Chapter Three

The General Principles of Criminal Liability:

Actus Reus

Learning Objectives

• To be able to identify the elements of, and to explain why, the voluntary act is the first principle of criminal liability.

• To be able to define, distinguish between, and understand the importance of the elements of criminal conduct and criminal liability and therefore punishment.

• To understand and appreciate the importance of the requirement of a voluntary act.

Learning Objectives

• To identify the circumstances when, and to be able to explain why, status is treated, sometimes, as an affirmative act.

• To be able to understand how the general principle of actus reus includes a voluntary act and how it is viewed by the constitution.

Learning Objectives

• To identify the circumstance when, and to be able to explain why, failures to act are treated as affirmative acts.

• To understand and identify the circumstances when, and to be able to explain why, possession is treated as an act.

Voluntary act is the first principle of criminal liability

• In order to have criminal liability there must be criminal conduct

• Criminal conduct is conduct that is without justification and without excuse

• Voluntary act is the “conduct” part of criminal conduct

• Many crimes don’t include a criminal intent or bad result, but only rarely does a crime not require a criminal act

Elements of Criminal Liability

• Actus Reus—the criminal act• Mens rea—the criminal intent• Concurrence—the requirement that the criminal

intent trigger the criminal act• Attendant circumstances (when a crime does not

require the mens rea, it generally requires some attendant circumstance)– Example: DWI

• Bad result--causing a criminal harm

Elements of Criminal Liability (continued)

• Corpus delicti = “body of crime” but it doesn’t necessarily mean a physical body. It refers, instead to the elements of a crime

• Criminal conduct = criminal act triggered by the criminal intent (mens rea)

• Criminal act = voluntary bodily movement.• Conduct crimes = crimes which require a

criminal act triggered by criminal intent– Example: Burglary

Elements of Criminal Liability (continued)

• Bad result crimes– Some serious offenses include all five

elements–Voluntary act (criminal act)–Mental element (criminal intent)–Circumstance element–Causation–Harm• Example: Criminal Homicide

Voluntary Acts

• Punish people for what they do, not who they are

• Punish people for what they do, not what they think

• Manifest criminality—in order to have criminality, attitudes have to turn into deeds. Deeds leave no doubt about the criminal nature of the act

Voluntary Acts (continued)

• Voluntary act requirement has several purposes:–Helps prove intent (inferred from actions)–Reserves sanction of criminal law to cases of

actual danger–Protects privacy of individuals…no prying into

the thoughts or intentions without crossing over into the realm of “Manifest Criminality” through an act

Voluntary Act Requirement

• Voluntary act required• Contraction of muscles must be willed• MPC—not guilty of an offense unless liability is based

on conduct that includes a voluntary act• Non voluntary actions include: – Reflexes or convulsions– Movements during sleep – Movements during unconsciousness– Actions under hypnosis– MPC-bodily movement that otherwise is not a product of

the effort or determination of the actor, either conscious or habitual

Voluntary Act Requirement

• MPC includes conduct which includes a voluntary act– Acts surrounding the crime may be involuntary – Sometimes referred to as a voluntarily induced

involuntary action– Many states follow the MPC’s one-voluntary-act

is enough definition• Example: Subject to Fainting…the voluntary act might

be operating a vehicle

Brown v. State (1997)

A convicted murderer successfully appealed his conviction on the question of a non voluntary act causing the discharge of a handgun resulting in the death of his victim.Brown had claimed that the shooting was accidental, caused when he was bumped by another party, causing the weapon to fire.The appeals court ruled that the trial court erred when it failed to instruct the jury on the requirement of determining a voluntary act caused the discharge of the weapon.

King v. Cogdon (1951)

Mrs. Cogdon had murdered her daughter with an axe, while “dreaming” that the home was under attack by soldiers…SomnambulismMedical and psychological evidence supported the defense claim that Mrs. Cogdon did not intend the consequences of her acts, as she was “asleep”.Mrs. Cogdon was acquitted of the murder of her daughter by a jury which determined that “the act of killing itself was not, in law regarded as her act at all.

People v. Decina (1956)

Decina was subject to unpredictable epileptic seizures, and chose to operate a motor vehicle despite his prevailing medical condition.

During a seizure which followed while operating the car, Decina lost consciousness and killed 4 children on the sidewalk.

The court held that the voluntary act was the conscious decision to operate the vehicle and disregard the known consequences that he knew might follow.

