QUICK question about Mens Rea - Recklessness

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BearDownChicago
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QUICK question about Mens Rea - Recklessness

Postby BearDownChicago » Sat Dec 04, 2010 10:31 pm

Is recklessness determined subjectively or both subjective/objectively?

One of my books says only subjectively but I thought it was both.

Thanks

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blurbz
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Re: QUICK question about Mens Rea - Recklessness

Postby blurbz » Sat Dec 04, 2010 10:42 pm

The defendant has to consciously disregard a substantial and unjustifiable risk that a reasonable person would not have disregarded.

Broken down:

"The defendant has to consciously disregard" is subjective.

"a substantial and unjustifiable risk" is both subjective and objective as it considers the situation with the facts as the defendant thought them to be (subjective) and then determines if the substantial/unjustifiable portion is met (objective).

"that a reasonable person would not have disregarded" is objective.

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kalvano
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Re: QUICK question about Mens Rea - Recklessness

Postby kalvano » Sat Dec 04, 2010 10:56 pm

Subjectively, I believe.

"Reckless – aware of substantial and unjustifiable risk, but acted anyway"

Has to be based on the facts at hand.

Generic20101L
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Re: QUICK question about Mens Rea - Recklessness

Postby Generic20101L » Sun Dec 05, 2010 1:49 am

Aggravated Recklessness is objective, regular is subjective.

$$$$$$
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Re: QUICK question about Mens Rea - Recklessness

Postby $$$$$$ » Sun Dec 05, 2010 2:03 am

prof's all teach it differently. but here, it is both subjective in some ways and objective in others

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underdawg
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Re: QUICK question about Mens Rea - Recklessness

Postby underdawg » Sun Dec 05, 2010 3:57 am

i thought it was both, because if it were purely subjective, wouldn't that mean sometimes there could be manslaughter where the person was not even negligent?

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Stanford4Me
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Re: QUICK question about Mens Rea - Recklessness

Postby Stanford4Me » Sun Dec 05, 2010 4:14 am

I thought it was both in the sense that they have an objective "reasonable person" standard, but they assess the reasonable person by taking into consideration what a reasonable person with circumstances similar to those of the defendant's would do. The "subjectivity" of it is that it allows courts to consider things like socioeconomic status and prior events that may have affected the defendant.

Of course, I hate crim with a passion and will probably do the worst in that class.

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beach_terror
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Re: QUICK question about Mens Rea - Recklessness

Postby beach_terror » Sun Dec 05, 2010 2:04 pm

$$$$$$ wrote:prof's all teach it differently. but here, it is both subjective in some ways and objective in others

savagecheater
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Re: QUICK question about Mens Rea - Recklessness

Postby savagecheater » Sun Dec 05, 2010 2:57 pm

Obj & Sub

Ob -> Reasonable person would realize risk

Sub -> disregard of risk.

edit - I actually have a question about MR for accomplice liability.

MR for accomplice is generally for the substantive crime, right? So whatever MR would suffice w/r/t the result, the attendant circumstances, or both? Two hypos for accomplice liability.

#1 - burglarizing a house; A knows they're burglarizing, B knows they're not supposed to be there, but doesn't understand what the objective is, if any, simply understands they're breaking into a house, doesn't have an intent w/r/t 'an offense'.

#2 - burglarizing a house; A & B both share intent for the buglary, owner of the house surprises them, A (w/o B's knowledge/approval) pulls out a gun and fires at the owner, misses.

For #2 attempt is specific intent crime so I'm inclined to say you can't assign liability for the attempted shooting? But if the owner was shot you could passably assign liability b/c some jurisdictions hold accomplices liable for all foreseeable results of the crime?

Attendant circumstances & accomplice liability are the bane of my LS career.
Last edited by savagecheater on Sun Dec 05, 2010 3:25 pm, edited 1 time in total.

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dailygrind
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Re: QUICK question about Mens Rea - Recklessness

Postby dailygrind » Sun Dec 05, 2010 3:23 pm

it's subjective in that the person must consciously disregard the risk, but it's objective in that the prosecutor will be asking the jury to discover whether or not the defendant recklessly disregarded by asking whether they themselves would have known the risk.




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