CRIMINAL LAW OUTLINE
Model Penal Code Sec. 2.01: Requirement of Voluntary Act; Omission as Basis for Liability; Possession as an Act
1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
2) The following are not voluntary acts:
a) A reflex or convulsion
b) A bodily movement during unconsciousness or sleep
c) Conduct during hypnosis or resulting from hypnotic suggestion
d) A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.
3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
a) The omission is expressly made sufficient by the law defining the offense; OR
b) A duty to perform the omitted act is otherwise imposed by law.
4) Possession is an act, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.
ACTUS REUS REQUIREMENT:
I. Definition of an Act: An act is simply a bodily movement, a muscular contraction. The movements of the vocal chords and tongue (i.e., during speech) constitute “acts.”
a) Extra Requirements:
i. There can be bodily movement but no “act” at all by the person whose bodily has moved. (Example: A grabs B’s arm and swings it into C’s.)
ii. The term “act” does not apply to the results of a person’s bodily movements.
iii. For a movement to be an “act” under the Actus Reus, the muscular contraction must be voluntarily performed.
II. Voluntary Act: The concept of volition is tied to the notion that criminal law responsibility should only attach to those who are accountable for their actions in very personal ways. Thus, the criminal law distinguishes between genuine human actions, which are susceptible of praise and blame, and mere events brought about by physical causes which happen to involve a human body.
a) Retributivist Justification: The criminal sanction carries with it the stigmatization of moral blameworthiness. Therefore, criminal punishment, with its attendant pain, stigma and formal condemnation of the offender, should only be imposed on those who deserve it, i.e., on those who act as the result of free choice.
b) Burden of Proof: A voluntary act (omissions aside) is a prerequisite to criminal responsibility, i.e., it is an element of every criminal offense that the prosecution must prove beyond a reasonable doubt.
c) Time-Framing of the Act: A person is not guilty of an offense unless her conduct, which must include a voluntary act, AND which must be accompanied by a culpable state of mind, is the actual and proximate cause of the social harm, as proscribed by the offense.
i. Issue of Relevant Conduct: In time-framing, a court may not properly choose any conduct it wishes; it must focus on the relevant conduct—that which actually and proximately caused the social harm of the offense charged.
ii. Example: It may be the case that the relevant conduct occurred several hours or days before the resulting harm. People v. Decina case, where an epileptic was found guilty of criminal negligence for killing four children when he went into a seizure while driving. Since Decina knew he had an ailment which jeopardized his driving ability, the relevant act was the conscious decision to put the keys in the ignition and drive, not merely the seizure immediately preceding the accident.
III. Omissions as Voluntary Acts: Subject to a few limited exceptions, a person has no criminal law duty to act to prevent harm to another, even if the person imperiled may lose her life in the absence of assistance. “The law should see to it that we do not do harm, but not see to it that, in the absence of a specific statutory duty, we do things to prevent harm.”
a) Commission by Omission: A defen
ate of mind. (Generally considered an antiquated notion of mens rea.)
i. Example of Application: Regina v. Cunninghan, wherein the defendant entered a basement for the purpose of merely stealing coins, but inadvertently damaged the gas pipes in such a way as to nearly asphyxiate the home’s owner. Although it was not Cunningham’s intent to harm the man, he was charged with a more severe offense because he committed an act (namely stealing) that demonstrated his bad character, malevolence, or immorality.
b) Elemental Meaning: The particular mental state provided for in the definition of an offense. A person may thus possess mens rea in the culpability sense of the term, and still lack the requisite elemental mens rea. (Preferred and standard meaning that is used in American law today)
c) Retributivist Justification: Oliver Wendall Holmes’ famous quote: “Even a dog distinguishes between being stumbled over and being kicked.” The mens rea requirement flows from our society’s commitment to individual choice; furthermore, it is premised on the principle that it is morally unjust to punish those who accidentally, rather than by choice, cause social injury.
d) Initial Gloss on Reasonable Person Standard: This is a notoriously difficult standard to formulate in the abstract, and during the past century has tended to drift away from Holmes’ “universal” reasonable man standard.
i. Prosser on Torts: The reasonable man is not to be identified with any ordinary individual, who might occasionally do unreasonable things; he is a prudent and careful person, who is always up to the standard.
