Common Law Mens Rea

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Mens Rea:
The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime.

The state of mind accompanying an act.

Conduct whereby the actor does not desire harmful consequences but nonetheless foresees the substantial possibility for harmful consequences and consciously assumes the risk of such consequences.

Criminal Negligence:
Gross negligence so extreme that it is punishable as a crime.

Mens rea, or "guilty" intent, deals with what the defendant needs to have been thinking at the time he or she committed the actus reus for criminal liability to attach. In order to be guilty of most crimes, the defendant must have had the mens rea required for the crime he was committing at the time he committed the criminal act. As with the actus reus, there is no single mens rea that is required for all crimes. Rather, it will be different for each specific crime.

Please note that the mens rea is not the same thing as motive. The mens rea refers to the intent with which the defendant acted when committing his criminal act. On the other hand, the motive refers to the reason that the defendant committed his criminal act. For example:

  1. Fred and Wilma have been married for twenty years. Recently, Fred has begun to suspect that Wilma is having an affair with Barney. Enraged that his wife might be cheating on him, Fred buys a gun and shoots Wilma to death. In this case, Fred’s criminal act was shooting the gun at Wilma, and his mens rea, his intent, was to kill her. The motive was because he was angry that she might be having an affair.
  2. Fred and Wilma have been married for fifty years. Recently, Wilma has been diagnosed with terminal cancer, and while she has no chance of surviving the cancer, she will live out the rest of her days in terrible pain. One day, tired of being in pain, Wilma begs Fred to put her out of her misery. Fred loves Wilma and will do anything for her. So, he gets a gun, says his goodbye, and shoots her. In this case, Fred’s criminal act was shooting the gun at Wilma. His mens rea was to kill her. His motive was to put her out of her misery. Note that even though Fred’s motive here was a “good” one, he can nevertheless be convicted of a homicide. 

It is very important to remember that motive is not an element to the crime. Although a prosecutor will almost certainly want to prove that the defendant had a motive for committing the crime in order to strengthen the prosecution's argument that the defendant did commit the crime, proving motive is not essential to proving criminal liability. In fact, if a prosecutor can prove motive and not mens rea, the defendant must be acquitted no matter how bad the motive is. Conversely, as we have seen with the above example, if the prosecution can prove the mens rea along with the actus reus, the defendant will be convicted no matter how good or noble his motive might have been. See State v. Asher, 8 S.W. 177 (Ark. 1888).

Mens rea is traditionally divided into four separate categories: general intent, specific intent, recklessness and criminal negligence. Additionally, certain statutory crimes may require malice or willfulness or other such terms (which have not really been clearly defined) that we will examine shortly.

General Intent

General intent crimes require that the defendant has intended to commit an illegal act. As such, the only state of mind that will suffice for a conviction is an intent to commit the act that constitutes the crime. If this has been established, the defendant can be convicted even if he never intended to violate the law, and even if he did not know that his act was criminal. For example:

The crime "mayhem," which we will discuss in more depth a little bit later in the course, is loosely defined as the intentional disfigurement or maiming of another person. Since mayhem is a general intent crime, all the prosecution has to prove to secure a conviction is that the defendant intentionally committed the act that resulted in the victim’s disfigurement. In such a situation, the defendant will be convicted even if he did not intend to break the law with his actions and even if he did not know that his actions were illegal. Let’s assume that Defendant throws battery acid into Victim’s face and disfigures him. In order to secure a conviction, the prosecution will have to prove that Defendant intentionally threw the acid into Victim’s face. If the prosecution successfully proves this, Defendant can be convicted even if he did not intend to disfigure the victim and even if he did not know that disfiguring somebody was illegal. In other words, Defendant can be convicted for the general intent of throwing the acid in the victim’s face even if he did not have the specific intent of actually disfiguring the victim. For general intent crimes, under which this example fits, we don’t care what the defendant’s specific intent was. As long as the general intent of throwing acid in the victim’s face was there, he can be convicted of mayhem.

Note that with regard to general intent crimes, intent does not have to be specifically proven. This would be a near impossible thing to do since there is no way to allow the jury to see the defendant's thought processes. Rather, intent can be inferred from the commission of the act itself and the surrounding circumstances. In other words, it can be presumed that the defendant intended to commit an act by virtue of the fact that he voluntarily committed it. See State v. Carlson, 93 N.W.2d 354 (Wis. 1958) 

Specific Intent

Specific intent crimes require proof of the general intent to commit the illegal acts and proof of intent above and beyond the general intent to commit the illegal acts. In other words, beyond proving that the defendant had the intent to commit the illegal act, the prosecution must prove that the defendant had intent to achieve a specific goal in addition to the intent to commit the illegal acts. For example:

Common law burglary, as we will discuss later in this course, is defined as the breaking and entering of the dwelling of another person at night with the intent to commit a felony therein. If burglary were a general intent crime, all the prosecutor would have to do to secure a conviction would be to prove that the defendant intended to break and enter into someone’s dwelling at night. After that, we would not care what the defendant’s intent was. As long as he satisfied the general intent requirement in that he intended to break into the house, he could be convicted. However, because burglary is a specific intent crime, something more is required, and that is the intent to actually commit a felony once inside the dwelling. If the prosecution could only prove that the defendant intended to break and enter into a dwelling of another and he could prove nothing more, the defendant would have to be acquitted because, above and beyond the prosecution’s requirement to prove the general intent of breaking and entering, the prosecutor must also prove that the defendant had the specific intent to commit a felony once he broke into the house. Because this specific intent is an actual element of the crime, burglary is called a specific intent crime.

Unlike general intent, specific intent cannot be inferred from the commission of the act. Rather, specific proof is required to demonstrate specific intent. See Sullateskee v. State, 428 P.2d 736 (Okla. 1967).

Recklessness and Criminal Negligence

For some crimes, a conviction can be based on a showing of recklessness or criminal negligence. Both of these terms refer to scenarios in which the defendant did not intend to commit the crime but was not careful enough with his or her actions in avoiding the criminal result. In these cases, the defendant can be convicted for an act done without the intent required for specific and general intent crimes, but rather, with a showing that the defendant acted with a gross lack of care. The difference between recklessness and negligence is a matter of degree, with recklessness being the higher level of guilt. Some of the most common examples of crimes that can be committed through recklessness or criminal negligence are involuntary manslaughter, criminally negligent homicide and, as the name implies, reckless endangerment. For example:

  1. One evening, Driver gets wasted at his local bar by drinking seven beers and then gets into his car and drives home. On the way home, Driver, predictably, loses control of his car and runs down a pedestrian, killing him. In many states, Driver has committed involuntary manslaughter. By getting behind the wheel while drunk, Driver exhibited reckless behavior. He can be convicted of reckless homicide despite his lack of intention to kill anyone.
  2. While out on parole, Driver gets back into his car. Having learned his lesson about drunk driving, he is completely sober this time. However, he has not learned his lesson about driving carefully in general. While cruising at 55 miles per hour through a hospital zone (speed limit 15 MPH), he kills another pedestrian. Although Driver's conduct probably does not rise to the level of recklessness, he can still probably be liable for criminally negligent homicide, since it could reasonably be argued that driving at 40 miles per hour above the speed limit constitutes gross negligence.

Certain crimes define the requisite mens rea in terms of “malice” or “willfulness”. However, these terms have no generally agreed upon meaning.

For both the general intent and the specific intent crimes, the United States Constitution mandates that the burden of proof is on the prosecution to prove both the elements of the crime and the intent required by the criminal statute beyond a reasonable doubt. If no intent is spelled out in a criminal statute, the crime is presumed to be a general intent crime.

What does it mean for the Prosecution to prove something “beyond a reasonable doubt”?

Beyond a Reasonable Doubt

The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.

If the jurors or judge have no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proven the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty.

The term connotes that evidence establishes a particular point to a moral certainty and that it is beyond dispute that any reasonable alternative is possible. It does not mean that no doubt exists as to the accused's guilt, but only that no Reasonable Doubt is possible from the evidence presented.

Beyond a reasonable doubt is the highest standard of proof that must be met in any trial. In civil litigation, the standard of proof is either proof by a preponderance of the evidence or proof by clear and convincing evidence. These are lower burdens of proof. A preponderance of the evidence simply means that one side has more evidence in its favor than the other, even by the smallest degree. Clear and Convincing Proof is evidence that establishes a high probability that the fact sought to be proved is true. The main reason that the high proof standard of reasonable doubt is used in criminal trials is that such proceedings can result in the deprivation of a defendant's liberty or even in his or her death. These outcomes are far more severe than in civil trials, in which money damages are the common remedy.

Strict Liability

Along with the general intent and specific intent crimes is a class of strict liability crimes. Strict liability crimes are the crimes for which a defendant can be convicted even if he did not have any mens rea at all when he was committing the crime. Statutory rape and bigamy are the two popular examples of strict liability crimes. For example:

Fred and Wilma have been married for several years when they mutually decide to file for divorce. Fred hires a divorce attorney and does what he needs to do to legally divorce Wilma. Unfortunately, due to some technical mistakes, the divorce is not valid and, although Fred doesn’t know it, he is still legally married to Wilma. One year later, Fred marries Betty. If Fred lives in a state where bigamy is illegal, he can be prosecuted and convicted for committing the crime, even though he had no criminal intent whatsoever when he married Betty. The fact that bigamy is a strict liability crime means that Fred can be convicted anyway because for strict liability crimes, there is no requirement of a men’s rea.

Typically, whether a crime is strict liability or not will depend on what the legislature intended when they passed the specific criminal statute.