Quick Guide to Homicide

Just in case you are thinking about offing someone.

Here's a list of the five criminal charges associated with homicide, from most severe to least severe.

1st Degree Murder
You intentionally kill someone. It was premeditated.

2nd Degree Murder
You intentionally kill someone. It was not premeditated.

Voluntary Manslaughter
You intentionally murder someone, but you were provoked. Words alone do not count as provocation. Also, provocation cannot occur if you had sufficient time to “cool off.”
OR
You intend to hurt someone, and accidentally kill them.
OR
You unintentionally kill someone, but your actions show a depraved indifference to human life (a.k.a. depraved heart murder).

*The above charges are considered murder. The charges below are just homicide.

Involuntary Manslaughter
You unintentionally kill someone as a result of your reckless behavior. You understood the dangers of your actions, but did not bother to cease or alter what you were doing. A reasonable person would not have behaved in such a dangerous way.

Negligent Homicide
You unintentionally kill someone as a result of your negligent behavior. You did not understand the risks involved in your behavior. A reasonable person would have understood how dangerous your actions were.

*Felony Murder Rule
Not every state has this rule, and the interpretation of felony murder can look quite different from state to state. In a nutshell, if someone dies as a result of your felonious behavior, you can be charged with murder.

The Felony Murder Rule

If you kill someone while you are committing a felony, you can be charged with felony murder. The rule is applied with strict liability. It doesn't matter if the death is a result of recklessness, negligence, or even a freak accident.

Example
A man commits armed robbery (felony). While driving away from the crime he follows all applicable traffic laws. His brakes go out due to a defective part, and he runs down a pedestrian. He can be charged with felony murder.

Now let's pretend that his brakes were fine, but he was driving recklessly. That would provide the state with two options for charges. They could pursue involuntary manslaughter (criminal recklessness), or felony murder. Murder is the more serious charge. It's also the easier conviction due to strict liability. The state simply has to prove the original felony, and that the defendant caused the pedestrian's death.

People v. Stamp (1969, California)

Facts
Stamp robbed a man, then ran away. A few minutes later the obese victim had a heart attack and died.

Question
Was this murder?

Holding
Yes

Reasoning
Again, strict liability.

Notes
In this case, it would be hard to get any homicide conviction absent the FMR.

Limitations
Many states don't even have a felony murder rule, and some other states have a compromised version. The rule is really aimed at involuntary homicides, since intentional killings will merit murder charges on their own. Often, the rule doesn't hold up well. Remember, we have specific reasons for punishing crime.

You cannot deter someone from being involved in freak accidents. Some rehabilitation, retribution, and incapacitation will be provided as a result of the original felony conviction. And it's a bit strange to reinforce being-careful-when-you-commit-felonies as a societal norm.

Some states use the Misdemeanor Manslaughter Rule instead. It works like felony murder, but with a softer sentence. It basically falls as the least severe of all homicide chargers, beyond even negligent homicide.

Inherently Dangerous Theory
Under this theory, felony murder is invoked only if the felony is inherently dangerous. There are two interpretations of inherent danger.

Some jurisdictions base inherent danger on the category of felony. So things like mail fraud and driving without a license do not provide grounds for felony murder.

Other jurisdictions use a case by case examination. Owning an unregistered handgun is a felony. Cleaning the weapon is not a dangerous activity. If it goes off and kills someone, the FMR is not in play. But waving a pistol around and threatening someone is inherently dangerous. If the pistol goes off and kills the person, you are looking at involuntary manslaughter. If that pistol is unregistered, hello felony murder.

summarized from Life of a Law Student

Unintentional Killings

In this post we will learn about two final classifications of homicide, negligent homicide (criminal negligence) and involuntary manslaughter (criminal recklessness).

-These are unintentional acts, whereas murder and voluntary manslaughter are intentional acts.
-For both charges, the court uses the reasonable person standard. The question is, would an ordinary, reasonable person have acted differently?
-Negligent homicide occurs when the defendant was unaware of risks. Involuntary manslaughter occurs when the defendant ignored the risks.
-Involuntary manslaughter is considered the more severe offense.

