If negligence is admitted as a form of fault, how aren&#39;t you broadening the traditional category of mens rea? I don't understand the embolded sentence below. How can you admit negligence as a form of fault, without broadening the traditional category of mens rea? Ashworth's Principles of Criminal Law (2020 9 edn). p 207. The argument is therefore moving towards the conclusion that negligence may be an appropriate standard for criminal liability where: (a) the (potential) harm is great; (b) the risk of it occurring is obvious; (c) D has a duty to try to avoid the risk; and (d) D has the capacity to take the required precautions. This opens up further debates on various points. The thesis is that negligence may be an appropriate standard where there are well-known risks of serious harm. This argues in favour of negligence as a standard of liability for certain serious offences against the person, including some serious sexual offences,279 and also for some serious offences against the environment and property. But it must be debated whether liability for serious crime should be confined to gross negligence, not simple negligence. And it would be vital to protect ‘rule of law’ expectations, and thus to ensure that people receive fair warning of any duties that may form the basis of criminal negligence liability.280 The spread of negligence liability would not have to result in the broadening of the traditional category of mens rea: negligence could be admitted as a form of fault, whereas intention and recklessness would remain the two forms of mens rea. It would be perfectly possible for a criminal code to provide separate crimes of negligence, with lower maximum sentences, at appropriate points in the hierarchy of offences. A further issue is whether the offences of negligence should be in the inchoate mode—‘failing to take reasonable precautions’—or should be tied to the occurrence of the particular harm. Careless driving is of the former type, manslaughter of the latter.281 Fault is related to mens rea. I quote pp 174-175. (a) Mens rea and fault It has already been argued that there should be no criminal liability without fault for imprisonable offence.109 Indeed, there is a respectable argument for saying that there should never be criminal liability without fault;110 but whilst that view seems persuasive in relation to the liability of individuals, it is perhaps less persuasive where the liability of businesses is concerned, particularly in cases where there is a defence to the crime in question of ‘due diligence shown’ (or the like). The claim that criminal offences should include mens rea—guilty mind—requirements reflects the view that criminal liability should be imposed only on persons who can be said ‘subjectively’ to have associated themselves through their behaviour with the p 175 wrongful conduct in question (including the circumstance or consequence elements of the offence, if any). In broad terms, this occurs when people engage in wrongful conduct intentionally, knowingly, recklessly, whilst possessing similar mental states such as indifference, awareness, or suspicion, or when they are complicit in the wrongdoing of others. The subjective mens rea approach encompasses the belief principle, which holds that criminal liability should be based on what defendants believed they were doing or risking, not on facts which were unknown to them at the time.111 For example, according to the belief principle, if D is found in possession of class A drugs, but claims he believed he was in possession of class B drugs, if the prosecution cannot prove otherwise he should be acquitted of ‘possessing class A drugs’. It should not be sufficient to show that he knew he was in possession of prohibited drugs unless, of course, as under the present law, there is a specific offence of possessing ‘a prohibited drug’.112
Fault, in English law, is &quot;blameworthiness&quot;. While it covers both the act and the mental state of the defendant, it cannot equate to the subjective criminal intent of the defendant known as mens rea. In other words, you can be at fault for negligence without having the requisite intent to commit a criminal act. This is perhaps best pointed out by the next sentence after the one in bold: It would be perfectly possible for a criminal code to provide separate crimes of negligence, with lower maximum sentences, at appropriate points in the hierarchy of offences. There are also examples of such offences in English law already. For example, careless, and inconsiderate, driving (&quot;driving without due care and attention&quot;) contrary to Section 3 of the Road Traffic Act 1988 is an offence that requires fault without mens rea. The defendant merely has to be careless and inconsiderate — they do not have to be in the state of mind where they know or believe that what they are doing is criminal in some way. In contrast, dangerous driving contrary to Section 2 of the Road Traffic Act 1988 has the implied requirement of mens rea because of the word &quot;dangerously&quot;. This implies the defendant must have a subjective belief that what they are doing is dangerous (or otherwise be reckless about it), and therefore criminal.
It is an unquestioned pre-American axiom, expressed in Latin as actus reus non facit reum nisi mens sit rea (&quot;the act is not culpable unless the mind is guilty&quot;) which has been part of the Anglo-American legal system since at least the 17th century. It is thus presupposed in all criminal proceedings. It's not that a person only commits a crime with free will, it's that it is not deemed to be a crime if there is no free will. A person can be held at gunpoint and required to commit a criminal act: the person does indeed have free will to choose to be killed rather than commit the act, but the act is legally excused since dying is never held to be the only acceptable alternative to committing an otherwise-criminal act.
