Continuation Part 4: Discussion of the Amanda Knox/Raffaele Sollecito case

[LondonJohn]

Clive?


In English law there are general defences of duress and necessity. They are 'general' because they apply to all crimes. Italian law must recognise these possibilities somehow. Say a doctor has to amputate a leg, even without consent, to save someone trapped under a collapsed building. The defence of necessity could be run against a charge of assault. Or, a person participates in a crime due to threats. Perhaps a bank manager assists in a robbery because his wife and kids are held hostage.

I don't know whether these defences are available nor whether they were advanced. There is no discussion of them in Hellman. Nor are they explicitly mentioned in Amanda's appeal, which centers on the mental element:

It is this that Hellman addresses in saying her mental capacity remained such as to enable her to form the required, general intent. This is after many paragraphs in which he sets out pretty convincingly all the reasons why she may not have been.

I would not attribute so much significance to Grinder's employment of this particular word. He is probably mindlessly parroting this Clive guy you mention. Maybe the Italian law was passed against a background of widespread denunciation?

I totally agree with all of this. And I think that the general use of the term "mental state" is intended to cover everything regarding the mens rea aspect of the crime - and in this regard I fully agree that Hellmann bizarrely appears to contradict himself about whether Knox did indeed have the requisite mens rea for the crime. It's this which forms the thrust of the defence's argument (correctly, in my view), and which should (in theory at least...) lead to Knox's ultimate acquittal on this charge.

And BTW, I didn't think that my example of the woman falsely accusing her boorish husband of the murder (and thereby committing a criminal slander, even though she did no know for certain that her husband wasn't involved) was otiose. I thought it was germane to the argument, and served to illustrate why - in principle - it was possible for Knox to be acquitted on the murder charges while at the same time being found guilty on the criminal slander charge.

 

[Mary_H]

Clive?

My sincere apologies. Keyboard error. Damn you, autocorrect!

Cool. Another Marxist. Greetings comrade!

I was going to respond with a brief, pithy slogan like "Glory to the Worker!" or "All for the Motherland," but my research led me to one with a bit more je ne sais quoi:

Construction workers! Build quickly, durably, economically, and on the basis of contemporary technology! Complete new sites on time!

I would not attribute so much significance to Grinder's employment of this particular word. He is probably mindlessly parroting this Clive guy you mention.

Far be it from me to diminish the workings of someone's subconscious mind -- Grinder's or even that Clive guy's.

Maybe the Italian law was passed against a background of widespread denunciation?

Please explain.

 

[anglolawyer]

My sincere apologies. Keyboard error. Damn you, autocorrect!

I was going to respond with a brief, pithy slogan like "Glory to the Worker!" or "All for the Motherland," but my research led me to one with a bit more je ne sais quoi:

Far be it from me to diminish the workings of someone's subconscious mind -- Grinder's or even that Clive guy's.

It will be a source of prolonged regret that I did not greet a fellow arch-leftie by saying: Hail Mary!

PS don't expect much to be going on Grinder's mind, subconscious or not.

Maybe the Italian law was passed against a background of widespread denunciation?

Please explain.

I was throwing out an alternative historical explanation of why the law might have been passed. Alternative to class war (which is the explanation for most things, of course) that is. Italy has a troubled and divided past, including an extended period of Fascist dictatorship. Maybe in Italy, as in Nazi Germany, denunciation became a widespread phenomenon and this law was passed to curb its misuse. If that were the origin it might explain why the law is cast so widely as to catch someone like Amanda in its net.

ETA I like your workers' slogan btw. and have adopted it for myself this week.

 

[LondonJohn]

A caution must be issued to LJ for wanton and reckless use of the word 'malicious'. Malice is a constituent of the mens rea for some criminal offences (in England we have 'malicious wounding' and 'malice aforethought' in murder) but not for calunnia, as Hellman explains:

<snip>

If you want to put malice into it you add:

'A person commits calunnia when, with intent to cause harm to another, he falsely accuses that other of a criminal offence in circumstances in which he knew or ought to have known the accusation to be false.'

