§ 10.01 General Principle

§ 10.01 General Principle1

Actus non facit reum nisi mens sit rea, or "an act does not make [a person] guilty, unless the mind be guilty," expresses the principle that, except in rare circumstances,2 a person is not guilty of a criminal offense unless the government not only proves the actus reus of the crime (discussed in the last chapter), but also the defendant's mens rea (literally, a "guilty mind"). As the Supreme Court has put it, criminal liability requires proof of "an evil-meaning mind with an evil-doing hand."3

This has not always been the case. In ancient English law, criminal responsibility was based solely on proof of commission of an actus reus. The actor's state of mind was irrelevant. By as early as the thirteenth century, however, English courts had begun to require proof that the person charged with a criminal offense had a culpable state of mind.4

By the twentieth century, the concept of mens rea had become so deeply entrenched in American law that the Supreme Court could state that "[t]he contention that an injury can amount to a crime only when inflicted by [mens rea] is no provincial or transient notion. It is . . . universal and persistent in mature systems of law."5 As one scholar has put it, "the requirement of mens rea contributes to the meaning and value of our lives as moral beings,"6 Today, mens rea is "the criminal law's mantra."7



[1] See generally Jerome Hall, General Principles of the Criminal Law 70-104 (2d ed. 1960); Rollin M. Perkins, A Rationale of Mens Rea, 52 Harv. L. Rev. 905 (1939); Stephen J. Morse, Inevitable Mens Rea, 27 Harv. J.L. & Pub. Pol'y 51 (2003); Paul H. Robinson, A Brief History of Distinctions in Criminal Culpability, 31 Hastings L.J. 815 (1980); Francis Bowes Sayre, Mens Rea, 45 Harv. L. Rev. 974 (1932).

[2] See Chapter 11, infra.

[3] Morissette v. United States, 342 U.S. 246, 251 (1952).

[4] Robinson, Note 1, supra, at 821-46; Sayre, Note 1, supra, at 975-94.

[5] Morissette v. United States, 342 U.S. at 250.

[6] Morse, Note 1 supra, at 61.

[7] United States v. Cordoba-Hincapie, 825 F. Supp. 485, 490 (E.D.N.Y. 1993).

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