CrimLaw PPTs Actus Reus, Omission, Mens Rea Issues PDF

## Actus Reus/ Culpable Conduct: The prosecution of a criminal case always requires a culpable act or an omission (failure to act). In other words, there are no "thought crimes," where a defendant has a criminal intent but does nothing in furtherance of that intent. That criminal act has to be phys...

## Actus Reus/ Culpable Conduct: The prosecution of a criminal case always requires a culpable act or an omission (failure to act). In other words, there are no "thought crimes," where a defendant has a criminal intent but does nothing in furtherance of that intent. That criminal act has to be physically "voluntary", i.e., it has to be done not as a reflex act or a convulsion or some other kind of "automatism"; it cannot be done as the product of the physical force of another. In that connection, acts done while sleepwalking or while under deep hypnosis or when generally unconscious are generally deemed lacking in actus reus, i.e., missing the element of "culpable conduct." ## Martin v. State (1944): Defendant was arrested at his home and the police physically dragged him out on to the highway, where he was apparently drunk and verbally profane. He was subsequently convicted of being drunk and disorderly on a public highway. The state statute requires that the defendant "appear” on a public highway. The AL. Court of Appeals holds that the word "appear" must represent a voluntary act, and that the fact that Martin was forcibly carried onto the highway indicates that the prosecution failed to prove the voluntariness of his appearance, and therefore failed to prove the necessary element of actus reus. The voluntariness requirement is not in the text of the statute, but is “read in” by the court as a requirement fundamental to criminal law. ## People v. Newton: Defendant was Huey Newton, leader of the Black Panther Party. He and other party members would patrol the streets of Oakland, CA, often armed, and would frequently have conflicts with the local police. In this case, Officer Frey stopped a car and ordered Newton out. A fight ensued, and Newton shot and then was shot by Frey's partner in his midsection. At some point Newton wrestled a gun out of Frey's hand and shot him to death. Newton was convicted of Voluntary Manslaughter. He appealed his conviction, arguing that the judge erred for failing to instruct the jury on unconsciousness as a complete defense to criminal homicide. Newton had testified that he carried no gun, that he was shot first, and had no other recollection of the incident. Apparently, he had crawled to the hospital. A medical expert testified that defendant's testimony was compatible with an abdominal gunshot wound causing unconsciousness from a reflex shock condition. ## Newton (cont'd.): Apparently, even when unconscious, people are capable of doing complex acts as part of a reflex condition. Newton may very well have been unconscious when Officer Frey was shot. The CA appellate court held that the trial judge erred by failing to instruct the jury on the legal theory of unconsciousness as a defense under the concept of actus reus. *sleepwalking, acts committed under hypnosis and acts committed during an epileptic seizure are all deemed involuntary under this actus reus concept. *On the other hand, acts that are habitual or done under duress do not raise an actus reus issue. Duress is a defense which requires the defendant to carry the burden of production and (usually) persuasion. ## Omission liability: The failure to act can support the actus reus requirement (and/ or replace the actus reus requirement). An omission is culpable when the failure to act violates a legal duty to act. A moral duty is not enough. There are four basic theories of legal duty that can support omission liability: 1) a duty created by statute (e.g., a law that makes a teacher a mandatory reporter); 2) a duty based on a status relationship (e.g., a parent, a fiduciary, etc.); 3) a contractual duty (e.g., a baby-sitter or a home health aide); 4) voluntary assumption of responsibility of an otherwise helpless and secluded person (e.g., John Belushi's girlfriend). ## Jones v. U.S.: Jones was convicted of Involuntary Manslaughter (Reckless Manslaughter) for failing to provide food and medical care for a ten month old child. A crime of omission. The child's birthmother lived in the house with the defendant for some period of time, but he was not the actual parent, and there was conflicting evidence as to whether he was ever paid to care for the child. He did have the means to care for the child, but failed to lift a finger. The trial judge committed plain error by failing to instruct the jury that they had to find that Mr. Jones had a legal duty of care based on one of the four bases of legal duty: statute, status, contract, or the voluntary assumption of care. ## Pope v. State: The defendant admitted a homeless young mother and three month old child into her home over a weekend after they'd met at a