Beyond Belief: Rethinking the Role of Belief in the Assessment of Culpability

Abstract

In cases where a criminal offense requires proof that the defendant was reckless or negligent with respect to a result or attendant-circumstance element, courts and commentators sometimes have assumed that liability will be foreclosed if the defendant either “reasonably believed” in the non-existence of the attendant circumstance or “reasonably believed” in the nonexistence of some causal condition upon which the proscribed result depended. This paper argues that this common assumption is incorrect. Where the courts and commentators go wrong, it argues, is in failing to recognize the role that degrees of belief play in the assessment of culpability. It is the degree of a belief, and not merely its reasonableness, that will determine whether the belief forecloses the possibility that the defendant was or should have been aware of a “substantial” risk. And it is the degree of the belief, not merely its reasonableness, that will determine whether the belief forecloses the possibility that the defendant’s disregard of the risk or failure to perceive the risk amounted to a gross deviation from the standard of care. Since the “reasonableness” of a belief tells us nothing about its degree, a determination that the defendant “reasonably believed” a gun was unloaded, say, does not foreclose the possibility that the defendant was reckless or negligent in pulling the trigger.

Keywords: criminal law, mistake, negligence, recklessness, mens rea

JEL Classification: K14