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 VOLUME 11 - CHAPTER 256
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256.9 Unconsciousness

    256.9.1 Necessity Of Defining "Unconscious" Or "Automatism"
    256.9.2 Unconsciousness: Prosecution's Burden Of Proof
    256.9.3 Unconsciousness: Evidence Justifying Instruction
    256.9.4 Unconsciousness: Failure To Instruct Upon Unconsciousness As Reversible Error
    256.9.5 Unconsciousness: No Limitation Of Cause
    256.9.6 Availability Of Unconsciousness When Defendant Was Aware Before And After The Killing
    256.9.7 Hit And Run: Unconsciousness As Complete Defense To Duty To Render Aid
    256.9.8 Improper To Instruct On Unconsciousness In Terms Of General Criminal Intent
    256.9.9 Unconsciousness: Defense Theory That Finding Of Consciousness Does Not Eliminate The Need To Find All Elements Of The Charges
    256.9.10 Unconsciousness: Person Need Not Be Incapable Of Physical Movement

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RATIONALE: Without specific instruction the jury will likely employ the lay definition of unconsciousness which may conflict with the legal definition especially with respect to the ability to act.

POINTS AND AUTHORITIES: An act must be voluntary to be criminal. (See Morissette v. U.S. (1951) 342 US 246, 252 [72 SCt 240; 96 LEd 288] ["...wrongdoing must be conscious to be criminal"].)  Acts undertaken when the actor is asleep, unconscious, or in a hypnotic trance, or which are the result of mere reflex, are not voluntary. (Cook and Hermann, Criminal Defense Checklist (1999) § 1.01(2), p. 4.) 

    However, it is not necessary to show incapability of movement to establish unconsciousness. (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 4.9; see also People v. Newton (CA 1970) 8 CA3d 359 [87 CR 394].) Hence, the term unconsciousness should be defined. (People v. Newton (CA 1970) 8 CA3d 359, 373-78 [87 CR 394] [unconsciousness should be defined]; People v. Tidwell (CA 1970) 3 C3d 82, 86 [89 CR 58] [same].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

Annotation, Automatism Or Unconsciousness As Defense To Criminal Charge, 27 ALR4th 1067.

See also generally, FORECITE National™ 305.21.3 [Unconsciousness].

    Unconsciousness is a mental state during which a person, though capable of action, is not aware of what he or she is doing. 

[See LaFave & Scott, Substantive Criminal Law (West, 1986) § 4.9; see also NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 302.10 [Automatism Or Unconsciousness] ¶ 2, p. 931 (TRCC, 1999).]

    Unconsciousness applies to persons who are not conscious of acting but who perform acts while asleep or while suffering from a delirium of fever, or because of an attack of [psychomotor] epilepsy, a blow on the head, the involuntary taking of any drugs, the taking of prescription medicine as prescribed or the involuntary consumption of intoxicating liquor, or any similar cause.

[Source: FORECITE National™.]

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 VOLUME 11 - CHAPTER 256

RATIONALE: Without an explanatory instruction the jury may improperly assume that unconsciousness must be proven by the defendant.

POINTS AND AUTHORITIES: It should be the prosecution's burden to prove the defendant was conscious when the criminal act was committed. (See People v. Babbitt (CA 1988) 45 C3d 660, 696 [248 CR 69]; see also State v. Hinkle (WV 1996) 489 SE2d 257, 263-64.)

    This is so because "...unconsciousness is analogous to ... accident or ... alibi, neither of which is an affirmative defense. Each ... merely negates an essential element of the crime charged. The plea of accidental homicide imposes no burden upon the defendant because the State cannot convict unless it first proves that the killing was culpable. 'The claim that the killing was accidental goes to the very gist of the charge, and denies all criminal intent, and throws on the prosecution the burden of proving such intent beyond a reasonable doubt.' [Citation.] When proof of defendant's presence at the scene of the crime charged is essential to his guilt, his plea that he was elsewhere and therefore could not have committed the crime is merely a denial of guilt, not an affirmative defense. To convict, the State must prove beyond a reasonable doubt that he was present at the scene and participating. 'Such proof, of course, would demolish an alibi.' [Citations.] Similarly, proof of a voluntary act negates unconsciousness; voluntary action and unconsciousness cannot coexist." (State v. Caddell (NC 1975) 215 SE2d 348, 367, Sharp, C.J., concurring and dissenting.)

