PHILOSOPHY OF LAW
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HAND-OUTS
SPRING 2003





Preamble, Preface, Prelude


Whatever else may be true in a given criminal case, what a defendant had in mind at the time that the defendant committed the alleged criminal act matters. It matters to our ascertaining the defendant's guilt or innocence. Indeed, we might say: "It ought to matter," since our sense of fairness, our sense of whether it is right or just to punish someone for criminal wrongdoing, is intimately bound up not only with our determining whether a person did or did not do the "dastardly" deed with which he or she is charged, but also whether the person so charged had a "guilty" mind, a mens rea or a criminal intent. And we might say "the innocence or criminality of the intent in a particular act generally depends on the knowledge or belief of the actor at the time. An honest and reasonable belief in the existence of circumstances which, if true, would make the act for which the defendant is prosecuted innocent, would be a good defense." (People ex rel. Hegeman v. Corrigan (195 N.Y. 1, 12) emphasis added.) But consider the following:

A Case of Homicide or Mother's Love?

Laurie Sullivan is a Christian Scientist. On February 21, 1996, her four year old daughter, Allie, came down with flu-like symptoms and four days later she developed a stiff neck. In keeping with the teachings of her religion, Laurie decided to treat her child's illness with prayer rather than medical care. She contacted an accredited Christian Science practitioner who prayed for Allie and visited her on two occasions. Sullivan also engaged a Christian Science nurse who visited Allie on February 27 and again on March 6 and 8. Christian Science practitioners are approved for listing by the Church in The Christian Science Journal after they have given evidence of their moral character and healing ability. Practitioners devote their full time to healing and spiritual treatment. They have no medical training. According to the Church, "their work is a religious vocation, a ministry of spiritual healing in its broadest sense." A Christian Science nurse also has no medical training, but can provide such practical care as dressing the wounds of those undergoing spiritual treatment. Allie became progressively worse. Her fever persisted. She lost weight, grew disoriented, and became increasingly irritable. Then on March 9 Allie died of acute meningitis after a period of heavy and irregular breathing. During the 17 days she lay ill, Allie received no medical treatment. The Commonwealth of Massachusetts alleged that Sullivan's criminal negligence was the cause of Allie's death and charged her with involuntary manslaughter (negligent homicide).

There is no question that Allie died as the result of Laurie Sullivan's actions or, more exactly, her failure to act in a particular way. Had Allie been taken to a hospital during the period of her illness the progress of her disease could have been abated and she, Allie, could have been cured.

But did Laurie Sullivan have the requisite mens rea? Did she not honestly and reasonably believe that she was acting in her daughter's best interests? The State, in this instance the Commonwealth of Massachusetts, appears to presume at least that Laurie Sullivan did not act with malicious intent; they have not charged her with murder or even manslaughter but with negligent homicide. In order to settle, however, the question whether Laurie Sullivan acted negligently, it is necessary to determine the "reasonableness" of her conduct; hence, to apply some sort of a "reasonable man" standard, as it is called, which is not without some small irony, in this instance, since Laurie is not a "man," but a "mom."

How does Laurie's case, for example, compare to one of the twenty-one-legal puzzlers drawn from Leo Katz' book Bad Acts and Guilty Minds. Given their respective belief systems, aren't Laurie and Mohamed in the same boat, as it were, to the extent of the "reasonableness" of their beliefs in light of their decisions to act as they did?

Love and Death in the Sudan

One dark night, September 11, 1947, Mohamed was going from Bubha village in the Sudan to the village of Meki Beshir to visit his girlfriend. The villages are two miles apart and there is a local superstition that the path between them is haunted. Along the way Mohamed encountered a figure dressed in white. He called out, received no reply and became frightened that the figure was a ghost. He plunged his spear into the figure before him and ran to the village. It turned out that the "ghost" was Hamid Yahya, a young man of 60, who did not hear Mohamed call out because he had a turban wrapped around his ears to keep out the cold. Did Mohamed murder Hamid Yahya?
As Leo Katz points out in his book: Sudanese courts have thought that someone in Mohamed's position ought to be acquitted on the grounds that he "honestly and reasonably" believed that Hamid was not a human being but an "evil spirit" and if murder is to be understood as "the intentional killing of another human being," he should be exonerated from criminal liability. Should Laurie Sullivan be found to have acted negligently despite the fact that she and those around her sincerely believed they were taking appropriate measures to care for her daughter Allie's well-being? What do you think? Would you prosecute or defend Laurie Sullivan?

