Mailbag for December 2, 2011

In today’s mailbag we have a question from Steven, who asks about the first Addams Family movie (Spoiler Alert!):  “Did Uncle Fester commit a crime? He was a conman pretending to be Fester, but unbeknownst to him [because of amnesia suffered in the Bermuda Triangle], he actually was Fester.”

(We consider this question fair game for the blog because the Addams Family actually started as a series of New Yorker cartoons, which are close enough to comics in our opinion.)

I. The Setup

First we have to consider the crimes Fester might be accused of.  There are several possibilities in New York (where The Addams Family takes place), but a reasonable choice is second degree criminal impersonation, which is a class A misdemeanor:

A person is guilty of criminal impersonation in the second degree when he:

1. Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another;

N.Y. Penal Law § 190.25.  Since Fester (who believed himself to be a man named Gordon) thought he was impersonating someone with the intent to gain access to the Addams Family’s wealth, this seems to fit.  The question is whether Fester’s real identity is a defense despite his belief that he was committing a crime.  We think the answer is that he may not be guilty of impersonation but he is likely guilty of attempted impersonation.

II. Impersonation

The New York courts have held that impersonation requires falsely identifying oneself as a specific, real person. “It is evident that the gravamen of the offense is holding oneself out as some other specific individual.”  People v. Danisi, 449 N.Y.S.2d 874, 875 (Dist. Ct. 1982) (emphasis added).  Even though Fester had the necessary mental state for the crime (i.e. he thought he was lying), he did not perform the prohibited action of holding himself out as some other individual because he was, in fact, who he said he was.

One might be tempted to argue that Fester has a defense of mistake of fact, but we don’t think it would apply here.  Ordinarily mistake of fact is invoked because the defendant believed he or she wasn’t committing a crime because it negates the mental state required by the crime.  For example, if an unrelated man named Gordon suffered memory loss and came to believe he was really Uncle Fester, then he could claim mistake of fact in that he reasonably believed he was entitled to part of the Addams Family fortune and so could not have intended to defraud them.

But here Fester’s mental state was exactly what was required by the crime.  He fully intended to commit a crime and even believed that what he was doing was a criminal act.  His factual mistake actually gave rise to the guilty mental state and so can’t be claimed as a defense.  His only defense is that he simply did not commit the act prohibited by the crime.  But he certainly tried to, and that leads us to the next section.

III. Attempted Impersonation and Factual Impossibility

A person is guilty of an attempted crime in New York when “(1) … the defendant had the intent to commit a specific offense; and (2) … the defendant engaged in some affirmative act to carry out that intent.”  People v. Coleman, 74 N.Y.2d 381, 383 (1989).  In this case Fester definitely had the required intent, and he did engage in various acts to carry out the intent (e.g. showing up at the mansion, claiming to be Fester, trying to find the Addams’s money).

So does it matter that Fester couldn’t actually be committing a crime because he was actually telling the truth about himself even though he thought it was a lie?  Perhaps surprisingly, no, he can still be guilty of attempted impersonation even though he couldn’t be guilty of impersonation.  This is the doctrine of factual impossibility, which we’ve discussed here before.  New York has even codified the doctrine in N.Y. Penal Law § 110.10:

If the conduct in which a person engages otherwise constitutes an attempt to commit a crime pursuant to section 110.00, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be.

So Fester likely has no defense to attempted impersonation.*  The good news is that attempted second degree impersonation is only a class B misdemeanor, which carries a maximum sentence of three months imprisonment, so at least it’s a lesser offense.  Given the extraordinary nature of the case, though, and the fact that the Addams welcomed him back with open arms once they learned the truth, we doubt a prosecutor would pursue the case.

* He could argue insanity, but while Fester is more than a bit weird we don’t think he qualifies as legally insane.  He could also argue something like duress, since the woman who claimed to be his mother certainly threatened and badgered him, but she really only did that once he started having second thoughts about conning the Addams family.  He was initially a more-or-less willing participant in the scheme.

15 responses to “Mailbag for December 2, 2011

  1. Huh… ok. So If someone shoots something at the sun, believing it will cause the sun to explode and kill everyone on the planet, the fact that the action could not have this result is irrelevant and the person could be tried for attempted mass murder or something? For example, someone shoots at the sun with a standard handgun believing it will pop like a big balloon and destroy the planet (not because they’re crazy but because they were very misinformed).

    That seems very odd to me. Can that really be right?

    • The standard example for factual impossibility is someone who points an unloaded handgun at another and pulls the trigger, believing it to be loaded. That’s still attempted murder, despite the fact that it was not possible for the defendant to commit murder under the true circumstances. It’s enough that he or she intended to commit murder and tried to do it.

      So, yes, if someone really believed they had a planet-destroying gun and pulled the trigger, they could be convicted of attempted murder, assuming they had no other defenses (e.g. insanity).

      • I was taught in class that if a person attempted to sexually assault a mannequin they could not be charged with sexual assault because it would be obviously impossible to rape a mannequin. Would that be due to the fact that the mannequin is simply not an object that could be raped, and following that line of thought if a person attempted to rape a figure in bed* only to discover it was a mannequin could they then be charged with sexual assault?

        *And the individual assumed at the time that it was a human.

      • Martin Phipps

        Depends at what point you discovered it was a mannequin. If someone is sleeping in bed and I get in bed with them then I suspect I could be charged with sexual assault but not rape and maybe not even attempted rape because I could claim I was just tired and looking for somewhere to lie down. Logically if it were a mannequin and not a person I would know by this point.

