Civil and Criminal liability for bad legal advice.
Fred the Red Shirt
so bad that the client actually commits a crime by following
it.
For example, suppose John Doe's attorney advise him to pay
a creditor by writing a check, knowing full well that Doe does
not have sufficient funds to cover the check. When the check
is returned for NSF one supposes the creditor will have a cause
of action against Doe, and Doe will have a cause of action
against his attorney for malpractice.
Now suppose further that the attorney advises Doe to ignore
the situation and in his state, after some statutory period of time,
his failure to make good on the check becomes a crime.
Is the fact that Doe relied, in good faith, on his attorney's bad
advice a defense?
Does the attorney have any exposure to criminal liability?
David Martel
> Suppose a client acts on REALLY bad legal advice, advice
> so bad that the client actually commits a crime by following
> it.
>
> For example, suppose John Doe's attorney advise him to pay
> a creditor by writing a check, knowing full well that Doe does
> not have sufficient funds to cover the check. When the check
> is returned for NSF one supposes the creditor will have a cause
> of action against Doe, and Doe will have a cause of action
> against his attorney for malpractice.
The credtor will have a bad check as evidence against Doe. Certainly
sounds like a slam dunk.
Now, how will Doe show malpractice? As you pose it , it does sound like
malpractice but I doubt a lawyer would advise a client to do this.
> Now suppose further that the attorney advises Doe to ignore
> the situation and in his state, after some statutory period of time,
> his failure to make good on the check becomes a crime.
So, after receiving bad advice from his lawyer, Doe is back, paying for
more bad advice? But yes, this is also malpractice. How will you prove that
the lawyer gave this advice?
> Is the fact that Doe relied, in good faith, on his attorney's bad
> advice a defense?
No, Doe wrote a bad check and then failed to make good on it. Bad advice
does not change Doe's ability to understand right and wrong. After writing
the bad check Doe was on notice that his lawyer gives bad advice. Failing to
make good on the check can't be excused by more bad advice.
> Does the attorney have any exposure to criminal liability?
Malpractice? Yes. Criminal liability? No.
Good luck,
Dave M.
nos...@isp.com
> Suppose a client acts on REALLY bad legal advice,
> advice so bad that the client actually commits a crime
> by following it.
Your emphatic but not otherwise explained "REALLY" and also vaguely
open-ended "acts on" raises but without you having provided facts that
enable a reader to answer at least these three questions:
Did the client shop for "REALLY bad legal advice" because
he knew or in the circumstances should have known that
(whether or not he "acts on" it) he may not reasonably
_RELY_ on such advice (i.e., that it probably was not correct
advice)?
Even if the client did not initially seek out advice from a
lawyer the client knew or should have known from the
outset would make an,
"I relied on my lawyer's advice!"
claim an emptily pretextual or maybe even outright false
defense, was the advice given so "REALLY bad" that the
client then knew or, at least, in the circumstances ought
then have known that the advice was no more than (in
substance if not in these exact words),
"What I, though an attorney, am advising is
that, if you do what I advise and are detected
and prosecuted criminally, you probably would
be found guilty, but I advise that you disregard
that eventuality and do the act I suggest anyway!" ?
What, in detail, did Doe tell the lawyer about the
transactions/occurrences re. which Do sought advice and
what, in detail, did the lawyer advise that would make
CREDIBLE a "No" answer to both/either of the above
questions?
Courts which allow a criminal defendant to proffer a "reliance on
advice of counsel" defense to a criminal charge gloss IN DETAIL the
underlying facts INCLUDING the often differing elements of
intentionality in the alleged criminal offense being prosecuted in
light of what the client told the attorney as a basis for advice and
of what the attorney advised.
> For example, suppose John Doe's attorney advise
> him to pay a creditor by writing a check, knowing
> full well that Doe does not have sufficient funds to
> cover the check.
Did Doe say to that attorney that Doe intended to and would deposit
sufficient funds that day or early the following day to cover the
check?
