THE ACTUS REUS REQUIREMENT

The building blocks of criminal liability are elements. Elements fall into one of three
categories: acts, facts, and results. Of these, only one is required in all cases of all crimes: acts.
There are crimes without defined fact elements. There are crimes that do not involve a result
element. But all crimes involve at least one act element. The criminal law will not punish in the
absence of a criminal act. This act requirement often is referred to using the Latin phrase actus
reus.
The actus reus requirement boasts powerful intuitive and moral appeal. Principally, it means
that we do not punish thoughts alone. Although Jimmy Carter chided himself for committing
“adultery in [his] heart many times” because he “looked on a lot of women with lust,” he could only
be convicted of adultery (which was a common law crime!) if he engaged in an act of voluntary
sexual intercourse with someone not his spouse. By themselves, his lustful thoughts, though
perhaps a source of personal discomfort, were not a crime because he did not do anything.
Retributivists and utilitarians are united in their support of the actus reus requirement. We all
have evil thoughts from time to time. Anyone who has been cut-off in traffic by a rude and reckless
driver has entertained violent fantasies. For the most part, we cannot control these kinds of
spontaneous thoughts and impulses. What we can control is whether we act on them. In
retributivist terms, this means that we can only be culpable for our actions, not our thoughts. In
fact, retributivists would applaud someone for resisting the temptations of evil thoughts, reserving
punishment for those who act on them. From a utilitarian point of view, there is just no point in
punishing thoughts in the absence of action. After all, those who resist evil thoughts demonstrate
that they do not need to be incapacitated, that they are deterred by threats of punishment, or that
there is no need to deter or rehabilitate them. So, regardless of the theory of punishment, we are
only interested in punishing actions, not thoughts.
For similar reasons, we do not punish based on what someone might do. Some utilitarians
argue for incapacitating dangerous criminals, but they still require a past act as a triggering or
qualifying event. The alternative—punishing individuals who have done nothing wrong but might
do something wrong in the future—upends basic commitments to freewill, portends the kinds of
dystopian societies envisioned in science fiction works like Philip K. Dick’s The Minority Report, and
smacks of practices characteristic of despotic regimes in the real world.
For purposes of actus reus, not just any doing will do. To qualify for punishment, a
defendant’s act must be voluntary. “Voluntary” here is a term of art that defies clear definition.
Efforts to provide a definition, such as references to the “will,” refer in one way or another to
mental states. As we shall see, mental states are important in the criminal law, but only insofar as
they relate to acts, facts, and results. The criminal law therefore thinks about voluntariness in
the negative as the absence of conditions indicative of involuntariness. Some conditions
traditionally regarded as indicating involuntariness are forcible external compulsion, such as being
physically pushed or carried, spasm, epileptic fit, reflex, hypnosis, unconsciousness, and
somnambulism (sleepwalking). In the normal course of things, this means that defendants are
assumed to have acted voluntarily unless there is some indication of involuntariness. Importantly,
however, both the burden of production and the burden of persuasion with respect to
voluntariness rest with the prosecution.

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Practice Considerations
1. The actus reus requirement is important to keep in mind when identifying the elements of
crimes and assigning them to categories. The first step in analyzing any criminal law
problem is to identify the elements of a possible offense. The next step is to assign those
elements to categories as acts, facts, or results. The actus reus requirement tells us that there
must be at least one act element amidst the elements of any crime. There may be more than
one, but there must be at least one. So, if, in the process of identifying and assigning
elements to categories as acts, facts, or results, you realize that you have not identified an act
element, then you should check your work. But, having identified one act element, you
should not assume that all the remaining elements are either fact elements or result elements.
Many crimes involve more than one act element.
2. The process of determining which elements are act elements is important when interpreting
criminal law statutes. The elements of common law crimes and their statuses as acts, facts,
or results have been well-settled by decades and even centuries of judicial precedent. That is
not always true of statutory offenses, however, which often require analyzing underlying
policy goals, legislative intent, and the potential consequences of competing interpretations
to determine whether, say, an element is an act element or a fact element. The exercises for
this lesson explore these issues.
3. Prosecutors always have the burden of proving actus reus. This means that for each act
element, a prosecutor must prove beyond a reasonable doubt that:
a. The defendant performed the act;
b. The defendant’s act was “voluntary”; and
c. The defendant performed the act with the required mental state. 1
4. When proving voluntariness with respect to act elements, prosecutors can meet their burden
by showing an absence of conditions indicative of involuntariness. Some conditions widely
regarded as demonstrating involuntariness are spasm, epileptic fit, reflex, hypnosis,
unconsciousness, and somnambulism. As a practical matter, defendants usually raise the
question by suggesting the presence of a condition indicating involuntariness, but the burden
of proof remains with the prosecution.

