Judge Merhige explained the
rationale of the rule in relevant part as follows:
FYI
FYI
FYI
The district judge advised the jury
that a mistake of law is no excuse,
and, therefore, that a mistake as to
the legality of the search in issue
was not a defense to the charges
contained in the indictment. In
that regard, the district judge was
applying the general rule on mistake of law that has long been an
integral part of our system of jurisprudence. The most commonly
asserted rationale for the continuing vitality of the rule is that its
absence would encourage and reward public ignorance of the law
to the detriment of our organized
legal system, and would encourage universal pleas of ignorance of
the law that would constantly pose
confusing and, to a great extent, insolvable issues of fact to juries and
judges, thereby bogging down our adjudicative system.
FYI
FYI
The Barker decision, cited in
DeCastro, related to the Watergate scandal that ultimately led
to the resignation of President Richard Nixon. Two of the Watergate
burglars, including Bernard Barker,
claimed that they mistakenly believed that the burglary they were
asked to commit was lawful as a
matter of national security. Although
Barker’s conviction was reversed,
there was no binding opinion of the
court in Barker; each of the three
judges issued separate opinions. For
an interesting, recent discussion of the
Watergate affair and the role of lawyers
in it, see http://www.abajournal.com/
magazine/article/the_lawyers_of_wa
tergate_how_a_3rd-rate_burglary_
provoked_new_standards/.
FYI
[Assuming] a 911 telephone operator’s authorization is a “statement of the
law ... contained in ... [a]n ... administrative grant of permission[,]” there is
nothing on the record or in the law
Food for Thought
that supports a conclusion that it is an
Do you think that the result in De“official statement of the law[.]” There
Castro would have—or should have—
is nothing on the record or in the law
been different if the 911 operator
was, as is true in some states, a deputhat supports the conclusion that a
tized police officer? What if DeCas911 telephone operator is officially
tro had actually talked to the Chief
authorized to permit a motor vehicle
of Police, and he or she told him to
operator to fail to obey a police officer’s
continue on to his warehouse?
order. Thus, we do not reach the question of whether a 911 telephone operator’s authorization is an “administrative
grant of permission[.]”
[Accordingly,] we affirm the District Court’s October 7, 1992 Judgment convicting DeCastro of Resisting an Order to Stop a Motor Vehicle.
_______________
149
150
Criminal Law A Contemporary Approach
Points For Discussion
a. Ignorance of the Law Is No Excuse
In general, the old maxim, “ignorance of the law is no excuse” (“ignorantia
legis neminem excusat”), is a perfectly accurate statement of the prevailing law,
unless the criminal statute in question expressly prescribes that knowledge of the
unlawfulness of one’s conduct is an element of the offense.
b. Mistake of Law Exceptions
The Hawaii mistake-of-law statute, H.R.S. § 702–220, also contains provisions, not at issue in DeCastro, taken from the Model Penal Code, that provide
a further mistake-of-law defense where an individual acts in reasonable reliance
upon an official (albeit erroneous) statement of the law contained in “(1) [a] statute or other enactment; [or] (2) [a] judicial decision, opinion, or judgment.”
_______________
Kipp v. Delaware
704 A.2d 839 (Del. 1998).
Holland, Justice:
This is an appeal following a bench trial in the Superior Court. The defendantappellant, Hugh A. Kipp, Jr. (“Kipp”), was convicted of three counts of Possession
of a Deadly Weapon by a Person Prohibited. The State has confessed error on
appeal and submits that Kipp’s judgments of conviction should be reversed.
[On] the morning of September 17, 1995, several police officers went to
Kipp’s home in Wilmington. They were investigating a “man with a gun” complaint from Kipp’s girlfriend, Lisa Zeszut (“Zeszut”). At first, Kipp refused to come
out of his house, but eventually surrendered to the police.
[The] police searched the house for other weapons. The police found a handgun and two unloaded shotguns. The police discovered ammunition for those
weapons scattered on the bedroom floor. The police also found two hunting bows,
with arrows. Upon checking Kipp’s criminal record, police ascertained that he was
a person prohibited from possessing deadly weapons.
Kipp was ... charged with five counts of Possession of a Deadly Weapon by a
Person Prohibited.
Chapter 3 Mens Rea
151
[The] only defense offered by Kipp at trial was that he was unaware of his
status as a “person prohibited.” Kipp was a “person prohibited” as a result of his
guilty plea to Assault in the Third Degree in 1990. Kipp testified he was told that
he would not be prohibited from possessing weapons as a result of the plea.
The 1990 guilty plea form, which was submitted into evidence, has a space
which provides that a guilty plea will result in loss of the right to possess deadly
weapons. That portion of the form was marked “N/A.” Kipp testified that “N/A”
meant the provision did not apply to him. The completed guilty plea form was
provided to the judge during the 1990 plea colloquy. Neither the prosecutor nor
the judge, however, brought the error on the guilty plea form to Kipp’s attention.
