Zagreb,September21st.2018
Mensrea; guilt;Excuses
2.4.Mensrea/ culpability (guilt)-Common LS
Commonlaw:generalintent (rape, battery) – it refers to the act,whichpresumes a generalintentit’simportant to determine:whetherthe defendant had a reasonable mistake,andwhetherdefendant’s belief is honest.2.specific intent(1stmurder, robbery, larceny, attempt,conspiracy) – he wants specific result, nopresumption;knowledgeof the specific result issufficientStrictliability– mainly used for public welfare offences
2.4.Mensrea/culpability(guilt)-CommonLS
Model Penal Code:1. Purposely- he is aware & wants the conduct/result and is aware of the attendant circumstances2.Knowingly– he is aware of the conduct, result and the attendantcircumstances//and the actor is„practicallycertain”that his action will cause the criminal offence (Fl1998, 122)3. Recklessly– he consciously disregards the risk + a gross deviation from the law-abiding standard ofconduct (analogy to conscious negligence)4. Negligently– should be aware of the risk + a gross deviation from the reasonable person standard of conduct (unconscious negligence)
2.4.Mensrea/culpability(guilt)-CommonLS
Model Penal Code:MPC(Fl1998, 114)„§ 2.02 (2) d): A person acts negligently with respect to a material element of an offence when he should be aware of asubstantial and unjustifiable riskthat material element exists or will result from his conduct.The risk must be of such nature and degree that the actor’s failure to perceive it, considering the nature and the purpose of the conduct and the circumstances known to him,involves a gross deviation from the standard of carethat areasonable person would observe in the actor’s situation”.- mythical standard of the reasonable person (Fl1998, 117)- objective/subjective standard
2.4.Mensrea/ culpability (guilt)-Common LS
Dolus(intention) (Fl1998, 111)Culpa(negligence)Case 1A pharmacist mislabels a bottle od poison as nutritional food supplement and casually leaves a package of the bottles in the back of the store. A street person finds the bottles of poison and after reading the labels drinks it and dies(Fl1998, 111)?Will the pharmacist be liable?Is it an accident?
2.4.Mensrea/ culpability (guilt)-Common LS
Difference between accident and negligence?Is the ability of the actor toaviodthe harm by exercising due care by acting:Reasonably orNonnegligentlyCrimes of harmful consequences can occur negligently (e.g. negligenthomicide// arson, destruction of property, battery are exempt from liability;Fl1998, 113, 117)
2.4.Mensrea/ culpability (guilt)-Common LS
Case 2 -Commonwealth v. Pierce from 1883(Fl1998, 118)FactsAn indictment for manslaughter, by causing the clothes of the person killed to be saturated with kerosene, need not allege that the accused knew of the deadly tendency of the kerosene, or that it was of a dangerous tendency. At the trial of an indictment for manslaughter, there was evidence that the defendant, who practiced as a physician, on being called to attend a sick woman, prescribed that her clothes should be kept saturated with kerosene, and that this course of treatment caused her death. The jury were instructed that the defendant was to be tried by no other or higher standard of skill or learning than that which he necessarily assumed in treating her; that is, that he was able to do so without gross recklessness or foolhardy presumption in undertaking it. Held that the instruction was sufficiently favorable to the defendant.Negligent or reckless behavior?If a person publiclypractisingas a physician, on being called upon to attend a sick woman, prescribes, with foolhardy presumption or gross recklessness, a course of treatment which causes her death, he may be found guilty of manslaughter, although he acted with her consent, and with no evil intent.(Availableat:http://masscases.com/cases/sjc/138/138mass165.html(20.11.2017.))
2.4.Mensrea/ culpability (guilt)-Common LS
Case 3 (Fl1998, 122)„A secretary whishes to kill her boss. While preparing him a cup of coffee she mistakenly (not accidentally) puts a substance in the coffee that turns out to bee the poison. She may have a background plan and even unconscious intention to kill him, but she does not intentional poison him”.Is she going to be liable?If yes for which offence?
2.4.Mensrea/culpability(guilt)Civil LS
Dolus(intention/intent- direct// indirect) -doulsdirectus//doluseventualisCulpa(negligence- thoughtlessness, carelessness)Excuses(insanity, involuntary intoxication, duress, personal necessity; mistakes(avoidable / unavoidable)– mistakes of law; reasonable mistake about the factual basis ofjustification, reasonable failure to perceive the running of a substantial and unjustified risk)// Croatia –mistakes and exceeding the limits of self-defense becauseof strongscareetc.„anexcuse does nor challenge the wrongfulness or unlawfulness of the conduct, but merely denies the personal accountability of the actor for the wrongfulact„;-Readmore:Excuse: Theory - The Range Of Excuses - Law, Duress, Actor, and Personal -JRankArticleshttp://law.jrank.org/pages/1112/Excuse-Theory-range-excuses.html#ixzz4OHHQgDPS(26.10.2016.)
