Haw. Rev. Stat. § 702-206
HRS § 702-206
COMMENTARY ON § 702-206
This section attempts to define the four states of mind which the Code recognizes as sufficient to establish penal liability and to indicate by definition the manner in which each state of mind is related to conduct, attendant circumstances, and the results of conduct.
The difference between acting intentionally, according to subsection (1), and knowingly, according to subsection (2), is narrow but nonetheless distinct. The distinction lies in the fact that intent is characterized by a conscious object to engage in certain conduct or cause a certain result whereas knowledge is characterized by an awareness that conduct is of a certain type or that a certain result will almost certainly obtain. While knowledge will in most instances suffice to establish penal liability, there are a limited number of offenses which require an intent to effect a particular result.
Recklessness in subsection (3) deals not with the conscious object of conduct or the relative certainty of conduct but rather with disregard of certain probabilities. Recklessness is the conscious disregard of a known risk. It goes without saying that the conscious disregard of every risk of harm to a protected social interest should not, in every instance, be sufficient to impose penal liability for an untoward eventuality. Precision in defining which risks the penal law will not let a defendant ignore is impossible. Following the lead of the Model Penal Code, the Code has labeled the relevant risks as "substantial and unjustifiable" and in subsection (3)(d) states the factors which ought to be considered in determining whether the disregard of the risk should be condemned. The Reporter to the Model Penal Code has stated the issue concisely:
The draft requires, however, that the risk thus consciously disregarded by the actor be "substantial" and "unjustifiable"; even substantial risks may be created without recklessness when the actor seeks to serve a proper purpose, as when a surgeon performs an operation which he knows is very likely to be fatal but reasonably thinks the patient has no other, safer chance. Accordingly, to aid the ultimate determination, the draft points expressly to the factors to be weighed in judgment: the nature and degree of the risk disregarded by the actor, the nature and purpose of his conduct and the circumstances known to him in acting.
Some principle must be articulated, however, to indicate what final judgment is demanded after everything is weighed. There is no way to state this value judgment that does not beg the question in the last analysis; the point is that the jury must evaluate the conduct and determine whether it should be condemned.[1]
The fourth type of culpability which the Code recognizes is negligence. It is distinguished from the other three types of culpability (intent, knowledge, and recklessness) in that it does not involve a state of awareness on the part of the defendant. Rather, negligence involves the inadvertent creation by the defendant of a risk of which the defendant would have been aware had the defendant not deviated grossly from the standard of care that a law-abiding person would have observed in the same situation. As in the case of recklessness, the risk which the negligent defendant failed to perceive must be "substantial and unjustifiable." In the final analysis the jury will have to address themselves to the factors listed in subsection (4)(d)-- i.e., the nature and degree of the risk, the defendant's purpose, the circumstances known to the defendant, and the degree of deviation from a standard of ordinary care, and determine whether the behavior of the defendant should be condemned.
Of the four states of mind which this Code recognizes as sufficient for penal liability, negligence is the least condemnable because, by hypothesis, the defendant was inadvertent.[2] It has been argued that negligence is not a proper subject of penal--as opposed to civil--law.[3] The Code, however, adopts the position that:
Knowledge that conviction and sentence, not to speak of punishment, may follow conduct that inadvertently creates improper risk supplies men with an additional motive to take care before acting, to use their faculties and draw on their experience in gauging the potentialities of contemplated conduct. To some extent, at least, this motive may promote awareness and thus be effective as a measure of control.... Accordingly, we think that negligence, as here defined, cannot be wholly rejected as a ground of culpability which may suffice for purposes of penal law, though we agree that it should not be generally deemed sufficient in the definition of specific crimes, and that it often will be right to differentiate such conduct for the purposes of sentence.[4]
In the definitions of "recklessly" and "negligently" the Code refers to the "standard of conduct" or "standard of care that a law-abiding person would observe in the same situation." The reference to the defendant's situation is not entirely clear. If the actor received a blow to the head or was blind, certainly these factors would be considered in assessing the actor's situation. On the other hand, factors such as "heredity, intelligence or temperament" could not be considered "without depriving the criterion of all of its objectivity."[5] Further discriminations of this sort must, of necessity, be left to the courts.
Previous Hawaii statutory law did not define any mental state except "malice," which was so imprecisely defined as to run the gamut of culpability and be meaningless.[6]
Although "intent," "knowledge," "recklessness," and "negligence" are used extensively in the present penal code, these terms have not been judicially defined in a penal context.[7] This section of the Code will supply the needed definitions.
SUPPLEMENTAL COMMENTARY ON § 702-206
The Legislature adopted §206 as contained in the Proposed Draft of the Code; however, the Legislature also added to the Code the offense of negligent homicide in the second degree, set forth in § 707-704, which introduces a less culpable state of mind called "simple negligence" - essentially a civil standard of negligence. (Cf. §§ 702-204, 702-213, and 707-704, and the commentaries thereon.)
