I still remember the case clearly. My client had beat another guy until he was bloody in a fight outside of his work. There was a history of both of the guys arguing at work, taunting each other. One day after the other guy had taunted my client, my client beat him with a bat until the other guy was bloody. From the witness stand during trial, the alleged victim testified how he heard one of his break as he was hit.
I saw the jury squirm at hearing this testimony.
My client then took the stand. He admitted he hit the guy. He admitted he hit him to where he was bleeding.
But he said he only did so because the other guy came at him with a tire iron. He knew from the past taunts the other guy meant business. He had to hit him to the point he was bleeding because the guy kept coming at him with the tire iron and would not stop.
Client found not guilty at trial.
From their first year in law school, lawyers taught there are two things necessary for a crime to exist: mens rea (guilty mind) and actus rea (guilty act). Mens rea refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime. See, e.g. Staples v. United States, 511 US 600 (1994). Mens rea refers to all mental influences and thinking of someone who has engaged in wrongful or harmful conduct deemed to be blameworthy, and, therefore, deserving of punishment. Mens rea also is understood to comprise the purpose, knowledge, recklessness, or negligence necessary to prove a given element of a crime. See, Douglas Husak, “Broad” Culpability and the Retributivist Dream, 9 OHIO ST.J.CRIM.L. 449, 454-60 (2012); Sanford Kadish, The Decline of Innocence, 26 CAMBRIDGE L.J. 273, 274-75 (1968).
Before proceeding with further discussion, I should mention there are some crimes with no mens rea requirement. In United States v. United States Gypsum Co., 438 U.S. 422 (1978) the Supreme Court explained "the familiar proposition that '[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.' " Id. at 436. The Court then emphasized its "generally inhospitable attitude to non-mens rea offenses," id. at 438, except in "limited circumstances." Id. at 437. These "limited circumstances" were regulatory crimes where inquiry into intent was unnecessary. Id. at 440-41. See, State v. Collova, 79 Wis. 2d 473, 255 N.W.2d 581 (1977) (to save constitutionality of statute, mens rea element read into statute by court); United States v. Cordoba-Hincapie, 825 F. Supp. 485, 495 (E.D.N.Y. 1993) (explaining that mens rea requirements “flows from our society’s commitment to individual choice.”).
The sole purpose for having a criminal offense without a mens rea requirement is to keep from the jury's consideration a category of evidence that is a fundamental principle of justice, i.e., mens rea, that would help the defendant's case and weaken the government's case. Such a distortion of the adversary process offends the fragile balance between prosecution and defense which the pursuit of truth and fairness in our adversarial proceedings mandates. This unfair adversary system will ultimately not advance the public interest in truth and fairness. Polk County v. Dodson, 454 U.S. 312, 318 (1981). Anglo-American courts “ha[ve] long considered a defendant’s intention—and therefore his moral guilt—to be critical to ‘the degree of [his] criminal culpability.” Enmund v. Florida, 458 U.S. 782, 800 (1982). The “central thought” is that a defendant must be “blameworthy in mind” before he can be found guilty. Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001, 2003, 2009 (2015); Morissette v. United States, 342 U.S. 246, 251 (1952) (noting that liability requires the “concurrence of an evil-meaning mind with an evil-doing hand”); People v. Valley Steel Prods. Co., 375 N.E.2d 1297, 1305 (Ill. 1978) (“It would be unthinkable to subject a person to a long term of imprisonment for an offense he might commit unknowingly.”).
In Wisconsin, defenses to a criminal charge termed “affirmative defenses.” The baseball bat case I mentioned above illustrates an affirmative defense, self-defense. When an affirmative defense is used, the defendant is basically affirming he committed the crime of which he is accused (hitting the person with the bat), but is offering an explanation or justification for the incident (I was defending myself). When successful, an affirmative defense means the defendant is not guilty or help reduce the defendant’s legal liability.
