22 Weeks

Duress

Duress is a defense against criminal charges. It is raised when the defendant alleges that they were forced to commit a crime. The common law approach to duress-as opposed to the MPC approach-has three requirements:

1. The threatened injury must induce a fear that an ordinary man would yield to.
2. The impending danger must be imminent.
3. The threat must be of death or serious bodily injury.

Additionally, duress can be raised if the threat was directed at a loved one. However, duress is not a valid defense against homicide.

State v. Toscano (1977, New Jersey)

Facts
Toscano was a chiropractor who was pressured to defraud an insurance company. Toscano was ordered to falsify documents, or else he and his wife would be harmed. He complied, and did not make financial gains from the insurance fraud.

The jury was never given an instruction on duress, because the trial judge did not feel danger was imminent. Toscano was found guilty of insurance fraud.

Question
Should the jury have received instructions on duress?

Holding
Yes

Reasoning
The New Jersey Supreme Court tossed out the common law approach, and adopted the MPC approach instead. Under the MPC, the threat of danger need not be imminent.

And the winner is...
Toscano, sort of. The case was sent back for retrial, this time with the proper jury instruction.

summarized from Life of a Law Student

All Work And No Play...

I've been a bad, bad blogger. On the plus side, life has been a blast the last few weeks! Updates on the way.

...


Odds and Ends
-My phone has been acting squirrelly. I've been missing calls and texts for at least a couple of weeks. Also, I can't check my voicemail. If I appear to be ignoring you, that's my excuse. I can't get a new phone on the cheap until the 23rd. Try emailing me. Also, PAY FOR INSURANCE ON YOUR CELL PHONE! You have no idea what I've been through.

-My amateur opinion is that if the "facts" presented in the news are true, Donte Stallworth is going to prison. It should be interesting to see how his lawyer attempts to "vigorously defend" against this charge.

-It's a boy!

-Jeff Goldblum joins the cast of Law & Order this Sunday at 9pm. My expectations are high.

-Calling my shot: Lakers over Cavs in 6. Hope I'm wrong.

-What legal issue do you want me to research and write about? Leave a comment or shoot me an email?

Accomplice liability is the legal theory used to charge people with aiding and abetting. The accomplice can be charged as a principle even through they didn't physically commit the crime. So if you aid the Hamburglar, you can also be charged with hamburglary.

Accomplice liability usually requires a purposefully mens rea, although some jurisdictions use knowingly for serious crimes like rape and murder. You cannot recklessly/negligently aid and abet.

Hicks v. United States (1893)

Facts
Hicks and Culvert were sitting on horses when Row walked up. Row raised his rifle twice and each time pointed it at Culvert. Hicks said, "Take off your hat and die like a man." Hicks was also taking off his own hat and laughing. Row shot and killed Culvert. Hicks and Row rode off together.

Hicks was indicted for murder under accomplice liability. A jury instruction expressed that Hicks was guilty if his actions encouraged Row to shoot Culvert. Hicks argued that he feared for his own life, and was only trying to diffuse the situation with humor.

Question
Was this jury instruction correct?

Holding
No

Reasoning
The instruction should have added that the defendant had to intend to encourage the killing.

And the winner is...
The case was sent back for retrial.

State v. Gladstone (1980, Washington)

Facts
An undercover agent was trying to buy pot from Gladstone. Gladstone wasn't holding, but he drew the agent a map to another dealer. The agent went and bought pot. Gladstone was charged with aiding and abetting the other dealer in selling drugs.

Question
Was there intent to sell drugs?

Holding
No

Reasoning
Gladstone was knowing, but not purposeful. The state did not produce evidence that Gladstone cared whether there was a drug deal. His alleged ambivalence set him free. Plus, that's just good customer service.

People v. Luparello (1987, California)

Facts
Luparello was jealous because his former lover married someone else. He thought he could locate the couple through an acquaintance named Martin. Luparello convinced his friends to go beat the information out of Martin. They showed up at Martin's residence with guns and a sword (in 1987!), lured him outside, and ultimately shot and killed him.

Luparello was charged with aiding and abetting murder. He argued that the murder was unplanned, unintended, and unrequested.

Question
Is Luparello liable for murder?

Holding
Yes

Reasoning
California used a "natural and foreseeable consequences" test. Death was a natural and foreseeable consequence of Luparello's request.

