TIP OF THE MONTH ARCHIVES

These tips are intended to educate the reader about areas of the law that make up my practice. This information may be helpful to do-it-yourselfers or may simply increase the reader’s knowledge and understanding of the legal system.

MENTAL STATE REQUIREMENT OF A CRIMINAL CHARGE

Every crime consists of a bad act and a culpable mental state. Except for a tiny number of crimes, the State must prove both a bad act and a culpable mental state in order to win a conviction.

The few crimes that require proof only of a bad act and do not require proof of a mental state are known as “strict liability crimes.” Driving Under the Influence of Intoxicants (“DUII”) is an example of a strict liability crime; the prosecutor need only prove that a person drove under the influence of intoxicants – the prosecutor does not have to prove that the defendant intended to or even knowingly drove under the influence.

Infractions (such as speeding) or violations (such as littering) are not, technically speaking, crimes. (A crime is an offense punishable by time in jail or prison.) Therefore, the State does not have to prove a culpable mental state in order to convict a person for an infraction or a violation.

Sometimes, the crime itself states the required mental state that the prosecution must prove. For example, one version of the crime of Theft in Oregon criminalizes the taking of the property from the owner with intent to deprive the owner of his property. It is not enough for the prosecutor to prove that the defendant took something that did not belong to the defendant; the prosecutor must also prove that the defendant’s intent (i.e., his mental state) was to deprive the owner of the property (rather than to borrow or fix it). The prosecutor will usually prove the mental state by circumstantial evidence, as a criminal rarely announces, “I am intending to deprive you of this property” as she steals it.

Many Oregon statutes do not state what mental state the prosecutor must prove. In that case, according to Oregon law (ORS 161.115 (2)), the prosecutor must prove that the defendant acted either intentionally, knowingly, recklessly, or with criminal negligence. Those terms defined in another statute (ORS 161.085).

A criminal defense attorney should always look at what mental state the prosecution is required to prove. The difficulty the prosecutor may have in proving the mental state is often a weak point in the prosecutor’s case that can be exploited by the defense.

Areas of Expertise

Personal Injury

Auto, Truck, Car & Bike Accidents · Products Liability · Slip & Fall Accidents · Wrongful Death · Pedestrian Accidents

Criminal Law

Assault · Domestic Violence · Drugs · Fraud · Identity Theft · Measure 11 Offenses · Property Crimes · Theft

Consumer & Civil Rights

Auto Purchases · Consumer Fraud · Lemon Law · Americans with Disabilities Act (ADA) · Discrimination · Prisoner Cases

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Wills · Trusts · Estate Planning · Probate · Will Contests · Power of Attorney · Advance Directives | Living Wills