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The Structure of Crimes

    6. The “actus reus” of possession presents some interesting questions. Below, we will consider the “mens rea,” the mental state that makes one’s conduct a crime. Most drug laws provide for strict liability for drug possession (i.e., no mental state is required). Thus, the legislature may provide simply that “the unlawful possession of marijuana” is an offense. Hence, when the police arrest the defendant in possession of a bag of leafy green material, she cannot defend on the grounds that she believed it to be oregano. But even in strict liability crimes, an offender must have done some voluntary act. At the same time, requiring a voluntary act cannot be a “backdoor” to requiring a mental state. To get at the problem, consider the following two examples in light of Model Penal Code section 2.01(4): defendant buys a bottle of what appears to be oregano at a local farmers’ market; it turns out to be marijuana. Defendant also buys what appears to be a candle; little does she know that hidden within is a small square of hashish. In both cases, can she claim a lack of a voluntary act of possession within the meaning of the MPC?

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