“Because it’s the law, that’s why.”
How many times have you heard that excuse or justification for some regulation or statute that seems to be prima facie punitive or unjust? Notice how I dropped a bit of Latin legalese on you? Prima Facie means "on the face of it" or obvious, or at first glance.
Latin terminology is strewn throughout “the law.” Some argue that it holds with timeless tradition. Others contend that use of Latin words keeps the layman from understanding the law and keeps attorneys in business. Regardless of your take on the situation, there are a few Latin terms used in the legal system of which you would do well to acquaint yourself.
Malum in se is a Latin phrase used to describe an act that is wrong or evil in and of itself. This would be an action that by its very nature is sinful or wrong. Murder, rape, robbery, theft would all be acts classified as malum in se; we do not require an elaborate explanation to tell us why they are wrong.
Converse to malum in se is malum prohibitum, an act that is wrong because someone told you it was wrong. This is an act that has been prohibited by some authority. The statutory wrong of exceeding a 55mph speed limit is malum prohibitum as speed limits are not part of natural law and they also vary from jurisdiction to jurisdiction. Hunting without a state-issued license or permit is malum prohibitum, as are age restrictions on purchasing alcohol or tobacco.
Burden of Proof
In the judicial system, in order to convict a person of a crime that is malum in se the prosecution needs to establish the elements of the crime. One element is the demonstrated intent to commit said act. Culpable mental states are broken down into the sub-categories of purposeful, knowledgeable, reckless and negligent. The Latin term for a "guilty mind" is mens rea.
To be convicted of the First Degree Murder or Capital Murder, the prosecution must not only establish the fact that A killed B. They must convince the jury that A purposefully killed B and that said killing was either premeditated or committed while A was engaged in other criminal activity. Culpable mental state is the determining factor between First Degree Murder and Justifiable Homicide. If you chat with an attorney they will tell you that most every felonious act or specifically the statutes prohibiting these acts require the establishment of culpable mental state.
Think about it like this, a FedEx driver arrives at your house with a medium-sized box that requires your signature. The package is signed for and you set it down on the table. As you are opening the box your front door is broken down and a police raid team enters. You are shoved to the floor and handcuffed. The detective on scene enters, looks in the box and determines that it contains a kilo of cocaine. You are arrested and charged with felony possession and intent to distribute a controlled narcotic substance.
Your defense is that you did not request, order or purchase the drugs. The prosecution claims that you signed for the package and it was in your home, ergo possession, when an anonymous tip led them to your house. Without the requirement to demonstrate culpable mental state all the prosecution would have to determine was that you were in possession, not how, when, and why. Minus the need to prove “purposeful” and “knowledgeable” mental states you could be convicted and sentenced.
Malum Prohibitum sans Mens Rea
Are there unlawful acts or statutes that do not require mens rea for conviction?
Yes, there are. When I went through the police academy we were taught that traffic violations and most “minor misdemeanors” did not include culpable mental state. We didn’t need to prove that you intended to drive 79mph in a 55mph zone, only that you did.
Why exclude mens rea from a statute? Minor misdemeanors do not have accompanying jail time, just a monetary fine. Is it much easier for the state to get a conviction when mens rea is not required? Most certainly it is.
What about felonies minus mens rea? Is possession of an object in and of itself sufficient evidence to convict a person of a felony charge and incarcerate them for a period greater than one year?
Consider the Connecticut prohibition against certain types of firearms and firearm accessories. Is mere possession, without demonstrated intent, sufficient to convict a person of a felony?
Is malum prohibitum law being used to create criminals where there previously were none? Is the possession of an inanimate object a greater crime that the malum in se crime of murder, robbery or rape?
Colorado’s recent malum prohibitum laws prohibit the ownership of certain type of firearms accessories. On June 30, 2013 you were a lawful citizen. On July 1, 2013 you are a potential criminal. We have nearly the same situation with New York State and their fraudulently named "Safe Act."
Again, are the states using malum prohibitum to create crime where none existed?
Return to Tyranny
While most Americans can quote you the term “innocent until proven guilty,” few understand that such a concept is not universal. We accept that the “burden of proof” lies squarely with the prosecution and that the state must prove “beyond a reasonable doubt” that the crime occurred.
Considering the state of affairs here in the colonies, it appears that we are on a fast track back to the day when mere possession equates guilt. The rampant use of malum prohibitum statutes puts the citizen on the defensive and creates "gun criminals" that have no mens rea.
Do the current crop of “gun crime” laws violate the United States Constitution’s protection against ex post facto, or "retroactive" prosecution as laid out in Article 1, Section 9? Are we creating criminals where there were none?
For the past three decades Paul Markel has had the privilege to study with some of the finest instructors and teachers the U.S. Military and Law Enforcement world have to offer. He is a lifelong student of the gun.
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