The Proof Of Mens Rea Of A Crime

According to the traditional theory of criminal elements, a crime must be composed offour important aspects. The criminal subjective aspect, means that an actor is guilty, and somecriminal constitution involves particular intents or motives. The subjective element of crimelays great influence on conviction and discretion. In modern society, the importance ofsubjective elements of crime is widely accepted, while researchers and judicial practices aretrapped by the accurate definition of subjectively psychological element. The traits of thesubjective elements result in the fact that these elements are difficult to be proved, and thedifficulty has been intensified due to the high demand of criminal procedures. Although thesubjective elements are absolutely necessary for fact-finding, it is, in fact, the psychologicalattitude of the actor, which is particularly difficult to prove. Therefore, it is theoreticallyworthwhile and practically meaningful to do the research on the difficulties of proof and onhow to overcome the difficulties.Briefly expounding the difficulties of proving the subjective elements of crime, thisessay mainly explores the general and special ways to overcome the difficulties of proof. It isfound, after the research on the special methods, that the application of the special methods, toa great degree, belongs to substantive legislation, which is constrained by the doctrine ofpresumption of innocence. Though it is practically meaningful to apply special methods, theywill not be fully applied. As a result, further researches on general methods need to be done.On the basis of criminal theory of proof, it has practical significance to overcome thedifficulties of proving criminal subjective elements by transforming criminal proof model.Except the introduction and conclusion, this essay expounds the details from five aspects. Thecontents are as follows:In Introduction, the paper discusses the necessity to research on the difficulties ofproving criminal subjective elements. First, reviews are made on the research status, then theresearch design and methods are briefly presented. In Conclusion, the paper summarizes theresearch and put forward with the expectation for the future research.Part One mainly expounds the advent of the difficulties and the general solution.Specifically, it consists of two parts: one is from the perspective of competency of evidence;the other is from the principle of proof. The principle of evidential adjudication not only requests that fact-finding should be based on the evidence, but it also makes a strictrequirement on competency of evidence and methods of proof. The originally small quantityof evidence would not possibly be the grounds to decide a verdict after being questioned. Thecontradiction between the necessity for factual evidence and the limitation of evidencebecomes increasingly incisive. The condition becomes even worse as a result of theparticularity of the criminal subjective elements, since it is much harder to obtain the evidencefrom the actor’s confession, especially when confession acquisition is strictly restricted. Theonly way to solve this problem is to obtain effective evidence as much as possible throughlegal procedures. Specifically, the ability of the investigative organization to obtain evidenceshould be enhanced and the traditional mechanism should, as well, transforme moderately.Criminal evidence is double-structured. The micro-logic structure of criminal evidencedecides that the case might be mistaken if the court makes a fact-finding only on the basis ofevidence. In terms of macro-structure of criminal evidence, with the doctrine of presumptionof innocence, the higher demand for liability of proof and standard for evidence make itdifficult to confirm the fact. It goes without saying that the criminal subjective elements, thepsychological states of the actor, are hard to be proved. It becomes even more difficult todeduce his or her mentality only depending on the limited evidence when the actor refuses tomake confession or presents false confession. From the micro-perspective of proof, in order toovercome the difficulties of proving the criminal subjective elements, evidence should beapplied as much as possible on the condition that judicial certifications are logically followed.Part Two specifies the criminal subjective elements from the perspective of the criminalsubstantive law and elaborates the particularity of the difficulties of proving criminalsubjective elements. The volitional factor in the criminal intent is characterized by the wishand the allowance. The wish is the direct factor and criminal intent works as the core.Allowance is a volitional factor of indirect intent and is obviously attached. The differencebetween the wish and the allowance lies in volitional factors. Indirect intent is regarded as themiddle between criminal intent and negligence. Specifically, differences have to be madebetween indirect intent and cognitive negligence. The former indicates that the act is, to someextent, cognized, while the latter focuses on the lack of cognitive ability. In modern criminallaw, it is a principle that actors with direct intent should be punished, followed by thepunishment to those with negligence. Psychologically, no prediction contributes to negligencebut negligence is, morally, expected to be predicted. Full awareness is a subjectively cognitive element of crime, from which calculated crimeis judged. An actor’s cognition of criminal elements involves his or her understanding of thefact, the consequence of the act, as well as the causal connections between the act and theconsequence. The cognition of social hazard is not the standard of intentional offense. Thecriminal intent is labeled as illegal when the actor realizes the act is legally banned in laws, nomatter what law it is. Full awareness of criminal intent (in general provisions of criminal lawor specific provisions of criminal law) indicates that the actor knows the fact in advance.The purpose of illegal possession