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    44.1    Criminal Omission: General Principles

PRACTICE NOTE: "There are at least four situations in which the failure to act may constitute breach of legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid." (Jones v. United States (DC Cir. 1962) 308 F2d 307, 310; see also Flippo v. State (AR 1975) 523 SE2d 390, 393.)

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RATIONALE: When the theory of criminal liability is an omission of a duty (i.e., a failure to act) rather than an affirmative act, special instruction may be required to assure the jury understands that the defendant must have had knowledge of the omitted duty.

POINTS AND AUTHORITIES: A fundamental principle of criminal law prohibits conviction for evil thoughts alone. (See Hicks v. U.S. (1893) 150 US 442, 449 [14 SCt 144; 37 LEd 1137].) There must be an act or an omission to act before a criminal penalty may be imposed. (See People v. Williams (CA 1992) 4 C4th 354, 365, 371 [14 CR2d 441]; see also LaFave & Scott, Substantive Criminal Law (West, 1986) §3.3 (2d ed. 1986).)

    However, in order for the omission to be a crime there must exist a duty to act imposed by law about which the defendant was actually aware. Notice is ingrained in the principles of due process and is required in situations in which punishment may be imposed for the mere failure to act. (Lambert v. California (1957) 355 US 225, 228 [78 SCt 240; 2 LEd2d 228]; see also U.S. v. Buford (5th Cir. 1989) 889 F2d 1406, 1409 [defendants must be shown to have known the legal duty which they violated]; U.S. v. Markovic (11th Cir. 1990) 911 F2d 613, 615 [government agents' warnings in English insufficient notice for defendant who spoke no English].)

    In Lambert, the court confronted a Los Angeles ordinance making it unlawful for a felon to remain in the city for more than five days without registering with the police. (Lambert, 355 US at 226.) The court held that for such a conviction to comport with due process, the state must provide proof of actual knowledge or "the probability of such knowledge." (Lambert, 355 US at 229.) One acts willfully when one engages in a "voluntary, intentional violation of a known legal duty. [Citation.]"  (Ratzlaf v. U.S. (1994) 510 US 135, 142 [114 SCt 655; 126 LEd2d 615]; see also People v. Hagen (CA 1998) 19 C4th 652, 666 [80 CR2d 24]; see also People v. Johnson (CA 1998) 67 CA4th 67 [78 CR2d 795] [Penal Code § 290 is general intent crime which requires purposeful or willful failure to register; such willful omission is shown by proof that the defendant "knew he was required to register...."]; People v. Smith (CA 1987) 188 CA3d 1495, 1517 [234 CR 142]; but see Bryan v. U.S. (1998) 524 US 184 [118 SCt 1939, 1947; 141 LEd2d 197] [knowledge of legal duty required only when statute presents "the danger of ensnaring individuals in apparently innocent conduct"; notice but not actual knowledge required].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.1; 4.1].

    In the crime of __________________ the defendant is accused of willfully omitting to perform a duty imposed by the law. It must be established that defendant knew of that statutory duty.

    To convict the defendant of this crime you must find that;

    1.  The defendant had a duty to ______________;

    2.  The defendant [had actual knowledge] [was given actual notice] of that duty; and

    3.  The defendant wilfully failed to perform that duty.

    Among the elements which the prosecution must prove is that the defendant had actual [knowledge] [notice] of the duty to ______________________.

    If you have a reasonable doubt as to whether or not the defendant had such knowledge, you must give the defendant the benefit of that doubt and find him not guilty.

    The prosecution has the burden of proving that the accused failed to perform a legal duty.  [The existence of] [Proof of] a moral duty to act does not establish a legal duty to act.

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VII(B) inst. 2 [Legal Duty to Act] p. 338, ¶ 2 (South Carolina CLE, 1994).]

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PRACTICE NOTE: As a corollary to the rule that criminal liability should not be imposed for the failure to perform a duty unless the defendant had knowledge of that duty (see FORECITE National™ 44.2 [Criminal Liability For Omission Of Statutory Duties Requires Knowledge Of That Duty]), criminal liability should also be precluded when the defendant did not have sufficient knowledge of the facts which triggered the duty to act. (See e.g., State v. Baker (RI 1993) 627 A2d 835, 841 [defendant had received severe beating and sustained head injuries prior to the accident thus precluding a finding that defendant had knowledge of the collision].)

See 1st Circuit Pattern Jury Instructions - Criminal 2.14.

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RATIONALE: When liability is predicated on the failure to perform a duty imposed by law, the jury may improperly assume that such a duty arises from mere presence or association with the perpetrators of the crime.

