These are two of the many things I don’t quite get and I’d really appreciate it if people who know what they’re talking about (no Mooncalves please).
1)What exactly is collateral estopel and how does it function? I’ve read definitions and such but the essence eludes me.
2)In grade XII Law class I was told that in order to be convicted of a crime there needed to be: mens rea (guilty mind) and actus reus (guilty action). If I, for instance, shoot a two-striped dianolure (made up endangered animal) without knowing that that’s what I was shooting then I have the guilty act (I shot it) but not the guilty mind (I didn’t know it was illegal) I’ll be convicted AFAIK. What I don’t get is why/how.
I’m sure these are elementary questions but I’ve tried to get it on my own and can’t seem to. Any help would be appreciated.
Wiki has articles on these topics you may find helpful.
Collateral estoppel essentially means that once an issue has been litigated and decided, it cannot be re-litigated.
Mens rea typically means intent to do some act, not intent to break a law. Ignorance of the law is no defense and all that jazz. So the court would typically look at your intent to kill or cause harm, for example, not your knowledge of the law and intent to violate that law.
Some offenses are strict liability offenses and no showing of intent is required.
Some offenses require specific intent, an intent to violate law.
Mistake of fact might also provide a legal excuse from liability if you reasonably believed your two-striped dianolure was actually a cow.
I can try to answer these. Note that I am not a lawyer, and nothing I say here is legal advice, or relates to the law in any specific jurisdiction–all it is is academic explanations of principles–and hypothetical explanations. Reading this doesn’t mean I’m giving you advice, and nothing I say here should be relied upon by anyone for any reason.
Estoppel is a legal term that means a party is precluded from making a certain argument because it had already been resolved–the court says “we already decided that–and you don’t have the right to ask me to decide it again because you didn’t like the outcome”
Collateral estoppel is Fact estoppel. It only applies between parties to a lawsuit (or those in privity)–I’ll show how that works later.
To give an example—I lend you money, and you owe me $100 in year 1, and $100 in year two. You don’t pay me in year one, and I sue you for $100 (let’s assume the loan says that your failure to pay doesn’t make the whole thing due).
Your defense is that the loan doesn’t exist, and isn’t valid–and the only argument you make is “that’s not my signature on the loan.” I win the lawsuit. A jury has found that it was your signature on the loan (as that was the only way I could win).
Now, it’s year two. You again don’t pay the $100, and I sue you again. This time, if you use the same defense, collateral estoppel comes into play. I can argue to the court “this issue was already resolved–” a court already decided that the loan exists, and was valid.
In practical terms, collateral estoppel here means that the court will not send the case to trial–it’ll give me judgment. It’ll say “this fact was already resolved–and so there is no merit to your argument that the loan isn’t valid because you didn’t sign it.”
Now, I said collateral estoppel only applies between parties. That means that if someone else wanted to sue you, they would have to prove the facts–the facts that were decided in the lawsuit between you and me do not bind the lawsuit between you and him.
2) Criminal law is tricky. Several things can be going on here:
i) Almost no statute requires knowledge that what you’re doing is illegal. --the old saying is “ignorance of the law is not a defence”
(one exception to the general rule would be tax fraud-as seen in the case of U.S. v. cheek, 498 U.S. 192).
The general rule is that there are “elements”, which are facts that the government has to both prove exist, and that the government also has to prove that a mens rea exists, i.e. you have a certain state of mind–the clearest example is knowledge. If you’re being charged with theft of a toy, and the statute says: " intentionally took property known to belong to another," then we have two elements
You had to intentionally take the property. This means that if someone put it in your pocket, you don’t satisfy the element.
You had to knowledge that the property belonged to someone else. If you genuinely believed the property was yours, you don’t satisfy this element–even if factually, the toy did belong to somebody else.
There are also “attendant circumstances”–things that the government has to prove the fact, but doesn’t need to prove any state of mind–you don’t need to have any state of mind as to the attendant circumstance to be found guilty.
One good example is jurisdiction–if you are being charged with a crime in the state of Utopia, you had do commit the crime within the borders of the state–but there’s no requirement that you know you were within the borders of the state.
So it might be that the statute is interpreted to say that intentionally shooting is an element (and you did intentionally shoot the animal-you pointed the gun, and pulled the trigger), but the fact that the animal is endangered is an attendant circumstance–you’ve only committed a crime if you kill an endangered animal, but there’s no requirement you have any state of mind (you could know it was endangered, you could be on a rare-animal hunt, and intend to kill it, or you could reasonably not know what was and wasn’t endangered–it doesn’t matter).
In general, every crime has at least one element with a mens rea component.
ii) Further, there are different kinds of mens rea (intent, knowledge, recklessness, and negligence)–and the specific law you’re charged with breaking defines which one is necessary to prove to get a conviction.
In your example, the law may say “did negligently kill an endangered animal”–so if you didn’t identify the animal before shooting, and a reasonable hunter would, you were negligent as to whether it was endangered or not. If so, you can be convicted even though you didn’t know the animal was endangered.’