2.4.Mensrea/culpability(guilt) Civil LS
Elements of Guilt„A perpetrator who at the time of commission of the criminal offence was ofsound mind,acted with intent or by negligence,was conscious or ought to and could have been conscious of the fact that his/her act was prohibited,provided there is no excusable reason, shall be guilty of a criminal offence (Art. 23 CCC)knowingandwanting;intellectualand voluntarycomponent–basic elements of theintentionandnegligenceIntent (Art. 28 CCC)„1) A criminal offence may be committed with direct (dolusdirectus) or indirect intent (doluseventualis).(2) A perpetrator is acting with direct intent when he/she is aware of the elements of a criminal offence and wants or is certain of theirrealisation. 3) A perpetrator is acting with indirect intent when he/she is aware that he/she is capable ofrealisingthe elements of a criminal offence and agrees to this.
2.4.Mensrea/culpability(guilt) Civil LS
Negligence(Art. 29 CCC)„1) A criminal offence may be committed by „reckless” („conscious” negligence) conduct or by „unconscious” negligence.2) A perpetrator is acting „recklessly” („conscious”negligence)when he/she is aware that he/she canrealizethe elements of a criminal offence but foolishly believes that this will not occur or that he/she will be able to prevent this from occurring.” – (thoughtlessness)„3) A perpetrator is acting with unconscious negligence when he/she is not aware that he/she canrealizethe elements of a criminal offence, although under the circumstances he/she ought to and, by reason of his/her personal characteristics, could have been aware of this possibility.” - (carelessness)
2.4. Liability for criminal negligence
„Justification” for liability for negligenceFour prerequisitesfor liability for criminal negligence (p. 263. Kelvin..)The actor can foresee the riskThe actor violates a duty of care with respect to the protected interestHarm, asdefined by the statute occursThe offender could have avoided the harm by careful conduct
2.4.1.Common Law(US)-Defenses-Excuses
Excuseas denial of culpability(Fl. 1998, 154)Excuses-exclude or affect (diminish)guiltMistakesDuressandPersonal necessityInsanityInvoluntaryintoxication
2.4.1.Common Law(US)-Defenses-Excuses
Mistakes„is a negation of a required mental state”- (Fl. 1998,155)‘Material elements’-all substantive elements as opposed to procedural elements (Fl. 1998,155)Relevant(Aristotel- „relevant mistake negates the voluntariness of the actor ‘s choice to engage in the act”;Fl1998, 149)/irrelevant mistakes(„employee in an embassy thinks that by virtue of his job , he should enjoy diplomatic immunity for his offences, so he engages in drunk driving”-Fl. 1998, 149)mistakes of fact are usually relevant/ mistakes of law are usually irrelevant (Fl., 1998, 166-167)
2.4.1.Common Law(US)-Defenses-Excuses
Mistakes about Factual Elements of the Definition (Type one)- person thinks that he shoots a pig, that is in fact a human being (Fl1998,167)Mistakes about Legal Aspects of the Definition (Type two)Mistakes about Factual elements of Justification (Type three)Mistakes about Norms of Justification (Type four)Mistakes about Factual Elements of Excuses (Type five)Mistakes about Excusing Norms (Type six)
2.4.1.Common Law(US)-Defenses-Excuses
Case 4Hopkinsv. State“It is generally held that the advice of counsel, even though followed in good faith, furnishes no excuse to a person for violating the law and cannot be relied upon as a defense in a criminal action” (availableat:https://casetext.com/case/hopkins-v-state-196 20.11.2017. )Explaining that "ignorance of the law will not excuse its violation„- mistake of law- court findas irrelevant and formed ‘strict liability”(Fl. 1998, 153); ‘strict liability‘ in the „criminal law should be understood as the practice of disregarding a mistake or accident where as a matter of principle the mistake or accident should be relevant to the defendant's responsibility for bringing about criminal harm.- if the mistake ought to be relevant is treated as irrelevant„ (Fl. 1998, 152); in CCC (Mistake as to Unlawfulness Art. 32); in GCC Mistake of Law (Art. 17.StGB)
2.4.1.Common Law(US)-Defenses-Excuses
MPC§ 2.04 (3) „A belief that conduct does not legally constitute an offense is adefenseto a prosecution for that offense based upon such conduct when:the statue or other enactment defining the offence is a defense known to the actor an has not been published or otherwise reasonably made available prior to the conduct alleged; orhe acts in reasonable reliance upon an official statement od the law, afterward determined to be invalid or erroneous,contained in:a statute or other enactment;a judicial decision, opinion or judgment;an administrative order or grant of permission; oran official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the lawdefining the offence”(Fl. 1998, 153)
2.4.1.Common Law(US)-Defenses-Excuses
Duress(excuse)Commonlaw elements:(1) a “threat of imminent death or serious bodily injury” led the defendant to commit the crime,(2) the defendant had no reasonable, legal alternative to breaking the law, and(3) the defendant was not responsible for creating the threat.duressapplies to crimes other than murderModelPenal Code:actor was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another,if a personofreasonable firmness in actor’s situation would have not been able to resist.