After hearing all of the evidence, the Superior Court concluded that the two
hunting bows were not deadly weapons. [The] Superior Court found Kipp guilty
of three counts of Possession of a Deadly Weapon by a Person Prohibited in connection with his possession of the three firearms.
[Under] 11 Del.C. § 1448(b), “[a]ny prohibited person ... who knowingly
possesses, purchases, owns or controls a deadly weapon while so prohibited shall
be guilty of possession of a deadly weapon by a person prohibited.” A person is a
“prohibited person” for purposes of § 1448(b) when, inter alia, he or she has “been
convicted in this State or elsewhere of a felony or a crime of violence involving
physical injury to another....” Assault in the Third Degree is a misdemeanor crime
of violence involving physical injury to another. A person who has been convicted
of a violent misdemeanor is prohibited from possessing a deadly weapon for the
five-year period from the date of conviction.
[The] State has confessed error in Kipp’s case on appeal. Under the facts
presented, the State concedes that Kipp presented a valid mistake of law defense.
This Court has held that, in very nar?
?
row circumstances, mistake of law can
?
?
be a defense to a criminal charge. That
What’s That?
defense is cognizable when the defenWhen the State is “confessing error,”
dant: (1) erroneously concludes in
it is admitting to an appellate court
that it was wrong in an earlier argugood faith that his particular conduct
ment. As you can see in this case,
is not subject to the operation of the
that does not always end the appelcriminal law; (2) makes a “bona fide,
late court’s independent inquiry into
diligent effort, adopting a course and
the issue.
resorting to sources and means at least
as appropriate as any afforded or under
our legal system, to ascertain and abide
by the law;” (3) “act[s] in good faith reliance upon the results of such effort;” and
(4) the conduct constituting the offense is “neither immoral nor anti-social.”
?
?
152
Criminal Law A Contemporary Approach
Kipp presented evidence that he was misled in connection with his plea to
Assault in the Third Degree. His 1990 guilty plea form, which was introduced at
trial, and his testimony indicated he was told that the prohibition against possession of a deadly weapon which would result from a guilty plea was “not applicable”
to the plea which he was entering. Kipp testified that he was told that prohibition
was not applicable to him because he was pleading to a misdemeanor.
Kipp’s plea agreement and truth-in-sentencing guilty plea form were submitted to the judge in 1990 at the plea colloquy before his guilty plea to Assault in
the Third Degree was accepted. Apparently, the prosecutor and the judge who
accepted his guilty plea failed to notice the “not applicable” notation on the guilty
plea form. The judge referred to the plea agreement in the plea colloquy, but never
informed Kipp that the “not applicable” notation was incorrect with respect to
the prohibition against future possession of a deadly weapon which would result
from the plea.
Under 11 Del.C. § 1448, a person is guilty of possession of a deadly weapon
by a person prohibited when he is: (a) a person prohibited; and (b) knowingly
possesses a deadly weapon. Thus, to be guilty of the offense, the defendant need
only know that he or she possessed the weapon. Section 1448 does not require
the defendant to know that it was criminal to do so.
Ignorance of the law is not a defense to crime. But “[a] defendant is not
charged with knowledge of a penal statute if he is misled concerning whether the
statute is not being applied.” A mistake of law defense is appropriately recognized
where the defendant demonstrates that he has been misled by information
received from the State.
FYI
FYI
FYI
Under the unique circumstances
On November 5, 1872, Susan B.FYI FYI
of this case, the State concedes on
Anthony and thirteen other women
appeal that Kipp presented a proper
voted in an election in Rochester,
New York. A federal statute made it
and complete mistake of law defense.
a crime for any person to vote “withIn relying on the advice of counsel,
out the lawful right to vote.” Almemorialized in an official guilty plea
though the state of New York did not
permit women to vote at that time
document presented to and not cor(the XIX Amendment to the U.S.
rected by either the prosecutor or the
Constitution did not go into effect
judge, Kipp had “made a bona fide,
until 1920), Anthony argued that she
had a lawful right to vote under the
diligent effort, adopting a course and
Fourteenth Amendment. The courts
resorting to sources and means at least
rejected her claim. Assuming that
as appropriate as any afforded under
Anthony honestly believed that she
our legal system, to ascertain and abide
was morally entitled to vote, did she
have a tenable mistake of law claim?
by the law....” The State submits that
See United States v. Anthony, 24 Fed.
Kipp’s three convictions for possession
Cas. 829 (C.C.N.D.N.Y. 1873).
of a deadly weapon by a person prohibited should be reversed.
FYI
Chapter 3 Mens Rea
[The] mistake of law defense is based upon principles of fundamental fairness. A review of the record and the applicable law supports the State’s confession
of error. The State’s confession of error
“is in accordance with the highest tradition of the Delaware Bar and the
See It
prosecutor’s unique role and duty to
The U.S. Mint minted Susan B. Anseek justice within an adversary systhony one-dollar coins from 1979 to
1981 and then again in 1999. See
tem.”
http://www.usmint.gov/consumer/
dispPicture.cfm?pic=SBAnthony.