Similarly, if you are willfully ignorant, courts can treat that as knowledge. So you’d probably be held responsible for knowingly killing an endangered animal if you shoot one thinking “if I know I’m shooting at a wildebeest, I’m breaking the law–they’re endangered…and this is a wildebeest preserve, and that’s about the size of a wildebeest, but I’m not going to think about what kind of animal it is-so if a game warden catches me, I can genuinely say “I didn’t know it was a wildebeest”–and then I’ll be safe.”
iii) Did I just say every crime has at least one element with a mens rea component? Not always true-- there are strict liability crimes–crimes which have no mental component. A good example is speeding. To be ticketed, you have to be driving a car going above the speed limit. It doesn’t matter if you intend to break the speed limit, know you’re breaking the speed limit, recklessly don’t check, or simply don’t take reasonable care as to how fast you’re driving–the simple fact that you were driving a car that was travelling at 100 m.p.h. is enough.
Strict liability crimes are usually small offenses-like speeding, littering, so and such.
BearFlag - Thank you for your response. I’ve actually read the wiki articles and couldn’t wrap my head around the ideas. I guess this is why the law and I maintain seperate residences
Whorfin - Wow, that pretty much clears it up for me. I always got hung up on the criminal intent part of mens rea and failed to consider that it could apply to merely the intent to shoot (in the example I gave). You don’t need to mean to break the law you just need to mean to commit the act itself (if I get this correctly).
I appreciate both of your respective replies. Thanks guys
You’re welcome–glad to help. You are correct that in most cases where you need intent, all you need to do is to act intentionally (the most common exception are laws that require intention as to result–for example, murder requires intent to kill, not just intent to shoot).
However, the most important point is that just about everything depends on how the specific statute has been written–not all mens rea is intent (it’s defined as a “culpable mental state”–some crimes require knowledge, recklessness, or negligence, depending on how the statute is written)–but not all criminal acts need to be intentional–if you recklessly kill someone, it’s still a crime. Commonly, lesser crimes are defined by lesser mens rea (for example, murder requires intent, but manslaughter is generally defined as reckless killing–each requires the same result (death), but causing that result with a less culpable mental state is a lesser crime)
At the end of the day, there are constitutional limitations, but within those, the elements of a crime are defined by how the law is written, and that just depends on how legislators think the law ought to be.
Specific intent offences don’t always require an intent to break the law; they require the specific intent to do the thing prohibited.
There are some specific intent offences where the intent to break the law is an element. For example, here in Canada the offence of “break and enter with intent to commit an indictable offence therein” does have the intent to break the law as an element.
However, the offence of murder doesn’t include the intent to break the law. It includes the intent to kill someone. That is of course contrary to the law, but the Crown doesn’t have to prove that the accused consciously intended to break the law. The Crown has to prove that the accused consciously intended to kill the victim.
Strict liability offences are not necessarily small. For example, environmental offences are often strict liability offences, and carry significant fines and clean-up penalties.
The Crown has to prove that the factory released the spilled chemicals, but doesn’t have to prove intent. The accused company then has the opportunity to raise the defence of due diligence - that they took all reasonable steps to prevent the spill, etc.
It should be noted that there are jurisdictional differences with this. In Ireland, with strict liability there is by definition no defence of “due diligence” available, or any other defence other than that the accused did not commit the actus reus (for example, you could argue that it was a different factory that released the spilled chemicals). I assume that would be called absolute liability in Canada, but the distinction doesn’t exist here.
I assume by “small offence” whorfin means something that doesn’t carry a heavy prison sentence. Requiring a company to pay a fine, even a large one, is qualitatively different from locking its directors up for ten years.
that’s right - in Canada, if the defence of due diligence is not available, we call it an absolute liability offence. Those offences cannot carry any jail time as a penalty, only fines. But with strict liability, jail time can be part of the penalty, in the Canadian system, so they’re not a small thing in that sense.
Exactly–and I was taught that in the United States, as a matter of due process there can be no incarceration for an offence that requires no mens rea. Large or small fines, on the other hand, are perfectly permissible.
Also, however, the fact that “large” strict liability offenses exist doesn’t change the fact that the vast majority of strict liability offenses are minor (both in terms of perceived significance and fine)–the entire category of violation (parking tickets, littering, speeding) are generally strict liability, and there are many many more parking tickets than there are environmental prosecutions.
In Ireland I don’t think it’s necessarily that no incarceration is allowed, but certainly a long period of incarceration, or other heavy penalty, would be a no-no. A few years ago our strict liability statutory rape law was struck down as unconstitutional, not only because of the prison sentence but also the fact that a convicted person would go on the sex offenders’ register and just in general carry a heavy stigma throughout their life.
To be honest I don’t really see what the difference is between an offence that attracts strict liability in the Canadian sense and an offence whose mens rea is recklessness. I mean if you exercised due diligence then by definition you weren’t reckless. It seems to me that this category is just kind of a sneaky way of reversing the burden of proof that is ordinarily required in a criminal trial - we don’t have to prove you were reckless, you have to prove you weren’t.