church event. Unbeknown to the defendant, the mother was seriously mentally ill, and went into a hallucinatory religious frenzy during which she beat the baby relentlessly. Shortly thereafter, the child died from the beating. During this time, the defendant failed to call the police or medical authorities and did nothing to assist the child. Mrs. Pope was convicted of Felony Child Abuse under a theory of omission and also for Misprision of Felony, which under the common law requires someone to report their knowledge of serious crimes to the authorities. The Maryland Court of Appeals reversed her convictions on grounds that there was insufficient proof of a legal duty to the child, especially since the baby's mother had the true status relationship and she was always present. Ms. Pope may have had a moral duty to intervene, but not a legal one. Plus, Misprision may be a common law crime, but not one enacted by statute in Maryland, which is what is required by law. ## Related issues re culpable omissions: * **Good Samaritan laws**: Minnesota, Rhode Island and Vermont make it a low level misdemeanor offense to refuse to render aid to a person in peril, so long as the person rendering assistance is not thereby placed in danger or peril himself. Florida, Wisconsin and Hawaii apply a similar requirement of assistance, enforceable as a misdemeanor, but only when the person needing help is a victim of a crime. On the other hand, European countries have a long tradition of Good Samaritan laws, many of them enforceable as felonies. Consider cultural differences. It is possible to bootstrap the “duty to rescue" pursuant to a Good Samaritan law to charge a graver crime of omission. See for example Martinez (Hawaii) on p. 244 (charging deft. with Reckless Manslaughter for failing to provide medical assistance to his girlfriend's daughter under a statutory "duty to rescue" when the girlfriend beat her severely, resulting ultimately in her death). ## Related omission issues (cont'd.): * **Misprision of felony**: a common law crime that is enforceable under a few statutes (see 18 US Code §4 [requires proof of active concealment-see Timothy/ Jennifer McVeigh case]; Code of Military Justice; South Dakota; Ohio; South Carolina [common law]); defined as a general obligation to report to authorities any known felony. Also, mandatory reporters such as doctors, nurses and teachers must report observed evidence of child abuse. The failure to report is usually charged as a misdemeanor. * **The shifting sands of status duty**: in some jurisdictions, domestic partnership now confers a duty, as does step-parentage; also things get complicated when the parent who has the duty to assist is themselves the victim of domestic violence, and as a battered spouse is inhibited by "learned helplessness" and fear of the batterer (see Joel Steinberg/ Hedda Nussbaum case). ## Related omissions issues (cont'd.): * **Duty conferred when the defendant creates the peril** (see Jones case on p. 249 [deft. put the victim in grave danger of drowning, thereby had a duty to save victim's life]). Compare Cathy Smith/ John Belushi case/ Lisa case on p. 251. This may be true even when the deft.'s conduct that created the danger was accidental/ non-culpable (see Levesque case on p. 250 [deft. accidentally caused a fire, then failed to report it, was convicted of Involuntary Manslaughter]). ## Barber v. Superior Ct.: Patient underwent surgery at which time he went into cardiac arrest. He was revived and immediately placed on life support. He was in a deep coma, had suffered severe brain damage, and was likely in a permanent vegetative state. Patient's family members convened and drafted a request to his doctors to turn off all machines "that are sustaining life." The doctors pulled the plug on his respirator and other life sustaining equipment. Patient continued to breathe unaided, but otherwise did not improve. After a few days and after family consultation, the doctors also removed tube feeding and hydration. Patient continued to get palliative care until he died. The doctors were subsequently charged with conspiracy and murder. A magistrate dismissed the charges, but they were reinstated by the Superior Court. ## Barber (cont'd.): California Appeals Ct. holds that the cessation of "heroic measures” to keep a patient alive (although in a persistent vegetative state) should be analyzed under the theory of “omission” of further treatment rather than a voluntary act intended to kill. Compare Cruzan (SCOTUS 1989) case. Under an omission analysis, the threshold question is whether the doctors had a duty to maintain treatment. The court held "no,” that there is no duty to maintain treatment when it would be ineffective / futile. And this analysis applies to the administration of food and water, as well as the use of a respirator and other life sustaining machines. The authority to make the decision to terminate resided with the family, and more specifically the patient's wife. The doctors were merely effectuating the decision of the patient's family. ## Related omission issues re the termination of medical care: * **See Airedale NHS Trust case-House of Lords distinguishes euthanasia**-an affirmative “mercy killing”-- and dysthanasia --the cessation of medical treatment, and letting “nature take its course." The first is illegal, the second is not under an omission/ duty analysis. * **a more difficult issue is raised by the removal of feeding tubes and hydration.