Hypothetical Case for Involuntary Manslaughter
Let’s say a killer is chasing you. You are trying to escape in your car. After running a stop sign, you kill a pedestrian. You were completely aware that running a stop sign was dangerous. Therefore, you were reckless. But you have you committed involuntary manslaughter? The case will hinge on proving whether you acted as a reasonable person of ordinary prudence, considering the circumstances. If Sayid Jarrah was on your ass, no jury would convict you.

Actual Case for Negligent Homicide
State v. Williams (Washington, 1971)

Facts
The defendants were parents of an infant child. The father had a 6th grade education, and the mother had an 11th grade education. They were both Native American. The child became fussy and sick. They thought it was a tooth ache, and give him an aspirin. They did not take the child to the doctor, because his cheek was blue. They feared the doctor would suspect child abuse. The child died from gangrene.

The court believed that the parents loved their child, and simply did not realize the risk. They were convicted of negligent homicide.

Question
Was this negligence homicide?

Holding
Yes

Reasoning
The reasonable person standard is objective. The jury decided that a reasonable person would have sought medical care for their child.

summarized from Life of a Law Student

More on Murder

Intentional killings based on provocation fall under voluntary manslaughter, a lesser charge to first or second degree murder.

Girouard v. State (1981, Maryland)

Facts
Mr. Girouard and his wife had been married for two months. He found out she was cheating on him, and an argument ensued. Girouard’s wife stated “I never did want to marry you and you are a lousy fuck and you remind me of my dad.” She then threatened to report him for domestic abuse (not true). He stabbed her 19 times and killed her.

Girouard was convicted of second degree murder. He appealed for manslaughter, on the grounds that he was provoked.

Question
Was this provocation?

Holding
No

Reasoning
Words alone are not sufficient to complete provocation. We want a society where people can handle some harsh verbal abuse without going vigilante. Plus, it’s too easy to claim verbal provocation after the fact since the victim is dead.

And the winner is…
Maryland

Hypothetical
Hearing about an affair is not provocation. Walking in on an affair is provocation.

Cooling Time Doctrine
If too much time elapses between the provoking event and homicide, you are looking at a murder charge. Voluntary manslaughter is not in play. Application of this doctrine differs among jurisdictions.

summarized from Life of a Law Student

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Pavalovich v. Superior Court (2002, California)

Facts
The DVD Copy Control Association created an algorithm to encrypt DVDs. They forced manufacturers of DVD players to pay a licensing fee for the necessary codes. This allowed the CCA to discriminate prices among different markets.

Mr. Pavalovich and other bright individuals were able to crack the encryption. Pavalovich put the code on the Internet, which empowered individuals to watch DVDs illegally.

The CCA filed suit in California. Pavalovich appealed under personal jurisdiction. He lived in Texas, his web server was in Texas, and he had never been to California.

Question
Is there enough evidence (minimum contacts) to assert personal jurisdiction over Pavalovich?

Holding
No

Reasoning
Pavalovich’s website was deemed “passive”. Passive websites simply provide information, and engage in little exchange with visitors. These sites typically do not establish minimum contact. “Active” websites promote a heavy exchange of commerce and information.

The court also accepted that Pavalovich should have known he was potentially harming California-based businesses. However, this knowledge alone was insufficient to establish minimum contacts.

And the winner is…
Pavalovich

Notes
-The court mentioned that DVD CCA might have better luck suing Pavalovich in Texas.
-Although the issue in this case was personal jurisdiction, we got a peek into Pavalovich’s defense against the licensing violation. I found his argument very compelling. Pavalovich testified that he purchased his own DVDs. He broke the encryption only because he wanted to watch the DVDs on his computer using LINUX.

summarized from Life of a Law Student

Bears Love Cookies

In a previous post, I correctly reported that Ohio uses negligence per se. However, I was a little unclear about how this concept works. Let me try again.

Negligence per se is when someone is found negligent in civil court based on their violation of a statute.

Negligence per se must hold up to two conditions.

The plaintiff must suffer the type of injury that the statute was meant to protect against.

Pretend it is illegal to bake cookies, because cookies attract bears. You bake some cookies, and I get salmonella from eating them. You have not completed negligence per se. The law was designed to protect against bear attacks, not food poisoning.

Remember, you can still be charged with criminal action in this little scenario. Also, I can still sue you for regular negligence. But negligence per se is not in play.

The plaintiff must be within the class of citizen that the statute was meant to protect.