In this version, it becomes a crime of specific intent, which is a distinct conceptual category in English law, like murder, theft but unlike, say, common assault.

I guess I was using "malice" in a wider definition rather than the specific legal definition. I mean, in other words, that Hellmann deemed that Knox knew she was potentially causing deliberate harm to Lumumba by accusing him of the murder. I would argue that any reasonable person cannot accuse another person of a serious crime without knowing that they are causing that other person harm - UNLESS there are mitigating circumstances (such as there were in Knox's case).

To take another example as a sort-of comparator, if a burgler finds his path out of a house that he's just burgled blocked by the homeowner, he might assault the homeowner in order to be able to escape the house. It might justifiably be said that the burgler only assaulted the homeowner in order to be able to escape (i.e. that the burgler didn't assault the homeowner for any personal reason or any wholly gratuitous reason). However, this clearly is no mitigation whatsoever against the implied malice demonstrated by the burglar in assaulting the homeowner: the burglar should have known that the homeowner was going to get harmed by his (the burglar's) actions.

Thus, I'd argue that even if Knox was only (in Hellmann's opinion) "accusing" Lumumba in order to help herself by relieving the police pressure on her (and was not, therefore, accusing him for any other reason such as personal animosity towards him), this in itself would not mitigate the implicit malice inherent in accusing a person of a serious criminal offence.

Of course, all of this is rendered somewhat moot by the well-supported argument that Knox did not make the accusation against Lumumba of her own free will, and that she was in fact coerced and bullied into accusing him by the police, who essentially put the words into her mouth (after having warned her of the implications to her of failing to "remember" the "truth").

 

[LondonJohn]

I was throwing out an alternative historical explanation of why the law might have been passed. Alternative to class war (which is the explanation for most things, of course) that is. Italy has a troubled and divided past, including an extended period of Fascist dictatorship. Maybe in Italy, as in Nazi Germany, denunciation became a widespread phenomenon and this law was passed to curb its misuse. If that were the origin it might explain why the law is cast so widely as to catch someone like Amanda in its net.

The Italian criminal codes were totally rewritten in the 1930s to suit the totalitarian fascist regime of Mussolini. By the time of Mussolini's downfall in 1943, the codes were those of a fully-functioning fascist state, and granted the state hugely disproportionate powers against the individual. I suspect that the criminal slander laws were not primarily intended to deal with peer-to-peer denunciation (fascist states tend to favour and encourage such denunciation), but rather to give the state sweeping powers against anyone who accused public officials of criminal activity.

After the end of WWII, the most egregiously anti-democratic sections of the code were altered, but much of the fascist-leaning code was retained, as it was deemed dangerous and destabilising to totally rip up the codes and start from scratch. Unfortunately, this prevailing attitude - coupled with the inherent reactionary nature of any justice system and the reluctance of any system of authority to give up any of its powers - has meant that Italian criminal law has only changed at a snail's pace over the past seven decades. As it stands today, it's an uneasy and clumsy half-way house that still retains sinister vestiges of the Mussolini era.

 

[anglolawyer]

The Italian criminal codes were totally rewritten in the 1930s to suit the totalitarian fascist regime of Mussolini. By the time of Mussolini's downfall in 1943, the codes were those of a fully-functioning fascist state, and granted the state hugely disproportionate powers against the individual. I suspect that the criminal slander laws were not primarily intended to deal with peer-to-peer denunciation (fascist states tend to favour and encourage such denunciation), but rather to give the state sweeping powers against anyone who accused public officials of criminal activity.

After the end of WWII, the most egregiously anti-democratic sections of the code were altered, but much of the fascist-leaning code was retained, as it was deemed dangerous and destabilising to totally rip up the codes and start from scratch. Unfortunately, this prevailing attitude - coupled with the inherent reactionary nature of any justice system and the reluctance of any system of authority to give up any of its powers - has meant that Italian criminal law has only changed at a snail's pace over the past seven decades. As it stands today, it's an uneasy and clumsy half-way house that still retains sinister vestiges of the Mussolini era.

