Tuesday, May 5, 2009

Grammarian's Delight

Oh what a tangled web we weave when we try to specify the mental element of crimes.

Criminal law has since time immemorial required that a defendant commit an actus reus ("bad act") with a mens rea ("guilty mind"). Most crimes are not crimes if you do them unwittingly or accidentally -- if someone unexpectedly falls off a bicycle in front of your car and despite your best effort to stop you run them over and kill them, it is a terrible thing, but you have not committed murder. You committed the actus reus of killing them, but you did not have the mens rea of intending to do so. Mens rea is no mere detail but part of the heart and soul of criminal law.

That's why it's so important for legislatures to be clear about specifying the mental element of crimes. Congress did the usual almost-adequate job in banning "aggravated identity theft." It imposed a sentence enhancement on anyone who, in the commission of certain other crimes, "
"knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person."

So at least Congress made clear that the crime occurs only when the criminal acts knowingly. But how much has to be done knowingly? Does the defendant have to have knowingly transferred, possessed, or used something, without having to know that that the thing is a means of identification of another person? (The thing might be in a sealed package that the defendant knows he is transferring, but without knowing the contents.) Does the defendant also have to know that the is a means of identification, but not that it belongs to another person? (The defendant might have made up a fake Social Security Number, without knowing that it actually belongs to another person.) Or must the defendant know all the elements in the rest of the sentence?

The second hypo was the actual case at the Supreme Court yesterday. The defendant used a fake Social Security card, but the evidence didn't prove that he knew the SSN belonged to a real person -- and he had previously used a fake card with a number that didn't belong to anybody. In a plausible opinion, the Court held that the usual import of the word "knowingly" is that it applies to everything that follows. The Court supported its conclusion mainly through application of ordinary principles of grammar.

Fair enough, but the tough question is, suppose you wanted to prohibit knowingly tranferring, possessing, or using a means of identification that belongs to another person, and you wanted the "knowing" requirement to apply to everything except knowing that there's a real person involved -- so that it is a crime to use a fake ID that in fact belongs to another person, provided you know it's a fake ID, whether or not you know that it belongs to another real person. What would you say?

It's not so easy to express this idea. And this point comes up all the time -- "knowingly" is a common mens rea, but it is frequently unclear how much it covers.

I think legislative drafters have to give up on trying to do it all in one sentence. It really requires two. There should be one sentence that uses the term "knowingly" as in the statute above, and then a second sentence that says, "the 'knowingly' requirement applies to the following elements: . . . " Awkward, but it would get the job done more precisely.

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