Let’s put a little twist on the above hypothetical. Pretend the same anti-baking law exists, but it is specifically meant to protect children. You bake cookies, and a bear comes and mauls the hell out of me. Again, this is not negligence per se. The law was meant to protect children, not adults.

summarized from Life of a Law Student

Talking Murder

What is first degree murder?
Murder with the element of premeditation.

State v. Guthrie (1995, West Virginia)

Facts
Guthrie had some serious psychological issues, especially about his nose. He would stare in the mirror dozens of times a day fixated on his nose. He was also a manic depressive and experienced panic attacks.

One day at work some of Guthrie’s coworkers were fooling around together. Guthrie was not participating. One of the men snapped a towel and hit him in the nose. Guthrie pulled out a knife and stabbed the guy to death. Damn.

Guthrie was convicted of murder in the first degree. He appealed that there was a lack of premeditation.

Question
Was premeditation present?

Holding
No

Reasoning
There must be some separation of time between the formation of intent and the act.

And the winner is…
Guthrie

What is the punishment distinction between 1st and 2nd?
Usually first degree murder is death eligible (if the state has the death penalty). Second degree murder is not death eligible.

What is second degree murder?
In general, intentional but not premeditated. Spur of the moment, impulse murder. However, there are two other ways to enter into second degree murder:

Depraved Heart Murder
Death results from an individual's reckless indifference to human life.

Intent to Inflict Bodily Harm
Second degree murder is in play if you intend to hurt someone but accidentally kill them.

Commonwealth v. Malone (1946, Pennsylvania)

Facts
Two minors decide to play Russian Roulette. One boy is 17, the other is 13. The older boy chambered the round. The younger boy shot himself in the head and died.

The 17 year-old was convicted of 2nd degree murder.

Question
Is this 2nd degree murder?

Holding
Yes

Reasoning
The defendant acted with a depraved heart, and showed a reckless indifference for human life. “When an individual commits an act of gross recklessness, for which he must reasonably anticipate that death to another is likely to result.”

And the winner is…
Pennsylvania

Let’s talk about drunks, man…
Say we’re both doing 100 in a 35, and we both kill a pedestrian. I’m drunk, you’re sober. We are both charged with 2nd degree murder, based on our reckless indifference for human life. You have no defense. I argue that I was too drunk to understand the consequences of my actions. There is no reckless indifference because I didn’t understand the risks.

In general, if you aren’t aware of a risk you are negligent but not reckless. But the MPC makes a special exception for individuals who are intoxicated. If you are voluntarily drunk, you can’t use that as an excuse. You can still be nailed for recklessness offenses.

summarized from Life of a Law Student

Treaties

The Constitution does not mention treaties or Congress’ powers regarding them. Missouri v. Holland clarifies how the treaty power is allowable under the necessary and proper clause.

Missouri v. Holland (1920)

Facts
Congress passed the Migratory Bird Treaty Act in 1918. Missouri sued to prevent a U.S. game warden from enforcing the act.

Missouri argued that the treaty violated the 10th amendment (state sovereignty). The state also pointed out that Congress attempted to pass a similar law only a few years before. That act was struck as a violation of the 10th amendment. This treaty appeared to be the same policy repackaged.

Question
Is this treaty allowable?

Holding
Yes

Reasoning
Congressional powers cannot be used to contradict a Constitutional provision. But the necessary and proper clause makes sure that all appropriate government powers, which includes treaties, are vested in Congress. Treaties are therefore not reviewable under the 10th amendment.

And the winner is…
Holland. I’m guessing he was the game warden.

Notes
The significance of this case is simply that treaties can override the 10th amendment. It is likely that treaties must stand up to some other form of judicial scrutiny. And we'll probably cover that issue in a later post.

summarized from Life of a Law Student

Manga Jay

But is it classy?

Statutes and Tort Law

In tort law, the burden of proof is solely on the plaintiff. They are required to establish all four elements (duty, breach, causation, and damages) of the tort. This burden falls into two categories:

Burden of Production
This occurs before the case is ever brought before a jury. The plaintiff must make a compelling production of evidence regarding the four elements. If the plaintiff is unconvincing, a judge may throw the case out. The burden of production is a matter of law, not fact.

Burden of Persuasion
A matter of fact. The plaintiff must convince the jury of the facts as they are set out.