So, class war it is then. Any idea where I can find the Italian definition of Calunnia and in what year it was passed.

Another reason why these codes don't get thown out with every change of regime is that it's a PITA writing new laws.

 

[anglolawyer]

I guess I was using "malice" in a wider definition rather than the specific legal definition. I mean, in other words, that Hellmann deemed that Knox knew she was potentially causing deliberate harm to Lumumba by accusing him of the murder. I would argue that any reasonable person cannot accuse another person of a serious crime without knowing that they are causing that other person harm - UNLESS there are mitigating circumstances (such as there were in Knox's case).

To take another example as a sort-of comparator, if a burgler finds his path out of a house that he's just burgled blocked by the homeowner, he might assault the homeowner in order to be able to escape the house. It might justifiably be said that the burgler only assaulted the homeowner in order to be able to escape (i.e. that the burgler didn't assault the homeowner for any personal reason or any wholly gratuitous reason). However, this clearly is no mitigation whatsoever against the implied malice demonstrated by the burglar in assaulting the homeowner: the burglar should have known that the homeowner was going to get harmed by his (the burglar's) actions.

Thus, I'd argue that even if Knox was only (in Hellmann's opinion) "accusing" Lumumba in order to help herself by relieving the police pressure on her (and was not, therefore, accusing him for any other reason such as personal animosity towards him), this in itself would not mitigate the implicit malice inherent in accusing a person of a serious criminal offence.

Of course, all of this is rendered somewhat moot by the well-supported argument that Knox did not make the accusation against Lumumba of her own free will, and that she was in fact coerced and bullied into accusing him by the police, who essentially put the words into her mouth (after having warned her of the implications to her of failing to "remember" the "truth").

This gives me another chance to re-draw my definition of the offence before Jazz shows up to correct it:

'A person commits calunnia when [with intent to cause harm to another] he falsely accuses that other of a criminal offence knowing or in circumstances in which he ought to have known the accusation to be false.'

Remove words in square brackets to get the malice-free version.

I agree it is not easy to come up with a false accusation which is not intended (even if this is not the dominant intent) to cause harm to the denounced person. Ah, here's one though. D, my friend, is accused of murder and I, to furnish an alibi, falsely accuse him of burgling my house at the time of the murder. Now I think I can get acquitted of calunnia with malice but I go down for basic calunnia (plus wasting police time, obstructing justice etc.)

 

[Mary_H]

It will be a source of prolonged regret that I did not greet a fellow arch-leftie by saying: Hail Mary!

You still can.

PS don't expect much to be going on Grinder's mind, subconscious or not.

Thou art cruising for a bruising.

Italy has a troubled and divided past, including an extended period of Fascist dictatorship.

No kidding?

ETA I like your workers' slogan btw. and have adopted it for myself this week.

As should we all.

 

[Mary_H]

<snip>Of course, all of this is rendered somewhat moot by the well-supported argument that Knox did not make the accusation against Lumumba of her own free will, and that she was in fact coerced and bullied into accusing him by the police, who essentially put the words into her mouth (after having warned her of the implications to her of failing to "remember" the "truth").

You legal eagles tell me if this is true: Amanda's calunnia appeal and her parents' calunnia trial hinge on one another. If Amanda is vindicated on account of being coerced and bullied, then her parents should be cleared of calunnia, too (or vice versa, depending on which trial happens first).

 

[anglolawyer]

You legal eagles tell me if this is true: Amanda's calunnia appeal and her parents' calunnia trial hinge on one another. If Amanda is vindicated on account of being coerced and bullied, then her parents should be cleared of calunnia, too (or vice versa, depending on which trial happens first).

As Mark Twain once said, when asked an entirely different question: I am happy to be able to give a clear answer. I don't know.

 

[LondonJohn]

This gives me another chance to re-draw my definition of the offence before Jazz shows up to correct it:

'A person commits calunnia when [with intent to cause harm to another] he falsely accuses that other of a criminal offence knowing or in circumstances in which he ought to have known the accusation to be false.'