"Double jeopardy" applies to a criminal proceeding, that is one that needs to be proved "beyond a reasonable doubt," and involves criminal sanctions such as jail time. Once OJ was acquitted of criminal charges, he couldn't be tried again as a "criminal." The second trial was a civil trial, with a "lesser" standard of proof (preponderance of evidence), and lesser "damages" (money, not jail time). So even though the facts were the same, OJ was accused of violating a different standard, that is a different "law" so to speak. He could be tried for a "tort" just not a crime. Or put another way, "wrongful death" is not the same as murder. The latter requires intent. Wrongful death suggests "tortious" negligence, but not necessarily intent.
The officers could incur liability under 28 U.S.C. 2680 (h) with jurisdiction under 28 U.S.C. 1346 (b). This would probably be considered "loss of property" or a "wrongful act". It is very rare for cases to go forward for this because of the costs of litigation against an officer. "[I]t is well recognized that ‘officers executing search warrants on occasion must damage property in order to perform their duty.’" Cody v. Mello, 59 F.3d 13, 16 (2d Cir. 1995) (quoting Dalia v. United States, 441 U.S. 238, 258 (1979)). “Before any due process liability can be imposed for property damage occurring in a lawful search, it must be established that the police acted unreasonably or maliciously in bringing about the damage.” Cody, 59 F.3d at 16. That actually means that the burden of proof is on the victim to show unreasonableness / maliciousness. It would probably be easier if the thing destroyed could not possibly have contained the item looked for. For instance, if they are looking for a 65" LED TV, they can't even look in a 64" dresser (or something smaller than the object that could not physically hold the object). This issue becomes moot when dealing with drugs.
California law has a general defense of necessity. It appears that it's not in statute, but rather comes from common law. It's described in what appears to be the official jury instructions at CALCRIM 3403. The defendant is not guilty of (insert crime[s]) if (he/she) acted because of legal necessity. In order to establish this defense, the defendant must prove that: (He/She) acted in an emergency to prevent a signiﬁcant bodily harm or evil to (himself/herself/ [or] someone else); (He/She) had no adequate legal alternative; The defendant’s acts did not create a greater danger than the one avoided; When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil; A reasonable person would also have believed that the act was necessary under the circumstances; AND The defendant did not substantially contribute to the emergency. The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six listed items is true. It seems like all six requirements would apply in your hypothetical case, so if you could prove them, you'd be off the hook for a violation of Cal. Penal 148(a)(1) as cited by user6726.
You have accurately summed up the conundrum. There is little else to say. You need to accept that there is confusion, even within the law itself, and rely on context to establish in any given instance which meaning is meant. You will come to find that there are many instances of such confusion in the law. The historic technical distinction in the law (especially in tort law) between assault and battery has been collapsed in the everyday vernacular and this had made its way even into the way that the words are used even by law enforcement officers and legislators, who grew up speaking the vernacular language like everyone else. Where I live, in Colorado, the word "menacing" has been used be legislators to replace the historic sense of the word "assault" and the words "assault" and "battery" have become synonymous. But, in England, they are struck with a situation in which the meaning of the word "assault" has become context specific.
Because in a civil case you have two equally involved sides. If I claim you damaged my car which cost $10,000 to repair, it's not only that you lose $10,000 if you lose the case, but I lose $10,000 if you win the case. Therefore the burden of proof should be equal in both directions. Assume a kid at an expensive boarding school is accused of causing $10,000 damage to the headmaster's car, and instead of suing for damages, the headmaster took the $10,000 out of the kid's school fees and tells the parents that the kid will be thrown out if they don't pay another $10,000. We have the exact same argument, but now the headmaster would be in court and accused. If the burden of proof was "proven beyond reasonable doubt", in the first case the parents would have to pay if it was proven beyond reasonable doubt that the kid was responsible; in the second case they would only get their money back if it was proven beyond reasonable doubt that the kid was not responsible.
You have pretty well enumerated when it is legal. On the face of it it appears that the 11 year old acted illegally. So, if he is not being prosecuted, why not? Age of criminal responsibility. Below a certain age (I don't know about Alabama but in NSW it is 12) a person cannot by law be held criminally responsible because they are deemed to lack the emotional and mental maturity to distinguish right from wrong; this is particularly relevant when the same action can be legal or illegal depending on rather nuanced circumstances. Public interest. A DA may consider that prosecution of this child in these circumstances is not in the public interest. Prospect of conviction. A sensible DA may decide that there is very little prospect that a jury will convict notwithstanding that there is adequate evidence to prove guilt. This is a subset of the public interest; it is in no one's interest to spend time and money on a trial that will probably end with an acquittal.