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Criminal Law
University of California, Hastings School of Law
Diamond, John L.

Criminal Law Diamond Spring 2016

The Act Requirement

Elements of a Crime:

Voluntary Acts +
Mens Rea +
Specified Result


Look for Actus Reus Problem If:

D has not committed physical acts, but has “guilty” thoughts, words, states of possession or status
D does an involuntary act
D has an omission, or failure to act

Voluntary Acts Exclude:

à Bodily movement during unconsciousness or sleep;
à Conduct from hypnosis or resulting from hypnotic suggestion

Courts are split about whether these acts are sufficiently involuntary that they don’t give rise to liability
MPC treats hypnosis as voluntary

A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or HABITUAL

Self-induced state à D’s earlier voluntary act may deprive D of the involuntary defense
Tendency to get seizures à If a driver knows he’s subject to epileptic seizures nonetheless drives and causes a fatal accident, he might be convicted of negligent homicide

Thoughts, Words, Possession, and Status à Mere thoughts are never punishable as crimes

Possession as Criminal Act à Possession is a voluntary act if knowingly procured or received when aware for a sufficient time to terminate possession

à When possession is a crime, the act of possession almost always construed as to include only conscious possession

à The actus reus requirement means that in most situaitions, there is no criminal liability for an omission to act (vs. an affirmative act)

Liability for Omissions:

Statute Imposes a Duty
Special Relationships à Parents, teacher, employer, including duty to protect and control
Contractual Duty
Voluntary Acts à Where discontinuing the act places victim in a worse position
Creation of Peril
Landowner Duties (Contract) à Duties to visitors and those adjacent to the land

Jones v. United States (DC Cir., 1962) à D charged with involuntary manslaughter for mistreatment of a child she was not the biological parent of

Failure to act may result in criminal liability only where a statute imposes a duty of care, where one person stands in a certain status relation to another, where one has assumed a contractual duty of care for another, and where one person has voluntarily assumed care of another and so secluded the helpless person as to prevent others from rendering aid.
Holding: 4 situations where failure to act constitutes a breach of legal duty: statute, status relationship, contractual obligation, and voluntary assumption of care; Allowing the parent to drop off child under D’s care suggests D assumed a duty


Common Law – General vs. Specific Intent (Minority JX + CA)

General Intent à Mental elements associated with effectuation of physical acts of the crime

: Intent to take and carry away property; intent to enter a dwelling

Crimes: Battery

Specific Intent à An extra special mental element of the crime beyond the mental elements effectuating a physical act

: Intent to deprive permanently; intent to commit a felony

Crimes: Common law larceny, burglary, receipt of stolen goods

State v. Peery (MN 1947) à

D was convicted of indecent exposure. As a student, he was seen naked in his room, but no evidence by witnesses suggested that he called to or signaled others; Is willful/intentional lewdness required for indecent exposure?
: Yes, common law of indecent exposure requires misconduct was committed with deliberate intent of being indecent or lewd. Here, any indecency was due to accident, not design. Lack of evidence pointing to specific intent; reversed

à General/specific distinction usually matters in 2 situations:

: Rarely negates crime of general intent but may sometimes negate specific intent

: D breaks and enters but he’s too drunk to have any intent to commit larceny or any other felony inside; D probably not guilty of burglary

Mistake of Law or Fact: Where D makes a mistake of law or fact, a mistake of fact is more likely to be enough to negate specific intent

: D breaks and enters, in attempt to carry away something he mistakenly things belongs to him; D will probably be acquitted of burglary, where mistake will generally not negate a general intent (e.g., intent to commit the breaking/entering by itself)

à Many modern codes and MPC has abandoned this distinction and instead set forth precise mental states required for each element of each crime

MPC Levels of Culpability (Majority JX)

General Requirements of Culpability

Minimum Requirements – MPC §2.02 à A person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense

Levels of Culpability Overview:

Purposely (intent)
(usually also intent)

Awareness of high probability of existence of particular fact which is element of the offense (e.g., item possessed in container is illicit drug)

Consciously disregard a substantial and unjustified risk

Should be aware of a substantial and unjustified risk

Purposely (Often Intent) à A person acts purposefully if it’s his “conscious object” to engage in the particular conduct or to cause the particular result

Not Same as Knowingly: If D doesn’t desire a particular result, but is aware that the conduct/result is certain, this is not purposely
Conditional Intent: When D intends to commit an act, which is conditional upon other events, the existence of condition doesn’t prevent the intent from existing unless it negatives the harm or evil sought to be prevented by the law defining the offense (if condition is one which requires a 3rd party to comply, it doesn’t negative intent either)
à Irrelevant to purpose/intent

Relevant to Defenses à Special motives may be relevant to defenses

Knowingly (Often Intent) à MPC §2.02(7)D is aware that it is practically certain that his conduct will cause that result; Biggest difference from purposely relates to D’s awareness of the consequences of his act; Knowingly is defined with respect to knowledge of a certain result of D’s conduct; 2 formulations of knowing:

Substantial Certainty Rule à Practically/substantially certain with respect to result of conduct (e.g., conduct will result in death)

Used When: In regard to conduct that will impact something in the futur

ted from having the mental state required for the crime

Common-Law Rule: Mistake of fact is a defense if it negates the mens rea required to commit the crime

General Intent Crime à Mistake must be both honest and reasonable to excuse

D’s mistake is least likely to assist him with this type of crime (i.e. one for which the most general kind of culpable intent will suffice)

Specific Intent Crime à Mistake only needs to be honest excuse

MPC Rule: §2.04(1)(a) provides that “ignorance or mistake as to a matter of fact” constitutes a defense if it negatives the purpose, knowledge, belief, recklessness, or negligence required to establish material element of the offense (i.e. “not [purposeful/knowing/reckless/negligent]”). For mistake of fact defenses, if the mistake is less serious (on the MPC culpability list) than the level required for the crime (because MPC does not recognize difference between general and specific intent crimes)

Hierarchy of Culpability à From most evil to least evil:

Intentional Crimes (purposefully or knowingly)
Reckless Crimes
Negligent Crimes

Lower Culpability Will Excuse à Mistake must be a lower culpability level than crime’s culpability to excuse

Intentional Crimes à Purpose or knowing crimes; Excused for reckless, negligent or reasonable mistake
Reckless Crimes à Excused for negligent or reasonable mistake, not reckless mistake
Negligent Crimes à Excused for reasonable mistakes, not reckless or negligent

v. State (Ala. 1875) à Mistake of Fact – D found guilty for voter fraud for voting under age of 21; D appeals with testimony that his mother and acquaintance believed and told him he was over 21; Is intent sufficient if D didn’t know?

Court reverses, finding that here, D has no knowledge, and lack of knowledge is not a result of recklessness or carelessness; Mistake of fact is a defense

Mistake of Law Defense: Especially hard for D to prevail with defense based on mistake of law; Does not negate mens rea

Criteria Constituting Valid Defense:

When law not published

Reasonable reliance on court decision
Reasonable reliance on a public official in a position authorized to interpret relevant statute
The crime requires as mens rea that D know it’s unlawful
(Constitutional requirement); Must have probability of notice of the law (Lambert v. California)

Note on Omissions: Situations in which D had no reason to know of the existence and applicability of the relevant legal requirement, and in which there was therefore no genuine opportunity to comply with the law’s mandate