Person of Interest: Witness

We’ll be back with more comic book-inspired posts next week, but we’ve been clearing out the mailbag lately and we’ve had quite a few questions about television shows.  Today’s question comes from Brian, who asks about an episode of Person of Interest.  Minor spoilers ahead.

In the episode, protagonist John Reese is trying to protect a witness to a mob killing.  Unfortunately, the witness is shot in the shoulder.  With the mob still on their trail, Reese makes an attempt at first aid using topically applied cocaine and glue, without the witness’s prior consent.  Brian asks:

If/when the victim presents himself at the hospital and informs doctors of how it was treated, would the victim be in violation of any laws due to the presence of cocaine in his bloodstream and/or how would he be (legally) expected to handle the consequences of being given a highly addictive and illegal street drug as an analgesic?

There are several aspects to this question.  First, did Reese violate any laws?  Second, did the witness?  And third, how does the physician/patient privilege come into play?

First, a brief factual background: cocaine has legitimate medical uses, including as  a vasoconstrictor to control bleeding (that’s why it’s a Schedule II drug instead of Schedule I in the US).  Its use in that role is mostly limited to areas like the nose rather than large-scale trauma like a gunshot, but there’s at least some theoretical efficacy there.  Similarly, certain cyanoacrylate glues (e.g. Dermabond) are FDA approved for use in closing wounds.  The medically approved kind are not all that different from over-the-counter cyanoacrylate glues, so again there’s some vaguely reasonable basis for the treatment.

I. Reese’s Liability

The most obvious problem is that Reese purchased and possessed an illegal drug.  It’s hard to tell exactly how much he bought, but it was probably about a gram, which would make it fourth degree criminal possession of a controlled substance under N.Y. Penal Law § 220.09, a Class C felony, plus liability as a buyer.  Could this be excused under a necessity theory?  And even if that could be excused, what is his potential liability if his first aid actually made things worse?

A. Necessity

In New York, the defense of necessity is called “justification,” and is described by N.Y. Penal Law § 35.05:

… conduct which would otherwise constitute an offense is justifiable and not criminal when:

Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.

Basically New York follows a “choice of evils” theory: “the desirability and urgency of avoiding such injury [must] clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.”  Importantly, the choice is judged by an objective standard: the question is whether a reasonable person would agree that Reese’s conduct was necessary under the circumstances?  See People v. Craig, 78 N.Y.2d 616 (1991).

The word “necessary” must also be emphasized.  The statute “rules out conduct that is tentative or only advisable or preferable or conduct for which there is a reasonable, legal alternative course of action.”  Craig, 78 N.Y.2d at 623.

So, was there an imminent private injury?  Yes, the witness had been shot, was severely wounded, and there was no help on the way.  Was it Reese’s fault?  No, he was trying to protect the witness, who was shot by the mob.  Was Reese’s action necessary under the circumstances?  Quite possibly, but that issue would probably ultimately come down to expert testimony.  If a reasonable person would have thought that the witness was likely to die without the ad hoc medical treatment (and ordinary first aid would have been insufficient), then it was probably justified.

B. Good Samaritan Laws

So far, so good.  Reese may be off the hook for buying the cocaine.  But what if his unusual first aid actually made things worse?  Could the witness sue?

New York, like just about every state, has a “Good Samaritan law” that limits liability for people who render aid to others.  New York’s law is particularly strong, since it gives complete immunity to qualifying people who give aid:

… any person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment at the scene of an accident or other emergency outside a hospital, doctor’s office or any other place having proper and necessary medical equipment, to a person who is unconscious, ill, or injured, shall not be liable for damages for injuries alleged to have been sustained by such person or for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such emergency treatment unless it is established that such injuries were or such death was caused by gross negligence on the part of such person.

N.Y. Public Health Law § 3000-a.  So as long as Reese’s cocaine & Superglue first aid didn’t amount to gross negligence, he’s in the clear.  Of course, it’s easy to argue that cocaine is so often adulterated with toxic substances that it would be gross negligence to even try to use it in that situation.  It would all come back to what a reasonable person would think and whether Reese, knowing of an unreasonable risk, took it anyway.

So that’s Reese’s liability.  Now let’s turn to the witness.

II. Possession

If Reese’s use of the drug was justified, then the witness’s possession is also necessarily justified, but if Reese’s use wasn’t justified, then could the witness be in trouble?

In New York (as in most jurisdictions), possession requires knowledge of the possession of the controlled substance.  In this case, the witness was conscious as the cocaine was administered, so he certainly had knowledge.  And while he wasn’t asked for permission in advance, he seemed to consent during the procedure (“there’s a first time for everything”), so he can’t claim that he tried to divest himself of the drugs.

On the other hand, New York does not seem to recognize an “internal possession” theory of possession (e.g. using an elevated blood alcohol level as the sole evidence in proving that a minor had been in possession of alcohol).  I could not find a case specifically rejecting this theory, but the NIH agrees with this assessment.

So merely having cocaine in his bloodstream may not be enough to prove that the witness possessed cocaine.  Of course, the prosecution could impose immunity on Reese and compel him to testify, but that seems unlikely.

III. The Physician/Patient Privilege

New York, like many jurisdictions, privileges certain communication between a physician and a patient from disclosure.  N.Y. CPLR § 4504:

Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.

