Unit 9: Introduction to Mens Rea


  • Dressler 113-131 (through 10.04)

  • Cunningham (CP)

  • Conley (CP)

Key Terms: 

  • Mens Rea (offense level and element level)

  • Intent

  • Motive

  • Transferred Intent

  • Knowledge

  • Willfulness

  • Negligence

  • Reasonable Person

  • Recklessness

  • Malice

  • Strict Liability

Mens Rea:

One of the most difficult and important inquiries of criminal responsibility is a defendant’s mental state, or mens rea.  With few exceptions, criminal responsibility requires some degree of mens rea, and punishment can vary with the level of mens rea that can be proven. The reason for this is intuitively clear: if Mary elbows Jeff, it should matter whether she did so maliciously, carelessly, or accidentally.

You should think of mens rea in two distinct ways: offense level and element level.  Offense level mens rea tries to capture the blameworthiness of the overall conduct that resulted in a criminally punishable harm.  Element level mens rea looks at the mental state that statutes or judicial decisions assign to each element of a criminal offense.  Suppose that Jeff is a police officer.  If Mary is charged with criminally assaulting a law enforcement officer for elbowing Jeff, we will want to be assured that her overall purpose was culpable (offense level mens rea).  But to prove criminal liability (and depending on how the statutory offense is worded), we may also need to know that: (1) she intended to cause Jeff harm by elbowing him; (2) she knew that elbowing Jeff could be harmful; and (3) she knew that Jeff was a law enforcement officer.

You should keep in mind different categories of mens rea that generally attach to different levels of culpability.

The highest and most culpable kind of mens rea is intent.  Intent can refer to the purpose or desire of the actor. At common law, intent is often interpreted more broadly to include results that the actor knows with practical certainty will arise. Note that intent in this way is an entirely subjective term: if an actor does not desire or expect a certain result from her conduct, then she does not intend that result, no matter how objectively inevitable it may have been.  Intent is distinct from motive: a doctor who helps a terminally ill patient commit suicide and a hitman who kills someone for money have very different motives, but both have engaged in an intentional killing.  Motive may help establish guilt (as a matter of proof), but it is usually not an element of an offense.  (Can you think of some exceptions?).  Motive can also be significant in defenses (for example, a self-defense motive for killing) or sentencing (a harsher or more lenient punishment imposed based on motive).

A second kind of mens rea is knowledge.  Although knowledge is often combined with intent in regards to the result element of a crime, knowledge is its own mens rea term as well, particularly when applied to attendant circumstances. Knowledge can be established in 3 ways: 1) a perpetrator is aware of the relevant fact, 2) a perpetrator correctly believes the relevant fact to exist, or 3) a perpetrator engaged in “willful blindness,” purposefully avoiding circumstances that could confirm the existence of the fact. A “willful blindness” finding is more controversial than the other 2, and can be more difficult to establish.

A third level of mens rea is recklessness.  Recklessness can be understood in two ways: either as a more severe form of negligence, where there is a very significant deviation from what a reasonable person ought to do, or as a variant of negligence wherein the actor is shown to be aware of the risk, but consciously disregards it.  In the second, more common understanding of recklessness, the difference between recklessness and negligence lies not in the degree of deviation from expected conduct, but in the mental state of the actor.

A fourth kind of mens rea is criminal negligence.  Keep criminal negligence separate in your mind from the “ordinary” negligence that you learned in torts.  Criminal negligence usually requires a gross deviation from the standard of care that a reasonable person would take in order to avoid foreseeable harm to others. Whether a jury will find negligence will depend on the actor’s conduct, the reason for engaging in that conduct, the harm caused, and the likelihood that the harm would occur.   A major difficulty in determining negligence is trying to determine what a “reasonable person” would do. Should the unique physical or mental traits of a defendant be considered when determining what a “reasonable person” would do? How about the defendant’s unique history? The traditional rule is that unique physical traits should be considered, but unique mental traits should not. This rule is not without its critics, however.

When a statute calls for a certain mens rea term (say, negligence or recklessness), any greater or more severe mens rea (such as intent, or recklessness if the called-for term is negligence) will also satisfy the mens rea requirement

Additional Concepts

Under the doctrine of transferred intent, if intends to shoot B but accidentally shoots C instead, is still liable, despite not having the intent to shoot C.   A’s intent to shoot B transfers to the shooting of C. The purpose of this doctrine is to prevent a criminal actor from escaping liability just because of his “bad aim.” The transferred intent doctrine has been criticized as confusing (what to do if A intends to commit one crime but accidentally commits another? Or if A shoots at B intending to kill, and injures B while also killing C?) and unnecessary (criminal statutes generally specify that there must be a victim, but not that the victim must be the one that the perpetrator intends, so intent is often satisfied even without the doctrine).

Questions for Review:

Q1. Bill has just won the lottery. To celebrate, he purchases a fancy sports car and tests out the new car by driving it at 60 MPH through a residential area.  Bill hits and kills a bystander.  He is charged with violating a criminal statute prohibiting driving above 25 MPH in a residential neighborhood, and with a statute criminalizing vehicular manslaughter.  Explain how mens rea may affect Bill’s guilt under each statute.

Q2. Sally overhears her neighbors discussing a planned vacation, and she thinks they are leaving town.  Sally decides that while the neighbors are out, she will do some target practice in his yard.  Unfortunately, the neighbors have not actually left town. Sally is not a great shot, and a stray bullet almost strikes the neighbors’ child.  Sally is charged with violating a criminal statute, which reads in pertinent part: “It is unlawful to maliciously and willfully use a deadly weapon in the vicinity of a minor.” Is Sally guilty of violating the statute? How does your answer change based on your interpretation of the terms “malicious” and “willful”?

Q3. Do you think the “reasonable person” should be interpreted according to an objective standard, or should it take into consideration the subjective traits or experiences of the specific defendant? If the latter, to what extent should it do so? Justify your answer.

Q4. Intent and motive are both important concepts, yet discussion of intent tends to play a larger role in criminal trials. Explain the difference between intent and motive, and why you think courts are often more concerned with the former than the latter.