Then, having sorted out your view of Laurie's case and taken a position vis-a-vis her guilt or innocence, consider the following:

An "Honest and Reasonable" Belief or "Assault in the Third Degree?"

On a Friday afternoon at about 4:40, Detectives Corey and Flintoff observed an argument between a driver of a brand new Chevy Impala and MacDuff in front of 224 West 94th Street. Corey and Flintoff were not in uniform. The driver of the car had pulled up at the curb and was sitting in his car with the engine running. MacDuff was in the middle of the street, arguing with the driver, trying to get him to move out, "buzz off," or to get a "move-on," said in terms less polite than that. The driver refused to "buzz off," to put it politely, and MacDuff became increasingly agitated. He also continued to occupy a place in the middle of the street and traffic was building up behind him. Corey and Flintoff tried to chase MacDuff out of the middle of the street to allow traffic to pass. But MacDuff refused to budge. His refusals and Corey and Flintoff's efforts to get him to get out of the roadway attracted a crowd. Meeting with little success, Flintoff identified himself and his partner Corey to MacDuff as members of New York City's "finest," and placed MacDuff under arrest. MacDuff resisted. A scuffle ensued. And then (suddenly) "out of the crowd" came one John Elway from behind Flintoff, so Flintoff could not see him coming, and punched Corey with his fist and pulled Flintoff away from MacDuff. A bigger struggle now ensued involving Corey, Flintoff and Elway, a struggle which ended with Elway on top of Flintoff and Corey on top of Elway: one big heap in the middle of the street. Corey's jaw was dislocated and Flintoff injured his kneecap. Elway had a few bruises and nothing else. Now Elway - along with MacDuff - was placed under arrest. At the station house Elway was charged with "assaulting a police officer" or, as it is sometimes called "assault in the third degree." Elway said he had not known or thought prior to his arrest that Corey and Flintoff were police officers.

At trial Elway testified that as he was walking along 94th Street he saw two "white guys" who appeared (to him) to be about 45 or 50 years old, pushing and shoving some "Hispanic kid," of about 18, whom he, Elway, did not know. These two "white guys" Elway said, "had just about pulled this kid's pants off and," he added, "the kid was crying." Elway admitted that he knew nothing about what had transpired between MacDuff and the officers and that he made no inquiries at the time to find out what was or had been "going down." He just came along, saw what these "white guys" were doing to this "kid," punched Corey and flattened Flintoff.


Elway was convicted of assault in the third degree. And the New York Court of Appeals upheld the trial court's decision, saying that "one who intervenes in a struggle between strangers under the mistaken but reasonable belief that he is protecting another who he assumes is being unlawfully beaten is [not] thereby exonerated from criminal liability. . . . One who goes to the aid of a third person does so at his peril." The Appeals Court opined that while there may be some support for the view that a defendant who reasonably believed he was lawfully assisting another is not guilty of a crime, "such a policy would not be conducive to an orderly society," adding that "whatever may be the public policy where the felony charged requires proof of a specific intent and the issue is justifiable homicide, it is not relevant in a prosecution for assault in the third degree where it is only necessary to show that the defendant knowingly struck a blow."

"In this case there can be no doubt that the defendant intended to assault the police officers in civilian dress. The resulting assault was forceful. Hence motive or mistake of fact is of no significance [since] the defendant was not charged with a crime requiring such intent of knowledge. To be guilty of third degree assault 'it is sufficient that the defendant voluntarily intended to commit the unlawful act of touching.' Since in these circumstances the aggression was inexcusable, the defendant was properly convicted."

What do you think? Would you defend or prosecute Elway for "assaulting a police officer?" Would you overturn or uphold Elway's conviction?

Then, having sorted out your view of Elway's case and taken a position vis-a-vis his guilt or innocence, consider the following:

Justifiable Homicide or Murder without Justification or Excuse?

Justifiable Homicide or Murder without Justification or Excuse?

