Earlier Voluntary Conduct

Earlier Voluntary Conduct

The involuntary-movement rules in § 2.01(2) ask about one movement at a time, and a defendant who shows that the movement causing the harm was a seizure, a sleeping lurch, or another non-willed motion has proved something real. Liability does not necessarily disappear, though, because the controlling language of § 2.01(1) asks a broader question than what the body was doing at the last instant. A person is not guilty unless liability rests on conduct that "includes a voluntary act."¹ The word "includes" matters, since the conduct on which liability rests may be a sequence of events, and the requirement is met when the sequence contains a voluntary act, even if the final movement in it was involuntary.

The leading illustration is People v. Decina, in which the defendant knew that he was subject to epileptic seizures and drove a car anyway. He lost control of the car during a seizure and killed four schoolchildren, and he was convicted of negligent vehicular homicide.² The movements at the moment of the crash were products of the seizure, so under the reflex-or-convulsion category they were not voluntary acts. The conviction nonetheless rested on a voluntary act, because the course of conduct also included getting into the car and driving it, and that earlier choice satisfied the act element.³ The same analysis reaches a driver who is subject to frequent fainting spells and faints at the wheel, and a driver who becomes aware that he is very sleepy, keeps driving, and falls asleep before the crash. Each is unconscious at the moment of impact, yet each performed a voluntary act, which was driving.⁴

This result applies § 2.01(1) as written. The Code does not excuse the prosecution from proving a voluntary act; it requires conduct that includes one, and the involuntary-movement rules remove only the movement they describe. In Decina the act requirement was satisfied in full, and the act was driving. The practical consequence is that the prosecution may rely on an earlier voluntary act in the same course of conduct, so a defense that attacks only the final movement answers part of the question and leaves the rest open.

The reasons behind the act requirement explain why an earlier act can carry the liability. Involuntary movement is excluded because a threat of punishment cannot deter a movement the person did not choose, and because a person who did not choose the movement made no wrongful decision to condemn.⁵ Neither reason holds for the earlier moment. A person who knows that a condition can cause a sudden loss of control, and who chooses to drive anyway, makes that decision while still in command of his body. The prospect of punishment can influence that decision, because the person can stay out of the driver's seat, and the decision is itself the blameworthy choice, because it knowingly exposes others to a danger. If the law looked only at the final instant, a person who knowingly created a danger would escape liability whenever the danger arrived after control was gone, and the more completely the condition took over, the stronger the defense would become.

An earlier voluntary act supplies the act element and nothing else. The prosecution must still prove whatever mental state the offense requires, measured at the earlier moment, and the facts that usually supply it are the defendant's awareness before control was lost: knowledge of a seizure condition in the epileptic driver, or knowledge of drowsiness in the driver who fell asleep.⁶ Awareness of a risk is what makes the choice to drive blameworthy at all, which is why the earlier-conduct analysis can fail even though an earlier voluntary act exists. The next section separates the act requirement from mental state more fully.

The comparison with Decina turns on what the person knew before control was lost and on whether the earlier choice placed others in a position of danger. The driver in Decina knew of his condition and chose an activity in which a seizure endangers others, so his earlier choice was blameworthy and was made while he was in control. The first-seizure defendant had no such knowledge, so her walking carried no awareness of risk. On an exam stem, the facts that decide the issue are therefore any earlier warning, such as a diagnosis, a prior episode, or a physician's caution, and the activity the person then chose. Students lose this issue when they stop at the final movement before the harm, because a seizure or sleep at that instant answers only whether that one movement was voluntary.