Criminal Law Class Notes 9/8/03


A bit more on Beardsley


Should people be punished for omissions?


Keep in mind the difference between statutory omissions and the more typical case, that is, commission by omission.  That’s what we have in Beardsley.  Beardsley is being prosecuted for a regular old crime that you can usually only commit by an act.


Isn’t there a slippery slope problem with punishing omission?  Is this problem evident in the Beardsley case?


Another problem with omission cases is the interpretation of what is going on.


Beardsley tried to take away Ms. Burns’s morphine.  That would seem to show that he knew it was dangerous.


What about personal responsibility?  What if you’re too drunk to make a rational choice?  How about the distinction between a legal duty and a moral duty?


Say we want to find Beardsley guilty, but we don’t want to change the law.  There are five categories of circumstances listed in Jones.  Which one could we use to “git” Beardsley?


We have the parent-child relationship and the husband-wife relationship.  We are also told that if you voluntarily assume the care of another, you may have a legal duty to them.  What about his action of knocking the pills out of her hand?  What about having someone else move her to the basement?  Well, he didn’t prevent others for rendering aid.


But…arguably, by moving her into the basement, she might have been better off if he had kicked her out of the house.  In some sense, we might argue, he secluded her in a place where nobody else is likely to find her in an appropriate length of time.  That’s probably the strongest argument for the prosecutor in this case.


Say you have no legal duty to act, but you start to act.  If you then quit, you will have a duty if by having started then quitting you put the person in a worse position than if you had done nothing at all.


Say you see someone drowning in the ocean and you go out and swim to try to save them.  Say you turn around and go home.  You’re not responsible.  You haven’t made that person’s condition any worse.  On the other hand, let’s say you start swimming out and you told someone else not to bother because you’ll take care of it.  Now, you’ve secluded the person in need, and if you omit, you may be found to be responsible.


Recall that in the Beardsley case, we are only questioning the first element of a crime: an omission.  If we found a breach of a legal duty, then we would have to look at mens rea, which can either get him off entirely or cause him to be convicted of a lesser offense.


Barber v. Superior Court


Two doctors are charged with murder and conspiracy.  We’ll zero in on the murder charge.


We’re in a pretrial stage, where the doctors are trying to keep the case from proceeding by filing writs of prohibition.


The victim was in a vegetative state for good.  The family wrote a request to have life support ended, and the doctors complied, first by stopping his breathing mechanism and finally by turning off his feeding tubes.


Questions to ask about the voluntary act or omission


·        Was there conduct involved here?

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

·        If no, is this a case where there is a legal duty to act?


This court views the doctors as withdrawing treatment rather than acting to end treatment.  What is the court’s rationale?  They don’t find that the doctors “pulled the plug”, but rather that the doctors stopped doing something they were doing before.


The court sees each drop going in as an act, so if you stop the drop, it’s an omission, even though it’s done mechanically instead of manually injection food and water into the victim’s body.


But don’t doctors owe a duty to their patients?  How does the court find that the doctors don’t have a duty to act?  They say the physician has no duty to act once the treatment is found to be “disproportionate”.  They note that this is different between the traditional line between “ordinary” and “extraordinary” care.  The court claims that this distinction begs the question.  Traditionally, doctors have a duty to provide “ordinary” care.  But what is “ordinary” care and what is “extraordinary” care?


The court phrases the question in a new and different way.  The benefits of giving him alive are virtually nil and the harm of keeping him alive is material.


Why is swatting a fly not murder, while killing a fetus other than in abortion is murder?


What about the act versus omission distinction?


John & Mary


Many people feel that by pushing the button, you have blood on your hands that you wouldn’t have if you did not act.


If you act, you have changed the outcome, or have “played God” by letting one person live and causing the other to die.


Social Harm


Learn the definition of social harm: it’s basically any harm to any socially valuable interest.  It’s pretty broad.


Think about the remainder of class as a foreign language class where we study certain terms that we’ll need to know well as we go along.


Note that most penal statutes will only contain the social harm portion and the mens rea portion of a crime.


In future cases, we will always look at the statute involved in a crime, and we will find the words that represent the actus reus portion of a crime and the words that represent the mens rea portion of a crime.  We can them break down actus reus into three elements of social harm.


Social harm has three components:


1.     Result elements

2.     Conduct elements

3.     Attendant circumstances


Take, for example, DUI.  The actus reus is “to drive an automobile in an intoxicated condition”.  That’s pretty much everything; every word is the actus reus.  It doesn’t tell us anything about how we’re driving in terms of negligence and so on.


Suggestion: when studying statutes in the Model Penal Code, single-underline under the actus reus words, and double-underline under the mens rea words.


Driving the car is conduct.  It’s something you do.  Being in an intoxicated condition is an attendant circumstance, that is, it’s something that must be present at the time of the conduct.  It’s not an offense to get drunk per se.


What’s the last attendance circumstance here?  It’s the fact that it’s an automobile.  Driving a bicycle while drunk is not covered by this statute.  The thing this person is driving must be an automobile, however that term is defined.


We don’t know why we should care yet, but we must begin to consider this carefully.


It is difficult to draw a distinction between the result of an act and the conduct related to an act.  Luckily, it usually doesn’t matter.  However, you must draw the distinction between these two elements and attendance circumstance.


When we’re talking about homicide, the mens rea is the “purposely, knowingly, recklessly, or negligently” part.


The actus reus is “caus[ing] the death of another human being”.


Now we want to break down the actus reus of the crime.  The attendant circumstance is that the dead thing must be another human being.  What about death?  Death is the result.  There is no conduct here.  This is what we call a “result” crime.  We’re not punishing conduct, really.


Note that this is different than the common law definition, where “killing” is mentioned.  However, we’re not really punishing the act of killing, we’re really punishing the death of somebody.


Note that a crime need not have all three elements of actus reus.


Memorize the definition of common law burglary.  We will not spend a lot of time on burglary in class.


The actus reus is “breaking and entering the dwelling house of another at nighttime”, while the mens rea is “with the intent to commit a felony therein”.


What’s the social harm we want to prevent?  This will be equivalent to the actus reus.


What’s the conduct?  It’s “breaking and entering”.  What are the attendant circumstances?  They include the fact that it’s a “dwelling house”, that it’s somebody else’s house, and that it’s nighttime.


But could breaking and entering also be results?  You broke something, and you also unlawfully entered.


We might say that entering isn’t really a conduct, but a result.  In other words, by breaking, you are able to enter.


In our next assignment, we’ll move into mens rea.  Practice labeling parts of a statute as actus reus and mens rea elements.


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