Janice Subin was charged with murder for the stabbing death of her husband Chester Subin in the early morning hours of February 13, 1995. She was found guilty of manslaughter and sentenced to twenty years' imprisonment in the Idaho State Penitentiary. She has appealed her judgment for conviction and it is now before the Idaho Supreme Court.
According to testimony at the original trial, the Subin marriage near its end was an "unhappy one, filled with a mixture of alcohol abuse, moments of kindness towards one another, and moments of violence." Early in the evening of February 12, Chester and Janice "attended a gun club party in the city of [Boise] where they both consumed a large amount of alcohol. On the return trip to the farm, an argument developed between Janice and Chester which continued after their arrival home just after midnight. Once inside, the arguing did not stop; Chester was shouting, and Janice was crying.
"At one point in the fighting, Janice tried to telephone the deputy sheriff of [the local] County, but Chester prevented her from using the telephone by shoving her away and pushing her down.
"At another point, the argument moved outside the house, and Chester once again was pushing Janice to the ground. Each time Janice attempted to get up, Chester would push her to the ground again.
"A short time later, Janice and Chester re-entered their home and went to bed. When Chester fell asleep, Janice got out of bed, went to the kitchen, and got a butcher knife. She then went back into the bedroom and stabbed Chester. In a matter of minutes Chester died from shock and loss of blood."

At her trial Janice pleaded self-defense? What do you think? Is she guilty or innocent of murdering her husband? Would you prosecute or defend Janice Subin?

Say there is a history of repeated abuse in Janice and Chester's marital relationship. As a result, Janice's fear of Chester is influenced by her knowledge of his character and repeated willingness to resort to violence. Whether you believe that Janice's stabbing of Chester was justified by a principle of self-defense may depend on what you believe she honestly and reasonably believed at the time.

As one opinion has held "courts have traditionally distinguished between standards of reasonableness by characterizing them as either 'objective' or 'subjective.' An objective standard of reasonableness requires the factfinder to view the circumstances surrounding the accused at the time he used force from the standpoint of a hypothetical reasonable and prudent person. . . . This is not the case, however, where a subjective standard of reasonableness is employed. Under the subjective standard the issue is not whether the circumstances attending the accused's use of force would be sufficient to create in the mind of a reasonable and prudent person the belief that the use of force is necessary to protect himself against immediate unlawful harm, but rather whether the circumstances are sufficient to induce in the accused an honest and reasonable belief that he must use force to defend himself against imminent harm."

What do you think? Should an objective or subjective standard of reasonableness be employed in Janice's case? Which would you use?

For instance, how should the trial court have instructed the jury in Janice's case? Should the trial court judge have told the jury:

(A) "The circumstances under which she acted must have been such as to produce in the mind of reasonably prudent persons, regardless of their sex, similarly situated, the reasonable belief that the other person was then about to kill her or do seriously bodily harm to her."

or (B) "A defendant's conduct is not to be judged by what a reasonably cautious person might or might not do or consider necessary to do under the circumstances, but what she herself in good faith honestly believed and had reasonable ground to believe was necessary for her to do to protect herself from apprehended death or great bodily injury."

What consequences, if any, might instruction (A) or (B) have for the future and general applicability of a plea of self-defense? Indeed, which instruction (A) or (B) should be the correct statement of the law of self-defense?

Should juries be directed in cases of self-defense to assume the physical and psychological characteristics of the accused, to put themselves, as it were, in the shoes of the accused, and then decide whether or not the particular circumstances surrounding the accused at the time the accused used force were sufficient to create in the accused's mind an honest and reasonable belief that the use of force was necessary to protect the accused from imminent and unlawful harm, or should juries be directed to assume the impressions that a hypothetical reasonably prudent person would have under similar circumstances?

If you think Janice's action is defensible, was it justified or merely excusable?

And how does your decision in Janice's case affect your decisions in the other two cases? Would you adopt a "subjective" standard of reasonableness in all three cases or an "objective standard?

Or would you use a "subjective" standard in one or two cases and an "objective" standard in the other one or two.

If so, how do you explain the different uses, i. e., what is about one or another case that makes the use of, say, a subjective standard appropriate but not appropriate, say, in some other case?






Prepared: February 4, 2003 - 5:02:29 PM
Edited and Updated, February 5, 2003


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