POINTS AND AUTHORITIES: Criminal liability based on a failure to act requires express statutory imposition of a duty to act. (See FORECITE National™ 44.1 [Criminal Omission: General Principles.) Such a duty does not arise simply because the defendant was present when the crime was committed. (See FORECITE National™ 64.2 [Accomplice Liability: Mere Presence Insufficient]; FORECITE National™ 251.6 [Mere Presence, Knowledge, Association, Etc.]; see also LaFave & Scott, Substantive Criminal Law §3.3(a) (West 1986); Robinson, Criminal Law Defenses (West, 1984) § 86 pp. 440-48.)

    See also FORECITE National™ 64.2 [Accomplice Liability: Mere Presence Insufficient].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.6; 4.1].

RESEARCH NOTES:

See Ashworth, The Scope of Criminal Liability for Omissions, 105 Law Q Rev. 424 (1989) .

Leavens, A Causation Approach to Criminal Omissions, 76 Cal.L.Rev. 547 (1988).

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RATIONALE: A person should not be held criminally liable for failing to perform a duty he or she was not capable of performing.

POINTS AND AUTHORITIES: A person is not guilty of an offense based upon an omission to perform an act if he/she is mentally or physically incapable of performing or otherwise could not reasonably be expected under the circumstances to perform the act.  (Davis v. Kemp (11th Cir. 1985) 752 F2d 1515; 1523 (Hill, J., concur.); People v. Bernard (IL 1986) 500 NE2d 1074, 1080; State v. Cheatwood (LA 1984) 458 So2d 907, 910-11 [father who was physically incapable of working had defense to charge of failing to provide support]; State v. Raty (MT 1984) 692 P2d 17; State v. Zampich (MT 1983) 667 P2d 955; State v. Williquette (WI 1986) 385 NW2d 145, 150-51; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 3.3 at p. 283.)

    See also FORECITE National™ 44.6 [Physical Impossibility As Defense To Charge Based On Omission Of Duty Or Failure To Act].

RESEARCH NOTE:

See LaFave & Scott, Substantive Criminal Law (West, 1986) § 3.3 at p. 283.

See also Robinson, Criminal Law Defenses (West, 1984) § 87(d) p. 453.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.1; 4.1].

    A voluntary act includes a failure to perform a legal duty which that person is physically capable of performing.

[See People v. Bernard (IL 1986) 500 NE2d 1074, 1080; see also ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 4.14 [Omission As Voluntary Act] (West, 4th ed. 2000).]

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    44.6    Physical Impossibility As Defense To Charge Based On Omission Of Duty Or Failure To Act

RATIONALE: It would be unfair and illogical to impose criminal liability for failure to perform an act which the defendant was physically incapable of performing.

POINTS AND AUTHORITIES:  "Genuine impossibility is a proper defense to a crime of omission." (U.S. v. Spingola (7th Cir. 1972) 464 F2d 909, 911; see also State v. Gill (NJ 1965) 213 A2d 871, 874 [impossibility or impracticality might be raised as a defense to charge of failing to provide identification].)  Hence, if a person cannot physically perform the act constituting the crime, there is no criminal liability.

    See also FORECITE National™ 44.5 [Liability Based On Omission: Requirement That Duty Be Physically Capable Of Performance].

RESEARCH NOTE:

See Cook & Hermann, Criminal Defense Checklist (West, 1999) § 1.02(2).).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.1; 4.1].

    The prosecution has the burden of proving:

    1.    That the accused had a legal duty to act; and 

    2.    That it was physically possible for the accused to perform the legal duty.

[See U.S. v. Spingola (7th Cir. 1972) 464 F2d 909, 911; see also Joseph & LaMonica, LOUISIANA CIVIL LAW TREATISE CRIMINAL JURY INSTRUCTIONS 6.12 [Justification-Physically Impossible] (West, 1994).]

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PRACTICE NOTE: "Given the variety of sources of legal duties, the reference to a duty ‘imposed by law’ may be too vague to provide adequate notice and to prevent arbitrary administration of the law." (Robinson, Criminal Law Defenses (West, 1984) (1999 Pocket Part) § 86(c)(1) fn. 22.)

    "While offenses that employ the phrase ‘legal duty’ to define the scope of a prohibition are distinguishable from provisions that merely permit liability for an offense that is defined in terms of conduct and without reference to legal duty, it is not clear that the distinction is a significant one for purposes of the legality principle." (Ibid.)

    Examples of "legal duty" statutes which have been invalidated as void for vagueness include McCorkle v. State (AL 1983) 446 So2d 684 [self mutilation for the purpose of avoiding a legal duty]; State v. Jenkins (FL 1985) 469 So2d 733 [causing another to refrain from performing a duty imposed by law].