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Abstract

Perhaps nowhere in the law is the demand for reason and justice more compelling than in the penal law, and nowhere in the penal law is the need for fairness greater than in the law defining murder. The notion of fairness in Anglo-American criminal law is embodied in the concept of mens rea. For over three hundred years, the basic tenet of penal law has been that "actus non facit reum, nisi mens sit rea." A mens rea element serves to define a crime in positive terms and also provides the basis for defenses that negate the subjective culpability element. Mens rea, in other words, is a "shorthand statement[] for a cluster of concepts having to do with states of mind or their absence." This cluster of concepts is present, of course, in the law of homicide. Several legal scholars have found in the history of homicide law "the emergence of the mental element as a factor of prime importance, the gradual freeing from criminal responsibility of those who killed without guilty intent, and the separation of different kinds of homicide into more and less serious offenses dependent upon the psychical element." To put the point figuratively, mens rea is the backbone of the criminal law, without which the body of the law, including homicide law, collapses. As part of the 1977 recodification of Maine criminal law, the Maine Legislature enacted a depraved indifference murder statute. Although the Legislature has amended the original statute, the substance of the provision remains intact. The Maine Criminal Code provides: "A person is guilty of murder if . . . [h]e engages in conduct which manifests depraved indifference to the value of human life and which in fact causes the death of another human being . . . ." The Legislature defined the crime in vague terms, and the Maine Supreme Judicial Court subsequently ruled that the crime of depraved indifference murder contains no subjective culpable state of mind requirement. Where a jury determines that an actor's conduct was outrageous, revolting, brutal, or shocking and created a high degree of risk of death to the deceased victim, it may conclude without more that the defendant committed murder. The statute does not require the factfinder to infer from the actor's behavior that he acted with any particular subjective state of mind. This Comment reviews the common law antecedents to depraved indifference murder and notes that common law history afforded ample reason for the Law Court to conclude that a subjective culpable state of mind is part of the definition of the crime. Moreover, an analysis of Maine's murder law prior to the 1970's reveals that Maine precedent did not mandate the court's interpretation of the depraved indifference murder statute. Placing the unintentional murder statute in historical context reveals the complexities of homicide law that account for, but do not justify, the Law Court's construction of the statute.

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