Mens Rea

Overmywaders, I respectfully disagree.

You wrote that "WA state law requires no mens rea, that is no 'guilty mind' or criminal intent, for manslaughter."

The Washington Supreme Court says otherwise. In State v Gamble, 154 Wash.2d 457, 114 P.3d 646 (2005), the Court held that "manslaughter requires the proof of a mens rea element vis- -vis the resulting death...." The Court also explained that "A person is guilty of first degree manslaughter when that person 'recklessly causes the death of another person.' RCW 9A.32.060(1)(a)." Washington law states that "A person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation." Thus, held the Court, "to prove manslaughter the State must show [defendant] '{knew} of and disregard{ed} a substantial risk that a {homicide} may occur.'"

"Mens rea" is more accurately defined as "criminal mind" rather than "guilty mind" or "criminal intent." The Washington Court of Appeals recognized the difference in an unpublished decision in State v Mendoza, No. 16058-1-III (Wash.App.Div.3 05/13/1999), in which it stated that "the mens rea of manslaughter does not require the defendant to intend to accomplish the criminal result of death . . . ." Thus, while there is no requirement of criminal intent, there is a mens rea element.

Granted, the charge in our case was manslaughter 2, which requires only criminal negligence, and you can argue whether "criminal negligence" is the "mens rea" of manslaughter 2. However, that was not how our discussion of intent began. Rather, we began discussing intent because I stated my belief that the "shooter" did not intend to kill the hiker. Tom D is correct: the intent, or absence of intent, determines the charge. If there is no intent to kill, and no recklessness as defined under Washington law, then manslaughter 2 is an appropriate charge.

You wrote that "[y]our assertion that the prosecutor must 'prove' intent is erroneous as it is unprovable." Again, the courts of Washington have stated otherwise. In State v Johnson,208 P.3d 1265 (2009), a bank robbery case in which the defendant pleaded the defense of diminished capacity, the Court explicitly stated that "[t]he State must prove actual intent, not capacity. The only question was whether Johnson actually had the intent to steal at the time of the robberies."

So, prosecutors must prove actual intent all the time: in first degree murder, in possession of drugs with intent to sell, in assault with intent to do great bodily harm, and in many other crimes.

I disagree with your assertion that intent cannot usually be proven, but I guess that depends on what you mean by "prove." The quotation you use to support that argument does not say that. Rather, it says that intent "cannot ordinarily be directly proved" but must usually be inferred. Well, inference is a form of proof, and it is often the only form of proof available in cases where intent is necessary element of the crime. However, just because intent has not been "directly" proven does not mean that it has not been proven.

I did not see the sun rise this morning, but I infer that it did because it's now burning the top of my bald head. That's proof enough for me.

Thus, when a prosecutor prosecutes a crime which requires proof of intent, if he does not have direct evidence of intent, such a statement from a hunter that he wants to kill that hiker across the valley, he must ask the judge or jury to infer the actual intent of the criminal from other evidence, often circumstantial.

In this case, it was the absence of evidence of any intent to kill the hiker which allowed the judge to accept a plea of guilty to manslaughter 2. If you think the shooter intended to kill the hiker, you should be justifiably outraged. However, there has been no evidence presented to me to suggest that was the case.

If you truly believe that "[f]or anyone to assert they know the mind of the killer is, frankly, absurd," then you must believe that our entire criminal justice system is absurd. I don't share that belief. We have problems, and mistakes are made, but I prefer not to put a kid, or even an adult, in prison for life unless I have evidence sufficient to prove to me, beyond a reasonable doubt, that he actually intended to kill the victim. That's why we have different degrees of homicide.

BTW, Rexim spent a lot of time working on that last post; he didn't just pull those cites out of thin air.

Tom,

I guess we all spend time on cites, thin air yields so few :)

Rexim,

Wonderful job, very lucid and thorough. I'll need to go point by point. I only have so much time I allow myself per day away from work, so this may take two days.

Regarding mens rea and the Gamble opinion. The court held that

This second observation is at issue here and is ultimately determinative. As shown above, manslaughter does require proof of a mental element vis-à-vis the killing. See RCW 9A.32.060 (1)(a) (recklessness); see also RCW 9A.32.070 (1) (criminal negligence). The charge the State brought against Gamble did not require proof of such an element.
¶18 Because manslaughter requires the proof of a mens rea element vis-à-vis the resulting death, while felony murder as charged here does not, it cannot be a lesser included offense to the State's felony murder charge.

So recklessness or negligence are considered "elements" of mens rea that must be proved. Sodium and Chloride are both elements of salt, necessary to human life in combination, but taken in isolation they are fatal. Just so recklessness may be an element of mens rea, but it is not mens rea. Recklessness is defined by WA statute as:

A person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation.