means that properties of obligees are handled by othersinstead of the owners. Under the criminal principles of co-existence of behavior and liability,the cognition of controlling ability must be spontaneous with the sin and the intent at the timewhen the act is conducted.The reason why it is particularly difficult to prove the criminal subjective elementsinvolves two aspects. On one hand, it is hard to prove the mentality of an actor because thepsychological state cannot be obviously perceived. Therefore, the confession of the actor isconsidered to be the most effective means of cognition. However, refusal to confess or falseconfession makes it almost impossible to achieve this goal. Besides, the traditional criminalproof model makes it even more difficult. On the other hand, the doctrine of presumption ofinnocence enhances the difficulties because it leaves no room to apply the special ways toovercome these difficulties.Part Three is the empirical research on the question. Chapter one is about the empiricalanalysis in terms of sociology knowledge. It mainly makes analysis on the various ways putforth in the academic circle. Many problems are found as follows: first, no differences aremade between presumption of facts and presumption of law. Second, the standard is loweredfor criminal proof. Last, presumption of facts is mixed up with the indirect evidence. Threereasons for the above problems are detected: first, it lacks adequate research on criminal proof.Second, the shadow from verification mode is cast on those researches. Last, some relatedterms are originally misused.Chapter Two is normatively empirical analysis. Analysis are made on Full awareness andIllegal encroachment defined in judicial constructions and normative rules of law. It is foundthat among them, only one provision is strictly-stipulated, two provisions are judiciallyfictional, and three provisions are relevant to judicial presumption. In addition, some belongto proof from indirect evidence, and some belong to ways of “presumption of fact plus indirect evidence” or “condemnatory provisions”. These provisions are essentially rules ofproof, i.e., suggestive provisions. The provisions made above result from these reasons: first,it is difficult to prove criminal subjective elements. Second, directions can be led for judicialpractice. Third, large numbers of academic terms are misused. Last, rules of corroboration arerequired and the liability of proof is not strongly-built.Chapter three is about empirical case study. By studying on related cases, the fact-findingin judicial practice on criminal subjective elements consists of the following categories: thecorroboration from indirect evidence; presumption of facts combined with indirect evidence;the combination of presumption of facts; attestation undertaken by the accused; judge-defensebargain. In addition, two types of tendency are made during the course of the fact-finding incriminal subjective element: the fact-finding for full awareness in drug crime tend to becautiously conducted, and the fact-finding for illegal encroachment tends to adopt the rules ofexternal attribution of guilt.Part Four mainly illustrates the special methods to overcome the difficulties of provingcriminal subjective element. The macro-structure for judicial proof is comparatively stable.The fact of element generally works as the object of proof, and onus of proof should beshouldered by the accuser. Convictive facts proved should be internally undoubted orexclusive of rational suspects. For the sake of overcoming the difficulties of proving crimes,the macro-structure for judicial proof all over the world is allowed to be moderately adjusted.The specific ways of adjustment involve four kinds as follows:First, the object of proof can be modified, including the application of gradation ofcrimes, of strict liability, and of fiction of law. Second, the liability of proof can be allotted. Itincludes the application of criminal presumption and the onus of proof by the defendant.Third, standard of evidence can be lowered. Fourth, thoughts of proof, such as those ofpenalty-substituting-conviction, and mode-based thought can be altered. The modification ofthe object of proof aims to legislatively simplify the procedures of criminal proof by reducing,altering or even eliminating some elements of crime. However, the allotment of liability ofproof needs to be legislatively regulated, but it is inappropriate to lower the standard of proof.Furthermore, the adaptation of thoughts of proof belongs essentially to construction ofcriminal law. Therefore, the special methods, as a whole, are determined to be finitely applied.With the background of Chinese criminal judicature, it might be prudent when applyingcriminal presumption or allotting liability of proof to the defendant. Part Five discusses how to overcome the difficulties of proving subjective elements ofcrime from the perspective of model transformation of criminal proof. The traditional modelof proof, namely, verification mode, strongly depends on confession as far as the proof ofsubjective elements. The plight of access to confession together with the request for judicialpublicity, calls for the transformation from verification mode to rational presumption.Compared with confirming model, rational presumption focuses more on circumstantialevidence, and individual differences of the fact-finding subject. Furthermore, it acknowledgesthat the fact-finding procedures are likely to be mistaken. On one hand, rational presumptionhelps to apply the subjective standard of proof such as the exclusion of reasonable doubt andinternal assurance. On the other hand, with the application of circumstantial evidence, thecombination of the two aspects also helps to overcome the difficulties of proof. However, thecurrently inadequate auxiliary means of rational presumption leave a large obstacle to themodel transformation. Therefore, at present, it is considered a breakthrough of thetransformation as to develop the literacy of judges and to enhance the reasoned award.