Notes
This is a minority view. As in the previous two cases, the MPC would not honor this principle because it establishes only negligence and at most recklessness. I mostly just included this case because of the ridiculous sword-wielding business.

summarized from Life of a Law Student

Attempt, Part 2

For a defendant to be guilty of attempt, they must go beyond mere preparation. We want to give people a chance to turn back. But where is the line separating preparation from attempt? It’s important to define attempt somewhere short of the actus reus. We can’t have police standing idly by while murders take aim at their victims.

Let’s use Lost as an example. When the Oceanic 6 met Ben on the dock, Sayid gave Ben a warning. Something along the lines of “If I ever see you again, it’s going to be very unpleasant for both of us.” Although that is a little vague, let’s pretend that we now have clear evidence of intent to murder.

Sayid soon found himself back on the island, where he met young Ben. I suppose this is where he began planning/preparing. After tricking Ben into letting him out of the cage, Sayid took Jin’s pistol and shot Ben in the chest. (For the sake of this example, we'll also have to pretend that Ben isn’t purposefully setting up all these little mousetraps. He freaking WANTED Sayid to travel back in time and shoot him.)

At what point did Sayid's actions cross the line from planning to attempted murder? There are a number of tests to help us distinguish preparation from attempt.

The Dangerous Proximity Test looks at how close the victim is to danger. Under this test, once Sayid had possession of the weapon, and was close enough to shoot Ben, he had completed attempted murder. Sayid would be guilty of attempted murder the moment he took Jin’s gun.

The Equivocality Test looks only at physical actions of the defendant. These actions must speak for themselves, and show clear intent to commit a crime. This test can push the line forward or backward relative to the Dangerous Proximity Test. I’m guessing a jury made up of Losties would not convict Sayid of attempted murder until the moment he pointed the gun at Ben. I think this action shows a clear intent to attempt murder, beyond a reasonable doubt.

Most jurisdictions, as well as the MPC, use the Substantial Step Test. Prosecution will attempt to show a substantial step that is strongly corroborative with attempt. The defendant must produce a compelling and innocent explanation, or they will be found guilty. Sayid could come up with pretty solid explanations for his behavior until he pointed the gun at little Ben. For instance, he might argue that he took Jin’s gun for protection (Smokie, polar bear, Others).

People v. Rizzo (1927, New York)

Facts
A group of men were driving around looking for a specific guy they wanted to rob. They were arrested before finding him.

Question
Was this attempted robbery?

Holding
No

Reasoning
New York was using the Dangerous Proximity Test. The victim was not in dangerous proximity because they couldn’t find him.

State v. Duke (1998, Florida)

Facts
Duke was trying to pick up a child in a chat room for sex. But the “child” was an undercover detective. They made a plan to meet in a parking lot, where Duke would flash his headlights. Duke showed up and flashed his headlights.

Question
Was this attempted statutory rape?

Holding
No

Reasoning
Again, Dangerous Proximity Test. No child was present.

Notes
This case is held up as an example of why the Dangerous Proximity Test does not work. We must put people in harms way to get convictions.

United States v. Jackson (1977)

Facts
Three defendants were in a conspiracy to rob a bank. They picked a day, and went to the bank with weapons and masks. After looking around they decided it wasn’t the best time. They made a plan to come back in a week.

In the meantime, one of the men was arrested for something else. He told the police about the conspiracy.

The men came back the next week with weapons, masks, and a fake license plate. They were arrested and charged with attempted robbery.

Question
Was this attempted robbery?

Holding
Yes

Reasoning
Substantial Step Test. The jury strongly inferred an attempt to rob the bank. The defendants were unable to come up with a compelling and innocent explanation.

summarized from Life of a Law Student

Attempt

This is the first of two posts on attempted crimes.

The word “attempt” implies intentional action. When considering attempt, the mens rea of the statute is automatically raised to knowingly. Therefore you cannot negligently or recklessly attempt a crime.

Hypothetical
A man builds a catapult, and is launching flaming projectiles out of his backyard. He lives in a crowded neighborhood, and accidentally kills someone a few blocks away. This would be depraved heart murder. But if his neighbor survived, it would not be attempted murder. Again, recklessly does not satisfy attempt.

Solicitation
In some states, you have to attempt the crime yourself to be charged with attempt. But most states, as well as the MPC, say soliciting a hitman completes attempted murder.

Abandonment
This is a defense to attempt. It is based on the defendant arguing that they abandoned the crime before completion. Abandonment works in the majority of states and under the MPC. The abandonment must be of the defendants own free will. You can’t abandon the attempt because the crime is going poorly.