How do statutes apply to tort law?
We often use The Reasonable Person/Professional to determine standards of care. Statutes can be used as well. For example, it is illegal to set someone's house on fire. Therefore a reasonable person would not set their neighbor's house on fire. The use of statutes in civil proceedings differ with each jurisdiction. Ohio sometimes uses negligence per se, which means that criminal statutes can satisfy duty and breach within the burden of production.

Osborne v. McMasters (1889, Minnesota)

Facts
A woman drank unlabeled poison and died. Her loved ones sued because a clerk failed to label the bottle. A statute making it illegal to sell poison without a label was presented as the defendants duty.

Question
Can the plaintiff argue from a statute in order to establish a standard of care?

Holding
Yes

Reasoning
“It is immaterial whether the duty is one imposed by the rule of common law requiring the exercise of ordinary care not to injure another, or is imposed by a statute designed for the protection of others. In either case the failure to perform the duty constitutes negligence.”

And the winner is…
The plaintiff

summarized from Life of a Law Student

A layup for the Supreme Court

The Asahi decision provides us with guidelines to determine whether personal jurisdiction is just and reasonable.

Asahi Metal Industry Co. v. Superior Court (1987)

Facts
Gary Zercher, a California resident, was riding his motorcycle. Zercher was injured after his tire blew out. He sued the Taiwanese tire company, and reached a settlement out of court. This tire company then sued Asahi (Japanese) in California court for selling them a defective part.

Question
Is this an appropriate use of personal jurisdiction?

Holding
No

Reasoning
The issue of minimum contacts was irrelevant. Even if minimum contacts were established, asserting personal jurisdiction in this would be unreasonable. The “reasonable test” is made up of the following six elements (plus a bit on how they apply to Asahi):

Burden on defendant
Asahi would be forced to fly halfway around the world for proceedings.

Interests of forum state
California expressed an interest in protecting their state from faulty products. SCOTUS said that California's interests were served when Zercher settled out of court. The remaining conflict was between the two foreign companies.

Plaintiff’s interest in relief
The tire company wanted their money back. SCOTUS felt that they could settle that dispute in Taiwan. Or Japan. Hell, anywhere in Asia would be more pragmatic than California.

Efficient resolution of interstate judicial conflicts
SCOTUS wanted to be very cautious in expanding jurisdiction overseas. Foreign policy is messy enough already.

Shared interest of states in forming fundamental social policies
Doesn’t really apply here.

And the winner is…
Asahi. But they may have been sued later in Taiwan or Japan.

summarized from Life of a Law Student

Strict Liability...

...is when an actus reus alone is grounds for conviction (no criminal intent needed). In this post we’ll determine when strict liability is appropriate.

Morrissette v. United States (1952)

Facts
Mr. Morrissette took old bomb casings from what turned out to be a military site. He believed they were abandoned, and used them to make metal products. Morrissette was sued in federal court for conversion. The statute in question stated “knowingly convert government property.”

Question
Is strict liability appropriate?

Holding
No

Reasoning
Strict liability is only appropriate for public welfare offenses. This offense does not qualify, and therefore a mens rea (knowingly) is required.

And the winner is…
Morrissette

What makes an action a “public welfare offense”?
This is determined by a combination of 5 issues.

1. Old School vs. New School
Simple, classic crimes like murder and theft require a criminal intent. New school crimes are more likely to fall under strict liability.
2. Severity of Punishment
Strict liability is more often applied to crimes that result in modest fines and penalties. If the penalty is harsh, criminal intent is more necessary.
3. Reputation
If a conviction will seriously damage an individual's reputation, a criminal intent is more likely required.
4. Omission
Strict liability is more allowable in crimes of omission. Crimes of commission require criminal intent.
5. Public Protection
Crimes that serious threaten public welfare can result in strict liability.

It's easy to see why strict liability did not apply to Morrisette. Theft is a classic crime, as well as an act of commission. He did not threaten public welfare. A conviction would have resulted in him being labeled a thief. I don't know what penalties were in play, but lets assume they were quite harsh.

summarized from Life of a Law Student

Man, five posts in one day! I love PTO.

