Acts and omissions - Next Generation Bar Exam

1. Under Robinson v. California, what may the state not punish?

   A person's status, such as being addicted to narcotics. Punishing status without any act is cruel and unusual punishment.

2. A babysitter, paid to watch a toddler, sits by while the child drowns in a backyard pool. What source of duty supports criminal liability?

   The babysitter's contract to care for the child. A contractual undertaking to care for another creates a legal duty to act.

3. What act requirement must criminal liability satisfy?

   Conduct that includes a voluntary act, or an omission to perform a legally required act the defendant could perform. Thoughts alone and involuntary movements cannot be punished.

4. Which bodily movements are not voluntary acts?

   Reflexes, convulsions, movements during unconsciousness or sleep, and movements not otherwise the product of effort or determination. Conduct during hypnosis is also treated as involuntary under the Model Penal Code.

5. Which status relationship most commonly imposes a duty to protect another from harm?

   The relationship of parent to minor child. Spouses also owe each other a duty of care in many jurisdictions.

6. What sources create a legal duty to act whose breach can support criminal liability?

   Statute, a special relationship, contract, voluntary assumption of care that isolates the victim, and creation of the peril. Absent one of these, there is no general duty to act.

7. A stranger watches a child drown in a shallow pool and could easily have saved her, but does nothing. On what ground is the stranger not criminally liable?

   A stranger owes no legal duty to rescue. Without a duty from statute, relationship, contract, assumption, or creation of the peril, the omission is not criminal.

8. What is the general rule on a bystander's duty to rescue a stranger in peril?

   There is no legal duty to rescue, however easy the rescue would be. Moral duty alone does not support criminal liability.

9. What capacity must a defendant have for an omission to be criminal?

   The physical ability to perform the omitted act. A legal duty cannot be breached by failing to do the impossible.

10. When is possession of an item a voluntary act?

    When the possessor knowingly obtained it or knew of the control long enough to have been able to end it. Possession that a person is unaware of cannot be criminal.

11. Under Powell v. Texas, what may the state punish even if the defendant is an alcoholic?

    The act of being drunk in a public place. The statute punishes conduct, not the status of alcoholism.

12. How can a voluntary act satisfy the act requirement when the harmful movement itself was involuntary?

    When an earlier voluntary act, such as driving while knowing of a seizure condition, created the risk. People v. Decina upheld liability for a driver who knew he was subject to epileptic seizures.

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