Chapter Three

The Criminal Act

Joel Samaha

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 differentiate conduct crimes from bad result crimes

To be able to distinguish between criminal conduct and criminal liability and therefore punishment.

To understand and appreciate the importance of requiring a voluntary act before there can be a crime

.To understand the legal definition of a voluntary act

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.

To identify the circumstance when, and to be able to explain why, omissions are treated as acts.

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

To know the different types of possession recognized by the law

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 or 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)

Bad result causing a criminal harm

Elements of Criminal Liability (cont.)

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

Criminal act = voluntary bodily movement.

Conduct crimes = crimes which require a criminal act triggered by criminal intent

Elements of Criminal Liability (cont.)

Bad result crimes• Some serious offenses include all five

elements• Voluntary act (criminal act)• Mental element (criminal intent)• Circumstance element• Causation• Harm

Criminal Homicide is an example of bad result crime

The Criminal Act: The First Principle of Liability

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 Act Requirement

Voluntary Act-Conduct that includes a voluntary act satisfies the voluntary act requirement

One voluntary act is enough rule Voluntary act is an absolute

requirement for criminal liability

Discussion Activity

Criminal Intent? Read the following scenario and determine whether or not mens rea exists Sam sells cocaine believing that it is sugar; does mens rea exist? Why or why not?Sam sells cocaine in the honest but mistaken belief that it is legal to do so; does mens rea exist? Why or why not?

Case: State v. Burrell

Facts: Burrell, the defendant, was convicted by jury of manslaughter.

Issues: Burrell argued there was an error in jury instruction regarding criminal liability

Holding: Upheld trail courts refusal to instruct the jury that Burrell’s act of pulling the trigger must have been a voluntary act was not an error

Case: King v. Cogdon

Facts: Cogdon, the defendant, pled not guilty to the murder of her daughter because she was sleepwalking when she committed the offense.

Issue: Was the act voluntary? Holding: No. Acts committed while asleep

do not constitute a voluntary act

The Voluntary Act Requirement (cont.)

Automatism-unconscious bodily movements

Fault-Based Defenses-based on creating a reasonable doubt about the prosecution’s proof of a voluntary act

Affirmative Defenses-excuse defenses of excuse for criminal liability, which take place after the prosecution has proved the defendant’s criminal conduct

Case: People v. Decina

Facts: Decina, the defendant, was charged with criminal negligence in the operation of a motor vehicle resulting in death after hitting & killing 4 girls with her car as they crossed street

Issue: Decina suffered an epileptic seizure while driving; therefore, she argued the act was not voluntary

Holding: Defendant voluntarily got into the car (knowing she was subject to epileptic seizure) and thus the killing was not an involuntary act.

Status, Actus Reus, and the Constitution

Status-character of condition of a person or thing

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

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).

Omissions as Criminal Acts

Failing to act can satisfy the voluntary act requirement

Criminal omissions • Failure to act

Failure to report something required• Failure to intervene to protect person or

property Omissions are only criminal if there is

a legal duty to act

Omissions as Criminal Acts (cont.)

Legal duties to act arise in several ways Statute provides the duty to act

Example: duty to report child abuse Example: duty to file income tax returns Example: duty to register as sex offender

Contract provides the duty to act Example: emergency room doctor Example: life guard Example: law enforcement, fire fighters

Special relationship provides the duty to act Example: parent-child Example: employer-employee NOTE: sometimes a special relationship is created by

assuming the care of another (see People v. Oliver)

Omissions as Criminal Acts (cont.)

Criminal omissions cannot arise out of failure to perform moral duties

Most states impose no duty to render aid to an imperiled stranger or call for help

Omissions as Criminal Acts (cont.)

• Good Samaritan Doctrine – creates (statutory) duty for stranger to render aid Only a few states

• American 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

Discussion ActivityReview the Good Samaritan Doctrine of your state.

What does it say is the responsibility of the Good Samaritan?

What is the level of assistance the Good Samaritan should provide?

What (if any) are special exceptions to the Good Samaritan Doctrine?Is there a penalty for not abiding by the Good Samaritan Doctrine?

Case: Commonwealth v. Pestinakas

Facts: Pestinakas, the defendants, verbally agreed to care for Kly, an ill man, who suffered from weakness of the esophagus which hindered his ability to swallow. Kly died while in the defendants

care from starvation and dehydration. Issue: Did the defendants have a legal duty to

care for Kly? Holding: Yes. A failure to perform a duty

imposed by contract may be the basis for a charge of criminal homicide. The jury instruction was appropriate.

Case: People v. Oliver

Facts: Oliver, the defendant, was at her home with Cornejo when he “shot up” and collapsed. Oliver was unable to rouse him and left him on the floor. Cornejo never regained consciousness and later died

Issue: Did Oliver have a “special relationship” with Cornejo that created a legal duty?

Holding: Yes. 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.

Case: State v. Miranda

Facts: While caring for his girlfriend’s infant daughter, Miranda, the defendant, called 911 and reported that the child was choking on milk. At the hospital, it was determined the child had multiple rib fractures and other injuries.

Issue: Did Miranda have a legal duty to his girlfriends’ baby?

Holding: Yes. 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

Possession as a Criminal Act Possession is not an act, it’s a passive

condition Legal fiction makes possession a

voluntary act Criminal possessions include possession of:

(see list)• illegal weapons, illegal drugs, drug paraphernalia • alcohol by minors…

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

Kinds of Possessions 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

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

Discussion Activity

Who is in possession?

Trent is a practitioner of the trap shooting and is in possession of a rifle that he uses to practice with. He knows this rifle is illegal in the state he is living in. Trent asks his friend John to keep his rifle in his car. The police find John in possession of the rifle. John reports he is not the owner of the rifle and explains that it belongs to Trent. John explains that Trent gave it to him to hold a few days ago.

Can both Trent and John be charged with the possession of the rifle? Why or why not?

Case: Miller v. State

Facts: Miller, the defendant, was convicted by jury of possession of cocaine and marijuana. The defendant was the passenger in the vehicle where the drugs were found

Issue: Did Miller have possession of the drugs? Holding: It is not necessary for the State to

prove literal physical possession of drugs in order to prove possession. Miller was guilty of possession of marijuana, not cocaine.

Case: Kastl v. State

Facts: Kastl, the defendant, was a juvenile and one of 5 passenger in a vehicle parked in a parking lot. Officers observed beer cans around and in the vehicle.

Issue: Did Kastl possess alcohol? Holding: Yes. Constructive possession is

sufficient to prove possession of contraband