The Burger King Case

The Burger King Case leads to a fresh look at the minimum contacts standard. Instead of simply deciding whether minimum contacts are present, the court begins to question whether those contacts are a legitimate basis for jurisdiction. Justice Brennan cites the “notion of fair play and justice” as another facet to personal jurisdiction.

Burger King Corp. v. Rudzewicz (1985)

Facts
Rudzewicz and a business partner opened a Burger King franchise in Michigan. Burger King headquarters were in Florida. The original contract was negotiated with both the Michigan district office and the Florida main office. Rudzewicz never physically entered Florida, but engaged in phone and mail correspondence with the state. After a few months, the franchise started to fail and Rudzewicz began missing payments to Burger King Corp. Burger King insisted the franchise be closed, but Rudzewicz continued to operate. Burger King sued in federal court under Florida jurisdiction, which was allowable under diversity jurisdiction. (We’ll talk diversity jurisdiction later. For now, just pretend Burger King sued in Florida.)

The defense argued that Florida did not have personal jurisdiction. Also, Burger King is a large corporation with offices and legal counsel in Michigan. Rudzewicz is a small business owner in financial trouble. Wouldn’t it be fairer (apparently that’s a real word) to dispute the lawsuit in Michigan?

Questions
1. Were minimum contacts established with Florida?
2. Does Florida’s jurisdiction offend the notion of fair play and justice?

Holding
1. Yes
2. No

Reasoning
1. Rudzewicz purposefully entered into a 20-year, multi-million dollar contract with a Florida-based company.
2. Initially, Rudzewicz mostly dealt with Michigan district office. As business went into the crapper, he began trying to re-negotiate his franchise agreement with FL headquarters. Rudzewicz initiated these negotiations.

And the winner is…
The King

Why would Burger King want to sue in Florida anyway?
It’s how they roll. This case sends a message to other franchises: If you fail to live up to your contract, you’ll have to come fight it out in Florida. We hold a huge financial advantage even before you try to fund an out-of-state lawsuit. Also, we don’t want to give you the benefit of your local jury pool.

summarized from Life of a Law Student

What the heck is a fiduciary?

Fiduciaries are people who are in a position of trust, and thus have a legal duty to be honest. Examples of fiduciaries are bankers, lawyers, and doctors. Let’s examine a case involving a breach of fiduciary duty…

Moore v. Regents of University of California (1990)

Facts
Mr. Moore was being treated for leukemia by Dr. Golde. After being pronounced healthy, Moore moved from California to Alaska. Soon after the move, Golde realized that Moore was an extremely rare patient; his cells were perfect for research. Golde convinced Moore to periodically return to UCLA (expenses paid) for treatment. Treatment consisted of continuing to give samples for Golde’s multi-million dollar research and product development. Moore was never informed of the research or his unique cells.

Moore sued for lack of informed consent and conversion. Conversion occurs when someone wrongfully exercises control over someone else’s property.

Questions
1. Is there lack of informed consent?
2. Is there a conversion issue?

Holding
1. Yes
2. No

Reasoning
1. As we already know, Dr. Golde had a duty to make Moore aware of the risks involved in any prospective procedure. But this case has nothing to do with Moore’s actual leukemia treatment. That’s why SCOTUS created a new doctrine: “A patient must also be made aware of any personal or economic research interests that the doctor might have.” As soon as Golde was aware of research possibilities he had a duty to inform Moore.

2. The court didn’t want to threaten legitimate researchers or get involved in the buying or selling of bodyparts. The conversion claim was thrown out, but it was noted that sooner or later SCOTUS would have to make a ruling on this issue.

And the winner is…
Moore settled out of court for 200k.

summarized from Life of a Law Student

Freaking Taxes

Okay.

We’ve firmly established that the Commerce Clause does not give Congress carte blanche. In this post we will look at the taxing power, another avenue for Congressional regulation of behavior.

The Constitution (16th amendment) gives Congress the power to tax and spend for the general welfare of the country. There are two general interpretations of this power. The Madisonian view is that both the taxes and the spending should be used for the general welfare of the country. The Hammer felt that Congress should be able to tax whatever they want, so long as the spending goes towards general welfare/realization of enumerated powers. Debate over this issue is ongoing.

The important thing to remember is that SCOTUS decides which taxes are constitutional and which taxes are struck. Although decisions are accompanied by much flowery writing, it appears to boil down to a simple gut-check by the justices. The lesson: Supreme Court appointments are REALLY important.