Remove words in square brackets to get the malice-free version.

I agree it is not easy to come up with a false accusation which is not intended (even if this is not the dominant intent) to cause harm to the denounced person. Ah, here's one though. D, my friend, is accused of murder and I, to furnish an alibi, falsely accuse him of burgling my house at the time of the murder. Now I think I can get acquitted of calunnia with malice but I go down for basic calunnia (plus wasting police time, obstructing justice etc.)

Well no, because the murder accusation is a totally separate issue in law. You would still be falsely accusing your friend of a criminal act (the burglary), which is an action on your behalf that has the potential to damage your friend. After all, what if your friend were to be exonerated of the murder on other grounds, but were then to be falsely investigated for burglary based on your testimony? You would indeed end up potentially harming your friend in such circumstances.

So I would still say that malice (in the wider definition of "intent to cause harm") is an essential element of criminal slander. In Knox's case, there was intent to cause Lumumba harm since, at the end of the day, she signed statements in which she accused him of the murder, and she knew what she was doing when she made the accusation. For that reason, I would say that Knox satisfied this element of the charge.

However, we then go back again to the wider issue of mens rea, which (in my view and that of Knox's defence lawyers) is the critical issue. Even though Knox did knowingly make false criminal accusations against Lumumba, she did so under a) a high amount of duress and pressure, and b) the direct police misinformation given to her about "proof" of her presence at the murder and Lumumba's participation in it.

For these reasons, it is (in my opinion and that of Knox's defence team) impossible to assert that Knox had the requisite mens rea for the crime, even if she knew that the effect of her accusation against Lumumba was likely to harm him. That's a very important nuance.

 

[LondonJohn]

You legal eagles tell me if this is true: Amanda's calunnia appeal and her parents' calunnia trial hinge on one another. If Amanda is vindicated on account of being coerced and bullied, then her parents should be cleared of calunnia, too (or vice versa, depending on which trial happens first).

In my view, this is half-right. I think the following:

1) The criminal proceedings against Knox's parents have been put on hold for precisely the reason you state - they are to a great level dependent upon the outcome of the SC hearing and any subsequent appeal level trials.

2) If Knox is ultimately acquitted on the criminal slander charge, then I don't think that it's an automatic given that her parents could not still face their own criminal slander charges. However, I would think it almost certain that the state would withdraw the charges in such circumstances, so that in practice an acquittal for Knox would mean no charges for her parents.

3) If the SC confirms Knox's conviction for criminal slander, then I think it highly likely that the state will proceed with the charges against Knox's parents. However, just because Knox would stand convicted would not automatically mean that her parents would also ultimately be convicted (although of course it makes conviction much more likely than not).

 

[Bill Williams]

I am going to guess that the concept represented by that legal reasoning originally (and possibly currently) has served some classes far better than it has served others.

Cool. Another Marxist. Greetings comrade!

I fell out with the Marxist-Leninists during that obligatory time at university when one briefly becomes one when I kept yelling at the rallies...

"Workers of the world, un-tie!"

 

[anglolawyer]

Well no, because the murder accusation is a totally separate issue in law. You would still be falsely accusing your friend of a criminal act (the burglary), which is an action on your behalf that has the potential to damage your friend. After all, what if your friend were to be exonerated of the murder on other grounds, but were then to be falsely investigated for burglary based on your testimony? You would indeed end up potentially harming your friend in such circumstances.

Well, no. My action is intended to help my friend. It is therefore made without malice, whatever the truth of his involvement in the murder. If you like, I can change the example so he is, to my knowledge, guilty of the murder. It doesn't make a difference, I would still not be guilty of callunia if malice is an ingredient of the offence.

So I would still say that malice (in the wider definition of "intent to cause harm") is an essential element of criminal slander.

in my opinion, you would be wrong. And I do not think your 'wider sense' is a valid concept since malice more or less means intent to harm.