The shooter in this case had passed the gun safety course and thus had knowledge of the risk of the act he committed - shooting at a target not properly identified. Nothing more is necessary to prove recklessness - he had knowledge, he disregarded risk as proven by the subsequent act. There is no proof necessary of either intent or mens rea (criminal mind).

As to the matter of (presumed) intent being predicative of charges brought; in the real world of our justice system that is not the case. As I previously stated, the prosecutor is determined to get the best conclusion to a case and that means winning. The DA does not allow "the best to be the enemy of good." In other words, even if he believes that a person intended to kill someone, unless he has the essential elements to strongly enough infer that intent within the minds of the jury for them to accept it beyond a reasonable doubt, he will choose a lesser charge or none at all. It is not the intent, but the possibility of winning a conviction that determines the charge. That is why most convictions are the result of plea bargains; both sides know the cards that can be played, so they negotiate.

As to "proving actual intent", that is mainly applicable to fraud cases and what makes fraud so difficult to prosecute. In the case you cited, the jurists are speaking of proving actual intent as regards a man who robbed banks by giving notes demanding money to the bank tellers. There is no question regarding actual intent as it was adequately expressed in the note. In the case of an individual's unexpressed intent, that is not required as proof. "Actual intent" is often inferred through circumstantial evidence.

The prosecution will first argue that a commander's "reason to know" about the commission of war crimes is sufficient to prove criminal intent. This is of course a broad standard, one that is arguably contrary to the universal conception of criminal law that the prosecution must prove actual intent. However, actual intent can be inferred ("circumstantial evidence"). In my opinion, the clear evidence that Milosevic kept up with the international press (the Herald-Tribune, for example) is sufficient to rebut his rather unbelievable opening statement that he did not know whether war crimes were occurring and that he had to rely on the reports of his subordinates who (falsely) informed him that no war crimes were being committed. The prosecutor might well add that sophisticated leaders like Milosevic have long ago learned not always to trust what their advisers tell themwhich is why they read newspapers!

(http://jurist.law.pitt.edu/issue_milo_damato1.htm)

The "universal conception" is wrong as noted above.

You said:

I did not see the sun rise this morning, but I infer that it did because it's now burning the top of my bald head. That's proof enough for me.

It might be equally true that your head is on fire :) in which case a different remedial action should be considered.

We accept most of the world based upon trust (faith) which is based upon, I hope, reason. If I decide to sit in a chair, I trust that the law of gravity is still operative (though I haven't opened my gravity bill this month) and that the chair can support my weight. Actual proof to me of both of those elements of thought comes upon sitting. However, you in watching me cannot know my actual intent. I may have been trying out the local gravity, I may have been testing the chair; you infer something as mundane as the sitting itself. After the act, I cannot prove my actual intent to you and you cannot prove my actual intent; unless I declare it prior to the act.

Enough for today, I am way overtime.

Thanks.

Best regards,

Reed

This discussion has now become rather technical. What I would like to mention is a point that will not make me popular by some, but I'll risk that. Fact is that there are almost the same number of firearms pro person in Norway than in US, but we have much less killings due to use of guns. The US attitude to guns, especially small firearms is puzzling to say the least.

I know it will take a long time before the laws in US is like we have it here. You have a RIGHT to have access to firearms unless you are specifically deprived of that right, we have mirrored this. Here it is a PRIVILEGE to have a gun if you have a reasonable reason as to why, provided there is nothing in your background that indicates you should not. How many thousand lives could have been spared?

But the accident we discuss here was not with a small firearm (which is responsible for most killings I've read) but with a hunting weapon. But regarding hunting we also there have mirrored the law. By us the main rule is that NOTHING is a legetimate hunting target. Then each species that we hunt are ALLOWED to be hunted on a specific time of the year. The time differs for different spices. A hunter must therefore be sure that he aims at the right type of animal before shooting. Even still we too have shooting accidents.

I also agree with trout that the person that shot was far too young to handle such a strong gun. For me it is a paradox with the society in US that a person may have access to a deadly weapon at 14, but is denied access to a lot of other things.

Maybe a more important difference between Norway and the US, with respect to hunting rules and regs (correct me if I'm wrong Otto) is that in Norway you buy hunting and fishing licenses for a specific area, not an entire state, so private landowners know who is (supposed to be) hunting on their property, and the total pool of hunters in a specific parcel can be regulated. I also suspect hunter education is better (and maybe obligatory?) here. These kinds of regs set the overall framework for the "hunting culture" with maybe very different outcomes. I don't hunt myself, so I'm not sure I have all the facts straight, but I have talked about it a bit with some of my students.