WISCONSIN AFFIRMATIVE DEFENSES
Self-Defense. A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what he or she reasonably believes to be an unlawful interference with his or her person by the other. State v. Head, 2002 WI 99, ¶ 4, 255 Wis. 2d 194, 648 N.W.2d 413. The actor may intentionally use only such force or threat of force as the actor reasonably believes is necessary to prevent or terminate the interference. Wis. Stat. § 939.48; Wis. J.I.--Criminal 800, 805, 810, 815 (2001), 820 (1994); Head, 2002 WI 99, ¶ 4, 255 Wis. 2d 194. Imperfect self-defense (unnecessary defensive force) is a partial defense to first-degree homicide, reducing the charge to second-degree intentional homicide. Wis. Stat. § 940.01(2)(b); Head, 2002 WI 99, ¶ 69, 255 Wis. 2d 194. Imperfect self-defense differs from self-defense in that either the belief that the actor was in imminent danger, or the belief that the force was necessary, is an unreasonable belief. Head, 2002 WI 99, ¶ 90, 255 Wis. 2d 194.
Defense of Others. A person is privileged to defend a third person from real or apparent unlawful interference by another under the same conditions, and by the same means, as those under and by which he or she is privileged to defend himself or herself, provided that he or she reasonably believes that the third person would be privileged to act in self-defense and that his or her intervention is necessary to protect the third person. Wis. Stat. § 939.48(4); Wis. J.I.--Criminal 825, 830 (1994); see State v. Jones, 147 Wis. 2d 806, 434 N.W.2d 380 (1989); State v. Ambuehl, 145 Wis. 2d 343, 425 N.W.2d 649 (Ct. App. 1988).
Defense of Property. A person is privileged to threaten or intentionally use force against another to prevent or terminate what the person reasonably believes to be an unlawful interference with his or her property. Wis. Stat. § 939.49(1). It is not reasonable to use intentional force intended, or likely, to cause death or great bodily harm for the sole purpose of defending one's property. Only that amount of force necessary to prevent or terminate the interference is allowed. Id. This defense may be extended to protection of the property of third persons only if the third person is a member of the actor's immediate family or household, or is a person whose property the actor has a legal duty to protect. Wis. Stat. § 939.49(2); Wis. J.I.--Criminal 855 (1994).
Coercion or Duress. Coercion or duress is a defense if a threat by a person other than the defendant's co-conspirator caused the defendant reasonably to believe that his or her act was the only means of preventing imminent death or great bodily harm to himself or herself or to another, and caused the defendant so to act. If the offense charged is first-degree intentional homicide, however, successful invocation of the defense will reduce the degree of the crime to second-degree intentional homicide. Wis. Stat. § 939.46; Wis. J.I.--Criminal 790 (1995); see State v. Brown, 107 Wis. 2d 44, 318 N.W.2d 370 (1982); Moes v. State, 91 Wis. 2d 756, 284 N.W.2d 66 (1979); 1975).
Accident. Accident is generally a defense if it negates a state of mind essential to the crime. It also may be a defense when, in the exercise of a privilege, an unintended result occurs, such as the unintended killing of an innocent third person during a legitimate exercise of self-defense. Wis. J.I.--Criminal 820 (1994) (privilege: self-defense: injury to innocent third party); see Wis. Stat. § 939.48(3); State v. Watkins, 2002 WI 101, ¶ 45, 255 Wis. 2d 265, 647 N.W.2d 244. Like accident, a mistake is an honest error, whether of fact or of law other than criminal law, is a defense if it negates the existence of a state of mind essential to the crime. A mistake as to a minor's age, as to the existence or constitutionality of the section under which the actor is prosecuted, or as to the scope or meaning of the terms used in that section is not a defense. Wis. Stat. § 939.43; Wis. J.I.--Criminal 770 (1998); Flores v. State, 69 Wis. 2d 509, 230 N.W.2d 637 (1975).