1 We will discuss this mental requirement in Lessons __. It is listed here for purposes of completeness.

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Policy Considerations
Common law judges and legislators can change the focus of punitive threat for a crime by dictating
that an element is an act element rather than a fact or result element. Consider, for example, a basic
drunk driving statute:
Drunk driving is the act of operating a motor vehicle when the operator's ability to
do so is impaired as a result of alcohol consumption, or with a blood alcohol level in
excess of 0.08%.
Broken down into its elements, a prosecutor would need to prove;
1. An act of operating a motor vehicle
2. When the operator
a. Is impaired as a result of alcohol consumption;
or
b. Has a blood alcohol level in excess of 0.08%.
Element 1 looks like an act element (the word “act” is a pretty good clue!). With that act element in
place, the remaining element could be an act, a fact, or a result. But how to decide? The answer is
by a process of statutory interpretation we explored in the Lesson __. For example, one way to
answer that question would be to think about the policy goals of the statute. What is it society,
through this legislation, wants to punish or deter?
To see some of the possibilities imagine a defendant who is attending a party. Knowing that he is
driving home soon, he refuses his host’s offer of an alcoholic beverage and asks instead for a cup of
fruit punch. As a practical joke, the host comes back with a cup of fruit punch that is, unbeknownst
to defendant, spiked with alcohol. Defendant drinks his fruit punch, finds it delicious, and asks for
another, which he also finishes. Defendant then leaves the party. On his way to his car he feels a
little loopy, and even stumbles several times, but it never occurs to him that he might be intoxicated.
Defendant gets into his car and starts driving home. A few blocks away, he is pulled over by a
police officer after being observed swerving across the center-line. The officer administers a field
sobriety test, which reveals that defendant is significantly impaired. A subsequent breathalyzer
reveals that defendant has a blood alcohol level of 0.07%.
Is Defendant guilty of drunk driving? There is no doubt that he operated a motor vehicle. There is
no indication of spasm, compulsion, reflex, fit, somnambulism, or other condition of involuntariness
with respect to that act. As to the second element, there is ample evidence that he was impaired as a
result of alcohol. His blood alcohol level was less than the legal limit, however. So, a prosecutor
could not meet her burden of proving element 2(b). That leaves us with element 2(a) and an
interpretive puzzle
If element 2(a) is a fact element, then Defendant is guilty. He was, in fact, impaired as a result of
alcohol consumption when he was operating his vehicle. 2 On the other hand, if 2(a) is an act
element, then the prosecutor may have a problem proving that Defendant voluntarily consumed
alcohol. After all, he was tricked into imbibing.
Should a defendant in this situation be punished? There are good arguments to be made on both
sides. Perhaps the goal is to deter people from driving if they feel impaired. If that is the goal, then
it would make sense to interpret the statute such that element 2(a) is a fact element because we do

2You might say “But he did not know that he was impaired as a result of alcohol!” While perhaps true, that is a
problem for mens rea, not actus reus. So, hold that thought until Lesson __.

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not care, as a matter of policy, how a potential driver got drunk. What we care about is his driving in
an intoxicated state. On the other hand, if the policy goal is to deter people from drinking alcohol
and then driving, then the better interpretation of the statute would be to treat element 2(a) as an act
element. So, determining the proper interpretation of this statute will require examining the policy
goals of the law. The larger point, of course, is that legislatures can achieve very different policy
goals depending on whether they identify an element as an act, a fact, or a result.

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Assessment Questions:
1. True or False: All acts are assumed to be voluntary unless a defendant presents evidence
sufficient to demonstrate incapacity.
2. Defendant drove his car onto a sidewalk, striking and killing a pedestrian. He is charged
with vehicular manslaughter, defined as “causing the death of a human being due to illegal
driving of an automobile, including gross negligence, drunk driving, reckless driving or
speeding.” Defendant admits that he was in the driver’s seat at the time of the accident, but
maintains that he was not “driving.” Which of the following, if true, would support his
claim:
a. Just prior to the accident, defendant was stung by a bee and lost control of the car
when he swatted at the bee.
b. Just prior to the accident, defendant suffered an epileptic seizure.
c. Just prior to the accident, defendant fell asleep at the wheel.
d. All of the above.
3. Defendant is an illegal immigrant from Canada who was apprehended in the United States
and subsequently deported. Two days after being deported, defendant was arrested in
Seattle, Washington, and charged with violating 8 U.S.C. §1836(a), which reads, in pertinent
part:
any alien who has been denied admission, excluded, deported, or
removed or has departed the United States while an order of exclusion,
deportation, or removal is outstanding, and thereafter enters, attempts
to enter, or is at any time found in, the United States . . . shall be fined
under Title 18, or imprisoned not more than 2 years, or both.
At trial, defendant claims that he was minding his own business in Vancouver,
British Columbia, Canada, when he was drugged, became unconscious, was
placed in the trunk of a car, driven over the border from Canada, and then
deposited in front of a Starbucks in Seattle by several of his friends as a
practical joke, and only regained consciousness when roused by police officers.
If true, should defendant be acquitted?
a. Yes, because defendant was intoxicated.
b. Yes, because defendant was unconscious when his friends drove him
across the border.
c. No, because defendant was “found in” the United States after having been
previously deported.
d. No, because intoxication does not provide a defense.