2.4.1.Common Law(US)-Defenses-Excuses
Insanity (excuse)–Ifthepresonwasinsaneatthetimeofthedeed, hewillnotbeheldaccountable(Fl., 1998, 152)4tests:1.Durham (product) test- he is not responsible if his act is the product of mentaldeseaseor a mental defect2.M’Naghten(cognitive) test– requires such a defect of reason from disease of the mind that he did not know:a) the nature and quality of the act he was committing; orb) what he was doing was wrong.3. irresistible impulse test– the defendant could not control his act4. MPC (cognitive-voluntaristicconcept):no responsibility if, as a result of mental disease or defect, he lacks substantial capacity to:a) appreciate the criminality [wrongfulness] of his conduct, orb) conform his conduct to the requirements of lawBattered woman syndrome/ Cultural defense /Rotten social background (New defenses)
2.4.1.1.Common Law(US)-Defenses-Excuses–1Mistakesabout Factual Elements of the Definition (Type one)
mistakeoffactThis type of mistake will negate the intent (guilt) required for intentional commission of the offence (Fl. 1998, 156)actor doesn’t voluntarily kill a human being if he did not know that it was human being that he targeted (Fl. 1998, 149); person targets a pig, but it was a human that he targeted and killedin Common LS – responsibility for negligence if his action wasunreasonable andfaultfulTwo types of this Mistake about Factual Elements of the DefinitionIf he could have know –is theelement of the mistake– eliminates the liability for intentional conduct (guilt)if he actedunreasonable andfaultful- theelement of fault- he will be responsible for negligent behavior (if it is punishable- negligent homicide)-Fl. 1998,156In CCC Mistake as to the Elements of Constituting an Offence (Art. 32 CCC)In GCC (StGB) Mistake of Fact (Art. 16StGB)UnitedStatesv.Feola
2.4.1.1.CommonLaw (US)-Defenses-Excuses1.Mistakesabout Factual Elements of the Definition (Type one)
Case 5 UnitedStatesv.FeolaBriefFactSummary:Defendant, during a drug deal assaulted an undercover Federal Officer. The Government appealed the reversal of Defendant’sconviction.Facts:Defendant was charged with conspiracy to commit an assault upon a federal officer. Defendant was alleged to arrange for a sale of heroin to buyers who were undercover agents. However, Defendant planned to substitute sugar for the heroin. An altercation ensued when a federal undercover agent became suspicious. The Trial Court found Defendant guilty, the Appellate Court versed and the Government appeals.Issue.Whetherknowledge of the intended victim is a Federal Officer is a requisite for the crime of conspiracy. (Could it be a relevant mistake?)- Common LS – NO; Civil LS – yes (for aggravating circumstances)Synopsis of Rule of Law.The act of conspiracy isno less dangerous because of lack of knowledge of fact, thus does not require that Defendant be aware of the body of law they intend to violate.availableat:https://www.casebriefs.com/blog/law/criminal-law/criminal-law-keyed-to-lafave/conspiracy-and-solicitation/united-states-v-feola/(20.11.2017)
2.4.1.2Common Law (US)-Defenses-Excuses2.Mistakesabout Legal Aspects of the Definition (Type two)
mistake of law-butit can be relevant- the elements of the Definition of the offence often contain mixed questions of fact and law;speciallyregarding the meaning of the word- e.g. ‘object belonging to another’abandonedCase 6Morissettev. United StatesFacts:Morissettelived near a bombing range. He entered the range, took some shell fragments he found lying around, and sold them as scrap metal. When the Air Force found out what happened, he was arrested and charged with "knowingly converting" government property (18 U.S.C. §641).Morissetteargued that he thought that the shell fragments wereabandonedproperty. The Trial Judge instructed the jury that in order to convict they had to find thatMorissetteintended to take the shells, not that he intended to "knowingly convert"(steal) someone else's property. The Trial Court convictedMorissette. He appealed. The Appellate Court affirmed. He appealed.