State v. Jerrett (1983)

A lower court was reversed in a case of Murder, Robbery and Kidnapping when it failed to instruct the jury before deliberations on the defense of automatism, after the defense demonstrated evidence supporting unconsciousness.The court held that the trial judge should have instructed the jury on the defense of unconsciousness.

Summary of Case Holdings

• Voluntary act which leads to an involuntary act is sufficient to constitute the actus reus–Brown v. State: court found sufficient

evidence to allow the jury to receive an instruction about voluntariness (Brown held gun which discharged when someone bumped him)

• Acts committed while asleep do not constitute a voluntary act (King v. Cogdon)

Summary of Case Holdings

• Defendant voluntarily got into the car (knowing he was subject to epileptic seizure) and thus he killing was not an involuntary act. (logic of the MPC used: one voluntary act is enough)

• Acts committed while person is unconscious are not voluntary acts as a matter of law (State v. Jerrett)

Status as a Criminal Act

• Status denotes who we are (student, parent, addict)

• Most status don’t qualify as actus reus• Status can however result from voluntary act– Example: meth addicts voluntarily use meth the first

time, and alcoholics voluntarily take their first drink

• Some conditions (status) result from no act at all—we are born with those characteristics/conditions: sex, age, race, ethnicity

Robinson v. California (1962)

The US Supreme Court determined that criminalizing the status (“Sickness) of drug addiction was unconstitutional, declaring it cruel and unusual punishment.This Decision brought other statutes throughout the nation into question dealing with prostitution, vagrancy, drunkenness and disorderly conduct.

Powell v. Texas (1968)

Powell was found guilty under a Texas statute that made it a crime to be found drunk in public.Powell appealed under Robinson, claiming that he was being punished for his status of being an alcoholic.In a narrow plurality, the court made a distinction between cases, and identified the act as the choice of venue (public v. home) The court held that Powell was being convicted for voluntarily being in public.

Compare Robinson with Powell

• California statute created crime of personal condition. – It punished Robinson for being an addict, not for what

he did. – 90 day sentence was held unconstitutional because it

punished him for his sickness. – Decision brought other statutes into question.

• Texas statute made it a crime to be found drunk in public. – Court distinguished Robinson and said that Powell

was being convicted for voluntarily being in public. – Very close case (plurality decision).

Post Robinson and Powell

There has been no further venture of the US Supreme Court into the principles of criminal liability since these cases in the 1960’s

The US Supreme Court has left it in the hands of the state legislatures to adopt general principles of liability and elements of specific crimes in their respective criminal codes

Omissions as Criminal Acts

• It is “easy” to support punishments for those who prey upon and cause harm to others through their acts (i.e. rape, robbery and murder)

• The more difficult question arises when people stand by and do nothing when harm is being caused to others around them

Omissions as Criminal Acts

• Failing to act can satisfy the voluntary act requirement

• Criminal omissions – Failure to act

• Usually the Failure to report something required by law– Examples: Car Accident, Child Abuse, Income Tax, Firearm Transactions,

HIV+ status to a partner

– Failure to intervene to protect person or property

• Omissions are only criminal if there is a legal duty to criminal if there is a legal duty to actact, enforceable by lawenforceable by law, and not merely a moral duty to act.

Omissions as Criminal Acts (continued)

• Legal duties to act arise in 3 ways1.1. StatuteStatute provides the duty to act

1. Examples: duty to report child abuse; duty to file income tax returns; duty to register as sex offender

2.2. Contract Contract provides the duty to act1. Examples: emergency room doctor; life guard;

law enforcement officers; fire fighters3.3. Special Relationship Special Relationship provides the duty to act– Examples: parent-child; employer-employee– NOTE: NOTE: sometimes a special relationship is created

by assuming the care of another

Omissions as Criminal Acts (continued)

• Criminal omissions cannot arise out of failure to perform moral duties– Example: Case of Kitty Genovese

• Most states impose no duty to render aid to an imperiled stranger or call for help– Good Samaritan Doctrine Good Samaritan Doctrine – creates (statutory) duty

for stranger to render aid • Only a few states follow this doctrine

– American Bystander ApproachAmerican Bystander Approach—no legal duty to rescue or summon help for someone in danger even if there is no risk in doing so.• Most states follow this approach

Commonwealth v. Pestinakas (1992)

In this case, the court determined that the failure to perform a duty imposed by evidence of a contract may be the basis for a charge of criminal homicide.

The Pestinakas’ failure to provide food and medical care which they agreed to (creating an oral contract) was sufficient to support a conviction.

The court found that the jury instruction was appropriate, and the conviction was affirmed.

People v. Oliver (1989)

A special relationship can be created by assuming the care of an individual.