Did Doe say to that attorney, e.g., on Monday when he mailed the kited
check, that the creditor's past practice was regularly to deposit
checks only on Friday afternoon of the week when received?
etc., etc.
> When the check is returned for NSF one supposes
> the creditor will have a cause of action against Doe, . . .
. . . and absent other countervailing facts, this of course would be
a correct supposition, although . . .
> . . . and Doe will have a cause of action against
> his attorney for malpractice.
. . . among might be some perhaps other, "Yes, but...!"s, in the
context of a debt you imply Doe owed and consequently would be obliged
to pay in any event, how (if at all) was Doe damaged by his having
acted on the lawyer's advice? IOW, even if the lawyer gave and if Doe
acted on the basis of professionally negligent or even professionally
reckless or worse advice, So what [shrug]?
> suppose further that the attorney advises Doe to ignore
> the situation and in his state, after some statutory period
> of time, his failure to make good on the check becomes a crime.
>
> Is the fact that Doe relied, in good faith, on his attorney's
> bad advice a defense?
You appear to be positing that Doe will have committed a crime in his
state only if he does not make good on the check before the expiration
of whatever is "the statutory period of time" to which you refer, yet
the only (even if otherwise 'REALLY bad") advice you so far posit is
that it would not be a crime for Doe to have written and (by
implication) to have tendered/delivered the check to the payee even
if, when Doe did so, the check was not backed by sufficient funds.
IOW, have not hypothesized that the lawyer advised Doe that Doe ought
not or need not make good on the check before the expiration of
whatever is the "statutory period in time" after which, but apparently
according to you not before then, "in his state" Doe may be
prosecuted.
More generally, you here pose still another example of a highly
fact-dependent query re. which (to the extent that it reasonably can
be said that there is such) the more or less generally prevailing
principles in the U.S. state and federal systems implicate sometimes
effectively contradictory propositions -- namely, that, depending on
the particular nature and also, often very importantly, the degree of
complexity (or not) of the offense in question, whether a defendant
relied on advice of counsel may not be relevant and, when relevant, is
itself a question of fact and, if there is such reliance, it might
undermine a willful intent, _if_ that degree of intent is a required
element of the offense, _although_ (apart from whether the crime at
issue requires a showing of willful intent) such a defense generally
is not available to a defendant who knew from the outset that the
purpose of the conduct and/or the conduct itself in question probably
violated applicable criminal law.
> Does the attorney have any exposure to criminal liability?
Whether the attorney to whom you refer is realistically chargeable as
a co-conspirator or as an aider and abetter or whether what the lawyer
advised was independently criminal is also a highly fact-dependent
question.
There have been (state and federal) prosecutions of lawyers arising
from variations of the sort of scenario you summarize and some
arguably related others (e.g., a criminal defense attorney paid by an
alleged drug dealer with a large bundle of $5, $10, $20, and $100
bills charged with conspiracy to commit money laundering, or the
like).
Also more or less generally speaking, however, prosecutors tend to
avoid prosecuting an attorney (merely) for giving (even if) "REALLY
bad" legal advice and, in any event, a decision whether or not to
prosecute (anyone) in the U.S. is one that the relevant prosecutor may
make in his or her sole and essentially unreviewable discretion so
that whether there will/won't be the exposure about which you ask is a
decision a prosecutor not an asserted (even if also actual) victim
makes.
Seth
Fred the Red Shirt <fredf...@spamcop.net> wrote:
>Suppose a client acts on REALLY bad legal advice, advice
>so bad that the client actually commits a crime by following
>it.
. . .
>Is the fact that Doe relied, in good faith, on his attorney's bad
>advice a defense?
It's a defense against a *willful* violation of the law, because he
believed he was doing something correct and lawful. It isn't a
defense against a *strict* construction law, because he actually did
the thing.
I don't know whether failure to pay an NSF check in a given time
period is strict or willful.
>Does the attorney have any exposure to criminal liability?
It sounds like conspiracy to whatever the client gets convicted of.
