THE CRIMINAL ACT

1
THE CRIMINAL ACT

• Actus Reus
• Must be a criminal act, not just thoughts. Bad
  thoughts alone can never constitute a crime.
• But, Mens Rea, must be evil intent in addition to
  an criminal act.

2
ASSIGNMENT DUE

• Read Ch. 4
• Submit typed answers to the Discussion Questions
  pp. 57-58.
• Due next class

3
Criminal Act

• Commission
• Voluntary v. involuntary acts.
• Commission of a crime requires a voluntary act.

4
Criminal Act

• Why do we not punish thoughts?
• Difficult to prove thoughts empirically.
• Personal privacy.
• Freedom of thought is a cherished freedom.

5
Criminal Act

• Requires that defendant had some control over his
  or her conduct.
• What about urges or impulses that we commonly
  refer to as irresistable?
• Voluntary includes acts motivated by passion,
  impulse and voluntary intoxication.

6
Criminal Act

• Act does not have to be complex.
• When might speaking be considered a criminal act
  without any other acts required?
• Solicitation of another to commit a crime.
• Conspiracy - Mere assent to the commission of an
  act by another may constitute a criminal act.

7
May a defendant be charged criminally for not
acting?

• Failure to act may constitute a criminal act
  where the law imposes a duty to act.
• However, mere presence at a crime, knowledge of a
  crime, approval of a another persons conduct in
  committing a crime, or association with a
  criminal alone are insufficient to constitute a
  criminal act.

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Omission as an Act

• Statutory Duties Generally, failures to report
  when required.
• Status relationships parent to child, spouse to
  spouse.
• Contract relationships failure of proper care
  in a nursing home, baby sitter, lifeguard.

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Omission as an Act

• Creation of peril arising from a wrongful act.
• Kidnapping, assaulting a victim and transporting
  him or her into the desert and abandoning them
  without food or water murder.

10
Omission as an Act

• Assumption of care voluntarily assuming the
  care of another upon which that person or other
  rely and then failure to provide such care.
• Offering assistance at an accident scene such
  that other assisters defer and leave and then
  failure to render any assistance.

11
Involuntary Conduct

• A person who operates or drives any vehicle of
  any kind in a reckless or culpably negligent
  manner, whereby a human being is killed, is
  guilty of criminal negligence in the operation of
  a vehicle.
• Defendant, an epileptic, while driving his car
  had a seizure, lost control of his car and
  thereby killed four people.
• Involuntary or Voluntary?

12
Involuntary Conduct

• People v. Decina, 138 N.E.2d 799 (N.Y. 1956).
• Defendant knew he was subject to such seizures.
• Knew they could come anytime.
• Knew that an uncontrolled vehicle would be highly
  dangerous on a highway.
• His knowledge of his condition and his act of
  disregard for the safety of others by driving
  alone is not an involuntary act such as to excuse
  him from criminal liability.

13
Involuntary Conduct

• Arizona v. Falater, 1999.
• Defendant Scott Falater, 43, father of two with
  no criminal history killed his wife.
• Defense claimed that Falater was sleepwalking
• A psychologist gave expert testimony concluding
  that he was sleepwalking, that research supports
  a number of incidents where otherwise normal
  individuals become violent when interrupted
  during sleepwalking.
• Falater was repairing the pool pump late at night
  when his wife interrupted him.

14
Involuntary Conduct?

• Jury rejected the option of second degree murder
  and convicted for first degree murder.
• Arizona Court of Appeals affirmed his conviction
  in January 2002.

15
Status as an Act

• Condition or state of being.
• A statute making it a crime to be a drug addict
  is invalid. Robinson v. California, 370 U.S. 660
  (1962).
• Is public drunkenness an act?
• Is being an alcoholic an act? Powell v. Texas,
  392 U.S. 514 (1968).

16
Status as an Act

• Farber v. Rochford, 407 F. Supp. 529 (N.D. Ill.
  1975).
• Loitering by a person known to be a prostitute.
• May not base act on a persons reputation or
  status in the community.

17
Status as an Act

• City of Chicago v. Youkhana, 277 Ill. App.3d 101
  (1st Dist. 1995).
• Prohibited street gang members from loitering in
  a public place.
• Struck down by Supreme Court as prohibition based
  on status.

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What about possession of firearm by a convicted
felon?

• The act of possession was sufficient to
  constitute a criminal act not simply the status
  of convicted felon.
• Convicted felon act of possession.
• U.S. v. Jester, 139 F.3d 1168 (7th Cir. 1998).

