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Although the terms mens rea and scienter are sometimes used interchangeably, many jurisdictions define scienter as knowledge that an act is illegal. Scienter can be the basis of specific intent in some statutes. So a statute that makes it a crime to “willfully file a false tax return” may require knowledge that the tax return includes false information and that it will be unlawful to file it. 1 If the prosecution fails to prove beyond a reasonable doubt that the defendant knew his or her conduct was illegal, this could nullify scienter, and the prosecution cannot prove specific intent.
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