Seth
Cy Pres
>In article <f7dd7f1c-00da-4bf0...@r33g2000vbp.googlegroups.com>,
>Fred the Red Shirt <fredf...@spamcop.net> wrote:
[Lawyer, presumably Lionel Hutz, advises client to write bad check.]
>>Is the fact that Doe relied, in good faith, on his attorney's bad
>>advice a defense?
>It's a defense against a *willful* violation of the law, because he
>believed he was doing something correct and lawful. It isn't a
>defense against a *strict* construction law, because he actually did
>the thing.
I do not believe there is any person who is not somehow mentally
defective who could make a believable claim that they did not realize
that hanging paper is against the law, regardless of what a soon-to-be
ex-attorney told them.
The violation would still, in any case, be willful. It is unlikely
that any statute prohibiting writing bad checks requires as an element
that the criminal realizes that it is against the law to do so.
Mistakes of law, whether generated by the advice of an attorney, are
usually not defensible on that ground. There are some cases where
they are; for example, I believe the IRS sometimes accepts a good
faith reliance on advice of counsel defense as against claims for
penalties for willful failure to pay taxes, although other late fees
and interest are still collectable.
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>On Wed, 2 Sep 2009 21:48:37 +0000 (UTC), se...@panix.com (Seth) wrote:
>>In article <f7dd7f1c-00da-4bf0...@r33g2000vbp.googlegroups.com>,
>>Fred the Red Shirt <fredf...@spamcop.net> wrote:
>
>[Lawyer, presumably Lionel Hutz, advises client to write bad check.]
>
>>>Is the fact that Doe relied, in good faith, on his attorney's bad
>>>advice a defense?
>
>>It's a defense against a *willful* violation of the law, because he
>>believed he was doing something correct and lawful. It isn't a
>>defense against a *strict* construction law, because he actually did
>>the thing.
>
>I do not believe there is any person who is not somehow mentally
>defective who could make a believable claim that they did not realize
>that hanging paper is against the law, regardless of what a soon-to-be
>ex-attorney told them.
Why not? Anybody should know he's not _supposed to_ do that, but is
it necessarily a crime? If a lawyer says that it's legal in a
particular case, due to some circumstances (that might make it appear
to be legal), why shouldn't his client believe him?
Seth
mm
wrote:
>In article <cfcv955k2celqpdnn...@4ax.com>,
>Cy Pres <c.p...@yahoo.com> wrote:
>
>...If a lawyer says that it's legal in a
>particular case, due to some circumstances (that might make it appear
>to be legal), why shouldn't his client believe him?
Like if the guy who kidnapped his dog is willing to take a check for
ransom. That seems okay, though it would be good if you could prove
it. To see how stupid criminals can be, watch Jay Leno's Headlines
regularly. Like bank robbers who write demand notes on the back of
personallized deposit slips, or who leave their wallet behind. Not
financial but there was one guy who cut his way through the roof of a
convenience store, and then fell through, right in front of a cop who
was standing at the coffee pots. It turned out it was a 24-hour
convenience store and it was open while the guy was breaking in.
>Seth
Cy Pres
wrote:
>Why not? Anybody should know he's not _supposed to_ do that, but is
>it necessarily a crime? If a lawyer says that it's legal in a
>particular case, due to some circumstances (that might make it appear
>to be legal), why shouldn't his client believe him?
Because he likes not being in jail, which is where he'll end up for
taking such "advice."
Seth
The point is that he's an ordinary person, not an expert in the law.
His lawyer, who _is_ supposed to be an expert in the law, advised him
to write a bad check (say, to gain time in a dispute in which the
client believes he's in the right).
How is a person to know that his lawyer is giving him very bad advice?
Does everybody who consults a lawyer need to consult two other lawyers
to ask if the advice the first one gave is valid?
