Evil Defenders Switch

[Tolomeo Tanguay]

Youmay have wondered when it is morally permissible to switch wine glasses if yours could be poisoned.Then again, perhaps this question does not arise so often in your social circle. Fictional charactersare not always so lucky.

It may seem bootless to pursue the morality and the law of a practice that comes up only in fiction.No legislature has debated the law of glass switching, and neither bench nor bar is clamoring for a clarification.During my misspent middle age, rather than teaching philosophy, among other things I prosecuted and defendedcriminal cases. I did not prosecute or defend a single poison switch case, and I did not hear of anyoneelse handling a case with even the remotest resemblance.

There is a certain elegance in switching glasses if you are suspicious that you are being poisoned,but uncertain. If your suspicion of poison turns out to be wrong, switching does no harm. Glass switchingis in this respect very different from traditional forms of self-defense such as shooting and stabbing.The case in moral defense of Medardus is unquestionably better than if he had stabbed Euphemie or putpoison in her glass himself. But is it good enough?

If you are contemplating switching glasses, there are two possible outcomes: either nothing will happen,because there was no poison, or you will have saved yourself at the expense of an intending evildoer.Therefore, it is always permissible surreptitiously to switch glasses with someone in a position to putpoison into the glass placed in front of you.

It would seem to follow that both morally and legally you should always be able to switch. In fact,it might appear that the better the reason you have to suspect poison, the better motivated your switchis morally.

If you are considering a glass switch as a defense against poisoning, the only important case to consideris that in which there turns out to be poison. If there is no poison in the first place, glass switchingis inconsequential. We must assume the poison case then, in making the decision. Hence, you can onlydo the switch if you can pass the necessity test.

Glass switching without any reasonable suspicion of poison (or at random) raises no moral or legalliability for a subsequent death by poisoning. However, glass switching with knowledge of poison leadsto liability unless it passes the necessity test. The extremes seem fairly clear. We must however becautious about generalizing from the argument at either extreme, as each extreme is a good counterexampleto its counterpart. For example, by only slight extension, the prohibitive argument would make a thespianmorally and legally liable if she fired what she had every reason to believe was a prop pistol at herleading man, and it turned out that someone had substituted a loaded gun. Like us, she would know thatsuch substitutions are possible, if extraordinarily unlikely.

I want us to consider two variants. In Penny1, Penny sees Quinton put something in her lemonade.She knows that Quinton was always fond of malicious pranks. She is confident that he has given her somethingthat will cause her discomfort or embarrassment, but nothing really injurious.

In Penny2 there was a white hot enmity between Penny and Quinton in their school days, and Penny believesQuinton to be capable of doing her serious injury. In this variant, however, Penny is not at all certainthat Quinton put something in her drink. She caught a glimpse out of the corner of her eye of an oddmotion as he was pouring her lemonade, but it might have been nothing. Still, she is made somewhat anxiousby the possibility that Quinton has put poison in her glass.

In Penny1, because of the certainty that there is something in the lemonade, the necessity requirementfrom the prohibitive argument is triggered. Penny should not put the adulterated lemonade in front ofQuinton unless there is no better option. However, what would make a better option is eased by the factthat the adulterant is unlikely to be seriously injurious. Moreover, in determining morally better alternativesto the glass switch, the costs to Quinton and to Penny are not of equal weight. Both morality and lawhave a preference for victims over aggressors. You are permitted deadly force not only to prevent beingkilled, but also to prevent being raped or seriously injured, for example. Attackers are not to be gratuitouslyill-used, but their well-being does not weigh equally with that of defenders. In Penny1, Quinton is unambiguouslyan aggressor.

Here Penny has alternatives such as confronting Quinton, walking out on the interview, knocking overher glass in feigned awkwardness, or saying that she no longer wants the lemonade she had enthused aboutjust moments earlier. None of these alternatives would be particularly appealing, as each carries a reallikelihood of turning a good interview bad. If she switches glasses instead, Quinton will get the burpingfit, nausea, diarrhoea or flatulence attack he had planned for her, which would serve him right. In lightof his having created the problem in the first place, it is better he be saddled with its consequences,even if they are somewhat worse for him than the costs to Penny of the next best alternative. In fact,if Penny is confident that whatever is in her glass is not dangerous, then she may switch the glasses,unless she has a truly costless alternative.