** Letting "nature take its course” in that instance will certainly end the person's life within days. To be distinguished from "pulling the plug" on a ventilator, where the patient might well continue to breathe unaided for months, even years. See, e.g., Karen Ann Quinlan case. The law here is still unresolved. ## Mens Rea/ Culpable Mental States: * **Mens rea means “vicious will" according to Blackstone's Commentaries.** It has come to mean a “blameworthy” mental state, that when such mens rea accompanies a culpable act (actus reus) or omission, will prove a crime. A culpable act or omission without proof of a blameworthy mental state is what we call an "accident." Such an accident might be a compensable civil wrong/ tort, but it generally is not a crime, again unless there is an accompanying blameworthy mental state. In the more recent past, criminal law has allowed for the prosecution of some strict liability crimes (i.e., crimes where there is no culpable mental state need be proven), but that is very much the exception. * **Mens rea issues are most often raised in five ways**: 1) when a criminal statute expressly refers to a mental state element that is clearly defined; 2) when a criminal statute expressly refers to a mental state but it is not clear if it applies to all elements of the crime (e.g., you have to "knowingly" possess a controlled substance, but do you have to "know" its weight when charged as a felony?); 3) when a criminal statute refers to a mental state that is not clearly defined (often using an antiquated common law term-of-art, e.g., "malice" or "wanton"); 4) when a criminal statute fails to mention a mental state at all; 5) when a criminal statute implicates a mental state defense (e.g., a mistake of fact or a mistake of law defense). ## Regina v. Cunningham: Defendant pulled a coal gas meter off of a gas pipe in the basement of his house in order to steal the gas money contained inside. He failed to turn off the tap valve, and the noxious gas from the pipe leaked through the wall into the neighboring apartment of his future mother-in-law. As a result, she was partially asphyxiated. Defendant was charged with Larceny for the theft of the meter and the money, and separately charged for the sickening of the complainant under the Offenses Against the Person Act of 1861. That statute required that the defendant have “maliciously administer or cause to be administered.... any poison or other destructive or noxious thing" so as to "endanger the life" or cause "grievous bodily harm" to another. In instructing the jury, the trial judge defined the common law term “malicious” as meaning "wicked-something which he has no business to do and perfectly well knows it." And that the word "malicious" does not require proof of intent. ## Cunningham (cont'd.): The Court of Criminal Appeal reversed the defendant's conviction, holding that the common law word "malicious" contained in the statute squares with the definition set forth in Prof. Kenny's treatise: “malice” does not mean mere “wickedness," but requires proof of either: "1) an actual intention to do the particular kind of harm that in fact was done; or 2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it)." In other words, "scienter." +That the jury should have been instructed that the defendant had to foresee the danger of the gas to another, and either intend the injury or consciously disregard its risk. The word "wicked" allowed the jury to convict merely because the defendant had stolen the meter and the money and that act was, in a general sense, "wicked." This improperly diluted the legal requirement. ## Malice and other common law mens rea terminology: * **See Regina v. Faulkner** sailor accidentally starts a fire, destroying a ship, while stealing rum from the ship's hold. Court holds that the word "malice" in the Malicious Damage Act requires proof of intent, willfulness or recklessness re the damage to the ship (all of which require proof of scienter/ knowledge-"foresight of consequences"). * **Mens Rea terms that always need to be interpreted (from the common law and other sources)** include malicious, willful, intentional, knowing, corruptly, wantonly, recklessly, grossly negligent, criminally negligent, negligent, general intent, specific intent, scienter, depraved heart, depraved indifference, extreme indifference, etc. ## Malice and other common law terms (cont'd.): * **Although the word "malice” often was associated with “malice aforethought"** and therefore would appear to require proof of premeditation, modern case law/ theory has generally agreed that the term "malice” now indicates either an intentional (conscious object of the offender), knowing (conscious awareness of the offender), or reckless (conscious disregard of a substantial and unjustifiable risk) crime. All three mens rea states indicate some level of knowledge/ foresight. None necessarily require premeditation any more. * **A somewhat antique and difficult doctrine is the distinction between specific and general intent crimes.