United States v. Doremus (1919)

Facts
Congress implemented a moral policy by placing a federal tax on the sale of narcotics.

Question
Is this allowable behavior under the taxing power?

Holding
Yes

Reasoning
It’s cool. SCOTUS doesn’t care if Congress legislates morality in this way. Besides, Congress is made up of elected officials. If they pass bad taxes, the people will surely take note and vote them out of office.

Note
The reasoning for this case could apply to any decision in which SCOTUS allows a federal tax.

Bailey v. Drexel Furniture (1922)

Facts
Congress passed a tax on businesses that used child labor.

Question
Can Congress regulate this practice through taxation?

Holding
No

Reasoning
Let the states regulate child labor.

Notes
-Similarly, the reasoning for this case applies to any case where SCOTUS strikes a tax.

-Remember Hammer v. Dagenhart? Congress already tried to regulate child labor through the Commerce Clause. SCOTUS struck that act, and now Congress is taking a stab with the taxing power. Standard operating procedure for the legislative branch. But we already know that the best way to get policy through is to simply appoint new justices.

summarized from Life of a Law Student

Is ignorance an allowable defense?

Mistake of Law
A few summers ago, I rented a house in Wilmington, NC with a guy from Maine. One night the cops caught him drinking in his car, and were all set to write him a ticket. Andy told them that drinking in your car was legal in Maine, as long as the engine is off. Therefore, he didn't know he was breaking the law. And they let him walk!

This is a Mistake of Law defense, and it is not valid in any court. When you engage in an activity, it’s your responsibility to know the relevant laws. Andy waived the right to live by Maine law when he moved to North Carolina for the summer. I’m sure the police knew this, but they must have felt bad for the guy.

Just in case you ever visit Maine, let me point out that Andy was probably lying about being allowed to drink in your car.

Mistake of Fact
Ignorance can only be a defense if it applies to fact patterns, and even this defense is not absolute. Imagine buying a rifle on Craigslist, only to be arrested later for possession of a stolen gun. You have a solid Mistake of Fact defense, because you honestly didn’t know the weapon was stolen.

Bear in mind that Mistake of Fact is intricately tied to mens rea (criminal intent). If the statute in your jurisdiction was "knowingly possess a stolen gun", your case is airtight. What if the statute stated "negligently possess a stolen gun", and the gun was covered in blood when you received it? You probably aren’t getting away with that one.

A bit on Strict Liability
Some acts are sufficiently wicked that strict liability comes into play, which makes the fact pattern irrelevant. For example, some states use strict liability for statutory rape. A defendant might claim that his victim told him she was 18, and that he was mistaken about her factual age. Under strict liability, he is still guilty.

We’ll delve much deeper into strict liability in the next Criminal Law post.

summarized from Life of a Law Student

Looking Out for #1

When can omission of an act satisfy Actus Reus?

Pope v. State (1979, Maryland)

Facts
Mr. Pope witnessed a woman with mental illness beat her child severely. He did nothing to stop the beating. Pope and the mother then went to church. When they returned to her home, the child was dead. Mr. Pope was prosecuted for child abuse.

Question
Is Pope’s omission culpable?

Holding
No

Reasoning
The default rule in America is that citizens have no duty to help others. This general rule applies to both civil and criminal actions. The thinking is that rescue is not without risk. Some states have made exceptions.

And the winner is…
Pope, also America-bashers

Notes
-The prosecution must establish a duty to act before they can convict someone for omission.

Five common ways to establish a duty:
1. Explicit - when a statute explicitly states the duty
2. Relationship - special relationships such as father/son or captain/ship’s passengers
3. Contractual – think lifeguards, firefighters, and personal trainers
4. Seclusion – occurs when someone voluntarily takes responsibility for care and secludes the individual needing care from others
5. Cause of Peril - if a person creates peril they automatically have a duty to protect others from harm

summarized from Life of a Law Student

Limeys and Drug Mules

The most common criminal defense is the “I didn’t do it.” Much less common are actus reus defenses. Somewhere in the middle are mens rea (criminal intent), which we will explore in this post.

