When the state brings criminal charges against someone, it must prove all the elements of the crime beyond a reasonable doubt. Criminal liability generally involves two things: mens rea -- the mental processes necessary to complete the crime -- and actus reus, some unlawful act. Scienter refers to the guilty mind.
Scienter is Latin for “knowingly". When used in a criminal context, scienter refers to a defendant knowingly committing a crime or knowingly attempting to commit a crime. Most crimes require some degree of scienter – whether it is actual, specific intent or reckless behavior.
Example of Scienter
Murder requires some degree of scienter. Most states have varying degrees of murder, with murder in the first degree being the most serious. First-degree murder requires premeditation; that means the defendant must have thought about specifically killing a particular victim. Premeditation is a degree of scienter. In contrast, second-degree murder does not require premeditation. If a person picked up a heavy bat and intended to hit another person in the head with it – but not to use the bat to specifically kill that person – he has likely committed second-degree murder if the blow kills the victim. Scienter is present: The person intended to use the bat to strike the victim. It is, however, a lesser degree of scienter in that the person did not intend to kill the victim.
Crimes Without Scienter
Very few crimes do not require scienter. One common example is felony murder. State felony murder laws typically require only the intent -- or scienter -- to commit an underlying felony, not the intent that it result in a murder. If a person commits armed robbery, for example, and during the course of the robbery someone is murdered, the robber may be guilty of murder under the felony murder law, even though the robber had no scienter with regard to the murder.
Acting Without Scienter
Acting without scienter can be a defense to many crimes – provided the crime requires some degree of scienter. For example, a person cannot be guilty of receiving stolen property if he does not know that the property he received is stolen. Lack of scienter is not a defense to the few crimes that do not require scienter, such as felony murder and statutory rape.
- Nolo's Plain-English Law Dictionary: Scienter
- Free Advice: Are There Different Degrees of Murder?
- William & Mary Bill of Rights Journal: Scienter, Causation, and Harm in Freedom of Expression Analysis: The Right Hand Side of Constitutional Calculus; Wilson Huhn; 2004
- Jrank: Actus Reus - Actus Reus versus Mens Rea
- Criminal Law and Procedure; Daniel E. Hall; 2009: Page 51
- Photo Credit Stockbyte/Stockbyte/Getty Images
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