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Malice Aforethought

Assignment Requirements
 
 
For murder to have occurred, there has to be the element of malice aforethought. There are four circumstances which qualify as malice, name and explain the four. [Hint: The Model Penal Code uses these four in place of the common law and statutory mens rea terms.] Then, provide an example of one. Share the example and the source, if applicable, but do not mention the circumstance.
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BE SURE TO PROVIDE A UNITED STATES CASE FOR THE EXAMPLE.
PLEASE USE A PERSON WHO KNOWS THE UNITED STATES GRAMMAR.
 
A Short Review of Common Law Concepts of Mens Rea Mens Rea Issues
 
At this point in your studies, you know that a particular crime is composed of a number of elements – and that all of these elements must be proven beyond a reasonable doubt in order for the prosecution to secure a conviction. You also remember that the elements of a crime fall into two categories:
 

The Actus Reus – which is the voluntary physical act(s) (or failure to act when there is a legal duty to act) necessary for the crime, and

 

The Mens Rea – which is the particular mental state required for the crime.

 
In terms of statutory crimes, the actus reus is usually not that difficult to interpret. If there is some question as to what a particular actus reus element means, most of the time a definition is provided in the statute. This is why it is important to incorporate definitions into your checklist for the statute.
Mens rea presents a different problem. On many occasions mens rea terms are used without a definition defined in a statute. This handout is designed to help you deal with that problem. Let us begin by reviewing the two types of common law mens rea.
 
In most cases, we discuss mens rea in terms of intent. Thus, in order for a defendant to be responsible for a crime, he needs to have performed a physical act while possessing the intent required for the crime. Do not get the term intent confused with desire or motive – the legal concept of intent is different from what someone necessarily wants to do or desires to occur. When I drive drunk I may not desire to kill a pedestrian, but I did intend to drive drunk. If my intentional drunk driving causes the death of a pedestrian, then I will still be held criminally responsible for that death even if I did not desire the outcome. This concept will become clear as we discuss the two types of criminal intent: general intent and specific intent.
Specific intent
Some crimes require that the defendant not only intend to do the act that causes the harm, but also requires the defendant to have the intent to do that act for a particular criminal purpose. Take, for example, the specific intent crime of murder. Let us suppose that our state had a very simple definition of murder – that murder constitutes the “intentional killing of a human being.” Further, let’s suppose Max shoots Abe with a gun, and Abe instantly dies from the gunshot. Has Max committed murder? Because murder is a specific intent crime, the prosecution must prove (beyond a reasonable doubt) that Max had the intent to: (1) pull the trigger, and (2) kill Max. In other words, it has to be proven that Max intended to the act (pulling the trigger on the gun) causing the harm (Abe’s death), and that Max intended to pull the trigger for the particular criminal purpose of killing Abe. Contrast that situation with a situation whereby Max intends to pull the trigger, but does not intend to kill Abe. For example, suppose Max thought the pistol he was pointing at Abe was unloaded. He intentionally pulls the trigger, but he didn’t think the gun would fire, and he certainly didn’t intend it to fire — nor did he intend for Abe to be shot. In this case, Max didn’t commit murder because he lacked the intent to pull the trigger for the purpose of killing Abe. The mens rea requirement for murder is not met because that second level of intent was absent from Max’s mind.
 
 
General Intent
In comparison to specific intent, general intent is fairly straightforward. All that is required to convict the defendant of a general intent crime is proof that he intended to do the actus reus of the offense that caused the harm. Let’s go back, one more time, to Max and Abe. Remember when Max thought the pistol he was pointing at Abe was unloaded. This was the case where he intentionally pulled the trigger, but was under the impression that the gun would not fire. However, it turned out that the gun did fire and Abe was killed. What’s Max guilty of? Above we established that Max didn’t commit murder because he lacked the intent to pull the trigger for purpose of killing Abe. The mens rea requirement for murder is not met because that second level of intent was absent from Max’s mind. However, for a general intent crime, only one level of intent is needed: the intent to do the physical act (the actus reus). In this case the actus reus is the pulling of the trigger. Max did intend to do that, so he is guilty of the general intent homicide crime of Manslaughter. That’s the difference between Murder and Manslaughter –- Murder is a specific intent crime, whereas Manslaughter just requires general intent.
The Problem
 
The problem is incorporating the above definitions with the words usually used in a statute to define mens rea. Many statutes will occasionally say things like, “kills another with the specific intent to kill,” but more often different words are used to describe specific and general intent. This is partially the fault of the Model Penal Code.
 