Seth
Cy Pres
wrote:
>In article <9060b5157gmqv1de3...@4ax.com>,
>Cy Pres <c.p...@yahoo.com> wrote:
>>On Thu, 10 Sep 2009 19:07:14 +0000 (UTC), se...@panix.com (Seth)
>>wrote:
>>>Why not? Anybody should know he's not _supposed to_ do that, but is
>>>it necessarily a crime? If a lawyer says that it's legal in a
>>>particular case, due to some circumstances (that might make it appear
>>>to be legal), why shouldn't his client believe him?
>>Because he likes not being in jail, which is where he'll end up for
>>taking such "advice."
>The point is that he's an ordinary person, not an expert in the law.
Ignorantia legis neminem excusat. It's not just a Latin maxim, it's
the law.
Whether the wisdom of the policy is questionable, that's what will
happen in court. In this particular case, writing bad checks, it does
not require an expert in the law to know that writing bad checks is
illegal. I have no problem with someone hiring Lionel Hutz to tell
them it's legal to write bad checks and winding up in jail for doing
so.
>His lawyer, who _is_ supposed to be an expert in the law, advised him
>to write a bad check (say, to gain time in a dispute in which the
>client believes he's in the right).
In a case this clear-cut, the natural inference a court will reach
given this set of facts is that the perp hired a lawyer specifically
to give him "advice" to act as a legal defense for his own criminal
activity. Both the client and the lawyer are culpable. The client at
least has the recourse of a malpractice lawsuit, since advising a
client to commit a blatant crime falls well short of professional
standards.
>How is a person to know that his lawyer is giving him very bad advice?
>Does everybody who consults a lawyer need to consult two other lawyers
>to ask if the advice the first one gave is valid?
If the legal issue is particularly complex and the line drawn between
legal and illegal conduct fuzzy enough, regardless of the maxim's
relevance, a court is much more likely to grant a certain benefit of
the doubt and, even if the person still ends up convicted, the
sentence is likely to be adjusted. The court also might be more
likely to dismiss it entirely based on procedural issues that wouldn't
be applied as aggressively against a more culpable defendant.
Additionally, there's also a rule of statutory construction called the
rule of lenity, which means that if a statute is ambiguous, it is to
be interpreted in the light most favorable to the defendant.
However, if you play legal brinksmanship to the point where you are
doing things you don't really know are legal or illegal, and they are
complex enough even a lawyer may be wrong about them, you buy the
ticket and take the ride.
Stuart A. Bronstein
> se...@panix.com (Seth) wrote:
>
>>>Because he likes not being in jail, which is where he'll end up
>>>for taking such "advice."
>
>>The point is that he's an ordinary person, not an expert in the
>>law.
>
> Ignorantia legis neminem excusat. It's not just a Latin maxim,
> it's the law.
In general, yes. But there are some situations where a lawyer's
opinion can remove the intent element. The prosecution does need to
prove intent, after all. Taking the maxim literally in all cases
would eliminate the intent element.
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>On Thu, 17 Sep 2009 04:47:44 +0000 (UTC), se...@panix.com (Seth)
>wrote:
>>The point is that he's an ordinary person, not an expert in the law.
>
>Ignorantia legis neminem excusat. It's not just a Latin maxim, it's
>the law.
>
>Whether the wisdom of the policy is questionable, that's what will
>happen in court. In this particular case, writing bad checks, it does
>not require an expert in the law to know that writing bad checks is
>illegal.
Always? Under any circumstances? I disagree.
Idiot robber breaks into my house, points a gun at me and demands my
money. I tell him I don't keep cash around, it's all in my bank
account. He demands I write him a check (I did specify that he was an
idiot). I get my old checkbook (from a now-closed account) and write
him a check. Did I commit a crime?
Now that we've established that it can be legal to write a bad check,
we're just discussing the price.
>>His lawyer, who _is_ supposed to be an expert in the law, advised him
>>to write a bad check (say, to gain time in a dispute in which the
>>client believes he's in the right).
>
>In a case this clear-cut, the natural inference a court will reach
>given this set of facts is that the perp hired a lawyer specifically
>to give him "advice" to act as a legal defense for his own criminal
>activity.
