based on intent is a celebration of the "freedom of the human will" and the "ability and duty of the normal individual to choose between good and evil." Jackson noted that this emphasis on individual choice and free will assumes that criminal law and punishment can deter people from choosing to commit crimes, and those who do engage in crime can be encouraged to develop a greater sense of moral responsibility and avoid crime in the future. 1 Mens Rea You read in the newspaper that your favorite rock star shot and killed one of her friends. There is no more serious crime than murder; yet before condemning the killer, you want to know, “What was on her mind?" The rock star may have intentionally aimed and fired the rifle. On the other hand, she may have aimed and fired the gun believing that it was unloaded. We have the same act, but a different reaction based on whether the rock star intended to kill her friend or acted in a reckless manner. As Oliver Wendell Holmes Jr. famously remarked, “Even a dog distinguishes between being stumbled over and being kicked."2 As we have seen, it is the bedrock principle of criminal law that a crime requires an act or omission and a criminal intent. The appropriate punishment of an act depends to a large 19% Page 100 of 562 • Location 4041 of 21644 a specific intent. These continue to appear in various state statutes and decisions. A general intent is simply an intent to commit the actus reus or criminal act. There is no requirement that prosecutors demonstrate that an offender possessed an intent to vio- late the law, an awareness that the act is a crime, or an awareness that the act will result in a particular type of harm. Proof of the defendant's general intent is typically inferred from the nature of the act and the surrounding circumstances. The crime of battery or a nonconsensual, harmful touching provides a good illustration of a general intent crime. The prosecutor is only required to demonstrate that the accused intended to commit an act that was likely to substantially harm another. In the case of a battery, this may be inferred from factors such as the dangerous nature of the weapon, the number of blows, and the statements uttered by the accused. A statute that provides for a general intent typically employs terms such as intentionally or willfully to indicate that the crime re- quires a general intent. A specific intent is a mental determination to accomplish a specific result. The prosecutor is required to demonstrate that the offender possessed the intent to commit the actus reus and then is required to present additional evidence that the defendant possessed the specific intent to accomplish a particular result. For example, a battery with an intent to kill requires proof of a battery along with additional evidence of a specific intent to mur- der the victim. The classic example is common law burglary. This requires the actus reus 19% Page 102 of 562 . Location 4086 of 21644 extent on whether the act was intentional or accidental. Law texts traditionally have re- peated that actus non facit reum nisi mens sit rea: "There can be no crime, large or small, without an evil mind." The "mental part" of crimes is commonly termed mens rea ("guilty mind") or scienter ("guilty knowledge") or criminal intent. The U.S. Supreme Court noted that the requirement of a "relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory (not responsible) plea, 'But I didn't mean to.""3 The common law originally punished criminal acts and paid no attention to the mental element of an individual's conduct. The killing of an individual was murder, whether com- mitted intentionally or recklessly. Canon, or religious law, with its stress on sinfulness and moral guilt, helped to introduce the idea that punishment should depend on an individ- ual's "moral blameworthiness." This came to be fully accepted in the American colonies; and, as observed by the U.S. Supreme Court, mens rea is now the "rule of, rather than the exception to, the principles ...of American criminal jurisprudence." There are some good reasons for requiring moral blameworthiness. Responsibility. It is just and fair to hold a person accountable who intentionally chooses to commit a crime. • Deterrence. Individuals who act with a criminal intent pose a threat to society and should be punished in order to discourage them from violating the law in the future 19% Page 101 of 562 • Location 4052 of 21644 take careful aim when shooting or that a killing did not appear to be accidental. In most cases, we must look at the surrounding circumstances and apply our understand- ing of human behavior. In People v. Conley, a high school student at a party hit another student with a wine bottle, breaking the victim's upper and lower jaws, nose, and cheek and permanently numbing his mouth. The victim and his friend were alleged to have made insulting remarks at the party and were leaving when one of them was assaulted with a wine bottle. The attacker was convicted of committing an aggravated battery that "intentionally" or "knowingly" caused "great bodily harm or permanent disability or disfigurement." The defendant denied possessing this intent. An Illinois appellate court held that the "words, the weapon used, and the force of the blow ... the use of a bottle, the absence of warning and the force of the blow are facts from which the jury could rea- sonably infer the intent to cause permanent disability." In other words, the Illinois court held that the defendant's actions spoke louder than his words in revealing his thoughts. Evidence that helps us indirectly establish a criminal intent or criminal act is termed cir- cumstantial evidence. The Model Penal Code Standard The common law provided for two confusing categories of mens rea, a general intent and 19% Page 101 of 562 . Location 4074 of 21644 and in order to deter others from choosing to violate the law. • Punishment. The punishment should fit the crime. The severity of criminal punish- ment should depend on whether an individual's act was intentional, reckless, or accidental. The concept of mens rea has traditionally been a source of confusion, and the first re- action of students and teachers has been to flee from the topic. This is understandable when it is realized that in 1972, U.S. statutes employed 76 different terms to describe the required mental element of federal crimes. This laundry list included terms such as inten- tionally, knowingly, fraudulently, designedly, recklessly, wantonly, unlawfully, feloniously, willfully, purposely, negligently, wickedly, and wrongfully. These are what Justice Jackson termed "the variety, disparity and confusion" of the judicial definition of the "elusive mental element" of crime. 4 The Evidentiary Burden The prosecution must establish the required mens rea beyond a reasonable doubt. Professor Jerome Hall observed that we cannot observe or record what goes on inside an individual's mind. The most reliable indication of intent is a defendant's confession or statement to other individuals. Witnesses may also testify that they saw an individual 19% Page 101 of 562 • Location 4063 of 21644
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