The latest water-cooler argument against Alex Rodriguez...
Did you read that story on espn.com? When A-Rod was a sophomore in high school, his bench press went from one hundred pounds to over three hundred pounds in only six months! He was definitely on roids.
The Boom is calling BS, because there is a flaw in the above logic. I don't know the proper name of this fallacy, but here is the formula: X causes Y. Therefore if Y is present, we know X occurred. Or, steroids cause rapid strength gains. Therefore if someone gets strong quickly, we know they took roids.
The problem with this line of reasoning is that it completely ignores the possibility that W, Z, or any number of other events may also cause Y. To refute your buddy at the water-cooler, all you have to do is come up with an alternative cause that is plausible.
For instance, I started lifting weights when I was a junior in high school. In the first 6 months, my bench press more than tripled (65# to 200#). My friends started lifting at the same time, and they made similar gains.
Just last year, at the best gym in the world, my deadlift went from 135# to 335# in 12-weeks. When a novice lifter begins regular weight training, they get strong really damn fast!
I'm not saying A-Rod did or didn't take steroids. I just wanted to point out that this particular argument against him is weak. I also wanted to brag about my deadlift before Sean pulls a 400.
...
What does this have to do with torts?
Nothing. Let's shift gears.
Take a Plaintiff As You Find Them
Bartalone v. Jeckovich (New York, 1984)
Facts
The plaintiff had a latent psychological condition. His mother and sister had died due to Cancer. He worked out four hours each day as a coping mechanism (so as to avoid ever getting sick).
The plaintiff suffered minor and acute injuries during an auto accident. Temporarily unable to workout, he had a severe psychological breakdown. On his behalf, someone sued the driver who caused the auto accident.
Question
Is the defendant responsible for the patient's schizophrenia?
Holding
Yes
Reasoning
Damages are subjective. It is irrelevant whether the damages are foreseeable. Clearly, the defendant did not cause the plaintiff's original psychological condition. However, the defendant must take the plaintiff as he found him. The car wreck became the catalyst for great personal injury.
Saturday, May 2, 2009
Tuesday, April 28, 2009
Monday, April 20, 2009
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
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
Thursday, April 16, 2009
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?
...
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?
Friday, April 10, 2009
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
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
Friday, April 3, 2009
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
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
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
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