Even though he first hired that lawyer ten years earlier and has been
following his advice (which, until that particular instance, was
apparently quite good, or at least not unlawful) ever since?
>>How is a person to know that his lawyer is giving him very bad advice?
>>Does everybody who consults a lawyer need to consult two other lawyers
>>to ask if the advice the first one gave is valid?
>
>If the legal issue is particularly complex and the line drawn between
>legal and illegal conduct fuzzy enough,
How is a non-lawyer supposed to determine that? Does he need to
consult two other lawyers?
>However, if you play legal brinksmanship to the point where you are
>doing things you don't really know are legal or illegal, and they are
>complex enough even a lawyer may be wrong about them, you buy the
>ticket and take the ride.
So the advice "ask a lawyer" turns out not to be good advice, because
it doesn't necessarily work?
Seth
Cy Pres
wrote:
>>However, if you play legal brinksmanship to the point where you are
>>doing things you don't really know are legal or illegal, and they are
>>complex enough even a lawyer may be wrong about them, you buy the
>>ticket and take the ride.
>So the advice "ask a lawyer" turns out not to be good advice, because
>it doesn't necessarily work?
If you ask a competent lawyer something like that, that lawyer will
tell you the issue is too complex to be sure what the result will be
in court, and if you choose to do it anyway, they'll probably be glad
to represent you in court if you have money up front. If they don't
advise you to that effect, at least you have someone to sue for
malpractice.
If you take a lawyer's "advice" to hang paper all over town, you'll
likely be doing your suing for malpractice from jail. That's just how
it is.
Now, you can pile absurd hypothetical upon absurd hypothetical until
you have a gigantic pile of crap that gets you the opposite result,
but I'm talking about general principles, not fantasy scenarios.
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>On Wed, 23 Sep 2009 14:12:14 +0000 (UTC), se...@panix.com (Seth)
>wrote:
>
>>>However, if you play legal brinksmanship to the point where you are
>>>doing things you don't really know are legal or illegal, and they are
>>>complex enough even a lawyer may be wrong about them, you buy the
>>>ticket and take the ride.
>
>>So the advice "ask a lawyer" turns out not to be good advice, because
>>it doesn't necessarily work?
>
>If you ask a competent lawyer something like that, that lawyer will
>tell you the issue is too complex to be sure what the result will be
>in court,
Sometimes a lawyer will say that, sometimes he'll just provide advice.
>If you take a lawyer's "advice" to hang paper all over town, you'll
>likely be doing your suing for malpractice from jail. That's just how
>it is.
That's your strawman argument, nobody else has suggested doing that.
>Now, you can pile absurd hypothetical upon absurd hypothetical until
>you have a gigantic pile of crap that gets you the opposite result,
>but I'm talking about general principles, not fantasy scenarios.
A _general principal_ is one that is true in general.
Something that is true up to a limit, and not beyond that, is not a
general principle. Or would you say that as a general principle, a
human cannot run a mile in 4 minutes? I'd say that statement is not
necessarily true, but is usually correct in any given instance.
I'd say the same thing about writing a bad check, given that nobody
has suggested that the extreme case example I gave is illegal.
Seth
Daniel R.Reitman
wrote:
>In article <5q34b519la8u5ar9b...@4ax.com>,
>Cy Pres <c.p...@yahoo.com> wrote:
>>Whether the wisdom of the policy is questionable, that's what will
>>happen in court. In this particular case, writing bad checks, it does
>>not require an expert in the law to know that writing bad checks is
>>illegal.
>
>Always? Under any circumstances? I disagree.
>
>Idiot robber breaks into my house, points a gun at me and demands my
>money. I tell him I don't keep cash around, it's all in my bank
>account. He demands I write him a check (I did specify that he was an
>idiot). I get my old checkbook (from a now-closed account) and write
>him a check. Did I commit a crime?
>
>Now that we've established that it can be legal to write a bad check,
>we're just discussing the price.
>. . . .