Insanity/Mental Disease or Defect. A person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect, the person lacked substantial capacity either to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of law. Mental disease or defect excluding responsibility is an affirmative defense that the defendant must establish to a reasonable certainty by the greater weight of the credible evidence. Wis. Stat. § 971.15; see Wis. J.I.--Criminal 600-662; State v. Leach, 124 Wis. 2d 648, 370 N.W.2d 240 (1985).
Entrapment. This defense is available when a law enforcement officer has used improper methods to induce a defendant to commit an offense and, by the use of such methods, has succeeded in inducing the defendant to commit an offense that he or she was not otherwise did not have the intent or disposition to commit. Wis. J.I.–Criminal 780 (2002); Jacobson v. United States, 503 U.S. 540, 548 (1992); Sherman v. United States, 356 U.S. 369 (1958); Hawthorne v. State, 43 Wis. 2d 82, 168 N.W.2d 85 (1969).
Involuntary Intoxication/Involuntary Drugged Condition. Involuntary intoxication or involuntary drugged condition is a defense if the condition renders the actor incapable of distinguishing between right and wrong with regard to the alleged criminal act at the time the act is committed. Wis. Stat. § 939.42(1); Wis. J.I.--Criminal 755 (1995); Loveday v. State, 74 Wis. 2d 503, 247 N.W.2d 116 (1976); see State v. Repp, 117 Wis. 2d 143, 342 N.W.2d 771 (Ct. App. 1983), aff'd, 122 Wis. 2d 246, 362 N.W.2d 415 (1985). Involuntary intoxication also provides a defense when it prevents the state from proving a state of mind necessary for conviction. Wis. Stat. § 939.42(2).
Necessity. This defense is available when the pressure of natural physical forces causes the actor reasonably to believe that his or her act is the only means of preventing imminent public disaster or imminent death or great bodily harm to the actor or another. Necessity is a defense to a prosecution for any crime based on that act; if the prosecution is for first-degree intentional homicide, however, successful use of the defense will reduce the degree of the crime to second-degree intentional homicide. Wis. Stat. § 939.47; State v. Olsen, 99 Wis. 2d 572, 299 N.W.2d 632 (Ct. App. 1980).
I saw the jury squirm at hearing this testimony.
My client then took the stand. He admitted he hit the guy. He admitted he hit him to where he was bleeding.
But he said he only did so because the other guy came at him with a tire iron. He knew from the past taunts the other guy meant business. He had to hit him to the point he was bleeding because the guy kept coming at him with the tire iron and would not stop.
Client found not guilty at trial.
From their first year in law school, lawyers taught there are two things necessary for a crime to exist: mens rea (guilty mind) and actus rea (guilty act). Mens rea refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime. See, e.g. Staples v. United States, 511 US 600 (1994). Mens rea refers to all mental influences and thinking of someone who has engaged in wrongful or harmful conduct deemed to be blameworthy, and, therefore, deserving of punishment. Mens rea also is understood to comprise the purpose, knowledge, recklessness, or negligence necessary to prove a given element of a crime. See, Douglas Husak, “Broad” Culpability and the Retributivist Dream, 9 OHIO ST.J.CRIM.L. 449, 454-60 (2012); Sanford Kadish, The Decline of Innocence, 26 CAMBRIDGE L.J. 273, 274-75 (1968).
Before proceeding with further discussion, I should mention there are some crimes with no mens rea requirement. In United States v. United States Gypsum Co., 438 U.S. 422 (1978) the Supreme Court explained "the familiar proposition that '[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.' " Id. at 436. The Court then emphasized its "generally inhospitable attitude to non-mens rea offenses," id. at 438, except in "limited circumstances." Id. at 437. These "limited circumstances" were regulatory crimes where inquiry into intent was unnecessary. Id. at 440-41. See, State v. Collova, 79 Wis. 2d 473, 255 N.W.2d 581 (1977) (to save constitutionality of statute, mens rea element read into statute by court); United States v. Cordoba-Hincapie, 825 F. Supp. 485, 495 (E.D.N.Y. 1993) (explaining that mens rea requirements “flows from our society’s commitment to individual choice.”).