2.4.1.2Common Law (US)-Defenses-Excuses2.Mistakesabout Legal Aspects of the Definition (Type two)
The Appellate Court found that the term "knowing conversion" should have its traditional tort law meaning, simply an intentional exercise of dominion over property that is not one's own. The US Supreme Court reversed. The US Supreme Court found that §641 should be readto require intent as an element, even if it is not explicitly stated in the Statute. The Court foundthat strict liability has traditionallyonly be used invery minor offenses(such as parking tickets), and the historical commonlawhas always required intent(mensrea) for crimes involving theft. The Court noted that there was no bright line rule for which offenses requiredmensrea. Basically, this case said that for relatively serious crimes, there must be amental elementon the part of the defendant to commit a crime (akamensrea).You cannot be found guilty of a crime just because you physically committed the act (akastrict liability). Even thoughMorissettedid take the government property, he wasn't trying to steal it, and he cannot be found guilty (mistake).On the other hand, for minor infractions such as parking tickets, you can be found guilty even if you honestly thought you were parked legally -available at:http://www.invispress.com/law/criminal/morissette.html(20.11.2017.)-strictliability
2.4.1.2.Common Law (US)-Defenses-ExcusesMistakesabout Legal Aspects of the Definition (Type two)
Case 7 Husband (Fl. 1998, 157-158)-„In the marital dispute, the husband takes the car (which is joint ownership) with the intent of holding on to it permanently. Ha acts surreptitiously because he doesn’t want his wife to try to stop him…. He interprets the phrase ..’belonging to another’ to mean ‘belonging entirely to another’. Since he is half –owner of the car, he assumes that he cannot be guilty of larceny.”husband is right about common law meaning ‘objects belonging to another’ butwrong about civil law meaning (German & Croatian)- it would be mistake od fact (Art. 16StGB) or Mistake as to the Elements of Constituting an Offence (Art. 32 CCC)
2.4.1.3.Common Law (US)-Defenses-Excuses3.Mistakes aboutFactual elements ofJustification(Type three)
Justification:necessityconsentself defensein CCC – Mistake of Fact Justifying an Offence (Art. 31)
2.4.1.3.Common Law (US)-Defenses-Excuses3.Mistakes aboutFactual elements ofJustification(Type three)
Case 8 Morgan case-(1970) (Fl. 1998, 159)„Defendant informs his drinking buddies that his wife, waiting patiently at home, enjoys forcible intercourse. She may resist and fight back, but in fact she wants to be taken violently. They come home together from the bar and the husband's friends accept his invitation to force intercourse on the crying and tormented wife.”In this case husband named Morgan and his mates were all convicted for rapethe codefendants complained on appeal that they honestly believed that the wife, despite her tears, was consenting- good defense ofgood faithmistake (The House of Lords concluded)- the judges reasoned that the defendant would not have the intent to engage in nonconsensual intercourse if he believed, however unreasonably, that there was not consentFl., 1998, 167- relevant only if it is reasonable
2.4.1.4.Common Law (US)-Defenses-Excuses4.Mistakes about Norms of Justification (Type four)
mistakeof law- usually irrelevantin CCC Mistake as to Unlawfulness (Art. 32. CCC)In GCC (StGB) Mistake of Law (Art.17.StGB)Beliefconsentis valid defense in a homicide caseMistaken balancing ofcompeting interestsin a case ofnecessityMistaken judgement aboutproportionalityin case ofself-defese(Fl., 1998, 163)
2.4.1.5Common Law (US)-Defenses-Excuses5.Mistakes about Factual Elements of Excuses (Type five)
Case 9 (Fl. 1998, 164)„Defendant receives a note informing her that a local gang has installed a bomb in her house and threatens to blow it up unless she point a gun at a bank teller and demands the contents of her cash drawer. The defendant carries out the order and turns money over to the gang. When put on trial for the bank robbery, the defendant claims an excuse of duress…. It turns out that the gang was just bluffing; they did not plant the bomb. This means that the defendant was mistaken about weather the danger was real.”How to approach the problem?In CCC Mistake about theNecessityas theReasonforExcludingGuilt(Art. 22 § 3 CCC)
2.4.1.6.Common Law (US)-Defenses-Excuses6.Mistakes about Excusing Norms (Type six)
mistakeof law-irrelevantdoesnot exist in German CL –it is notMistake of Law (Art.17.StGB) in Germany nor in Croatia Mistake as to Unlawfulness (Art. 32. CCC)Can one be excused for misunderstanding the scope of an excusing condition? (Fl.1998,165)Someone thinks that threats to property would excuse him if he felt coerced to submit to them (Fl, 1998, 165)„Reasonable reliance” on mistaken view of the law and he believes his conduct therefore did not „legally constitute an offence”Excuse are not acts executed in reliance on legal norms- mistake of the scope of the legal norm is irrelevant
2.4.1.Excuses –Civil Law System-Germany and Croatia
MistakesInsanity/Mental IncompetenceExcessive self-defenseDuress/Necessity as a reason for excludingguilt (Art. 22 § 2 CCC)
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