    See also FORECITE National™ 250.4.4 [Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See also generally, FORECITE National™ 305.21.3 [Unconsciousness].

SAMPLE INSTRUCTION # 1:

    The prosecution is required to prove beyond a reasonable doubt that the defendant was conscious at the time of the alleged offense, not merely that [he][she] appeared to be conscious.

[Source: FORECITE National™.]

    Unless you find beyond a reasonable doubt that the defendant exercised conscious control of [his] [her] physical actions at the time of the [alleged] crime you must vote to find [him] [her] not guilty.

[Cf. NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 302.10 [Automatism Or Unconsciousness] p. 931, ¶ 2 (TRCC, 1999).]

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PRACTICE NOTE: Instruction on defense of unconsciousness, or automatism, is required when there is reasonable evidence that defendant was unconscious at time of commission of crime. (See e.g., State v. Hinkle (WV 1996) 489 SE2d 257, 263-64.) Hence, an instruction on unconsciousness is required upon request if there is a "claim or description of coexistent unconsciousness" -- i.e., testimony of the defendant as to lack of recollection (see e.g., People v. Wilson (CA 1967) 66 C2d 749, 762-63 [59 CR 156]) [defendant's testimony and/or expert testimony as to the defendant's lack of consciousness at the time of the offense]; see also State v. Massey (KS 1987) 747 P2d 802, 807-08 [defendant's testimony, that he was unconscious by reason of seizure at time of shooting, which was corroborated by evidence that defendant suffered from seizures, mandated jury instruction on defense of unconsciousness]; People v. Wu UNPUBLISHED (CA 1991) 235 CA3d 614 [286 CR 868].)

    However, mere inability to remember an event does not necessarily establish unconsciousness, since the relevant inquiry is the defendant’s mental state at the time the conduct was committed, not at the time of trial. (Sellers v. State (OK 1991) 809 P2d 676, 686-87.)

OPINION AVAILABLE: For a copy of the Wu opinion, click here. [Opinion Bank # O-117].

RESEARCH NOTES:

See also generally, FORECITE National™ 305.21.3 [Unconsciousness].

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 VOLUME 11 - CHAPTER 256

PRACTICE NOTE: Even though the jury impliedly finds the defendant conscious by returning a verdict of guilt, if no other instructions have presented that issue to the jury, then the failure to instruct upon unconsciousness when supported by the evidence should be reversible error. (See e.g., State v. Connell (NC 1997) 493 SE2d 292, 296 [failure to instruct jury on defenses of unconsciousness and diminished capacity was plain error, given absence of direct evidence that defendant was awake when he allegedly improperly touched his girlfriend's child after child crawled into bed with them in middle of night]; see also State v. Smith (NC 1982) 296 SE2d 315 [in view of defendant's testimony that she remembered nothing of events of robbery or of evening in question, trial court should have given instruction on automatism or unconsciousness, and failure to do so was prejudicial error requiring new trial]; State v. Rocha (RI 1992) 604 A2d 783 [court erred in excluding evidence of epileptic condition and seizure of defendant and in failing to instruct on unconsciousness]; State v. Hinkle (WV 1996) 489 SE2d 257, 265-66 [instruction that defendant suffered from brain disorder was inadequate in prosecution for involuntary manslaughter while driving motor vehicle in unlawful manner; jury should have been instructed on unconsciousness, or automatism].) In the absence of the unconsciousness instruction, the jury is left with essentially the same "unwarranted all -- or -- nothing choice" noted by the California Supreme Court in People v. Wickersham (CA 1982) 32 C3d 307, 324 [185 CR 436] and People v. Ramkeesoon (CA 1985) 39 C3d 346, 352 [216 CR 455].

