Mens Rea in US/UK law

1. Mens Rea in US/UK law By Alec Walen

2. Key ideas about Men Rea • Punishment holds people responsible for culpable choices, and culpability requires a guilty mind or culpable mental state when making the choice and performing the act. • Mens rea is one of the two dimensions of proportionality in crime: • The graver the harm caused or contemplated, the graver the crime. • The more guilty the mind, the more culpable the act.

3. Broad vs narrow mens reareading 1, p. 242 • Broad sense: acted with vicious will or evil meaning mind. • Narrow sense: either…

4. Broad vs narrow mens reareading 1, p. 242 • Broad sense: acted with vicious will or evil meaning mind. • Narrow sense: either… • A purpose to cause the crime, or • Knowledge that the unjustifiable effect would be caused or risked .

5. MPCreading 2, p. 1202, § 2.02 Note 4 kinds of mens rea: • Purpose • Knowledge • Recklessness • Negligence

6. three kinds of elements of crimes (illustrated with homicide) • Conduct—e.g., shoot a gun at a person • Attendant Circumstance—e.g., from a motor vehicle (CA law, § 189) • Result—death

7. Interaction of elements and mens rea types in MPC • Purposely • Applies purpose to nature of act or result • For attendant circs: knows “or he believes or hopes that they exist” MPC 2.02 (2)(a)(ii) • Knowingly: • Applies knowledge to nature of act or attendant circs • Includes awareness of high probability, MPC 2.02 (7) • Results must be “practically certain”

8. Special features of recklessness and negligence • Recklessly: • Applies the same to all material elements. • Requires conscious disregard of “substantial and unjustifiable risk.” • Risk must be a “gross deviation” from standard of conduct of law-abiding person. • Negligently • Applies the same to all material elements. • Actor must fail to perceive risks. • Must be a risk he shouldperceive. • Failure must involve a gross deviation from the standard of care of a reasonable person.

9. CA Homicide statute • Missing text from statute I posted: Murder is defined as “the unlawful killing of a human being… with malice aforethought.” § 187. • Two forms of malice • Expressed: “deliberate intention unlawfully to take away … life.” • Implied: “abandoned and malignant heart.”

10. Degrees of Murder • 1st degree: 25 years to life, or even death penalty • Expressed malice: • Specially dangerous weapons (WMD, armor piercing bullets) • Clearly murderous actions (poison, lying in wait) • Extremely heinous (torture) • Willful, deliberate, and premeditated = default formula for expressed malice • Crimes that constitute felony murder (arson, rape, etc.) • 2d degree: 15 years to life (no death): • NOT willful, deliberate, and premeditated • Therefore presumably reckless • But not any reckless act that result in death; only really wicked ones: “abandoned and malignant heart.”

11. Manslaughter • Voluntary: when provoked (3-11 years) • Involuntary: reckless or negligent causing of death, not truly wicked (2-4 years)

12. Criminal vs Civil Culpability • Welansky: • “grave dangers to others must have been apparent and the D must have chose to run the risk.” • “high degree of likelihood that substantial harm will result.” • 3 factors to think about in criminalization • Degree of risk • Justification for risk • D’s awareness of risk