** A specific intent crime is one where the prosecution must prove a further purpose of the offender other than the general intent to commit the act (e.g., burglary requires proof of intentional breaking and entering or remaining unlawfully in a location with the intent to commit a felony therein). A general intent crime is where proof of the further purpose of the criminal act is not required (e.g., trespass just requires proof of intentional breaking and entering or remaining unlawfully in a location). ## More common law terms that need interpretation: * **Criminal negligence vs. civil negligence**— criminal liability generally requires proof of knowledge/ scienter (see intent, knowing, reckless conduct). In contrast, negligence as a theory in civil/ tort law is premised on a standard of care that the defendant as an ordinary prudent person “should have known about”, and a failure to conform his conduct to that standard of care, causing damages. Negligence in criminal cases is far less common than scienter-based crimes. But not unheard of. Negligence as a theory in criminal cases (e.g., Criminally Negligent Homicide) mostly requires proof of "gross negligence" (i.e., a gross deviation of the standard of care where there is a substantial and unjustifiable risk—see MPC 2.02 (2)(d )). **Compare State v. Hazlewood** (trial court was permitted to use a civil negligence standard in the criminal Exxon Valdez negligent discharge of oil case) at pp. 268-69 and **Santillanes v. NM** (trial court should have used a criminal negligence standard in a child abuse case) at pp. 269-70. ## Elonis v. US (SCOTUS 2015): After his wife left him, the deft. started posting graphically violent messages and rap songs on Facebook (albeit with disclaimers) clearly referring to his wife. He was charged and convicted with violating a federal felony statute that prohibited "any communication containing any threat ...to injure the person of another." There is no mens rea element in the text of this statute. The deft. appealed his conviction on grounds that the Judge declined to instruct the trial jury (as the defense requested) that the Government must prove that the deft. "intended" to communicate a “true threat." Instead, the Judge had instructed the jury that a “true threat” is when a defendant “intentionally makes a statement in a context or under circumstances wherein a reasonable person would foresee” that the statement would be interpreted by the intended person as a serious threat to inflict bodily injury or kill that person. In other words, the Judge substituted negligence language of what a reasonable person would foresee for the requested language re a specific intent to make a true threat. SCOTUS reversed the conviction, holding that when a criminal statutory text does not have an express mens rea element (as was the case here), the court must "read in" a mens rea requirement entailing “awareness." That conduct must generally be "conscious" to be criminally blameworthy, and that negligence is a disfavored theory of criminal liability. As seen later, this has been framed elsewhere as the “presumption of mens rea." ## The Model Penal Code solution to the Mens Rea mess: The Model Penal Code [MPC] (see pp. 1263-1319) is a suggested model of criminal statutory law, authored by a committee of the American Law Institute [ALI]. It is highly influential, and more than half of the US jurisdictions have modeled much of their statutory penal law upon the MPC and its Commentaries. This includes NY state. Regarding the issue(s) of mens rea categories-the variety of common law terms that defy easy translation and that appear differently in so many states, the conundrum of what to do when there is no obvious mens rea element in a statute, and many other difficult matters the MPC presents some simple solutions. MPC 2.02 pares down the operative mens rea elements to four: purposeful, knowing, reckless, and criminally negligent. It also defines these terms with some rigor. MPC 2.02 also provides specific default rules to assist statutory interpretation, when there is no obvious mens rea element, or when it is difficult to determine the scope of its application. ## The MPC re mens rea analysis (cont'd.): * **the key difference under MPC 2.02 between purposeful/ intentional conduct and knowing conduct** for conduct to be purposeful /intentional (e.g., an intent to kill), the Government must prove the defendant's “conscious object" to perform an action of a certain nature or to cause a certain