The Supreme Court on Mens Rea: 2008–2015

The Supreme Court has recently reinvigorated the importance of mens rea and has readopted the presumption in favor of construing criminal statutes to require proof of an evil state of mind even when a law is silent or ambiguous on that issue. Since then, it has defended the existence of a mens rea requirement as a rule of Anglo–American criminal law, often by clarifying the mental state requirement when a law has an ambiguous element or none at all. The Court has not read every criminal statute to require proof of a scienter element ensuring that only morally blameworthy parties will be convicted, but its performance has generated optimism that it has renewed its interest in this subject. In fact, since the turn of the century, scholars have observed that “the Court has recently created not merely a presumption in favor of mens rea, but in favor of a ‘heightened’ form of mens rea with regard to issues of both fact and law.”

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