A Coram Nobis Writ to Watch -- Voorhees

9/17/2020

The issue: what mens rea should be inferred when an element is textually silent on the required mens rea?

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Brenner Fissell

EIC

Brenner M. Fissell

9/17/2020 03:08:41 pm

"Modern scholars criticize the terminology of general and specific intent on at least three grounds.

First, as noted above, it is ambiguous: An offender who acted with “general intent” may have acted with (a) no excuse; (b) an intent to achieve the actual results of her conduct only; (c) an intent to achieve some result other than the unlawful injury she caused; or (d) recklessness or negligence. An offender who acted with “specific intent” may have acted with (a) the culpable mental state required by the offense definition; (b) an intent to achieve some result beyond that actually achieved; (c) an intent to produce the unlawful injury she is charged with; or (d) purpose.

Second, a distinction between general and specific intent offenses is not very useful for an offense with more than two elements. Consider burglary, which might be defined as “entering the dwelling of another without consent, with the intent to commit a felony therein.” What is entailed by calling burglary a “specific intent crime”? The required intent to commit a felony seems like a specific intent, but should we also require the intent to enter, the hope that another dwells there, or the intent to violate the dweller’s consent? Must the prosecution prove specific intent with respect to all the elements, some elements, or one element of a specific intent offense?

Third, the terminology of general and specific intent wrongly implies that intent is the only kind of mental culpability possible. A lawmaker might wish to condition burglary on intending to enter a building and commit a felony, while being reckless or negligent as to whether the building is a dwelling and whether the actor has permission to enter." Kaplan, Weisberg, Binder, Criminal Law (2016).

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