This hypothetical doesn't negative the commission of an offense
(assuming the jurisdiction has a statute criminalizing writing bad
checks). It's actually a demonstration of the duress excuse.
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY CLIENT RELATIONSHIP
INTENDED.
Seth
Daniel R.Reitman <drei...@spiritone.com> wrote:
>On Wed, 23 Sep 2009 14:12:14 +0000 (UTC), se...@panix.com (Seth)
>wrote:
>>Idiot robber breaks into my house, points a gun at me and demands my
>>money. I tell him I don't keep cash around, it's all in my bank
>>account. He demands I write him a check (I did specify that he was an
>>idiot). I get my old checkbook (from a now-closed account) and write
>>him a check. Did I commit a crime?
>>
>>Now that we've established that it can be legal to write a bad check,
>>we're just discussing the price.
>
>This hypothetical doesn't negative the commission of an offense
>(assuming the jurisdiction has a statute criminalizing writing bad
>checks). It's actually a demonstration of the duress excuse.
If somebody points a gun at me and forces me to do one of two things,
my choice (because he doesn't know the difference), where one of them
is legal and the other is illegal; if I choose to do the illegal one,
is that duress?
In this case, I'd have been just as safe (physically) writing him a
good check on my real account.
Seth
Daniel R.Reitman
>If somebody points a gun at me and forces me to do one of two things,
>my choice (because he doesn't know the difference), where one of them
>is legal and the other is illegal; if I choose to do the illegal one,
>is that duress?
>
>In this case, I'd have been just as safe (physically) writing him a
>good check on my real account.
A typical duress statute, generally codifying following the Model
Penal Code approach,, is set forth at Or. Rev. Stat. @ 161.270:
(1) The commission of acts which would otherwise constitute an
offense, other than murder, is not criminal if the actor engaged in
the proscribed conduct because the actor was coerced to do so by the
use or threatened use of unlawful physical force upon the actor or a
third person, which force or threatened force was of such nature or
degree to overcome earnest resistance.
(2) Duress is not a defense for one who intentionally or
recklessly places oneself in a situation in which it is probable that
one will be subjected to duress.
(3) It is not a defense that a spouse acted on the command of
the other spouse, unless the spouse acted under such coercion as would
establish a defense under subsection (1) of this section.
On the hypothetical stated, a duress defense probably applies.
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY-CLIENT RELATIONSHIP
INTENDED.
Rich Carreiro
> Penal Code approach,, is set forth at Or. Rev. Stat. @ 161.270:
>
> (1) The commission of acts which would otherwise constitute an
> offense, other than murder, is not criminal if the actor engaged in
> the proscribed conduct because the actor was coerced to do so by the
> use or threatened use of unlawful physical force upon the actor or a
> third person, which force or threatened force was of such nature or
> degree to overcome earnest resistance.
Interesting.
So how is it determined if a duress defense is allowed? Is it only
based on the charge (e.g. if you're charged with murder you can't
use the defense?) or does the prosecution somehow have to prove to
some level it was murder to strip you of the right to argue duress?
--
Rich Carreiro rlc-...@rlcarr.com
Daniel R.Reitman
This doesn't appear to be have been tested in Oregon, but probably an
indictment for murder would probably mean the defense is not
available.
On the other hand, in theory this could make things difficult if the
defendant argued something like "the facts don't add up to murder, and
even then, I was under duress," as the jury would probably would have
to be instructed not to consider duress in ruling on the murder
charge, but then to consider it in ruling on lesser included offenses.
This is not academic in Oregon, as the extreme indifference form of
Model Penal Code murder has been classified as first degree
manslaughter. In theory, a defendant could be accused of murder under
an intent to kill argument, be found not guilty because his or her
actions were not intentional but would be sufficiently reckless to
qualify as extreme indifference, and then argue that the act was done
under duress. (The classic case of extreme indifference was a late
19th century case from Illinois in which the defendant threw a beer
stein at his wife, hitting the lantern she was carrying, causing a
fatal fire.)
