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Criminal Law
University of Cincinnati School of Law
Lassiter, Christo

Part 1 – Anatomy of a Crime: A Five Variable Model of Crime
Allows analyzing the elements of a crime and understanding the sanctions of a crime.
AR + MR + AC + Causation + Harm = Crime
I. Actus Reus (skill thinking)
· Classic definition – controlled movement; willful movement.
o Control requires a human mental process necessary to activate willed muscular movement (i.e. intentional act)
· Theoretical Significance: Actus Reus is the fundamental predicate for the imposition of criminal liability. Act expresses the evil intent which actor comes by his own free will. Actus Reus helps preserve important societal goals (primacy of individual liberty) by minimizing arbitrary and capricious assessment of criminality.
· Evidentiary Significance: B/c corporeal nature actus reus serves evidentiary role to demonstrate criminal intent by providing concrete evidence of intent to cause harm, or in the alternative, by giving concrete expression to evil intent, actus reus serves non-arbitrary maker btw criminal and non behavior as well as btw evil thought and evil action.
A. Acts of Commission
· Common law required proof of an actus reus or criminal act as first predicate for imposition of criminal liability.
1) Conscious Acts – Component of brain activity which involves volition – refer to a conscious though which wills a muscle to accomplish an intended end (Aristotle – skill thinking). Brain must operate to generate willed movement. (Scarecrow from Oz immune from criminal liability – lack brain; can’t be conscious, willful movement)
· Holmes conceptualized the act as being limited to the external manifestation of the actor’s will (i.e. the muscular contraction) although he believed the surrounding circumstances rendered the act a wrong.
2) Unconscious Acts – unknowing act and thus not willed muscular movement. Absence willed movement negates basis for imposing liability. Non-volitional acts lack the theoretical/evidentiary significance attributable to actus reus.
· Defense is controversial since may be based on self-serving testimony of D; distinguished from defect in reason or diseased mind. To protect against fraud – unconsciousness not from defect or diseased mind converted to affirmative defense.
· State v. Cadell (N.C. 1975) – D has burden of proof in establishing defense of unconsciousness to satisfaction of jury.
· OHIO: blackout defense to refer to both unconsciousness and inability to remember acts performed while conscious and functioning; where defense used to refer to unconsciousness negates voluntariness of an act.
o Inability to remember not a defense. Anything less than complete unconsciousness considered volitional.
§ Irresistible impulse, self-defense, duress and multiple personality disorder don’t negate voluntary act requirement. All conscious and voluntary.
§ Sleepwalking valid defense though.
· Regina v. Charlson (1955) – man acquitted of eating son since tumor on brain caused fits of uncontrollable purposeless violence; actions automatic and mind no control over limbs.
3) Automatism – manifests itself in wide range of disorders (organic brain disorders, concussional states from head injuries, somnambulism – sleepwalking/night terrors, hypnotic states, metabolic disorders, acute emotional trauma, and sleep deprivation. Defense to charge of criminal action – complete (unlike insanity, diminished responsibility, or intoxication) not partial defense.
· Carrado – defense b/c action involved while conscious and purposive is not voluntary b/c although involves act of will the act of will itself is caused by something beyond actor’s control.
· State of a person who though capable of action is not conscious of what doing. Automatistic state, individual performs complex actions without exercise of will. Performed without cognitive intent – involuntary. Absence of willed action – no AR.
o Some caused by neural pathways – such as knee jerk or blinking eyelids. Others caused by mind dictating instinctive response. Others caused by mind dictating a pre-approved response. Neural pathways not deterrable and instincts not controllable. But pre-approved thoughts could be deterred in future.
o Instinct of self-survival, but method of self-preservation can be controlled.
State v. Hinkle (1996) –
FACTS: Hinkle has head-on accident killing and injuring persons in other car. Post accident MRI revealed undiagnosed brain disorder (part affecting consciousness). Had been drinking but below limit. Hinkle lost consciousness while driving and caused accident which trial court found him guilty of involuntary manslaughter.
HOLD: WV Sup C reversed. Distinguished unconsciousness from insanity. Found that Hinkle had not willed muscles to turn steering wheel into opposing traffic. No actus reus b/c unconscious act.
· Criminality could be found in the act of driving under risky conditions (i.e. driving while knowing suffering a debilitating mental condition might constitute actus reus (known epileptic or drunk driving))
4) Reflexive Acts – non-acts occurs in absence of cognitive thought and hence not willed movements – not voluntary act.
· Pure caused by neural pathways (i.e. blinking, knee jerk); others caused by mind dictating perhaps instinctive behavior. Case of instinct the mind has grasped situation and dictated some action and therefore this act is a candidate for actus reus. Neural stimulants never constitute actus reus.
5) Convulsions – non-acts b/c occurred in absence of cognitive thought followed by voluntary action and hence not willed movements.
6) Possession – mere possession or physical proximity is distinguished from knowing possession (i.e. knowledge of proximity of an item and its capability).
· Mere possession doesn’t constitute actus reus; knowing does.
· US v. Bailey (1995) – Court interpreted term “use” of firearm as requiring showing of active employment and not inert possession (i.e. storage). Examples of active employment of use – brandishing, displaying, bartering, striking with, and firing (attempting to fire) firearm; reference to it or silently but forcefully having gun laying on table
7) Status – alone doesn’t constitute actus reus. An act rendering the offensive status harmful or potentially harmful may constitute actus reus.
Robinson v. California (1962) – Court disapproved of CA statute which made being a drug addict a criminal offense. Statute lacked actus reus b/c person could become addict through birth or forced consumption or could become addict by virtue acts in another state which CA has no jxn over.
· Criminal law does not permit conviction on status alone – 8th Amd bars. Lord Justice Brian – “The thought of man shall not be tried, for the devil himself knoweth not the thought of man.”
· Crime addicted to drugs in statute – more of a status; didn’t have to act to find crime
Powell v. Texas (1968) – Court approved TX law which made being drunk in public a criminal offense. Court argued “in public” adequate as an actus reus.
· Crimes which have questionable acuts reus component such as inchoate crimes, possession crimes and status crimes can lead to questionable convictions.
· Being drunk in public – environment gives the act its wrongfulness; makes it a crime

