Criminal Law Class Notes 9/5/03


We finished the tools, now we create the foundations for the house.


The class changes now.  There will be rules to learn.  We hope to use our tools to see if the rules that we learn make sense.  Hopefully, this will help us learn the rules, or alternatively, to decide they really don’t make sense.


We’re also going to be spending more time with the Model Penal Code.  Make sure to read the Model Penal Code sections assigned for each class.  At least half the exam will cover the Model Penal Code.


The commentaries to the Model Penal Code are essentially the legislative history of the Code.  They explain what the provisions mean and how they depart from the common law.  They are very useful for understanding the Model Penal Code.  In exceptional cases, we’re given the commentaries in the casebook, but usually they are omitted because they are so lengthy.  However, the commentaries to the Model Penal Code are available in the library if you’re interested in more insight on the Code’s provisions.


“Beginning to build the house”



What is a crime?  We talked about this the first (or second) day of class, but we’re going to speak now in terms of actus reus and mens rea.


The actus reus is the physical component of the crime.  It happens out there, in the physical world.  The mens rea (or guilty mind) deals with the state of mind the actor had in committing the actus reus.


All crimes have an actus reus; most crimes have a mens rea.


Actus reus


Actus reus requires a voluntary act (or sometimes an omission, or failure to act) that causes social harm.  We say social harm because this is criminal law, not tort law.


Social harm means something very specific, yet it has a very broad meaning.


The “Elements” of a Crime


This is an excellent way to think about any factual pattern that you’re dealing with.  How do you break down the components of the crime you’re discussing?  At exam time, this is the way we should organize our answers.


1.     Voluntary Act (or omission)

2.     Social Harm

3.     Mens Rea

4.     Actual Causation

5.     Proximate Causation


We will also learn about actual and proximate causation in tort law.  However, there are many terms that are similar in criminal law and tort law, but the terms can have different meanings.


Martin v. State


Martin is convicted of “being drunk on a public highway”.  It turns out that he is arrested at home and taken out onto the road.  What did he do to get arrested and taken out of his home?  Did they let him out on the highway?


Does he deny he was intoxicated?  Does he deny that he was in a public place?  Does he deny that he was sloshed in public?  No, no, no.  How can the plaintiff argue that he’s not guilty?


He says that the statute implicitly requires him to voluntarily go to a public place while drunk.


What if we change the statute so that the defendant only needs to be found in a public place while drunk as opposed to having the defendant appear in a public place while drunk?


The court in this case reads into the word “appears” the suggestion of a “voluntary appearance”.


We’ll talk more later about what constitutes a voluntary act.


Punishing thoughts


Why don’t we punish mere thoughts?  Why do we require conduct?[1]


What if we could read other people’s thoughts and it was perfectly reliable?  What if, on the other hand, we had something like “Pre-Cogs” who can see the future?


The utilitarian would object to the mind-monitoring scenario because it would cause pain to everyone who had the electrodes implanted.  Living in that world would be disturbing.  It would take away the pleasure of thinking any thought you want as long as you keep it to yourself.


Say we’re reading people’s thoughts, and we’re reading very strong thoughts of intent.  What would the retributivist say?  They would probably be opposed to it, at least in the secular world.  We punish people in our tangible world, in a retributive sense, for making the wrong choices, for choosing to do the wrong things.  Until the person at least begins to act it out, the retributivist is not going to punish.  In some sense, they would even like to reward the person for having bad thoughts but successfully choosing not to do it.


Let’s change the factual pattern in Martin: let’s take the police out of the picture.  Say Dressler gives on a huge estate.  He gets himself drunk and tells his wife he’s going to get into his private plane and fly across his huge property and then jump out of the plane.  He calls the FAA and finds out the weather will be perfect for this parachute leap.  Dressler flies to the center of his property, jumps out, then there’s a really strong wind that he could not have foreseen that blows him all the way off his property, into a public place, where he manifests his drunken condition.  Is he guilty of public drunkenness?


Is there a “transfer of intent” between voluntarily jumping out of a plane and voluntarily being punk in drublic?


There are two plausible theories.




When you look at particular factual pattern and have to decide a particular issue, such as the voluntary appearance issue, you can look at a very narrow slice of time or a rather broad time frame.  In the present hypothetical, you can look at the time frame of when you were on the way from the plane to the ground, or alternatively, you can look at his prior decision to get in the plane drunk in the first place.


There is a rational way to decide whether to look at the broad or narrow time frame.  We’ll look at this method later.


What constitutes a “voluntary act”?


