Judicial Cognizance of Guilt-Consciousness

Abstract

The term “guilt” connotes many different phenomena: theology, philosophy, ethics, psychology and law all contributed to the variety of connotations. It is not my purpose, nor do I pretend to engage in etymological or anthropological research into the evolution of the various aspects and concepts of guilt: I shall try to describe and distinguish only those phenomena of guilt of which judges may have to take cognizance for the proper exercise of punitive discretion.First and foremost, there is “guilt” within the meaning of criminal law. On the one hand, guilt is spoken of as denoting the mental element in crime: the guilt of one who committed a criminal act — actus reus — presupposes the criminal mind — mens rea; or, an actus reus is transformed into guilt by the supervenience of mens rea. Whether the mens rea is intent or wilfulness, or only negligence or recklessness, does not affect the incidence of guilt, but may well raise the question of degree of guilt. On the other hand, “guilt” is the result of a verdict to the effect that the accused is criminally responsible (“finding of guilty”), and it is in this sense that the accused may “plead guilty”.