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In criminal law, mens rea&_160;– the Latin term for "guilty mind"^[1]&_160;– is usually one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means that "the act does not make a person guilty unless the mind is also guilty". Thus, in jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged (see the technical requirement of concurrence). The exception is strict liability crimes (in the civil law, it is not usually necessary to prove a subjective mental element to establish liability, say for breach of contract or a tort, although if intentionally committed, this may increase the measure of damages payable to compensate the plaintiff).

Quite simply therefore mens rea refers to the mental element of the offence that accompanies the actus reus. In some jurisdictions the terms mens rea and actus reus have been superseded by alternative terminology. In Australia for example the elements of all federal offences are now designated as "fault elements" (mens rea) and "physical element" (actus reus). This terminology was adopted in order to replace the obscurity of the Latin terms with simple and accurate phrasing.^[2]

Under the traditional common law, the guilt or innocence of a person turned on whether they had committed the crime, actus reus, and whether they intended to commit the crime, mens rea. However, many modern penal codes have created levels of mens rea called modes of culpability which vary depending on the offense elements of the crime the conduct, the circumstances, and the result, or what the Model Penal Code calls CAR (conduct, attendant circumstances, result). The definition of a crime is thus constructed using only these elements rather than the colorful language of mens rea in traditional common law^[3]

Murder is the unlawful killing of a human being with malice aforethought.

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