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Applying the right mental state to the material elements: a quick summary and something you probably didn't know

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by: Ryan Scott • March 11, 2018 • one comment

Recently, I have given a number of presentations on the steps any defense lawyer should take in determining what mental state applied to which material elements. One anonymous critic wasn't impressed, but for a very practical reason: do jurors really care whether certain crimes have to be committed knowingly, recklessly or negligently? They want to know, "did the guy do it"?

I think it depends on the case. Applying criminal negligence to $ value in a theft or criminal mischief may not matter most of the time, but in the right case -- a victim claiming $800 sunglasses in her stolen purse, plus a $400 alligator-skin wallet, to give an extreme example -- it could easily result in a conviction for a less serious charge.

But I think the question misses the big picture. One, defense attorneys should always make sure the state proves its case, and we aren't doing our jobs by giving the state a gimme on an element or two. Secondly, the jury may not care but the Court of Appeals will. The wrong jury instruction will result in a reversal more times than not. Given how risk-adverse some trial judges are, the likelihood of a judge giving an instruction at odds with the standard instruction is slim, and the chances of reversal are high, if you ask for the right instruction.

So, here is a quick summary of a portion of the relevant law, and a slight twist that might come in handy in the right case.

First, none of what follows is in dispute in the appellate courts. I'm not going to cite case law. I'd be happy to send it to you whenever you'd like it. I just want to focus on what the law says, step-by-step.

(1) Some mental state must apply to each element for each crime that is listed in the criminal code, unless. . . .

(2) There is an explicit statute to the contrary.

(3) The crimes that are in the criminal code are listed at ORS 161.005.

(4) Why does the statute to the contrary have to be explicit? Because there is a statute that explicitly says all elements of all crimes in the criminal code have a mental state. The only way to trump that statute is with another statute, such as the statutes eliminating mental state for the age element in statutory rape offenses. Isn't there case law that says we can infer a legislative intent to dispense with a mental state? That's only true for crimes that aren't in the criminal code.

(5) If the crime in the criminal code has an express mental state, then that mental state applies to all elements.

(6) If the crime in the criminal code has no express mental state, then "knowingly" applies to all conduct elements and "criminal negligence" applies to all circumstance or result elements. An exception will be noted below.

(7) An element constitutes conduct if it is part of the essential nature of the crime, i.e., it's necessary to turn innocent conduct criminal.

(8) Here's the aforementioned exception. If legislative intent suggests that an element, though otherwise conduct, should be treated differently, criminal negligence will apply. This only applies to crimes with no express mental state.

Recently, I heard about a judge who rejected the argument that criminal negligence applied to $ value in criminal mischief, on the grounds that the legislative intent to dispense with a mental state as to $ value could be inferred. This is wrong for two reasons: (1) for crimes in the criminal code, an express statute doing away with mental state is the only way to do away with mental state, and (2) to the extent an inference of legislative intent is appropriate, it can only reduce a presumptive mental state of knowingly to criminal negligence. Since the defendant was only asking for criminal negligence to begin with, legislative intent was irrelevant.

If you understand the above, then you can figure out why "knowing" assaults, or criminal mistreatment, or theft, or criminal mischief, are entitled to instructions that aren't consistent with the standard instructions. But even if you know this stuff backwards and forwards, here's something you probably didn't know.

"Attempt" crimes are defined at ORS 161.405. ORS 161.405 is listed among the offenses included in the criminal code. ORS 161.005. Therefore, a crime like Felon in Possession might not be in the criminal code, but Attempted Felon in Possession is. Consequently, a defendant who doesn't need to know he's a felon to be guilty of the completed offense probably does need to know he's a felon for the inchoate offense.