In Penny2, Penny does not know that Quinton put something in her drink, but believes that if he did,it could be a serious poison. If she knew that he had, she could not switch. The danger to Quinton wouldbe too great for that. Morally and legally she would have to sacrifice her interview. However, in Penny2,the probability of poison is very low. So if her lemonade is drunk by either Quinton or Penny, thereis low probability of harm. The probabilistically-adjusted expected harm is so low that it is less thanthe harm to Penny of her alternatives. So the lemonade should be drunk rather than spilt. The questionis, who should drink it? It seems clear that it should be Quinton, if possible. In the unlikely eventthat there is a burden to be born, again, it is Quinton who created it, and he should bear it.

It is sometimes piously asserted that self-defense is a justification precisely because it leads eitherto the socially most desirable result, or to the just result. Though popular among theorists, neitherof these propositions can be correct. They founder on the fact that it is morally permissible to usedeadly force (with a pistol, perhaps) to protect oneself against a bevy of homicidal maniacs who arein that condition quite temporarily for reasons utterly beyond their control. Suppose they are comingat you with axes, having unwittingly imbibed hallucinogenic punch... What can you morally do?

Could we go one step further, to the conclusion that if I know that the poison is mild I can switcheven if I have a completely costless alternative? Perhaps if the wine were served among shipwreck victimson a desert island the switch would be permissible as a dispensation of natural justice. Outside of thestate of nature, however, retribution is better left to the courts.

This may seem in tension with my conclusion that Penny could switch weak poison to avoid even a modestinconvenience. However, when we move from low cost alternatives to costless alternatives, weleave self-defense completely behind and cross the border into do-it-yourself retribution. When suchself-help constitutes a crime or tort, it is difficult to justify in any state which has a reasonablyjust courts system.

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Defendant contends: (1) the evidence of the prosecution establishes defendant's want of criminal intent; (2) refusal of defendant's requested instruction as to misfortune and accident was prejudicial error; (3) even if defendant had not requested such instruction, it was the trial court's duty of its own motion to instruct on the subject. We have concluded that contention (1) is without merit; that contention (2) requires reversal; and that contention (3) need not be discussed.

The events which resulted in this prosecution occurred on April 3, 1954. Defendant, a Mexican agricultural worker legally in the United States, could not speak English. He had been in this country since March 19, 1954. On April 3 defendant went with fellow workers to a cafe in Torrance. Defendant drank five or six bottles of beer. He and an acquaintance then went to a cafe in Redondo Beach. There defendant drank no more. He began to dance by himself. The proprietor, who spoke Spanish, led him out of the cafe. Defendant left politely. However, he returned and again danced by himself. A waitress called the police and the proprietor called a cab for defendant. The proprietor interpreted for the police and defendant. When the cab arrived the police directed the driver to take defendant to the ranch where defendant was employed, and explained that defendant had no money but that the fare would be paid at the ranch or by the proprietor of the cafe.

After the cab driver had driven defendant for a few [45 Cal. 2d 540] minutes, defendant spoke to him in Spanish, which the driver did not understand. About a year before a passenger had attempted to rob the driver and the driver had escaped by opening the door and rolling out of the cab; he recalled this incident and it influenced his conduct when defendant began to behave strangely as hereinafter described. Defendant denied any violent conduct and testified that his purposes were innocent; the following description of the events is taken from the testimony of prosecution witnesses.

When the driver did not comprehend defendant's Spanish, defendant reached into the front seat of the cab, seized the driver's clip board and struck the driver. The driver struck at defendant with his flashlight. Defendant pinned the driver's arm back and struck at his neck with defendant's hand. The driver avoided the blow, opened the cab door, and rolled out. He had slowed to 10 or 15 miles an hour and pulled to the left side of the road. He left the car in high gear and did not turn off the ignition switch.

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