VOLUNTARY ACT OR VOLUNTARY OMISSION

VOLUNTARY ACT OR VOLUNTARY OMISSION In any prosecution* it is a defense that the conduct alleged in the charged offense does not include a voluntary act [or the voluntary omission to perform an act of which the Defendant is physically capable]. A “voluntary act” means a bodily movement performed consciously or habitually as the result of effort or determination of the Defendant. The burden is upon the prosecution to prove beyond a reasonable doubt that the Defendant’s conduct as to the (specify offense) charge included a voluntary act [or the voluntary omission to perform an act of which the Defendant is physically capable]. If the prosecution fails to meet its burden, then you must find the Defendant not guilty of the charge. Notes H.R.S. §§ 702-200, 702-201 * H.R.S. § 702-202 provides that possession is a voluntary act if the possessor knowingly procured or received the thing possessed or was aware of control of it for a sufficient period to have been able to terminate possession. Therefore, the voluntary act defense does not apply to a charged offense that involves proving possession as an element of the offense. H.R.S. § 702-200(2) provides that were the voluntary act or voluntary omission defense is based on a physical or mental disease, disorder, or defect which precludes or impairs a voluntary act or a voluntary omission, the defense shall be treated exclusively according to Chapter 704, except that a defense based on intoxication which is pathological or not self- induced which precludes or impairs a voluntary act or a voluntary omission shall be treated exclusively according to Chapter 702. Commentary “The effect of [HRS § 702-200] is to require, as a minimum basis for the imposition of penal liability, conduct which includes a voluntary act or voluntary omission. In most penal cases the issue of whether the defendant’s conduct includes a voluntary act or a voluntary omission will not be separately litigated. The voluntariness of relevant acts or omissions will be evident. The Code, by making the issue of involuntariness a defense, accordingly puts the ultimate burden on the defendant to inject that issue into the case. The burden, of course can be met by the prosecutor if he [or she] raises the issue. Once the question of voluntariness has been raised, the prosecution has the burden of proving that issue beyond a reasonable doubt.” Commentary on H.R.S. § 702-200. The Penal Code’s formulation of voluntary act “is intended to exclude from the category of voluntary action such bodily movements as (a) reflex or convulsions, (b) bodily movements during unconsciousness and sleep, (c) conduct during hypnosis or resulting from hypnotic suggestion, and (d) any other bodily movement that is not a product of the effort and determination of the defendant, either conscious or habitual.” Commentary on H.R.S. § 702-201. Additionally, the formulation of H.R.S. § 702-200 “is intended to permit liability in those cases where liability is not predicated on a voluntary act or omission but on a course of conduct initiated by a voluntary act. Thus, an automobile driver who suddenly loses consciousness and kills a pedestrian would not have performed a voluntary act giving rise to liability. However, if the driver had disregarded a known risk that consciousness might be lost and had commenced or continued driving, that included a voluntary act might be sufficient to impose penal liability.” Commentary on H.R.S. § 702-200.