Recklessness - under the U.S. Model Penal Code anyway - means you conceptualized the risk of harm but did the act anyway. This is “above” negligence, which means that a reasonable person would have recognized the harm, and whether you did or not is immaterial.
The example given in my Crim Law class is this:
You are standing on top of a building, and, at a time of night when there are few people around, you throw something large and heavy (say, a television) off the roof with the intention to watch it go “boom.” Your act is not intended to hurt anyone - you do not know with any reasonable certainty it will hurt anyone - but a you know it might hurt someone in the right circumstances; you are reckless.
If you were standing too close to the edge of the building, and dropped the television by accident, you’d just be negligent. Acting with reasonable care is a defense to negligence, because negligence is a lack of reasonable care. It can’t be a defense to recklessness, because recklessness has an aspect of intentionality, more than pure accident.
The Canadian approach to recklessness and criminal negligence is similar to that set out by Hello Again. It’s sometimes called “advertent negligence”, which I personally think is an oxymoron, but the concept that the courts are trying to express is that common negligence or carelessness is not sufficient to establish mens rea.
Well, not so much sneaky as intentional. Seriously, the offences using this concept normally expressly put the onus of proving due diligence on the accused.
The rationale for that approach is two-fold:
it normally only applies to some sort of highly regulated activity, like driving, occupational health and safety, and environmental matters, where the participant is already on notice that their actions are subject to greater legal regulation than is normally the case, and
the issue of due diligence is a matter “within the peculiar knowledge of the accused,” a traditional exception to the normal onus of proof.
For example, in an occupational health and safety prosecution for a work-place accident, it is the accused who has (or should have) the training records for the individuals involved, the time sheets showing how long each of the workers had been working, the maintenance records for the equipment, and so on. It therefore isn’t an unconstitutional infringement to require the accused to show due diligence, on the civil standard of the balance of probabilities.
Your first sentence is what I would understand as “subjective recklessness”, while the second would be “objective recklessness”.
OK on your first point - if it really is the case that it only applies to those activities. I’m not sure that’s true everywhere. I mentioned earlier the statutory rape law in Ireland; there is a parliamentary committee examining the issue (nobody’s really happy with the statute that was hurriedly brought in to plug the gap left by the overturning of the previous law) and the proposal of the leading opposition party is to bring in a graduated scale of offences whereby under some circumstances sex with an underage girl would be an absolute liability offence; under certain other circumstances it would be strict liability in the Canadian sense.
On the second point, as I understand the peculiar knowledge principle here it is applied only where an accused fails to raise a defence that he could raise by reference to information in his peculiar knowledge, and in such cases is only a factor for the jury to take into consideration, rather than an actual transfer of the burden of proof.
Another factor with mens rea (in Canada at least) is willful blindness. This covers the situation where a normally prudent individual would obtain more information before proceeding, but the actual person doesn’t. An example for this situation is where a person comes up to you and asks you to cash a cheque for him at one of those cheque cashing places - If you do, he’ll give you $100.00. By not asking the person why he can’t cash it himself or why it’s worth $100.00 to that guy for someone else to cash the cheque, you are being wilfully blind to the circumstances and can be convicted of fraud when the cheque turns out to be fake.
Sex with a minor is still strict liability, I believe, and that carries a prison sentence. However diligent you are, you are still guilty - “she looked 18” or “I checked her ID” aren’t get out of jail free cards, even if the court believes them.
ETA - I see Ruadh is talking about this in the Irish situation - I’m referring to (I think) all 50 states of the US.
Collateral estoppel explanation, adapted from the Emanuel outline of Civil Procedure:
For an issue to be subject to collateral estoppel, three requirements must be satisfied:
(1) the issue must be the same as one that was fully and fairly litigated in the first action;
(2) the issue must have been actually decided by the first court; and
(3) the first court’s decision on this issue must have been necessary to the outcome in the first suit.
Same issue: Suppose the first action involves X’s negligence to Y’s automobile. In a second action, Y will be collaterally estopped from relitigating X’s negligence to Y’s person for injuries arising from the same car accident — the two kinds of negligence will be held to be a single “issue” for collateral estoppel purposes.
Actually litigated and decided: P sues D for an installment of rent under a lease, and wins. In a later suit for subsequent installments due on the same lease, D denies that the lease was ever executed. Since D did not deny execution in the first action, he will not be collaterally estopped from litigating the execution issue in the second action. Collateral estoppel applies only to issues which were actually litigated previously.
Issue essential to verdict: Jeffery sues Cambria, and loses. The court’s findings of fact state that both parties were negligent, and recovery is denied on the grounds that Jeffery was contributorily negligent. Cambria then sues Jeffery, who claims that Cambria’s (contributory) negligence was decided in the first action.
Collateral estoppel is not applied. Since the court in the first action based its verdict on the fact that Jeffery was contributorily negligent, its finding that Cambria was negligent has no effect in the second action. Collateral estoppel applies only to issues whose adjudication was necessary to the verdict in the first action.