The Model Penal Code and Mens Rea
 
You may recall from your basic Criminal Law course that the Model Penal Code (MPC) is an idealized criminal code which was developed by the American Law Institute (ALI) in 1962 for the purpose of assisting legislatures in updating and standardizing the criminal law in the United States. The MPC was a combination of what the ALI deemed to be the best rules for the penal system in the United States. Since its formulation, the MPC has played an important role in standardizing the codified penal laws of the United States.
 
The MPC uses four levels of mens rea. Statutes in the MPC require that the defendant either act Purposely, Knowingly, Recklessly, or Negligently. The following are basic definitions of these mens rea states:
 

Purposely – Express purpose to commit a specific crime against a particular person; for example, to shoot an arrow at someone and hit him.
Knowingly – Knowledge that one’s actions would certainly result in a crime against someone, but did not specifically intend to commit that crime against the particular victim which one is accused of injuring; for example, to shoot an arrow at A but hit B. This also covers the concept of willful blindness. Willful blindness is where a person knows that something is very probable, but avoids investigating to gain that knowledge. Often used against drug mules, who knew that it was highly likely that there was contraband in the vehicle, but refused to look.
Recklessly – Knowledge that one’s actions had an unjustifiable risk of leading to a certain result, but did not care about that risk (“reckless disregard”), and acted anyway; for example, to shoot an arrow in the air in a crowded place. Examples include playing Russian Roulette, street racing, and other highly dangerous activities.
Negligently – Did not intend to cause the result that happened, but failed to exercise a reasonable duty of care to prevent that result (which includes failing to become aware of the risk of that result.) Criminal negligence is a “gross deviation” from the standards of normal conduct and includes a substantial and unjustifiable risk. Criminal negligence might include keeping a vicious dog tied to a tree with twine.

 
It should be noted that, “if an offense requires a specific mental state, then any more criminal mental state will do; thus if an offense is defined in the form, ‘It is illegal to knowingly do X,” then it is illegal to do X knowingly or purposely, but not to do so recklessly or negligently.’”
 
Another Way to Look at It
No guarantees, but here is one other way to look at the MPC mens rea states that may help you.
Think of the actus reus elements as “conduct.” Think of the harm caused by the crime (the harm that the particular criminal statute/law is trying to prevent) as the “result.” Then:

The defendant acts purposely when it is his conscious objective is to engage in the conduct or to cause the result.
The defendant acts knowingly when he is practically certain that his conduct will cause the result.
The defendant acts recklessly whenhe consciously disregards a substantial and unjustifiable risk that his conduct will cause the result. (Disregard of risk involves a gross deviation from the standard of conduct that a law-abiding person would observe in the defendant’s situation).
The defendant acts negligently when he fails to perceive that there is a substantial and unjustifiable risk that his conduct will cause the result. (This failure to perceive involves a gross deviation from the standard of care that a reasonable person would observe in the defendant’s situation).

 
 
Conclusion
 
How do we tie in the MPC mens rea states with the common law ideas of General Intent and Specific Intent? The following is a rough correlation:
 

Specific Intent would be when the defendant acts:

Purposely, or
Knowingly, or
Recklessly if it is so reckless as to be maliciously (depraved heart) reckless (for instance where the defendant is so reckless as to show “an extreme disregard for human life”).

 

General Intent would be when the defendant acts:

Recklessly (but not maliciously reckless), or
Criminally negligently, or
Where the crime requires no express mens rea at all. These are normally referred to as “strict liability” crimes.For instance, statutory rape (even if the defendant believed the child to be over the age of consent, the defendant is still guilty of statutory rape if the child is underage even if the child lied about his or her age).

 
 
 
 
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