B. Acts of Omission
· Common law

§ Criminal conspiracies – individual commits actus reus by agreeing to act jointly with another; conspiracy is thus borne of joinder of resources, skills and mutual support. Immune from liability only if renounce conspiracy (more than change or heart; must stop co-conspirators or report crime in time to effectively thwart crime)
MPC Art. 2.01 Requirement of Voluntary Act; Omission as Basis of 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 within the meaning of this Section:
(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, within the meaning of this Section, 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.

Kitty Genovese – 33 neighbors didn’t come to her aid as being attacked. No duty to act under common law led to her death.
Bad Samaritan statutes – causes some immunity. Rationale – don’t want to enforce morality what is right thing to do. Place strict liability on victim in order to minimize harm (w/out this deterrence factor no one would worry about getting into trouble.
Difference btw Actus Reus and Mens Rea –
· What level of defense you would like to have? AR always a complete defense (game over, D not guilty, didn’t do the crime, walk free);Usually MR are partial defenses (full except – insanity); may have to serve reduced sentence
· Defense brought up different ways and also burden shifting different btw AR and MR

II. Mens Rea (moral culpability) – Most imp part Criminal Law
· Historically Anglo- American law focused on AR but Roman focused on human mind.
· Criminal intent is a necessary ingredient of every crime – Regina v. Thurborn (1849) – rule of law founded on justice and reason is that actus non facit reum, nisi mens sit rea, the guilt of the accused must depend on the circumstances as they appear to him.
· Mens rea – mental component of the crime; component of brain activity which involves cognition; cognitive component of crime.
o Cognition refers to moral or analytical thought patterns which form basis for judgment.
1) scienter – referred to the evilness or actual wickedness of