RESEARCH NOTES:

See also generally, FORECITE National™ 305.21.3 [Unconsciousness].

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RATIONALE: Except in the case of voluntary intoxication which often is limited by statute, the disabilities causing unconsciousness are not limited. It is the fact of the unconsciousness which is critical. If the defendant was unconscious for any reason other than voluntary intoxication, then an essential element of criminal liability has not been proven and criminal liability should not be imposed.

POINTS AND AUTHORITIES: The principles which excuse unconsciousness from criminal liability are grounded in the early common law which excused criminal liability for one who had "no memory or understanding" of the act constituting the crime. (Perkins & Boyce, Criminal Law (Foundation Press, 1982) [Mental Disease or Defect (Insanity): The Early Law] Chapter 8, § 2, p. 951.) While this early law was related to the defense of insanity, nearly every American jurisdiction also recognizes a defense for involuntary conduct. (See Robinson, Criminal Law Defenses, (West, 1984) [Involuntary Act Defense] § 171, pp. 259-60.) The principle of this defense may be stated as follows:  A person is not guilty if, due to a mental or physical disability, the defendant's conduct is not a product of his or her effort or determination. (Ibid.)

    Nor is there a basis for excluding unconsciousness caused by mental impairment. While Montana v. Egelhoff (1996) 518 US 37, 44-49 [116 SCt 2013; 135 LEd2d 361] [plurality opinion] held that the states could properly exclude voluntary intoxication as an excuse for criminal liability since voluntary intoxication was not an excuse at common law, the same cannot be said for unconsciousness. (See Perkings & Boyce, Criminal Law (Foundation Press, 1982) [Mental Disease or Defect (Insanity): The Early Law] Ch. 8, § 2, p. 251; see also State v. Boone (NC 1982) 297 SE2d 585, 592.) Hence, to the extent that a statute might permit the jury to convict a defendant even though unconscious as a result of mental impairment, such a statute would violate the federal constitutional rights to trial by jury and due process.  (See U.S. Const., 6th and 14th Amendments; Rock v. Arkansas (1987) 483 US 44 [107 SCt 2704; 97 LEd2d 37]; Chambers v. Mississippi (1973) 410 US 284 [93 SCt 1038; 35 LEd2d 297] People v. Bobo (CA 1990) 229 CA3d 1417 [3 CR2d 747].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.5.5 [Epilepsy].

See also generally, FORECITE National™ 305.21.3 [Unconsciousness].

SAMPLE INSTRUCTION # 1:

    This rule of law applies to persons who are not conscious of acting but who perform acts while asleep or while suffering from a delirium of fever, or because of an attack of [psychomotor] epilepsy, a blow on the head, or any other cause except voluntary intoxication.

[Source: FORECITE National™.]

    A person is considered under the law to be unconscious if, as a result of any mental or physical disability, other than voluntary drug or alcohol intoxication, the conduct is not a product of the defendant's conscious effort or determination.

[Source: FORECITE National™.]

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    256.9.6    Availability Of Unconsciousness When Defendant Was Aware Before And After The Killing

PRACTICE NOTE: Unconsciousness is available as a defense even though the defendant was aware of what he was doing immediately before and following the killing. (See People v. Wilson (CA 1967) 66 C2d 749, 762 [762 CR 156]; see also People v. Moore (CA 1970) 5 CA3d 486, 492 [85 CR 194].)

    See also FORECITE National™ 256.9 [Unconsciousness].

RESEARCH NOTES:

Annotation, Automatism Or Unconsciousness As Defense To Criminal Charge, 27 ALR4th 1067.

See generally, FORECITE National™ 305.13.1 [Manslaughter].

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    256.9.7    Hit And Run: Unconsciousness As Complete Defense To Duty To Render Aid

    See FORECITE National™ Chapter 105.2.3.4 [Hit And Run: Inability To Render Aid As Defense Theory].

RESEARCH NOTES:

See also generally, FORECITE National™ 305.21.3 [Unconsciousness].