Is it intent plus bodily motion?  This is plausible but wrong.  We’ll see as we proceed, the criminal law distinguishes between a voluntary act and an intentional act.  We mustn’t say that a voluntary act is an intentional act.


We want to talk about will.  A voluntary act is a willed act.


When I say, “I raised my arm”, I think about it as something that I did.  When I say, “My arm came up”, it just happened.


Oliver Wendell Holmes called a voluntary act “a willed muscular contraction”.


This is the difference between choosing to pull a trigger and kill someone and having a seizure and plugging the trigger without will.


Warning!  Voluntary has several different meanings.  However, for the first element of a crime, the voluntary act, we mean “a willed muscular act”.


We think of things that the brain does as distinct from things that the mind does.  This is not really a scientifically accurate statement, but it reflects our common sense notion of a voluntary act.


State v. Utter


A father who was a combat veteran got drunk.  His son, who was living with him, got stabbed somehow.  The father was charged with second degree murder but was convicted of manslaughter.


Note: The jury can always return a lesser verdict than the one the defendant is charged with.  Therefore, the prosecutor will charge the defendant with the highest level of conviction that is possible.


The defendant argues that due to what we now call Post-Traumatic Stress Disorder, he reacted violently whenever people unexpectedly came up behind him.  Effectively, the defendant argues that he committed this act while he was unconscious.


We’ve given the definition of homicide, which includes the word “act”.  It does not explicitly read “voluntary act”.  The court suggests that an “involuntary act” is a contradiction in terms.  They say it’s an “event” but not an “act”.  What is the court getting at here?


Why is a “willed” event an “act”?  Why are they playing with the words this way?  Why are they describing what we call an “involuntary act” as an event?  It removes agency.


When I say “I raised my arm”, I am attributing this “act” to human agency.  When I say “My arm went up”, I am basically calling this an “event”.


Agency is required to attach blame to a person, rather than merely a human body.


Model Penal Code


§ 2.01 uses the word act differently than the court does in Utter.


Until the Model Penal Code was drafted and accepted, no state had a clear provision saying that no person is guilty of a crime unless they commit a voluntary act.  The Model Penal Code eliminates the need to play with words.


What does the court in Utter say about the time frame?  He got himself voluntarily drunk.


Why would a defendant prefer an acquittal on the basis of automatism to opposed to being found not guilty on the ground of insanity?  If you’re found guilty by reason of insanity, you can be civilly committed.


There is also a burden of proof issue.  It’s much easier to get off if the burden is on the prosecutor to prove a voluntary act as opposed to the burden on the defendant to put up the defense of insanity.


People v. Decina


Decina hit some people in a car when he had an epileptic seizure.  Was the court right to reject his argument that he should be acquitted because he committed no voluntary act?  How can he be found guilty under Model Penal Code § 2.01?  The conduct must include a voluntary act.  That doesn’t mean that all the conduct must be voluntary.


You would need to pick the right voluntary act.  The Model Penal Code is talking about the relevant conduct, that is, the conduct related to the crime that’s being charged.


Back to Decina: the conduct for which he is being charged is the conduct of operating a motor vehicle and causing death.  So the relevant conduct for this crime is operating the motor vehicle.


The breadth or narrowness of the time frame will relate to the conduct that constitutes the crime charged.


Let’s say a student tells Dressler that she’s going to kill Professor Jones.  Let’s also say that Dressler thinks that’s great because he doesn’t like Professor Jones.  Say she commits the murder.  Can Dressler be held responsible for Professor Jones’s death?


Check it out on TWEN.  Is he guilty?  If so, what are the arguments for it?  If not, why not?


Next time, we’ll talk about Beardsley and then proceed to the next assignment.


The questions to ask


·        Was there conduct?

·        If yes, does the conduct include a voluntary act?

·        If no, is this one of those rare cases in which there is a legal duty to act?


Two forms of omission liability


1.     Statutory duty

a.      Tax laws: you must file your taxes by April 15th.

b.     Duties of parents: you must clothe, food, and house your children.

c.     Bad Samaritan laws: if you walk by someone on the street who is in peril and don’t help them, you may be convicted as a bad Samaritan.

2.     Commission by omission

a.      When a statute imposes a duty

b.     When you a have certain status relationship to another

c.     When you have assumed a contractual duty to care for another

d.     When you have voluntarily assumed the care of another and in so doing kept others from helping

e.      When you create a risk of harm to another


Back to Class Notes

[1] The OSU Journal of Criminal Law is going to do an article about Minority Report.