In a prosecution under Hawaii trespass law prior to the enactment of the Code, the defendants sought to attack the statute in question on the grounds of vagueness, indefiniteness, and overbreadth for failure to require knowledge as "an element of the offense." In disposing of this contention, the court said:
Moreover, however, [sic] "knowledge" be defined, the failure of a statute to provide for knowledge as an element of a crime does not ipso facto render a statute unconstitutional. For not only are there statutory crimes without any requirement of intention or knowledge, but, as we noted in State v. Taylor, 49 Haw. 624, 636-7, 425 P.2d 1014, 1022 (1967), the applicable test for vagueness and overbreadth, which we adopted from Boyce Motor Lines v. United States, 342 U.S. 337, 340-1 (1952), is not a checklist of requirements but is far more general.
State v. Marley, 54 Haw. 450, 459-460, 509 P.2d 1095, 1102-1103 (1973). The court cited, as examples of offenses which do not require that the actor act intentionally or knowingly, § 712-1217 (open lewdness), § 708-871 (reckless false advertising), and § 707-741 (incest).
Act 314, Session Laws 1986, amended the definitions of "recklessly" and "negligently" in subsections (3) and (4). Amendments to these definitions in 1985 had the unintended effect of changing the definitions from "requiring a conscious disregard of a risk that the actor engages in a type of conduct to a conscious disregard of a risk created by the actor's conduct". The amendments made by Act 314 changed the definitions back to their original meaning. Conference Committee Report No. 51-86.
Instruction on killing "recklessly" discussed. 60 H. 17, 586 P.2d 1028. Substantial evidence in record supported trial court's conclusion that parent "knowingly" caused son's death.73 Haw. 236,831 P.2d 924. There was sufficient evidence that minor acted knowingly where trial court could infer from the amount of force minor used to punch victim in the face, that minor was aware that it was practically certain that minor's conduct would cause the result of substantial bodily injury. 107 H. 12, 108 P.3d 966. The reckless state of mind definition under subsection (3) (1993) applies to the reckless driving statute § 291-2; in determining whether an identified risk is substantial and unjustifiable under subsection (3), the nature and degree of the risk disregarded by the actor, the nature and purpose of the actor's conduct, and the circumstances known to the actor in acting must be weighed. 113 H. 321, 151 P.3d 802. Where jury could have reasonably found that defendant care home operator knew of the risks of infection and failed to provide resident with the care that was within defendant's capabilities, which care would have prevented the progression of the infection that caused resident's death, and defendant had a duty to take resident to follow-up appointment with doctor and consciously disregarded a substantial and unjustifiable risk that failure to perform this duty would cause resident's death, sufficient evidence to support jury's finding that State proved manslaughter by omission, including the requisite state of mind.104 Haw. 387 (App.),90 P.3d 1256. State produced sufficient evidence to show that defendant acted with reckless mens rea with respect to the attendant circumstances of the driving while license suspended or revoked for driving under the influence offense; defendant's conscious disregard of the risk that defendant's license remained revoked or suspended for DUI-alcohol was a gross deviation from the standard of conduct that a law-abiding person would observe in the same situation. 106 H. 123 (App.), 102 P.3d 367. Where defendant punched and kicked another so ferociously in the face that the lip was split clean through, four teeth were bashed in, the eye was hemorrhaged and pushed inward, and the orbital floor was fractured causing blurred and diplopic vision lasting almost eleven months, there was substantial evidence that the defendant was, at the very least, aware that it was practically certain that defendant's conduct would cause the result required, "serious bodily injury", for conviction of first degree assault. 106 H. 530 (App.), 107 P.3d 1203. State failed to adduce substantial evidence that defendant "consciously disregarded" any risk to "the safety of persons or property"; even viewed "in the strongest light for the prosecution", the evidence that defendant disregarded a stop sign was not "of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion" that defendant's driving "involved a gross deviation from the standard of conduct that a law-abiding person would observe in the same situation". 112 H. 233 (App.), 145 P.3d 776. Under this section, the term "intentional", as applied to the value-attendant-circumstance element of the insurance fraud offense under § 431:10C-307.7, means "believes"; also, § 708-801(4) indicates that either a defendant's "belief" or "knowledge" is sufficient to establish an intentional or knowing state of mind as to the value element; thus, pursuant to § 702-204, as a "reckless" state of mind was applicable to the value element of the insurance fraud offense, defendant was not exposed to a conviction based on a state of mind lower than what was required.117 Haw. 26 (App.),175 P.3d 136. __________ § 702-206 Commentary: 1. M.P.C., Tentative Draft No. 4, comments at 125 (1955). 2. Id. at 126. 3. Williams, The Criminal Law - The General Part 122-124 (1961); Hall, Negligent Behavior Should Be Excluded From Penal Liability, 63 Colum. L. Rev. 632 (1963). 4. M.P.C., Tentative Draft No. 4, comments at 126-127 (1955). 5. Id. at 126. 6. H.R.S. § 701-4. 7. But cf. State v. Tamanaha, 46 Haw. 245, 377 P.2d 688 (1962), deciding that "ordinary negligence" was sufficient for conviction of the traffic offense of careless and heedless driving.