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Wednesday, June 23, 2010

Mens Rea..

"The presence of a "vicious will" or mens rea (Morissette v. United States,  342 U.S. 246, 251 ) was long a requirement of criminal responsibility. But the list of exceptions grew, especially in the expanding regulatory area involving activities affecting public health, safety, and welfare. Id., at 254. The statutory offense of embezzlement, borrowed from the common law where scienter was historically required, was in a different category. 13  Id., at 260-261.
"[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning  [401 U.S. 601, 608] of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed." Id., at 263.
At the other extreme is Lambert v. California,  355 U.S. 225 , in which a municipal code made it a crime to remain in Los Angeles for more than five days without registering if a person had been convicted of a felony. Being in Los Angeles is not per se blameworthy. The mere failure to register, we held, was quite "unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed." Id., at 228. The fact that the ordinance was a convenient law enforcement technique did not save it.
"Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community." Id., at 229-230.  United States v. Freed, 401 U.S. 601 (1971)

Mens Rea

In the following observations there are some numerals that I could not trace back and as such I am retaining these ,may be in future one can find from some cases where these are cited.[blogger]
1."In the final analysis, the issue whether mens rea or  scienter is a necessary element in the indictment and proof of a  particular crime becomes a question of legislative intent to be  construed by the court. [United States v. Balint, 258 U.S. 250,  251-52 (1922)..]..Thus, to insert a mens rea element into the offense, and to require proof thereof, would defeat the statutory purpose, which is to criminalize the introduction of firearms into a school environment.  So we will not add, by implication, language to  the statute that the legislature expressly has chosen not to include. Consequently, we hold that the trial court correctly decided, in refusing the instruction in question, that this statute is one of strict criminal liability, and that the  Commonwealth was required to prove only that the defendant had possessed, on school property, a firearm of the type described in the statute. Esteban v. Commonwealth, 266 Va. 605, 587 S.E.2d 523 (2003). 
2. "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. 4  A relation between some mental element and punishment for a [342 U.S. 246, 251] harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. 5  Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will." 6  Common-law commentators of the Nineteenth Century early pronounced the same principle, 7  although a few exceptions not relevant to our present problem came to be recognized. 8
Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism  [342 U.S. 246, 252] and took deep and early root in American soil. 9  As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation. Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law. 10  The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as "felonious intent," "criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "wilfulness," "scienter," to denote guilty knowledge, or "mens rea," to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes....The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution's path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common-law crimes on judicial initiative.
3.The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly 22  admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute. And where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.
We hold that mere omission from 641 of any mention of intent will not be construed as eliminating that element from the crimes denounced."  
Morissette v. Uited States, 342 U.S. 246 (1952)
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