The sole purpose for having a criminal offense without a mens rea requirement is to keep from the jury's consideration a category of evidence that is a fundamental principle of justice, i.e., mens rea, that would help the defendant's case and weaken the government's case. Such a distortion of the adversary process offends the fragile balance between prosecution and defense which the pursuit of truth and fairness in our adversarial proceedings mandates. This unfair adversary system will ultimately not advance the public interest in truth and fairness. Polk County v. Dodson, 454 U.S. 312, 318 (1981). Anglo-American courts “ha[ve] long considered a defendant’s intention—and therefore his moral guilt—to be critical to ‘the degree of [his] criminal culpability.” Enmund v. Florida, 458 U.S. 782, 800 (1982). The “central thought” is that a defendant must be “blameworthy in mind” before he can be found guilty. Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001, 2003, 2009 (2015); Morissette v. United States, 342 U.S. 246, 251 (1952) (noting that liability requires the “concurrence of an evil-meaning mind with an evil-doing hand”); People v. Valley Steel Prods. Co., 375 N.E.2d 1297, 1305 (Ill. 1978) (“It would be unthinkable to subject a person to a long term of imprisonment for an offense he might commit unknowingly.”).
In Wisconsin, defenses to a criminal charge termed “affirmative defenses.” The baseball bat case I mentioned above illustrates an affirmative defense, self-defense. When an affirmative defense is used, the defendant is basically affirming he committed the crime of which he is accused (hitting the person with the bat), but is offering an explanation or justification for the incident (I was defending myself). When successful, an affirmative defense means the defendant is not guilty or help reduce the defendant’s legal liability.
WISCONSIN AFFIRMATIVE DEFENSES
Self-Defense. A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what he or she reasonably believes to be an unlawful interference with his or her person by the other. State v. Head, 2002 WI 99, ¶ 4, 255 Wis. 2d 194, 648 N.W.2d 413. The actor may intentionally use only such force or threat of force as the actor reasonably believes is necessary to prevent or terminate the interference. Wis. Stat. § 939.48; Wis. J.I.--Criminal 800, 805, 810, 815 (2001), 820 (1994); Head, 2002 WI 99, ¶ 4, 255 Wis. 2d 194. Imperfect self-defense (unnecessary defensive force) is a partial defense to first-degree homicide, reducing the charge to second-degree intentional homicide. Wis. Stat. § 940.01(2)(b); Head, 2002 WI 99, ¶ 69, 255 Wis. 2d 194. Imperfect self-defense differs from self-defense in that either the belief that the actor was in imminent danger, or the belief that the force was necessary, is an unreasonable belief. Head, 2002 WI 99, ¶ 90, 255 Wis. 2d 194.
Defense of Others. A person is privileged to defend a third person from real or apparent unlawful interference by another under the same conditions, and by the same means, as those under and by which he or she is privileged to defend himself or herself, provided that he or she reasonably believes that the third person would be privileged to act in self-defense and that his or her intervention is necessary to protect the third person. Wis. Stat. § 939.48(4); Wis. J.I.--Criminal 825, 830 (1994); see State v. Jones, 147 Wis. 2d 806, 434 N.W.2d 380 (1989); State v. Ambuehl, 145 Wis. 2d 343, 425 N.W.2d 649 (Ct. App. 1988).
Defense of Property. A person is privileged to threaten or intentionally use force against another to prevent or terminate what the person reasonably believes to be an unlawful interference with his or her property. Wis. Stat. § 939.49(1). It is not reasonable to use intentional force intended, or likely, to cause death or great bodily harm for the sole purpose of defending one's property. Only that amount of force necessary to prevent or terminate the interference is allowed. Id. This defense may be extended to protection of the property of third persons only if the third person is a member of the actor's immediate family or household, or is a person whose property the actor has a legal duty to protect. Wis. Stat. § 939.49(2); Wis. J.I.--Criminal 855 (1994).