Robert Bonomi
Defense _can_ argue whatever it wants. The 'trier of fact' will not
be allowed to consider 'duress' as excusatory, *IF* they find the the
requisite elements present to support the conclusion of murder.
The above-cited statute says, in effect, "_IF_ the defendant did commit
the actions in question, _NO_CRIME_ was committed, because the actions
were performed 'under duress' -- *UNLESS* those actions constituted
'murder'.
To _successfully_ argue 'duress' as a defense (under that statute) against
a murder charge, one would have to argue that the actions did _NOT_
constitute 'murder' per se -- perhaps 'manslaughter', 'reckless homicide',
or something similar -- _AND_ that duress applied.
The trier of fact could consider the duress defense _ONLY_ if they found
that the elements of murder were not substantiated. Possible verdicts:
1) defendant actions were not criminal, even in the absence of duress
2) defendant actions were the crime of murder
3) defendant actions constituted a 'lesser offense', but
A) were not criminal because of 'duress'
B) were criminal because there was insufficient 'duress' to excuse
the acts.
Seth
Daniel R.Reitman <drei...@spiritone.com> wrote:
>On Sun, 1 Nov 2009 00:56:12 +0000 (UTC), se...@panix.com (Seth) wrote:
>
>>If somebody points a gun at me and forces me to do one of two things,
>>my choice (because he doesn't know the difference), where one of them
>>is legal and the other is illegal; if I choose to do the illegal one,
>>is that duress?
>>
>>In this case, I'd have been just as safe (physically) writing him a
>>good check on my real account.
>
>A typical duress statute, generally codifying following the Model
>Penal Code approach,, is set forth at Or. Rev. Stat. @ 161.270:
>
> (1) The commission of acts which would otherwise constitute an
>offense, other than murder, is not criminal if the actor engaged in
>the proscribed conduct because the actor was coerced to do so by the
>use or threatened use of unlawful physical force upon the actor or a
>third person, which force or threatened force was of such nature or
>degree to overcome earnest resistance.
If he forced me to do the illegal thing, that would apply; but he gave
me a choice of two things, one of which was not illegal; so does the
duress defense apply?
(If someone points a gun at you and says "give me a wallet" and you
pick the pocket of someone walking past and hand his wallet over, does
the duress defense apply? Assume you could have just handed over your
wallet instead.)
>On the hypothetical stated, a duress defense probably applies.
Even though the choice to perform the illegal act was made by the
performer?
Seth
Barry Gold
>> Penal Code approach,, is set forth at Or. Rev. Stat. @ 161.270:
>> (1) The commission of acts which would otherwise constitute an
>> offense, other than murder, is not criminal if the actor engaged in
>> the proscribed conduct because the actor was coerced to do so by the
>> use or threatened use of unlawful physical force upon the actor or a
>> third person, which force or threatened force was of such nature or
>> degree to overcome earnest resistance.
Rich Carreiro <rlc-...@rlcarr.com> wrote:
>So how is it determined if a duress defense is allowed? Is it only
>based on the charge (e.g. if you're charged with murder you can't
>use the defense?) or does the prosecution somehow have to prove to
>some level it was murder to strip you of the right to argue duress?
This is for discussion purposes only, and is not legal advice. I'm
not a lawyer. If you want legal advice, hire a lawyer.
The prosecution will have to prove it was murder _beyond a reasonable
doubt_.
Example: Frank threatens Joe with bodily harm. Under this duress,
Joe does something that (arguably) caused Mary to die. The
prosecution charges Joe with murder. Eventually there is a trial, and
the case goes to the jury.
If the jury also finds that Joe's actions caused Mary's death, and
that Joe's actions were intended to cause harm (the legal definition
of "malice"), then the crime was murder and the duress defense is not
considered.
But if the jury finds that Joe's actions were "merely" negligent, then
the crime (if any) would have been manslaughter. The jury should then
move on to consider Joe's claim of duress. If the jury believes the
claim, they should find him not guilty.
--
Barry Gold, webmaster:
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