In Knox's case, there was intent to cause Lumumba harm since, at the end of the day, she signed statements in which she accused him of the murder, and she knew what she was doing when she made the accusation. For that reason, I would say that Knox satisfied this element of the charge.

Objective intent, subjective intent or presumed intent?

However, we then go back again to the wider issue of mens rea, which (in my view and that of Knox's defence lawyers) is the critical issue. Even though Knox did knowingly make false criminal accusations against Lumumba, she did so under a) a high amount of duress and pressure, and b) the direct police misinformation given to her about "proof" of her presence at the murder and Lumumba's participation in it.

For these reasons, it is (in my opinion and that of Knox's defence team) impossible to assert that Knox had the requisite mens rea for the crime, even if she knew that the effect of her accusation against Lumumba was likely to harm him. That's a very important nuance.

Duress does not negative mens rea. It provides a defence to a charge even though all the elements, including mens rea, can be proved. You hold a gun to my head and tell me to shoot Grinder and I do so, because I am in fear of my life. I have the requisite mens rea to murder Grinder but, assuming the jurisdiction I am in allows duress as a defence to murder, I get off.

Hellman says:

Generic criminal intent [il dolo generico] is sufficient, thus including the aim of escaping from a particularly oppressive personal situation.

The word 'duress' itself does not appear in Amanda's appeal and I am not sure I see Hellman dealing with it as a distinct concept. Hellman is saying that even if her dominant purpose was to escape the situation she had the requisite mental capacity to make, and did make, a false accusation.

I think he may be wrong for another reason and that is that she did not know, nor ought she to have known Lumumba was innocent but I confess to confusion about it. If Hellman is satisfied she did not commit the murder nor play any part in it nor was she present then he must be assessing her statement of mind on those assumptions. Clearly, she has no infirmation of her own on which to base the accusation. So what if the cops told her they knew it was Lumumba? She still has to say, 'well, fine! That's what you say. How the heck do I know? I was at Raf's all evening.'

You would need to show her consciousness was so altered by the interrogation process, lack of sleep etc that she did not know what she was doing and Hellman expressly found that not to be the case.

However, this Court does not find that there is any significant objective evidence that, when she made her spontaneous statements and wrote her note, Amanda Knox was in not only a situation of considerable psychological pressure and stress but also even in a condition of not intending or wishing

He is saying she had legal capacity. Unlike, say, a drunk who might be out of his mind and flinging accusations around without knowing what he was saying.

 

[Grinder]

PS don't expect much to be going on Grinder's mind, subconscious or not.

That it I've had enough of this otiose abuse. I'll put this thread back on moderation. I'll have Clive Anglo banned. And that's just for starters!!!!!!!!!!!!!!

What was I saying? Must not have been very important...oh yeah I remember, I'm radioactive, shake. (Steve Martin)

 

[acbytesla]

Firstly, for the sake of clarity, I think that Hellmann's reasoning on the guilty verdict for the criminal slander was incorrect in law. I think Knox should be acquitted on this charge.

But I also want to make it clear that I was only talking about a very specific issue that had been raised here: some people believe it's logically incompatible to have acquitted Knox on the murder charge but to have found her guilty of the criminal slander charge. That's simply not accurate. As I said, if Knox had "waltzed into the police station and accused her black boss" (as per a certain pro-guilt commentator), then she very probably would have been guilty of committing a criminal slander, despite not having been involved in the murder.

So my posts were purely aimed at trying to dispel the incorrect notion that it should have been impossible for Hellmann to reach these "opposing" verdicts - they are not opposing at all in principle. But the reason why Hellmann was wrong (in my opinion) is not to do with any such logical conflict between the various verdicts: it's because he got it wrong on the points of law as they pertained to the criminal slander charge on a stand-alone basis.

So with that in mind, I agree 100% with everything you've written here from your second paragraph onwards. Knox's "accusation/confession" was not malicious, it was not given with the requisite mens rea, it was confused and proposed only as a "vision", it was clearly the product of improper police coercion and suggestion. For all these reasons, it's clear to me that Knox should not be (and should never have been) found guilty of the criminal slander of Lumumba.

