Monthly Archives: December 2011

Once Upon a Time, Episode 5

This post was inspired by some questions in the comments on the last mailbag post.  There was some disagreement in the comments regarding the facts, but after reviewing the episode I think it’s arguable that each party was threatening the other, so we’ll consider it from both angles.  Now, on to the questions (and the spoilers).

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Gotham Central: Motive

The “Motive” arc takes up Gotham Central # 3-5, and wraps up a lot of loose ends from the previous story, “In the Line of Duty,” which we looked at last week. This one actually contains a real gem of a legal issue, which is handled exactly right. Spoilers inside! Continue reading

Law and the Multiverse on The Legal Tribune Online

James and Ryan were recently interviewed for The Legal Tribune Online, a partner site of Der Spiegel. The interview is here.

I don’t have enough German to get much out of it—and don’t let the blog’s title fool you: this is definitely a German site—, but James assures me it’s a good article, and we’re honored to have been asked.

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.

The 2011 ABA Journal Blawg 100

Law and the Multiverse has been selected for the American Bar Association Journal’s 2011 Blawg 100! Thanks to everyone who nominated us!  We invite our readers to register to vote for the best blog in each category.  Registration is free and doubles as registration for  Unlike the nomination phase, we believe voting for the top blogs is open to everyone.  Voting ends on December 30.  You can find Law and the Multiverse under the “For Fun” category, but please check out the other great blogs in the list; we read some of them every day!