Two New York City police officers are shot and killed in a brazen ambush in Brooklyn - The Washington Post
|Scope of criminal liability|
|Severity of offense|
|Offence against the person|
|Crimes against property|
|Crimes against justice|
|Crimes against animals|
|Defences to liability|
|Other common-law areas|
Levels of mens rea
- actus reus: unlawful killing of a human being;
- mens rea: malice aforethought.
- actus reus: any conduct resulting in the death of another individual;
- mens rea: intent or knowledge that the conduct would result in the death.
Modes of culpability
England and Wales
- Direct intention: the actor has a clear foresight of the consequences of his actions, and desires those consequences to occur. It's his aim or purpose to achieve this consequence (death).
- Oblique intention: the result is a virtually certain consequence or a 'virtual certainty' of the defendant's actions, and that the defendant appreciates that such was the case.
- Knowingly: the actor knows, or should know, that the results of his conduct are reasonably certain to occur.
- Recklessness: the actor foresees that particular consequences may occur and proceeds with the given conduct, not caring whether those consequences actually occur or not.
- Criminal negligence: the actor did not actually foresee that the particular consequences would flow from his actions, but a reasonable person, in the same circumstances, would have foreseen those consequences.
- Intention: the accused willingly committed a criminal act entirely aware of his actions and their consequences. Necessary for murder and for assault.
- Recklessness: the accused was aware the criminal act could be potentially dangerous but did not give a second thought to its consequences, for example involuntary culpable homicide.
- Negligence: the accused unintentionally committed the criminal act by accident for one reason or another. However this tends not to be a valid excuse.
State criminal law
Model Penal Code
- Strict liability: the actor engaged in conduct and his mental state is irrelevant. Under Model Penal Code Section 2.05, this mens rea may only be applied where the forbidden conduct is a mere violation, i.e. a civil infraction.
- Negligently: a "reasonable person" would be aware of a "substantial and unjustifiable risk" that his conduct is of a prohibited nature, will lead to a prohibited result, and/or is under prohibited attendant circumstances, and the human-individual was not so aware but should have been.
- Recklessly: the human-individual consciously disregards a "substantial and unjustifiable risk" that his conduct is of a prohibited nature, will lead to a prohibited result, and/or is of a prohibited nature.
- Knowingly: the human-individual is practically certain that his conduct will lead to the result, or is aware to a high probability that his conduct is of a prohibited nature, or is aware to a high probability that the attendant circumstances exist.
- Purposefully: the human-individual has the "conscious object" of engaging in conduct and believes or hopes that the attendant circumstances exist.
Federal criminal law
Ignorance of the law and mens rea
- " Section 239(1)(d) is part of an Act which is necessarily and notoriously complex. It is subject to ongoing revision. No lay person is expected to know all the complexities of the tax laws. It is accepted that people will act on the advice of professionals and that the advice will often turn on the meanings to be given to provisions in the Act that are open to various interpretations. Furthermore, it is accepted that one may legitimately structure one’s affairs so as to minimize tax liability. Considered in this legislative context, I have no difficulty in holding that a mistake or ignorance as to one’s liability to pay tax under the Act may negate the fault requirement in the provision, regardless of whether it is a factual mistake, a legal mistake, or a combination of both."
Subjective and objective tests
- (a) subjective, where the court must be satisfied that the accused actually had the requisite mental element present in his or her mind at the relevant time (for purposely, knowingly, recklessly etc) (see concurrence);
- (b) objective, where the requisite mens rea element is imputed to the accused, on the basis that a reasonable person would have had the mental element in the same circumstances (for negligence); or
- (c) hybrid, where the test is both subjective and objective.
- A court or jury, in determining whether a person has committed an offense,
- (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but
- (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.
Relevance of motive
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