Factual Impossibility
This is when you attempt to commit a crime, but fail because you don’t have all your facts straight. An example would be trying to poison someone with a substance that is not poison. Or, a pedophile has sex with a “minor”, only to find out that the victim is actually of legal age. Under the MPC, such acts successfully complete attempt.

Smallwood v. State (1996, Maryland)

Facts
Smallwood was HIV positive, and had been warned by counselors not to have unprotected sex. He raped several women without wearing a condom. Among other charges, he was prosecuted for attempted murder.

Smallwood argued against this charge, contending that he was merely being reckless. The state argued that his actions were the equivalent of firing a loaded gun. Previous case law within Maryland stated that “use of a deadly weapon at a body part is sufficient for attempted murder.”

Question
Was this attempted murder?

Holding
No

Reasoning
The natural and probable result of firing a gun at someone is death and therefore murder. The state did not present convincing evidence that the natural and probable result of unprotected sex with an HIV carrier is death.

Notes
The prosecution should have had an expert to testify that this type of sex leads to HIV and death X% of the time.

summarized from Life of a Law Student

Slip and Fall Cases

I mean literally slip and fall, then try to sue someone because you hurt yourself. These cases tend to favor the defendant, because people have a duty to watch where they are going. Of course, the defendant will also have a duty to keep things reasonably safe. Let’s see how these duties are balanced.

In slip and fall cases, the plaintiff has a burden of production towards one of the following four scenarios:
1. Smooth/Slippery Surface (usually from cleaning)
The defendant must have applied the product in the customary manner (safety cones, not using a ridiculous amount of the cleaning product, etc.)
2. Tracked-In Water
In Ohio, the defendant has very little duty near the door. You need to be aware that water is often tracked in. At some point (depending on the case) you cross the threshold into an area where the defendant has a duty.
3. Defect in the Surface
There are specific rules in each jurisdiction (e.g. a hole must be X square inches)
4. Foreign Substance
The plaintiff must prove one of the following three:
a. the defendant placed the substance there
b. the defendant knew the substance was there, and had an opportunity to clean it up
c. the substance was there long enough that the defendant should have noticed it

Lipman v. Super-X Drug Corp. (1989, Ohio)

Facts
Lipman was shopping at Super X. She slipped on a substance, fell, and hurt herself. She testified that it was “wax…or something like that”.

Question
Was Super X negligent?

Holding
No

Reasoning
There is no evidence of the store owner’s negligence. The plaintiff failed to establish the substance, a negligent act, or an omission.

Goddard v. Boston and Maine RR Co. (1901, Mass)

Facts
Goddard was a passenger on the railroad. While exiting the car, he stepped onto a banana peel on the platform. Goddard slipped, fell, and was injured. Testimony showed that the banana peel was still yellow at the time of the accident.

Question
Was this negligence?

Holding
No

Reasoning
Goddard failed to establish a duty. He was unable to prove that the banana peel was there long enough that it should have been cleaned up.

Anjou v. Boston Elevated Railway Co. (1911, Mass)

Facts
The plaintiff asked an employee of the train station for directions to a train. While following the agent, she stepped on a banana peel. You know what happened next.

Testimony showed that the peel was “black, dry, and gritty”. It was also described as “trampled and flattened down”.

Question
Did Anjou meet her burden of production/establish duty?

Holding
Yes

Reasoning
The banana was there long enough that it should have been cleaned up.

And the winner is…
Anjou
Also, physical comedy.

summarized from Life of a Law Student

Direct Evidence v. Circumstantial Evidence

Direct evidence is obvious, and it requires no inference. Circumstantial evidence requires an inference. If you saw me walk out of Crossfit Cleveland red-faced and covered in sweat, you could infer that I worked out. In court, your testimony would be considered circumstantial. If you peeked in the front window and saw me working out, that would be direct evidence.

TV lawyers are always objecting to circumstantial evidence, so we tend to give it a bad rap. But there are times when circumstantial evidence can outweigh direct. Let’s say 10 members of Crossfit Cleveland testified that they had never seen me at a workout. But security cameras filmed me going in clean and coming out sweaty, my name was on the sign-in sheet, checks in my name were written to the gym, I had scabby shins, I groaned and cussed whenever I walked down stairs, and I was ripped like an extra from 300. In this scenario, circumstantial evidence might outweigh the direct.

Customary Duty...

...Is when you go at the same time every morning.

Jokes.

You can establish a skilled worker's duty by establishing that a certain action is customary within a field. This is called a customary duty. This is very similar to establishing a skilled professional's duty by establishing standard practice within a field.