Under the Model Penal Code, there are four mens reas commonly attached to statutes:
1. Purposely
2. Knowingly
3. Recklessly
4. Negligently

These terms are hierarchical. If you “knowingly” break a statute that says “recklessly”, you have indeed committed a crime. And if no mens rea is attached to a statute, recklessly is assumed.

Regina (the Queen) v. Cunningham (1957, England)

Facts
A bugger attempts to knick from his future mother-in-law’s gas meter, which was full of coins. The scallywag didn’t bother to turn of the gas. The gas started spilling into the house and nearly killed the poor lady. Blimey!

Question
Can this tosser be charged with attempted murder?

Holding
No

Reasoning
He had a mens rea for robbery, not murder.

And the winner is…
Cunningham

Note
Under the MPC, the mens rea “recklessly” could be applied. But either way, the prosecution would need to establish an intent to murder. On the flipside, if you intend to perform an act that violates the law, your motive for doing so is irrelevant.

Conscious Avoidance, the Ostrich Defense

United States v. Jewel (1976)

Facts
Mr. Jewel drove a car into the U.S. with 110 pounds of weed in a hidden compartment. He was aware of the secret compartment. He had some clues that his car was full of weed, but he consciously avoiding knowing for certain. The statute in question had the word knowingly attached.

Question
Can conscious avoidance substitute for knowingly?

Holding
Yes

Reasoning
The MPC says “when knowledge of the existence of a particular fact is an element of a defense, such knowledge is established if a person is aware of a high probability of its existence. Unless he actually believes that it does not exist.”

And the winner is…
America!

Note
Technically, the federal criminal court has not adopted the MPC. But much of the code is used for federal law.

summarized from Life of a Law Student

Blah Blah Blah

I think this will be the last Commerce Clause post for the foreseeable future. Thank God, I’m sick and tired of beating this dead horse.

Once again, Congress tries to use the open-ended Commerce Clause in lieu of (and sometimes in contradiction of) enumerated powers. Even though many of these laws regard issues every American would agree on, SCOTUS must strike the legislation if it is not an economic issue with interstate effects. The idea is to protect federalism.

United States v. Morrison (2000)

Facts
Congress used the Commerce Clause to pass the Violence Against Women Act. A woman was raped, and attempted to recover in federal court.

Question
Does Congress have the power to reach this type of activity under the Commerce Clause?

Holding
No

Reasoning
Rape is neither interstate nor economic activity. The plaintiff argued that rape affects interstate economic decisions such as tourism and business relocation. SCOTUS did not find this argument persuasive.

Note
It’s important to reiterate that SCOTUS is not saying that the federal government should allow rape. It is merely saying that the Commerce Clause is not the proper channel for legislation against such a crime.

summarized from Life of a Law Student

Dr. House is SO unprofessional

Do we use a local or national standard of care for medical malpractice?

Morrison v. MacNamara (1979)

Facts
Mr. Morrison was in need of a urethral smear. The smear can be administered while the pt is standing, sitting, or lying down. Morrison told MacNamara, the lab technician, that he was feeling faint. MacNamara then administered the smear with Morrison standing. Morrison fainted, hit his head, and suffered significant neurological damage.

The jury in this malpractice/negligence case was instructed to use a local standard of care. Morrison argued unsuccessfully for a national standard of care. Morrison lost, and the case was appealed.

Question
Should the jury have been instructed on a national standard of care?

Holding
Yes

Reasoning
In the past, a local standard of care was used to avoid unfairly burdening rural doctors. The thinking was that rural doctors did not always have access to cutting-edge technology, staff, and education. Progress in communication, transportation, and technology makes this rule outdated. Furthermore, continuing the local standard of care gives rural doctors no incentive to improve the quality of their treatment.

And the winner is…
There were no winners. Morrison recovered damages, but he also had his urethra smeared.

Notes
Ironically, this was a metropolitan facility that marketed itself as one of the best in the nation.

What is the deal with informed consent?

Scott v. Bradford (1979)

Facts
Ms. Scott was urged by Dr. Bradford to have surgery. The doctor did not inform her of possible complications. Following the surgery there were significant complications, and three more surgeries were needed. Scott sued, alleging that she would not have elected surgery if she had been more informed.

Question
Does the medical standard of care require informed consent?

Holding
Yes

Reasoning
People have a constitutional right to privacy, which includes the right to determine what happens with their body. A doctor must disclose everything a “reasonable patient would want to know.” That’s why drug ads list so many side effects.