Wow!!! That is the first time anyone ever thought I was right about something. Need to make an entry in my diary.

Whats weird about the calumny charge, is that many guilters use the calumny charge also to point out that Hellman's reasoning is bizarre.

Frankly, I think Hellman was just throwing the prosecution a bone by convicting her on that. Stupid rationale, but that is what I think. He was defending Italian jurisprudence without really doing Amanda any more harm since most importantly Amanda would be able to go home.

 

[LondonJohn]

Well, no. My action is intended to help my friend. It is therefore made without malice, whatever the truth of his involvement in the murder. If you like, I can change the example so he is, to my knowledge, guilty of the murder. It doesn't make a difference, I would still not be guilty of callunia if malice is an ingredient of the offence.

I disagree, for the reason I gave before (the murder accusation and your false accusation of burglary should be treated entirely separately, and you are therefore intending to harm your friend by accusing him of burglary).

in my opinion, you would be wrong. And I do not think your 'wider sense' is a valid concept since malice more or less means intent to harm.

Fair enough: we'll agree to differ. But on the second sentence, I think I'm right in saying that "malice" in a legal context usually refers specifically to physical harm or injury - and not to other harm such as loss of liberty, damage to reputation and so on. So I think that my wider context has validity.

Objective intent, subjective intent or presumed intent?

Objective intent, and also presumed intent. Any reasonable person should know that making false criminal accusations against a person is likely to do that person harm.

Duress does not negative mens rea. It provides a defence to a charge even though all the elements, including mens rea, can be proved. You hold a gun to my head and tell me to shoot Grinder and I do so, because I am in fear of my life. I have the requisite mens rea to murder Grinder but, assuming the jurisdiction I am in allows duress as a defence to murder, I get off.

I'm fully aware that duress does not in itself negate mens rea. I merely mention it because it feeds into to the conditions which did negate mens rea in this instance.

The word 'duress' itself does not appear in Amanda's appeal and I am not sure I see Hellman dealing with it as a distinct concept. Hellman is saying that even if her dominant purpose was to escape the situation she had the requisite mental capacity to make, and did make, a false accusation.

And I agree with Hellmann up to this point. I believe that Knox did know what she was saying, and the likely impact of what she was saying. But the coercion and suggestion elements, coupled with evidence that the police essentially forced her to "remember" the police's own version of events, are the things that negate mens rea in my opinion.

I think he may be wrong for another reason and that is that she did not know, nor ought she to have known Lumumba was innocent but I confess to confusion about it. If Hellman is satisfied she did not commit the murder nor play any part in it nor was she present then he must be assessing her statement of mind on those assumptions. Clearly, she has no infirmation of her own on which to base the accusation. So what if the cops told her they knew it was Lumumba? She still has to say, 'well, fine! That's what you say. How the heck do I know? I was at Raf's all evening.'

I don't agree with this. I think it is entirely possible to commit criminal slander in Italy without knowing that the person you have accused is innocent. If I walked into a Milan police station tomorrow and accused the manager of the hotel in which I was staying of being the true murderer of Meredith Kercher, I'd potentially be committing criminal slander.

You would need to show her consciousness was so altered by the interrogation process, lack of sleep etc that she did not know what she was doing and Hellman expressly found that not to be the case.

He is saying she had legal capacity. Unlike, say, a drunk who might be out of his mind and flinging accusations around without knowing what he was saying.

As I said, I think Knox DID know what she was doing. But that is very different from doing it with a "guilty mind" - i.e. the requisite mens rea.

 

[anglolawyer]

Callunia

I found the charge - right at the beginning of the translated Hellman report. How cool is that?

