[lbo-talk] what constitutes violence? it's inevitable/Error

andie nachgeborenen andie_nachgeborenen at yahoo.com
Fri May 5 14:43:55 PDT 2006


Please do -- though Dressler may be referring to willful blindness. He's very able -- now works at my law school, Ohio State. But the "should have known" has to satisfy the elements of the crime, and so must be construed as equivalent to knowledge or intention, and the only such legally recognized state I know that isn't actually knowledge or intention. Recklessness (conscious acceptance of a known risk) won't do that. I have the first edition of Dressler's book, maybe I'll look it up if I have time. Or you could, why not.

--- Jerry Monaco <monacojerry at gmail.com> wrote:


> Andie,
>
> I got the fact pattern from Dressler's Understanding
> Criminal Law, who says
> it is possible that you may be guilty if you should
> have known, whether you
> actually knew or not. So take this up with Dressler
> and the cases he
> sites. I would have to dig through the book to find
> the actual quotes.....
>
> On 5/5/06, andie nachgeborenen
> <andie_nachgeborenen at yahoo.com> wrote:
> >
> > > Typical Criminal Law Fact Pattern:
> > > Woj, if you accept a package at your door from
> UPS,
> > > and unbeknownst to you
> > > that package contains drugs which are going to
> be
> > > sold by someone who lives
> > > in your house, (son, roommate, wife) are you
> guilty
> > > of drug distribution.
> > > Well, you might not know what is in the package
> but
> > > it is still possible for
> > > you to go to jail for 20 years in some
> > > jurisdictions, if it is concluded
> > > that you should have known what was in the
> package.
> >
> > No, all drug laws that I am aware of require
> intention
> > or knowledge. (In fact what laws call mens rea,
> > culpable mental state, is required for almost all
> > crimes; strict liability crimes are few and far
> > between).
> >
> > If you really don't know what is in the package
> you
> > are not guilty of posssession with intent to
> > distribute or the equivalent. Nor can the mental
> state
> > requirement be satisfied even if you should have
> > known. The requirement is that you know what's in
> the
> > package.
> >
> > The only exception to this rule that I know of in
> > federal law is what is called "willfull
> blindness,"
> > where deliberately avoiding knowledge that you
> should
> > have had is treated as equivalent to knowledge,
> like I
> > case I was involved in once where a guy was
> selling
> > fake Michael Jordan-signed memorabilia, and there
> was
> > so much stuff involved that if Jordan had signed
> all
> > that crap he would not have had time to play
> > basketball.
> >
> > You will say -- every nonlawyer does (I forget
> whether
> > you are a lawyer) -- you can't _show_ what's in
> > people's minds. Of course you can. That's what
> lawyers
> > do all the time. It's our job. You assemble
> evidence
> > and make a case. Or you don't make a case, and
> then
> > the defendant is acquitted or found not liable.
> That
> > doesn't mean there aren't errors.
> >
> > > It is also possible to
> > > convict you of being part of a criminal
> conspiracy
> > > on these facts.
> >
> > For conspiracy you need agreement to commit an
> > unlawful act, which implies knowledge or intention
> to
> > commit it. Accepting a package without knowing
> that it
> > contains drugs would not qualify unless you were
> > wilfully blind.
> >
> > If that
> > > criminal conspiracy had been involved in
> violence
> > > then for accepting that
> > > package at the door you are by definition a
> violent
> > > criminal.
> > >
> >
> > Well, if you're in the Soprano family, and you
> agree
> > to a hit to be committed by Silvio (say), and in
> some
> > cases (not drug crimes in federal law) take a
> > signifigent step towards furthering the aim of the
> > conspiracy, such as supplying the gun or something
> > like that, then you have conspired to commit
> murder, right?
> >
> > __________________________________________________
> > Do You Yahoo!?
> > Tired of spam? Yahoo! Mail has the best spam
> protection around
> > http://mail.yahoo.com
> > ___________________________________
> >
>
http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk
> >
>
>
>
> --
> Jerry Monaco's Philosophy, Politics, Culture Weblog
> is
> Shandean Postscripts to Politics, Philosophy, and
> Culture
> http://monacojerry.livejournal.com/
>
> His fiction, poetry, weblog is
> Hopeful Monsters: Fiction, Poetry, Memories
> http://www.livejournal.com/users/jerrymonaco/
>
> Notes, Quotes, Images - From some of my reading and
> browsing
> http://www.livejournal.com/community/jerry_quotes/
> > ___________________________________
>
http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk

__________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com



More information about the lbo-talk mailing list