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PRACTICE NOTE: Criminal responsibility for a killing committed while one is unconscious due to voluntary intoxication is based on neither specific nor general intent. (See generally People v. Graham (CA 1969) 71 C2d 303, 316-17 [78 CR 217].) Instead, a defendant's liability in such circumstances arises from his criminal negligence. Therefore, relating unconsciousness to general criminal intent is error.

OPINION AVAILABLE: For an opinion finding such error and additional briefing on this issue, click here. [Opinion Bank # O-246].

RESEARCH NOTES:

See also generally, FORECITE National™ 305.21.3 [Unconsciousness].

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 VOLUME 11 - CHAPTER 256

    256.9.9    Unconsciousness: Defense Theory That Finding Of Consciousness Does Not Eliminate The Need To Find All Elements Of The Charges  

RATIONALE: In a case where unconsciousness is a major defense, the attorneys and jury may tend to focus primarily on that issue. Hence, it may be appropriate to remind the jurors that even if unconsciousness is rejected, they still must find all the other elements before the defendant may be convicted.

POINTS AND AUTHORITIES: Even if the defense or defense theory is rejected, the prosecution is still obligated to prove all elements of the charge beyond a reasonable doubt. (See generally FORECITE National™ 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt]; see also FORECITE National™ 251.2.3.3 [Rejection Or Disbelief Of Alibi Evidence: Prosecution Must Still Prove Every Element]; see also FORECITE National™ 250.5.2 [Even If Defendant's Burden As To A Defense Is Not Met, Jury Must Consider Factual Basis For The Defense As To Proof Of Elements].)

    The jury must also understand that the evidence of unconsciousness, even if not sufficient on the issue of unconsciousness, may be considered in deciding whether the remaining elements have been proven. (See FORECITE National™ 56.3.1.4 [Even If Defense Not Proven, Jury Must Still Consider Evidence Of Momentary Possession As To The Elements Of The Charge].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See also generally, FORECITE National™ 305.21.3 [Unconsciousness].

SAMPLE INSTRUCTION # 1:

    In deciding whether the prosecution has met its burden to prove every element beyond a reasonable doubt, you must consider all the evidence, including that which relates to unconsciousness, even if you conclude that the defendant was conscious.

[Source: FORECITE National™.]

    Even if the defendant was conscious, the prosecution must still prove beyond a reasonable doubt [all elements of the crime charged] [any lesser included offense] [that the act was [purposely] [knowingly] committed].

[Cf. OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 409.05 [Coma, Blackout R.C. 2901.21(C)(2)] (Anderson, 2000).]

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 VOLUME 11 - CHAPTER 256

RATIONALE: Without an explanatory instruction, the jurors may improperly rely on the lay assumption that a person is not unconscious unless he/she is comatose and incapable of movement.

POINTS AND AUTHORITIES: It is not necessary to show incapability of movement to establish unconsciousness. (See LaFave & Scott Substantive Criminal Law (West, 1986) § 4.9; see also People v. Newton (CA 1970) 8 CA3d 359 [87 CR 394].) Hence, because the jurors may not understand this, the term unconsciousness should be defined. (See People v. Tidwell (CA 1970) 3 C3d 82, 86 [89 CR 58] [unconsciousness should be defined]; People v. Newton, 8 CA3d at 373-78 [same].)

    See also FORECITE National™ 256.9.1 [Necessity Of Defining "Unconscious" Or "Automatism"].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See also generally, FORECITE National™ 305.21.3 [Unconsciousness].

SAMPLE INSTRUCTION # 1:

    Unconsciousness is a mental state during which a person, though capable of action, is not aware of what he or she is doing.

[See LaFave & Scott, Substantive Criminal Law (West, 1986) § 4.9; see also NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 302.10 [Automatism Or Unconsciousness] ¶ 2, p. 931 (TRCC, 1999).]

    Unconsciousness does not require that a person be incapable of movement.

[People v. Newton (CA 1970) 8 CA3d 359  [87 CR 394]; see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.30 [Unconsciousness Act--Defined--Burden of Proof] p. 198, ¶ 3 (West, 6th Ed. 1996).]