result. In contrast, to prove a knowing act (e.g., knowing possession of a firearm), the Government must prove that the defendant was "aware that his conduct was of a certain nature" or that the prohibited result is “almost certainly to occur”. * **The lesser mens rea category of Recklessness under MPC 2.02 requires proof of a “conscious disregard”** of a substantial and unjustifiable risk. That is, “conscious risk creation." But here, unlike with the more culpable "knowing” mens rea, the risk need only be probable, whereas the risk in the more culpable category must be “substantially certain". ## The MPC mens rea analysis (cont'd.): * **MPC's definition of Criminal Negligence bears some resemblance with Recklessness in that both involve creation of a “substantial and unjustifiable risk."** However, Negligence under MPC 2.02 does not require the Government prove scienter/ knowledge, but only that the defendant “should have known” of the substantial risk. Also, the defendant's conduct must constitute a "gross deviation from the standard of care". * **Under MPC 2.02, when a statute is silent (or very ambiguous) re what mens rea element applies**, the court should read in (at the very least) a recklessness requirement (or a knowing requirement). That is, as under the common law, there is a strong presumption of mens rea/ scienter. Criminal negligence applies only when that element is explicit in the statutory text. In addition, unless stated otherwise in the statute, the mens rea requirement applies to all material elements of the crime. ## US v Jewell: Deft. drove a car across the US/ Mexico border containing 110 lbs. of marijuana concealed in a secret compartment. At trial for knowing possession, he testified that he did not know that the marijuana was hidden in the car. Circumstantial evidence could support the inference that he did know about the secret stash. Other evidence could support the theory that he knew of the presence of the secret compartment and had some knowledge that might indicate some stowed contraband, but that he deliberately avoided positive knowledge of the stashed marijuana in order to avoid liability. The jury convicted after being instructed that the prosecution could have established his knowledge by proving beyond a reasonable doubt that the defendant was not actually aware of the marijuana in the car, but that his ignorance was solely and entirely the result of his having a conscious purpose to disregard what was hidden in the car with the conscious purpose to avoid learning the truth. ## Jewell (cont'd.): The 9th Circuit affirmed, holding that "deliberate ignorance and positive knowledge are equally culpable." Knowledge for purposes of proving criminal culpability can be shown by the deft. "acting with an awareness of the high probability of the existence of the fact in question." This squares with MPC 2.02 and the British common law view that "willful blindness is equivalent to knowledge." J. Kennedy's dissent states that the instruction should have required that Jewell be proved aware of a "high probability” that a controlled substance was in the car. That Jewell could not be convicted if he "actually believed” there was no marijuana in the car. That "true ignorance" cannot provide a basis for criminal liability for an offense requiring knowledge. ## "Ostrich instruction" cases (cont'd.): * Instructions re willful blindness equaling knowledge have been used in fraud, money laundering and environmental cases. See also Goffer at p. 282 (where conscious avoidance of where stock tips came from can prove insider trading); Global-Tech Appliances at p. 283 (see civil patent infringement case for federal version of ostrich instruction; J. Kennedy dissents a la Jewell); contra Giovanetti at p. 284 (in omission case, the failure of a landlord to find out if his tenants were running a gambling operation did not merit an ostrich instruction-lack of curiosity is not enough; there must be "active avoidance"). ## Mistake of Fact as a defense to a charge: When a person is ignorant of a key fact like whether his romantic partner is of the age of consent or whether an item he possesses is actually stolen property (or not) or a stock tip he has been given is in fact the result of illegal insider trading information, in each of these circumstances he may have a mens rea defense. That is each of these crimes may require that the prosecution prove some degree of knowledge as an element of the crime, and that the defendant's ignorance or mistake as to a key fact disproves/negates the knowledge element that is part of the prosecution's Winship burden. However, there are crimes where there are policy reasons why we make it harder for the defendant to mount a mistake of fact defense, or correlatively easier for the prosecution to prove its case. For example, when the victim of the crime is a child. Or when the circumstances of the case allow for a presumption of knowledge, such as in the recent and exclusive possession of stolen property.