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Juries are routinely misinstructed on the elements of theft, assault, criminal mistreatment and criminal mischief

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This wikilog article is a draft, it was not published yet.

by: Ryan Scott • July 17, 2019 • 2 comments

Asked to explain how he went bankrupt, Hemingway answered, "Two ways. Gradually, then suddenly."

I think of this quote often when reflecting on the evolution of criminal law. It can move at a glacial pace, and then when the dam breaks (yes, mixed metaphor), changes can occur rapidly.

We are on the cusp of the dam breaking when it comes to some of the most common offenses. Defendants whose attorneys anticipate the changes to come will benefit far more than those defendants whose attorneys don't see them coming or don't care.

The issue involves "mental states," but not in the "guilty except insane" sense. All crimes have elements. If the crime is in the criminal code, then all the physical elements (possessing, uttering, causing injury, taking) have a mental state or mens rea attached (intentionally, knowingly, recklessly or negligently). The circumstantial element of crimes (e.g., more than a thousand dollars) in the criminal code also have a mental state, unless the legislature has expressly said otherwise (e.g., the age of a victim of sexual abuse.) The mental state can make a big difference. The difference between killing someone accidentally versus killing someone intentionally is based entirely on the mental state, and the resulting difference is between life in prison and maybe a couple years. If I'm convicted of intending to kill you, then it's life in prison. If convicted of negligently running you over while speeding, it's more likely 18 months, if I have no criminal history. Maybe even less.

Lawyers and judges often have a very hard time figuring out the appropriate mental state to apply to each element. Part of the problem is that lawyers think juries don't care about the distinction and are unwilling to spend too much time on getting the answer right. Would a juror acquit for a crime that required an intentional mental state but convict if the state only had to prove knowingly? I think maybe they would, and I think it's worth fighting to get the jury instructed correctly.

But there is a far more pragmatic reason to fight for the right jury instruction than the possibility a juror will give serious weight to the distinction. In most cases, if the trial court overrules your request for the instruction, but the Court of Appeals determines you were right, then you'll win on appeal. A reversal will make a big difference to your client, whether he's still in custody in two years or still on probation or just wants another chance to get the conviction off his record.

However, winning on appeal requires something that's very easy to get now, but might not be so easy a year from now. And that something is an erroneous ruling by the judge. When it comes to mental states, trial judges are still getting it wrong. When the Court of Appeals starts reversing convictions because the jury was instructed incorrectly, which I believe will happen routinely as early as next year, then trial courts will finally start giving the right instructions. You'll gain a small victory at trial, which might help you prevail, but you'll lose the chance of winning on that issue on appeal, if you need it.

This line of argument, of course, depends on my being right that judges continue to give erroneous jury instructions on some of the most common offenses: theft, criminal mischief, (knowing) assaults and criminal mistreatment. More evidence that I'm right came today from the Court of Appeals.

It's a concurrence on a per curiam opinion where the defendant lost, written by one of the smartest judges at the Court of Appeals. It's easy to overlook, but it shows that Judge Aoyagi understands the issues involved and can write about them in a clear, accessible and convincing way.

Here is her summary of the Oregon Supreme Court's approach to determining the appropriate mens rea to attach to a particular element.

The Supreme Court reversed the trial court, agreeing with defendant (and us) that knowledge was the minimum culpable mental state for the lack-of-consent element of UUV. Simonov, 358 Or at 549. The court began its analysis by noting that, when an element of an offense requires a culpable mental state (as most do), but the statute creating the offense does not specify the mental state, the required minimum mental state depends on the nature of the element. Id. at 538-39. The minimum culpable mental state for “conduct” elements is knowledge, while the minimum culpable mental state for “result” and “circumstance” elements is criminal negligence. Id. at 539-40. As clarified in Simonov, “conduct elements are those that describe the nature or essential character of the defendant’s act or omission.” Id. at 541 (emphasis added). “[W]hen an element of an offense within the Criminal Code describes the nature, that is, the essential character, of a proscribed act or omission, it generally is a conduct element.” Id. at 546. By contrast, “circumstance” elements are those that describe “an accessory fact that accompanies the defendant’s conduct.” Id. The court recognized in Simonov that “the line between conduct and other elements is not always easy to draw” but reiterated that it “nevertheless is a principled [line].” Id. at 544. Ultimately, “[w]hether a particular element—including lack of permission or consent—constitutes part of the defendant’s conduct or is a circumstance depends on a careful examination, using well-established statutory interpretation principles, of the role of the element in the offense and its relationship to the other elements.” Id.

If you apply the above to theft cases, then "taking the property" is the conduct and the $ value of the property is the circumstance. Therefore, the jury would be instructed that it had to find a defendant knew they were taking the property but was only negligent as to its value (e.g., more than $1000).

But the state will object to that instruction because it will insist that no mental state applies to $ value. It will insist that a case called St v Jones so holds. The state will continue to make this argument even though the Simonov opinion expressly states that Jones only held that "knowing" doesn't apply to $ value, saying nothing about negligence.

If a judge agrees with the state, the jury will be erroneously instructed and the defendant has an excellent shot at reversal in less than two years.

The same holds true for a charge of criminal mischief that depends on a certain $ value.

With assault, the issue is more complicated, for reasons best reserved for another post. I predict that the Oregon Supreme Court will ultimately hold -- based on that reasoning -- that "knowing" is the appropriate mental state for injury or serious physical injury, when the crime is charged as a knowing assault (e.g., most assault IIs, some assault Is, Assault on a Public Safety Officer). But until that happens, you are entitled to a criminal negligence instruction as to injury, which the state will oppose because this time they will insist the Oregon Supreme Court held that no mental state applies to "serious injury" in a knowing assault. They will continue making that argument even after you point out that the Court of Appeals last year -- in a case called St v Pryor, which held that an intentional mental state applied to serious physical injury in some theories of Assault I -- stated that the Oregon Supreme Court said no such thing.

Attorneys need to make these arguments now. You might lose in the circuit court, but win down the road, sooner than you might otherwise think because the issues have already been preserved and brief at the COA. Criminal law moves gradually, then suddenly. The Simonov analysis will be applied to thefts and criminal mischiefs and assaults and it will change the way these basic crimes are proven. Prosecutors like to argue that Simonov is strictly limited to UUV cases. Today's per curiam proves otherwise.