AMANDA MARIE KNOX furthermore [is accused]:

F)

of the offense under C.P. Articles 81 second paragraph [cpv., i.e. capoverso] 368 paragraph 2 and 61 no. 2, for having, with several actions [all] executing a single criminal plan [disegno], via an accusation lodged in the course of statements given to the Mobile Squad at the Questura [police station] of Perugia, on the date of November 6, 2007, falsely accused DIYA LUMUMBA, known as “Patrick”, of the crime of homicide against the young MEREDITH KERCHER, knowing him innocent, all with the aim of obtaining impunity for all [involved] and in particular for RUDY HERMANN GUEDE, himself [a person] of color as LUMUMBA.

in Perugia, on the night between November 5 and 6, 2007.

Article 61(2) is an aggravating circumstance which google translates:

to have committed the offense to back them or conceal another, or to achieve or provide for themselves or others or the profit or the price or the impunity of another crime;

Article 81 only concerns punishment.

Article 368

Anyone with denunciation, complaint, request or application, even if anonymously or under a false name, direct judicial authority or another authority to have the obligation to report, blame someone of a crime that he knows innocent, that simulates against him the traces of a crime, shall be punished with imprisonment from two to six years.

So she had to know Lumumba was innocent (Hellman held she did, of course) and if in accusing him her aim was to gain something for herself or another then she can be charged with an aggravated version of the basic offence (as she was). Hellman finds her guilty but without the aggravated element:

This Court therefore finds that Amanda Knox had indicated Lumumba as the perpetrator only because, at that moment, it appeared to be the quickest and easiest way to put an end to the situation in which she found herself, her interrogators having insisted on an explanation of the message she sent to him.

Essentially, his rejection of the aggravating circumstance is bound up with his rejection of the argument that, if she were guilty of callunia she must be guilty of murder.

There is no contradiction, therefore, in finding her guilty of the crime of calumny, and nonetheless rejecting the aggravating circumstance under C.P. Article 61 no.2.

This makes sense. For basic callunia it just needs to be shown the false accusation was made and the defendant knew it to be false. For aggravated callunia the defendant must be shown to have been pursuing some kind of gain or impunity for herself or someone else.

Bill, can you remind us why you recanted? You might need to recant again.

 

[acbytesla]

As I said, I think Knox DID know what she was doing. But that is very different from doing it with a "guilty mind" - i.e. the requisite mens rea.

My biggest problem as I said before with the calumny charge is that Amanda doesn't actually say that Patrik killed Meredith at all. It is so clear from her statement that the police led her to her statement by playing games. Maybe in Italy, they don't really understand English.

As I said before Amanda said "in her mind". She might as well have said "in her imagination". As McAuliffe once said, "NUTS".

 

[LondonJohn]

Duress does not negative mens rea. It provides a defence to a charge even though all the elements, including mens rea, can be proved. You hold a gun to my head and tell me to shoot Grinder and I do so, because I am in fear of my life. I have the requisite mens rea to murder Grinder but, assuming the jurisdiction I am in allows duress as a defence to murder, I get off.

I thought this area of your post was worthy of being addressed in more detail separately.

In the scenario you describe in the highlighted section, you in fact do not have the requisite mens rea for the crime of murder. This is central to the whole issue we're discussing. In your scenario, while you shoot Grinder with the knowledge and intent to harm him, you do so because you are under what you perceive to be a "either he dies or I die" choice. And the law would say that under such extraordinary circumstances, a reasonable person might have done exactly what you did do: shoot Grinder.

This is because the definition of mens rea is now much more detailed and nuanced than it once was. Historically, you would have been correct to state that your very act of knowingly firing the gun at Grinder with the knowledge that this would harm him would have constituted mens rea for murder (or at least manslaughter). But in modern jurisprudence, the concept of mens rea is now governed by so-called "modes of culpability", which take into account the circumstances under which the crime occurred and the actual outcome of the criminal act.

So in the modern definition of mens rea, the circumstances you describe surrounding your shooting of Grinder would almost certainly lead a court to conclude that in fact you did NOT possess the requisite mens rea for murder (or even manslaughter). This is also why people who kill in self-defence can be rightly acquitted of any crime related to the death of the victim, provided they can show the court that they were in a position where any reasonable person would have felt that their own life was in danger. This is not mitigation: it is an argument that the requisite mens rea was not present. They are two very different things.