19
Methods as Acts

• An act may be committed through another agency.
• Sending anthrax through the mails.
• Unibomber.
• Innocent participant (postal carrier).
• Trained animal.

20
Police officer is making an arrest in a domestic
violence case and the arrestee struggles, the
officer has a heart attack and dies. Causation?

• Causation is required.
• People are assumed to intend the natural and
  probable consequences of their acts
  foreseeability.

21
Criminal Act

• Accused takes the victim as he finds him.
• Defendant strikes victim who is a hemophiliac and
  victim dies.
• Was the simple battery without intent to kill the
  proximate cause of the victims death?

22
Criminal Act

• Proximate cause is the act or omission that is
  the direct cause of harm.
• Two tests for proximate cause.
• Direct cause and effect relationship may be
  shown.
• The but for test But for the simple battery,
  the hemophiliac victim would not have died.

23
Attempt

• Doing an act,
• tending toward the commission of an offense, but
• falling short of completion.

24
Arizona 13-1001. Attempt classificationsA. A
person commits attempt if, acting with the kind
of culpability otherwise required for commission
of an offense, such person1. Intentionally
engages in conduct which would constitute an
offense if the attendant circumstances were as
such person believes them to be or2.
Intentionally does or omits to do anything which,
under the circumstances as such person believes
them to be, is any step in a course of conduct
planned to culminate in commission of an offense
or3. Engages in conduct intended to aid another
to commit an offense, although the offense is not
committed or attempted by the other person,
provided his conduct would establish his
complicity under chapter 3 if the offense were
committed or attempted by the other person.B. It
is no defense that it was impossible for the
person to aid the other party's commission of the
offense, provided such person could have done so
had the circumstances been as he believed them to
be.

25
Attempt

• Impossibility may not be convicted of
  attempting to commit an act that either is not a
  crime or is impossible.
• Possession and sale of white powder, thought to
  be cocaine, that is actually baking powder
  (unless look alike statute).
• Attempting to cause a death by sticking pins in a
  doll.

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Attempt

• There must be an overt act.
• Generally, any act that constitutes a substantial
  step toward the commission of the crime intended.
• Mere preparation is not sufficient.

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Model Penal Code Attempt Acts

• Lying in wait, searching for or following an
  intended victim.
• Enticing the victim to a place for commission of
  a crime.
• Reconnoitering (casing) the place.
• Unlawful entry in contemplation of committing a
  crime inside.
• Possession of materials to be employed in the
  commission of the crime.

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Model Penal Code Attempt Acts

• Possession, collection or fabrication of
  materials to be employed in the commission of
  crime at or near the place to be used.
• Soliciting an agent to engage in conduct
  constituting an element of the crime.

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Substantial Step v. Preparation

• Defendant enters a taxi in possession of a gun
  and bag and directs the driver to take him to a
  jewelry store. The driver was unable to locate
  the jewelry store so the defendant robbed the
  taxi driver and stole the cab. The defendant was
  charged with attempted robbery of store.
• What result?

30
Substantial Step v. Preparation

• Court held not an attempt.
• Contemplated victim was never found.
• Could not reconnoiter a place that was never
  found.
• Gun and bag are not specifically designed for
  criminal purposes.
• Possession of the gun and bag was never at or
  near the place of contemplated commission of the
  crime. People v. Smith, 593 N.E. 2d. 533 (1992).

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Physical Impossibility

• If impossibility is unknown to the actor then it
  is not a bar to a charge of attempt.
• If the gun is not functional, an attempt may
  still be charged.

32
Attempt Withdrawal

• Must withdraw prior to all of the elements
  necessary to charge an attempt.
• Driving the vehicle in a robbery and leaving
  prior to completion of the robbery. Still may
  charge with attempted robbery but not with
  robbery.

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Conspiracy

• Concert in criminal purpose.
• The combination of two or more persons to
  accomplish either an unlawful purpose or a lawful
  purpose by unlawful means.
• Conspiracy, like attempt, is a separate crime and
  does not require the completion of the crime.