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Exercise:
MEMORANDUM

To: Assistant State’s Attorney Sam Kincaid

From: Assistant State’s Attorney Sherry Smith
RE: Bueller Prosecution

Detectives Briscoe and Logan arrested Ferris Bueller last night on a charge of drunk in public. The
facts as we know them so far are these:
At approximately 11:00 p.m., Briscoe and Logan responded to a citizen call reporting shouting at
Bueller’s home. Bueller lives in the first floor of a brownstone in the Youngstown neighborhood of
Old York. His door opens directly onto the front stairs of the building, which is located two doors
down from a bar called The Stagger Inn. Briscoe and Logan report that, when they arrived at the
scene, and during their engagement with Bueller, there were “several” people standing and sitting
outside of The Stagger Inn.
The officers knocked on Bueller’s door. Bueller answered. Briscoe and Logan then directed Bueller
to leave his home and descend to the sidewalk. Briscoe put a “firm hand” on Bueller’s elbow to
ensure compliance with this direction. Bueller complied under verbal protest. After a brief
conversation, Bueller became confrontational, belligerent, and cursed loudly at the officers and
several onlookers describing in graphic and colorful terms a variety of sexual acts he thought they
should perform upon themselves. After making a first-hand observation of Bueller’s behavior, and
based on what they described as a “strong smell of alcohol on [Bueller’s] breath,” the detectives
arrested Bueller and charged him with violating Old York Criminal Law Section 521(a) (1945), which
reads:
Any person who, while intoxicated or drunk, is in any public place
where one or more persons are present and manifests a drunken
condition by boisterous or indecent conduct, or loud and profane
discourse, shall be guilty of a misdemeanor punishable by fine.

During booking, Bueller submitted to an oral infrared spectrophotometer test, which registered a
blood alcohol concentration of 0.10%, a level more than sufficient to demonstrate “intoxication
consistent with severe impairment” under Old York Motor Law Section 678(b) (1992).
I am scheduled for a preliminary hearing in this case this afternoon. I have several meetings this
morning, so will not be able to focus on this case before the hearing. I would therefore appreciate
your advice on the following questions:

1. On the facts as we know them, can we make out a prima facie case against Bueller for
violating Section 521(a)? If you think we need additional facts or evidence, then please
advise me on potential investigative steps we can take.

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 2. Mr. Bueller’s attorney has informed me that he will be moving to dismiss the charges on a
demurrer. He intends to rely in part on Alabama Supreme Court’s opinion in Martin v. State,
31 Ala. App. 334 (1944), a copy of which I have attached to this memorandum (Old York
courts are not bound by Alabama precedents, but would regard this decision as persuasive
authority). What do you think the basis of this motion might be? How, if at all, do you
think that Martin will provide grounds for the motion? How can we respond?
3. Can you anticipate any other potential grounds for a motion to dismiss in this case? How
might I respond?

MARTIN V. STATE, 31 ALA. APP. 334, 31 ALA. APP. 33417 SO. 2D 427 (1944)
Simpson, J.
Appellant was convicted of being drunk on a public highway, and appeals. Officers of the law
arrested him at his home and took him onto the highway, where he allegedly committed the
proscribed acts, viz., manifested a drunken condition by using loud and profane language.
The pertinent provisions of our statute are: “Any person who, while intoxicated or drunk, appears in
any public place where one or more persons are present, and manifests a drunken condition by
boisterous or indecent conduct, or loud and profane discourse, shall, on conviction, be fined,” etc.
Code 1940, Title 14, Section 120.
Under the plain terms of this statute, a voluntary appearance is presupposed. The rule has been
declared, and we think it sound, that an accusation of drunkenness in a designated public place
cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily
and forcibly carried to that place by the arresting officer. Thomas v. State, 33 Ga. 134, 125 S.E. 778;
Reddick v. State, 35 Ga. 256, 132 S.E. 645; Gunn v. State, 37 Ga. 333, 140 S.E. 524; 28 C.J.S.,
Drunkards, § 14, p. 560.
Conviction of appellant was contrary to this announced principle and, in our view, erroneous. It
appears that no legal conviction can be sustained under the evidence, so, consonant with the
prevailing rule, the judgment of the trial court is reversed and one here rendered discharging
appellant. Code 1940, Title 7, Section 260; Robison v. State, 30 Ala. App. 12, 200 So. 626; Atkins v.
State, 27 Ala. App. 212, 169 So. 330.
Of consequence, our original opinion of affirmance was likewise laid in error. It is therefore
withdrawn.
Reversed and rendered.

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