Carol Ann Oliver took an extremely intoxicated man into her home, assisted him with the means to “shoot up” in her bathroom, later observed him lapse into unconsciousness, left him unattended to return to the bar, told her children to drag the man out of the house, where he was left to die.

The initial assumption of care in this case created and imposed a legal duty, the failure of which constituted a criminal omission (involuntary manslaughter).

State v. Miranda (1998)Santos Miranda was living with his girlfriend and her two children for @ 5 months, when he called 911 to report the 4 month old child was “choking on milk”. Miranda admitted acted as a “step-father” to his girlfriend’s children.

Upon examination at the hospital, it was determined that the child had multiple severe injuries. The court later determined that anyone who saw the child would have had to notice the injuries, deformities and reactions.

A defendant, acting as a father figure, to the victim assumed a “familial relationship” (even though there was no marriage or blood relationship) upon which a duty of care may be established.

Kitty Genovese’s Neighbor’s Omissions (1964)

–37 individual “bystanders” watched as Winston Mosely stalked, and stabbed Kitty Genovese in 3 separate attacks over 35.

–None of these “good people” called the police, even though a single call could have potentially saved her life

–A moral duty does not constitute the basis for a criminal omission

Summary of Case Holdings

• A failure to perform a duty imposed by contract may be the basis for a charge of criminal homicide. The Pestinakas’ failure to provide food and medical care which they agreed to (creating an oral contract) was sufficient to support a conviction. The jury instruction was appropriate. (Pestinakas)

• A special relationship can be created by assuming the care of an individual. The assumption of care creates a legal duty, the failure of which constitutes a criminal omission. (People v. Oliver)

Summary of case holdings (continued)

• A defendant, acting as a father figure, to the victim assumed a “familial relationship” (even though there was no marriage or blood relationship) upon which a duty of care may be established (State v. Miranda)

• A moral duty does not constitute the basis for a criminal omission (Kitty Genovese Example)

Possession as a Criminal Act

• Possession is not an act, it’s a passive condition• Legal fiction makes possession a voluntary act• The most common Criminal possessions include

possession of weapons, illegal drugs and drug paraphernalia

• See table 3.2 for Criminal Possession Statutes• Reason we engage in legal fiction of pretending

possession is an act:– is in our desire to prevent worse crimes– most people get possession through a voluntary

act

2 Kinds of Possession

• Actual possession—having actual physical control (the item is located on the person)

• Constructive possession—the person has the right to control the item, but it is not on their person (In my car, my apartment or other places I control)

Kinds of Possession

• Actual and Constructive possession can take two forms: Knowing possession or mere possession

• Knowing possession—person is aware what they have on them or what it is that they have control over– Most states require possession to be knowing to be criminal act

• Mere possession—person is not aware what they have on them or what they have control over– Either don’t know they have it, or don’t know what it is they

have – Only two states hold that mere possession can be a criminal act

Porter v. State (2003)

“Although constructive possession can be implied when the contraband is in the joint control of the accused and another, joint occupancy of a vehicle standing alone is not sufficient to establish possession.” The state had to, and did, prove additional factors to determine constructive possession, including:

Porter v. State (2003)Factors to Determine Constructive Possession:1.Whether the contraband was in plain view2.Whether the contraband was found on the accused’s person or with his personal effects3.Whether it was found on the same side of the car seat as the accused was sitting or in near proximity to it4.Whether the accused is the owner of the vehicle or exercises dominion or control over it5.Whether the accused acted suspiciously before or during the arrest

People v. E.C. (2003)

A bar bouncer followed company policy and confiscated 14 packets of cocaine seized through a frisk of a customer seeking entrance to the clubThe bouncer turned the substance over to police who responded to the bar for a separate incident, and was arrested for possession.The court held that temporary and innocent possession of illegal drugs (by a person who confiscates them from one possessing them illegally) is a defense to prosecution for possession–Practical Policy considerations require this result:

–Parents dealing with Children–School Personnel dealing with students–CJ Personnel and Jurors examining evidence in their respective roles

Summary of court holdings on Possession

• “Although constructive possession can be implied when the contraband is in the joint control of the accused and another, joint occupancy of a vehicle standing alone is not sufficient to establish possession.” The state had to, and did, prove additional factors. (Court looked at all surrounding factors and determined constructive possession) (Porter)

Summary of court holdings on Possession

• Temporary and innocent possession of illegal drugs (by a person who confiscates them from one possessing them illegally) is a defense to prosecution for possession (People v E.C.)– Policy considerations require this result