34
Arizona 13-1003. Conspiracy classificationA. A
person commits conspiracy if, with the intent to
promote or aid the commission of an offense, such
person agrees with one or more persons that at
least one of them or another person will engage
in conduct constituting the offense and one of
the parties commits an overt act in furtherance
of the offense, except that an overt act shall
not be required if the object of the conspiracy
was to commit any felony upon the person of
another, or to commit an offense under section
13-1508 or 13-1704.B. If a person guilty of
conspiracy, as defined in subsection A of this
section, knows or has reason to know that a
person with whom such person conspires to commit
an offense has conspired with another person or
persons to commit the same offense, such person
is guilty of conspiring to commit the offense
with such other person or persons, whether or not
such person knows their identity.C. A person who
conspires to commit a number of offenses is
guilty of only one conspiracy if the multiple
offenses are the object of the same agreement or
relationship and the degree of the conspiracy
shall be determined by the most serious offense
conspired to.
35
Renunciation

• Arizona 13-1005. Renunciation of attempt,
  solicitation, conspiracy or facilitation
  defenses
• A. In a prosecution for attempt, conspiracy or
  facilitation, it is a defense that the defendant,
  under circumstances manifesting a voluntary and
  complete renunciation of his criminal intent,
  gave timely warning to law enforcement
  authorities or otherwise made a reasonable effort
  to prevent the conduct or result which is the
  object of the attempt, conspiracy or
  facilitation.
• D. A warning to law enforcement authorities is
  not timely within the meaning of this section
  unless the authorities, reasonably acting upon
  the warning, would have the opportunity to
  prevent the conduct or result. An effort is not
  reasonable within the meaning of this section
  unless the defendant makes a substantial effort
  to prevent the conduct or result.

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Conspiracy

• Takes two or more, one person can not conspire.
  If only two, then if one is acquitted there is no
  grounds for conviction of the other.
• It is not necessary that any conspirator knows or
  sees the others nor does one have to know all of
  the plans. If one conspirator takes a
  substantial step all are conspirators are then
  accountable.

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Conspiracy Elements

• That each individual knew the unlawful purpose of
  the conspiracy.
• That each person intended to be associated with
  the unlawful purpose.
• That each made clear their intent.
• That each was accepted into the conspiracy.

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Conspiracy

• Bob, Joe and Pete agree to rob the Circle K on
  Friday night.
• Bob and Joe obtain a gun and a ski mask.
• Bob drives the car to the Circle K with Joe and
  Joe goes into the Circle K with the gun and ski
  mask and kills the clerk for refusing to open the
  cash register.
• Is Pete guilty of conspiracy to commit murder?

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Conspiracy

• All participants in the original plan are
  criminally accountable for the acts of the others
  that are the natural and probable consequences of
  the original plan.

40
Conspiracy

• Bob, Joe and Pete agree to break into the liquor
  store and steal a case of beer. Pete drives the
  pickup truck and Bob and Joe force the rear door
  and take the beer.
• A police officer sees Pete in the pick up outside
  the store and Pete drives away at high speed. A
  chase ensues during which the police car collides
  with a pole and the officer is killed.
• Are Bob and Joe guilty of conspiracy?

41
Conspiracy

• If one co-conspirator acts completely foreign to
  the intended plan and its natural and probable
  consequences, the other conspirators are not
  liable.

42
Accomplice to Crime

• 13-302. Criminal liability based upon conduct
• A person may be guilty of an offense committed by
  such person's own conduct or by the conduct of
  another for which such person is criminally
  accountable as provided in this chapter, or both.
  In any prosecution, testimony of an accomplice
  need not be corroborated.

43
Accomplice to Crime

• 13-303. Criminal liability based upon conduct of
  another
• A. A person is criminally accountable for the
  conduct of another if
• 1. The person is made accountable for such
  conduct by the statute defining the offense or
• 2. Acting with the culpable mental state
  sufficient for the commission of the offense,
  such person causes another person, whether or not
  such other person is capable of forming the
  culpable mental state, to engage in such conduct
  or
• 3. The person is an accomplice of such other
  person in the commission of an offense.
• B. If causing a particular result is an element
  of an offense, a person who acts with the kind of
  culpability with respect to the result that is
  sufficient for the commission of the offense is
  guilty of that offense if
• 1. The person solicits or commands another person
  to engage in the conduct causing such result or
• 2. The person aids, counsels, agrees to aid or
  attempts to aid another person in planning or
  engaging in the conduct causing such result.

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Accomplice to Crime

• The mere knowledge of a crime or the mere
  presence at a crime alone is not sufficient to be
  charged as an accomplice.
• An accomplice must participate in furtherance of
  the crime in some manner.

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ASSIGNMENT

• Read Ch 5.
• Complete Quiz on Mental Element posted at
  eportfolio.
• Submit Quiz answers at next class.