Coercion or Duress. Coercion or duress is a defense if a threat by a person other than the defendant's co-conspirator caused the defendant reasonably to believe that his or her act was the only means of preventing imminent death or great bodily harm to himself or herself or to another, and caused the defendant so to act. If the offense charged is first-degree intentional homicide, however, successful invocation of the defense will reduce the degree of the crime to second-degree intentional homicide. Wis. Stat. § 939.46; Wis. J.I.--Criminal 790 (1995); see State v. Brown, 107 Wis. 2d 44, 318 N.W.2d 370 (1982); Moes v. State, 91 Wis. 2d 756, 284 N.W.2d 66 (1979); 1975).
Accident. Accident is generally a defense if it negates a state of mind essential to the crime. It also may be a defense when, in the exercise of a privilege, an unintended result occurs, such as the unintended killing of an innocent third person during a legitimate exercise of self-defense. Wis. J.I.--Criminal 820 (1994) (privilege: self-defense: injury to innocent third party); see Wis. Stat. § 939.48(3); State v. Watkins, 2002 WI 101, ¶ 45, 255 Wis. 2d 265, 647 N.W.2d 244. Like accident, a mistake is an honest error, whether of fact or of law other than criminal law, is a defense if it negates the existence of a state of mind essential to the crime. A mistake as to a minor's age, as to the existence or constitutionality of the section under which the actor is prosecuted, or as to the scope or meaning of the terms used in that section is not a defense. Wis. Stat. § 939.43; Wis. J.I.--Criminal 770 (1998); Flores v. State, 69 Wis. 2d 509, 230 N.W.2d 637 (1975).
Insanity/Mental Disease or Defect. A person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect, the person lacked substantial capacity either to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of law. Mental disease or defect excluding responsibility is an affirmative defense that the defendant must establish to a reasonable certainty by the greater weight of the credible evidence. Wis. Stat. § 971.15; see Wis. J.I.--Criminal 600-662; State v. Leach, 124 Wis. 2d 648, 370 N.W.2d 240 (1985).
Entrapment. This defense is available when a law enforcement officer has used improper methods to induce a defendant to commit an offense and, by the use of such methods, has succeeded in inducing the defendant to commit an offense that he or she was not otherwise did not have the intent or disposition to commit. Wis. J.I.–Criminal 780 (2002); Jacobson v. United States, 503 U.S. 540, 548 (1992); Sherman v. United States, 356 U.S. 369 (1958); Hawthorne v. State, 43 Wis. 2d 82, 168 N.W.2d 85 (1969).
Involuntary Intoxication/Involuntary Drugged Condition. Involuntary intoxication or involuntary drugged condition is a defense if the condition renders the actor incapable of distinguishing between right and wrong with regard to the alleged criminal act at the time the act is committed. Wis. Stat. § 939.42(1); Wis. J.I.--Criminal 755 (1995); Loveday v. State, 74 Wis. 2d 503, 247 N.W.2d 116 (1976); see State v. Repp, 117 Wis. 2d 143, 342 N.W.2d 771 (Ct. App. 1983), aff'd, 122 Wis. 2d 246, 362 N.W.2d 415 (1985). Involuntary intoxication also provides a defense when it prevents the state from proving a state of mind necessary for conviction. Wis. Stat. § 939.42(2).
Necessity. This defense is available when the pressure of natural physical forces causes the actor reasonably to believe that his or her act is the only means of preventing imminent public disaster or imminent death or great bodily harm to the actor or another. Necessity is a defense to a prosecution for any crime based on that act; if the prosecution is for first-degree intentional homicide, however, successful use of the defense will reduce the degree of the crime to second-degree intentional homicide. Wis. Stat. § 939.47; State v. Olsen, 99 Wis. 2d 572, 299 N.W.2d 632 (Ct. App. 1980).
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