Trimarco v. Klein (1982, New York)

Facts
Trimarco was an apartment tenant, and Klein was his landlord. The property was over fifty years old, and the bathroom used standard glass. Trimarco injured himself after breaking the glass. Trimarco then sued Klein for negligence, alleging that he should have installed shatterproof glass.

Question
Was there a duty to install shatterproof glass?

Holding
Yes

Reasoning
The plaintiff presented professionals, including the defendants manager, to testify that installing shatterproof glass was "customary" since the 1950s.

And the winner is…
Trimarco, but only in the sense that he satisfied the burden of production. The case was actually sent back to the trial level due to a technicality unrelated to customary duty.

Customary Duties and the Reasonable Person
It’s generally a solid shortcut, but it doesn't always work. Establishing a customary duty is powerful testimony for what a reasonable person would do. However, you can still be negligent even if you followed customary duty. And on the flipside, ignoring customary duty can still be not negligence. Or, as I like to say, posligence.

summarized from Life of a Law Student

10th Amendment, and Making Love

These next two cases illuminate interpretations of the 10th amendment (state sovereignty) from the 1990s.

New York v. United States (1992)

Facts
Back in the mid 1980s, we started to generate a lot of low level toxic waste. The original plan required any party who created toxic waste to dispose of it. The problem was that corporations would dissolve and there would be no one left to manage disposal.

Under commerce clause power, Congress attempted to force each state to create a site for handling its own toxic waste. There were three parts to this legislation.

1. Money- Congress created a chronologically escalating tax for shipping toxic waste across state lines. Those funds would go mostly to states that had created dumping facilities of their own.

2. Access- Congress vowed to gradually restrict and ultimately block shipping access to other states.

3. Take Title- When a state was left with toxic waste that could not be moved or disposed of, the state assumed title for the waste. On these grounds, the state was legally responsible for the consequences of maintaining toxic waste.

Question
Does Congress have the ability to regulate in these ways under the 10th amendment?

Holding
1. Yes
2. Yes
3. No

Reasoning
1. Congress can tax and put conditions on the money it gives out. Duh, the taxing power.
2. Congress has almost unlimited control over the channels of interstate commerce.
3. “Congress may not commandeer state legislatures and force them to regulate in a certain way.”

Reno v. Condon (2000)
The Driver’s Privacy Protection Act prevented states from selling information they obtained from driver’s licenses

Question
Can Congress regulate the states in this way?

Holding
Yes

Reasoning
Congress is negating an activity (selling driver’s information), not requiring an activity.

...So, Congress has some power over state and local legislatures.

Congress also has some power over state and local courts. For example, state courts are expected to uphold Supreme Court rulings on federal laws.

The state executive branch appears to be the most secure from Congressional interference, as evidenced by today’s final case…

Printz v. United States (1997)
The Brady Bill required states to carry out instant background checks for handguns.

Question
Can Congress commandeer the executive power of the states in this way?

Answer
No

Reasoning
The short answer is FEDERALISM! The longer answer is…well, I don’t know. They just can’t.

Notes
As far as I can tell, reasoning in Constitutional Law cases tend to be weak. Even when the same basic question is answered differently in different generations, the reasoning is often just a restatement of the question and holding. Or, “The Constitution says so.” Or, my personal favorite, "Cause I'm Alexander Hamilton, suckas. I came here to do two things: make love, and preserve federalism...Looks like I've pretty much preserved federalism."*

*I was paraphrasing Alexander Hamilton. He may not have used those exact words.

I realize that's the beauty of the Constitution - and our government - but it makes for pretty boring reading.

And the winner is…
The Hammer wins! He always wins!

summarized from Life of a Law Student

Sue Me, I'm Lazy

Wikipedia is blessedly clear and concise on the differences between general and specific jurisdiction.

I’m taking the easy way out and just quoting the wiki…

General jurisdiction exists when an out-of-state party has extensive, systematic and continuous dealings with the state in which the court sits. When a court has general jurisdiction over a party, the court has personal jurisdiction over any dispute involving the party. Thus, a court's general jurisdiction power is equivalent to its power based on presence within the state. As an example, a corporation may advertise and sell so many products for such a long time within a state that it is subject to personal jurisdiction for any claim against it, even if the claim involves activity that occurred only outside the state… Conversely, a court's specific jurisdiction power over a party, when the party does not have systematic and continuous contacts with the state, is specific to cases that have a substantial connection to the party's in-state activity.