Criminal Law Outline
J. Ross Fall 2015
1. Actus Reus
Common Law
· Voluntary act requirement
· Not involuntary (reflex, duress, or automatic response)
· Must be a willed bodily movement
· Cannot punish status -violation of Due Process and prohibition against cruel and unusual punishment under 8th Amendment (ie. Mental Illness and Addiction)
· Possession counts as an act
Model Penal Code
Section 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 the 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
1. Voluntariness
· Willed bodily movement, action is voluntary
o Don’t have a choice what to think, but you do have a choice what to do
· Possession Offenses (§ 2.01. (4))
o Meets voluntary condition
o Standard: did you have it long enough to throw it back or keep it?
· Duress Defense: my freedom to act otherwise has been violated
o The voluntary element is satisfied in a forced robbery at gunpoint
· Questions to think about
o Why can’t we punish thought?
§ There is a chance that thoughts might not materialize
§ Thoughts do not harm people the way actions do
o Why use voluntary as defense rather than insanity?
§ In the case of insanity, the burden of proof is on the side of the D
§ Has to be raised by the D
§ Harder to win with insanity
è With voluntary, just raise a reasonable doubt (no burden of proof)
2. Omissions
· Government punishes when a person has a duty to act
· Omission is not liable unless bound by duty. When does a duty arise?
1) Status Duties
Ex. Parents to children, spouses to each other, attorneys to clients, clergy (judicial duties)
2) Creation of Risk
3) Voluntary assumption of care
4) Contractual relationships
Ex. Baby sitters and parents, hospitals and care givers
Note: If none of these are present, ask:
does statute specify whether it can be violated by act or omission? If so, don’t need to find duty does statute that create the crime also create the duty (e.g. by creating duty to exercize reasonable care)
· Distinguishing Acts from Omissions
1) Continuous Care
2) Withholding of care
o The determination of act/omission falls on social context
§ If act è homicide
§ If omission è homicide only if there was a duty
Ex. Homicide only if doctor had a duty to continue
o Process of distinguishing
a) Determine if omission
b) Determine duty
Ex. Determining duty for doctor
è a) Whether continued treatment would be effective; b) Direct family consent?
2. Mens Rea
Common Law
· Specific Intent vs. General Intent
o Specific Intent Crime: culpable state of mind beyond intent to commit the Actus Reus, specifically to cause the results (Conduct + Results)
§ Intent to commit some future act
§ Special motive/purpose for committing the Actus Reus
§ Actor’s awareness of attendant circumstance
Ex. Break in and enter and attempt to commit felony: the felony would make the crime a specific intent crime
Ex. Murder: not only do you stab or carry out the action, but you intentionally want to kill the person è Mens Rea for murder is the intent to cause death
o General Intent Crime: the intent to the prohibited action in general, the Actus Reus (Conduct)
§ DUI
o Criminal Liability under Specific vs. General Intent Crimes
§ Specific Intent: Intent in regards to Results and Knowledge in regards to Circumstance
§ General Intent: Knowledge to Results and Circumstance
o Hierarchy or Intent
§ Intent: Conscious object is social harm; Virtually certain to occur as a result of his conduct
§ Knowledge: Aware of a high probability of the existence of the fact
§ Recklessness: Consciously disregards a substantial or unjustifiable risk
§ Negligence: Should have been aware of a substantial or unjustifiable risk
§ Willfulness: Intent; With motive to cause harm
§ Unless statute says otherwise, look to legislative history/intent to find out Mens Rea requirement
Model Penal Code
· No distinction between specific and general intent
· If statute is silent on mens rea, infer recklessness
· Section 2.02. General Requirements of Culpability
(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, w
· Ostrich Instruction: if a person buries his head in the sand in order to avoid information, then the person should be treated as he does know the information because he is purposely avoiding something hat he knows something about
· Natural and Probable Consequences Doctrine: intend the natural and causal consequences that follow from his actions
· If Intent is ambiguous:
MPC
CL
– Gravamen
– 3 mental state requirement
– Section 2.02: When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto
– Material element
1) Reflects on dangerousness and seriousness of crime
2) Not JDX requirement
– Grammar
– Legislative history
– Nature of element
– Parallel provision
– Rule of lenity
è Break ties in favor of Defendant
– History
Strict Liability Offenses
· Strict Liability – absence of mens rea requirement as to all or part of offense
o Common Law: Use legislative history to see whether strict liability was intended
§ Mostly for public and safety regulation; Public Welfare crimes
§ Allowed for Statutorily defined crimes
§ Usually small punishment or fine
§ Policy Goal: Social well-being and security of the populace
§ General Rule: Strict liability must be dictated by Statute (put people on notice)
§ Questions to ask
– Regulatory offense carrying slight penalty or serious felony?
– Does moral culpability underlie the crime?
– Does the Statue impose Strict Liability as to Actus Reus or only as to attendant circumstances?
– Moral Wrong Theory
1) D acting without mens rea nonetheless deserves punishment for having violated moral teachings that prohibit sex outside of marriage
2) The fact that she is that young, the age, suggest the underlying conduct is particularly wrongful
o MPC §2.05: If Statute is silent on mens rea, infer recklessness
§ Disregard Strict Liability crimes; prefer “violations” designated by code
– Must be Statutorily defined; no imprisonment
Ex. Public Welfare crimes