      • TimothyAWiseman

        @Gyre I suspect it depends on the intent of their actions. If their intent was to assault a mannequin, then it is simply not an assault of any kind. The intent of laws (both common and statutory) prohibiting various types of assault is to protect a person and a mannequin is simply not a person. That does not mean they would not be liable for something though. If someone else owns the mannequin and they damage the mannequin in the process, then they may be liable for the tort of trespass to chattels and criminally there might be charges such as destruction of property. But you can no more intend to assault a mannequin then you can intend to murder a car. It is more a matter of it being semantically incorrect.

        On the other hand, if the person’s intent is to sexually assault a specific person and for some reason they believe that mannequin is really their target person, then they have at least committed an attempted sexual assault (they had the intent, mens rea, for a sexual assault and then took concrete action to make it happen.) There, the fact that they could not possibly succeed since the mannequin was not really their target person simply does not matter.

  2. This is not about the Addams Family, but we already did Once Upon a Time here and I have a question about the recent episode: the Mayor is threatening to get the psychiatrist fired if he does not immediately convince her son that his belief in a fairy tale world is wrong.

    His response is to say “there may be a child custody hearing in the future. I’m an expert witness familiar with the child. If I’m fired, I’ll testify against you in such a hearing.”

    Is this legal?
    — Is this blackmail? Does the fact that there is no hearing planned yet change the answer?
    — Assuming there is a hearing someday, would this threat be this a sign that he is a hostile witness and would the court have to treat him any differently because of that?
    — If he gives the court different testimony solely because he has been fired by one of the parties, is he committing perjury?
    — Is the threat to get him fired itself legal? Does it matter that she’s not his direct employer, so she’d be getting him fired by using influence?

    • Interesting questions! We’ll probably turn that into a post rather than answer it here.

      I will address one of your questions, though. “Hostile witness” doesn’t mean a witness who is angry or combative. The phrase has a much more limited meaning than that. A hostile witness is a witness whose testimony is adverse to the party questioning the witness. A witness called by the other party is presumed hostile, but a witness called by the same party can be “treated as hostile” with the permission of the court if it is apparent that they are testifying against that party.

      Treating a witness as hostile has two implications for the questioning party. A hostile witness can be asked leading questions (e.g. “isn’t it true that you were angry at the victim?”) and, in some jurisdictions, it means the calling party can impeach the witness (i.e. attack their credibility) (in other jurisdictions, such as the federal courts, anyone can impeach any witness).

      In the case of the psychiatrist, if the Mayor called him as a witness then she could ask permission to treat him as hostile. If Emma called him then he would not be hostile to her, but when the Mayor cross-examined him then he would be presumed hostile.

    • I didn’t really perceive the psychiatrist’s statement as an explicit threat. The mayor had made extensive threats against him, and he simply pointed out the fact if there were some kind of child custody hearing in the future, he would likely be called to testify. He never said or even implied that he would perjure himself. Based on that episode alone, the psychiatrist could take the stand and truthfully say that he was providing the best treatment for the boy that he could when the mayor threatened to have him discredited and run out of town if he didn’t manipulate the child according to her wishes to the possible detriment of the child’s mental health. If anything, the psychiatrist was doing the mayor a favor by explaining the precarious position she was placing herself in.

      • I don’t think so. If that’s all that he meant, then having the mayor retract her threat shouldn’t change his testimony much. Instead of saying “I was trying to provide the best treatment, and the mayor threatened me”, he would have to say “I was trying to provide the best treatment, and the mayor threatened me, but she took back her threat when told that I would testify about it”. I doubt that changing this testimony in this way would make the mayor look better enough in court for her to care.

        His threat only makes sense if he was threatening to alter his testimony in a way above and beyond just reporting the mayor’s threat.

      • TimothyAWiseman

        @David It depends on how you define threat. A threat as classically defined is generally an expression of an intent to do something if the desired actions are not taken with an intent to coerce or persuade the other person to take the desired action. A threat can be fully legitimate and above any reproach and also fully factual. Such as a parent to a child, “If you do not finish your vegetables, you will not get any ice cream.” Or a boss to a subordinate, “If you are tardy again, I will fire you.”

        Saying that he would testify against him, especially with the choice of words of “against you” rather than a more generally warning of “I may be called upon to testify in that trial” clearly makes it a threat with the intent of changing the Mayor’s behavior. Now, whether that is a legitimate threat that all would find appropriate depends on whether there was an implication that the psychiatrist would do something illegitimate in the process such as perjure himself. It was definitely a threat as the term is generally used.

  3. Melanie Koleini

    Isn’t attempting to steal a family’s home and fortune worth a felony change? If a man steals a car by hotwiring it, he can be changed with grand theft, right? Why are you suggesting Fester is only guilty of a misdemeanor? Isn’t theft (of a large amount) by fraud a felony?

    Since Fester is realy Fester, I imagin he won’t be prosecuted but isn’t he guilty of attempted grand theft?

    • There are lots of crimes that Fester could be charged with, but we chose to only analyze impersonation in detail. He’s also likely guilty of attempted fraud, but note that he couldn’t even be charged with a completed offense of fraud because in the end he didn’t go through with it. That makes it less interesting to analyze because it doesn’t raise the distinction between the completed crime and the attempt.

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  6. How would a conspiracy charge be applied in Fester’s situation? Obviously there is a conspiracy to commit fraud and other crimes involving Fester aka Gordon, his “mother” and the lawyer. Could Fester be able to seperate himself from the conspiracy charges because he does have a change of heart and does in fact make efforts to thwart the conspiracy (albeit after the Addams are already kicked out of the house)? Furthermore what kind of actions can be taken against the lawyer as he has been representing both Fester and Gomez; clearly he has broken some ethics rules and criminal statutes. Last question, if I remember correctly, the judge overseeing he case is Gomez’s neighbor and a sour relationship exists between the two to put it nicely. Should he have recused himself for his bias towards Gomez and do the Addams have a case to appeal because the judge did not recuse himself?

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