And the winner is...
Scott

More on doctors and informed consent
-Informed consent is implied if a patient is unconscious and the situation is an emergency.
-Doctors do not need informed consent if they can prove that it would be detrimental.
-No consent=battery, a criminal action.
-Incomplete consent=negligence, a tort.
-The patient can only sue for damages that arise out of uniformed risks. Even if the doctor doesn’t completely inform the patient, the doctor’s ass is still covered for all risks that were explained.
-Some states use an objective test: what would the reasonable person want to know?
-Some state use a subjective test: what would this person have wanted to know? It falls on the defense attorney to prove the plaintiff is lying.

summarized from Life of a Law Student

If you can't say something famatory, don't say anything at all

In this post, we will look at two more cases dealing with personal jurisdiction.

Calder v. Jones (1984)

Facts
Jones was an entertainer in California. The National Enquirer published an article about her that was possibly defamatory. The National Enquirer was based in Florida. The publication did not bother moving for lack of jurisdiction because 12% of its circulation was in California. But the reporter and editor of the story did move for lack of jurisdiction. The two men had little contact with the state of California: a combined three phone calls, one vacation, and a pending (unrelated) defamation lawsuit.

Question
Can California assert jurisdiction in this case?

Holding
Yes

Reasoning
The court did not bother with minimum contacts, reasoning that this was not a charge of mere untargeted negligence. Instead, the court created the Effects Test. Since the men were charged with allegedly tortuous actions that were intentional and expressly aimed at a California resident, they fell under California jurisdiction.

And the winner is…
Jones, at least on this motion. I don’t know the outcome of the actual defamation suit.

Keeton v. Hustler Magazine, Inc. (1984)

Facts
Hustler Magazine published an allegedly defamatory cartoon of Ms. Keeton, who was dating the Penthouse publisher. The statute of limitations in New York (where Keeton lived) ran out before she could file a lawsuit. The statue had not expired in New Hampshire, so Keeton filed suit there. This case had no special connection to the state of New Hampshire. Hustler sold very few magazines that state.

Question
Can New Hampshire assert personal jurisdiction over Hustler magazine.

Holding
Yes

Reasoning
It does not matter how few magazines Hustler sold in NH. Hustler’s business actions within the state were systematic and continuous. New Hampshire residents who enjoyed Hustler were mislead by the cartoon.

And the winner is…
Keeton

Notes
-All damages sustained in all jurisdictions are recoverable by a single action. Although Hustler was found liable only in New Hampshire, damages from that judgment would have been awarded based on Hustler’s entire American distribution.

summarized from Life of a Law Student

More on Drunk Law

In order to be found guilty of a crime, the following three elements must be present:

Actus Reus – voluntary act requirement (can be satisfied by omitting an act)
Mens Rea – criminal intent
Concurrence - act and state of mind must occur at the same time

In the post we will look at actus reus.

Martin v. State (1944, Alabama)

Facts
Mr. Martin was intoxicated in his home. The police dragged Martin out of his house onto a public road, where he became loud and obnoxious. He was arrested and charged with public drunkenness.

Question
Was his action voluntary?

Holding
No

Reasoning
Martin’s “loud and obnoxious” behavior is voluntary because "any action that result from intoxication is considered voluntary." However, he was dragged involuntarily into public.

And the winner is…
Martin

What if this case occurred today in a Model Penal Code state?
What a great question! I’m glad I asked. Martin would be guilty. The MPC breaks each statute down into attendant circumstances, actions, and results (if any).

The statute in question during Martin’s trial would be broken down as follows:

Attendant Circumstances
1. while intoxicated or drunk
2. in any public place
3. where one or more people are present
Actions
1. appears
2. manifests a drunken condition
Results
none

Under the MPC, only one action must be voluntary in order to satisfy mens rea. In Martin’s case, manifesting a drunken condition was voluntary. The fact that his appearance in public was involuntary does not matter.

So can the cops just drag me out of a bar and arrest me in the street?
It sure sounds that way, but I seriously doubt it. Until we find out for sure, try not to be such a jackhole when you drink.

What? Oh, you know exactly what I'm talking about.

summarized from Life of a Law Student

E & Chan

Word o' the Week

Surreptitious
-stealthy