The judgments of conviction are
reversed....
_______________
Executive Summary
Proof of Specific Mens Rea. The
prosecution must prove the specific
mens rea elements of crimes beyond
a reasonable doubt. A showing of
general wickedness is never enough to
satisfy the mens rea requirement.
Model Penal Code. The Model
Penal Code established four levels of
intentionality to be used as standard
mens rea elements: purpose; knowledge; recklessness; and negligence.
Many jurisdictions have followed all or
part of this MPC approach, although
there is still great variation between
jurisdictions with respect to mens rea
terms used, and their definitions.
Mens Rea Application. The key
to determining to which other elements of a crime a particular mens rea
term applies is the intention of the
legislature.
Strict Liability. Where a criminal
statute does not contain an explicit
mens rea element, it is still not neces-
Major Themes
a. Mens Rea Generally Required.
Most serious criminal offenses require proof of a specific criminal
intention (“mens rea”), reflecting the
view that noone should be found
guilty of a serious criminal offense
unless he or she was shown to have
been blameworthy because he or she
actually intended to commit that
crime. Legislatures have the power,
however, to enact strict liability
criminal offenses, and they often to
so with respect to minor, public welfare offenses.
b. Mistakes & Mens Rea. One way
for the defense to establish that a
mens rea element did not exist is to
demonstrate that the accused did
not think that he or she was acting
with that required intent because he
or she had a mistaken belief about
relevant factual circumstances (“mistake of fact”). But an accused person’s
mistaken belief about applicable law
rather than relevant facts (“mistake
of law”) is not a good defense to
criminal charges.
153
Criminal Law A Contemporary Approach
154
sarily a strict liability statute. A felonious criminal offense with common law roots
is presumed to have an implicit mens rea element, unless there is a clear legislative
intent to the contrary. The legislature has the power to decide whether a particular
crime is or is not strict liability. Courts are only to interpret the legislature’s intent.
Intoxication Defense. Intoxication or drugged condition is a good defense
in most jurisdictions if crime is a specific intent crime only. It is not a good
defense if the crime is a general intent or strict liability crime. Where intoxication
is recognized as a tenable defense, it must be proved to have been so profound
that the accused did not possess the required mens rea.
Mistake of Fact. A defendant’s honest but mistaken belief that factual circumstances existed that would have made his or her actions not criminal due to
the absence of the required mens rea is a good defense to a criminal charge. But
often jurisdictions require that such an honest belief (subjective focus) also be a
reasonable belief (objective focus) in order to make out a good defense to some
specified crimes. Mistake of fact is never, however, a defense to strict liability
crimes as it is a mens rea defense only.
Mistake of Law. A defendant’s mistaken belief in the lawfulness of his or her
otherwise criminal conduct is not a good defense unless the accused was told –
officially – that such conduct was not criminal or where the criminal statute specifically makes knowledge of illegality an element of the crime.
i
For More Information
• American Law Institute, Model Penal Code
2.04 (1980)
and
Commentaries, Part I, §§ 2.02 &
• Darryl K. Brown, Criminal Law Reform and the Persistence of Strict Liability, 62 Duke L.
J. 285 (2012)
• Darryl K. Brown, Federal Mens Rea Interpretation and the Limits of Culpability’s Relevance, 75 Law & Contemp. Probs. 109 (2012)
• John M. B urkoff & Russell L. W eaver, I nside C riminal L aw : What M atters
Why 35-62 (2d ed. 2011)
and
• Deborah W. Denno, Criminal Law in a Post-Freudian World, 2005 Univ. Ill. L. Rev. 601
• Eric A. Johnson, Rethinking the Presumption of Mens Rea, 47 Wake Forest L. Rev. 769
(2012)
• Edwin R. Keedy, Ignorance and Mistake in Criminal Law, 22 Harv. L. Rev. 75 (1908)
• Gerald Leonard, Towards a Legal History of American Criminal Theory: Culture and
Doctrine from Blackstone to the Model Penal Code, 6 Buff. Crim. L. Rev. 691 (2002)
Chapter 3 Mens Rea
• Gerhard O.W. Mueller, On Common Law Mens Rea, 42 Minn. L. Rev. 1043 (1957-1958)
• Paul H. Robinson, Mens Rea, in 3 Encyclopedia of Crime & Justice 995 (Joshua Dressler
et al. eds., 2d ed. 2002)
• Francis Bowes Sayre, Mens Rea, 45 Harv. L. Rev. 974 (1932)
• Francis Bowes Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55 (1933)
• Herbert Wechsler, The Challenge of a Model Penal Code, 65 Harv. L. Rev. 1097 (1952)
• Gideon Yaffe, Intoxication, Recklessness, and Negligence, 9 Ohio St. J. Crim. L. 545
(2012)
155