Knowing that the witness had potentially adulterated cocaine in his system would probably be necessary to enable a physician to attend to the witness in a professional capacity.  So given that, it’s difficult to see how the police would ever learn about what happened, assuming neither Reese nor the witness talked.

IV. Conclusion

We don’t typically follow Person of Interest, but this episode had a lot of interesting legal issues, even if some of them turned out to be moot points (if you’ve seen the episode or read the plot synopsis you’ll know what I mean).

14 responses to “Person of Interest: Witness

  1. Martin Phipps

    Cocaine is one thing but what about prescription drugs? If Reese had legally obtained pain killers from a doctor through a prescription would he be breaking any laws by giving the medicine to somebody else? I’m not asking for legal advice: I’m just curious; doctors tell patients not to give out their medicine to others but is it ILLEGAL to do so?

    • Yes. The New York statute, for example, criminalizes unlawful possession. “Unlawful” is defined as “in violation of article thirty-three of the public health law.” Article 33 of the N.Y. Public Health Law in turn says “It shall be unlawful for any person to manufacture, sell, prescribe, distribute, dispense, administer, possess, have under his control, abandon, or transport a controlled substance except as expressly allowed by this article.” Prescriptions apply to the “ultimate users” for whom they are written, which are defined as “a person who lawfully obtains and possesses a controlled substance for his own use or the use by a member of his household…. It shall also mean and include a person designated, by a practitioner on a prescription, to obtain such substance on behalf of the patient for whom such substance is intended.” None of that would seem to apply in this hypothetical.

      So unsurprisingly, the result would have been similar if he had purchased prescription drugs from someone else. The main difference would have been that at least the drugs would have been pure, which the cocaine almost certainly wasn’t. That could impact the Good Samaritan and justification defenses.

      • Martin Phipps

        Okay, but just to clarify: you could get into trouble for possessing cocaine but possessing a prescription drug is fine as long as you can produce the prescription. Right? So if the medicine were obtained legally then the only crime would be giving it to somebody else, which would also be something a licensed doctor would be able to do legally. Right? So the problem would come down to Reese practicing medicine without a license which would, I imagine, be a far less serious crime than cocaine possession.

      • No, Reese could also be guilty of the criminal sale of a controlled substance, since “sell” is defined broadly as “to sell, exchange, give or dispose of to another” and the witness doesn’t have a legal right to possess the drug. What’s more, Reese’s own possession could become criminal once he formed the intent to commit a criminal sale. People v. Garthaffner, 426 N.Y.S.2d 955 (Crim. Ct. N.Y. 1980) (“possession of a controlled substance with intent to sell is not lawful possession”).

  2. James Pollock

    What happens is that doctor receives a license to dispense controlled substances from the federal government. That license can be revoked, rendering a doctor incapable of prescribing medications that are federally listed as controlled substances. One of the reasons for revocation is the doctor in question issuing prescriptions for drugs which are not medically necessary.
    The Bush administration threatened to revoke the controlled-substance license of any Oregon doctor who issued a prescription for barbituates in compliance with Oregon’s newly-passed “death with dignity” law.

  3. And while he wasn’t asked for permission in advance, he seemed to consent during the procedure … so he can’t claim that he tried to divest himself of the drugs.

    Assuming that Reese can use necessity/justification to be allowed to give cocaine to the patient, couldn’t the patient himself similarly use necessity/justification to be allowed to accept the cocaine without trying to divest himself of it? Surely “I thought I would die if I didn’t accept it” has to be as valid “I thought he was going to die if I didn’t give it to him”.

    • I agree: If Reese’s use of the drug was justified, then the witness’s possession is also necessarily justified.

      • To go a step further, could the witness’s possession be justified even if Reese’s use isn’t? That is, Reese had the choice of what to do and presumably (I haven’t seen the episode) decided that cocaine was the best available alternative under the circumstances, whereas the witness’s choice is accept treatment or refuse treatment. You might be able to say a Reese could’ve used the time spent buying glue and cocaine to instead pursue some other legal alternative, but even if you can, can you say that it’s reasonable to say “No, I’d rather wait for something more legal” when you’re bleeding to death and the only available person is trying to stop it?

  4. Martin Phipps

    Would the situation had been different if there had been a liquor store open and Reese could have bought hard liquor? That would have had the added benefit of sterilizing the wound, something I don’t think cocaine would do. If Reese had the option of using alcohol instead of cocaine, could he still plead negligence? He’s not a doctor so he can’t give out controlled substances but he’s also not a doctor so he can’t be expected to know what he’s doing. It seems to me that the law has to decide whether or not Reese was a drug dealer distributing a controlled substance or an idiot trying to save a life.

    • I’m not a doctor, but I don’t think liquor would have had enough of an advantage to make using the cocaine gross negligence. For one thing, most hard spirits are only 40% alcohol, which is not high enough to sterilize on contact (pure grain alcohol is another matter). For another, it would have done nothing to stop the bleeding, and in fact if he had drunk the alcohol it probably would have made the bleeding worse.

      I suspect the question is more likely to be framed as cocaine versus standard first aid (e.g. covering the wound with a clean cloth and applying pressure) rather than cocaine versus other unusual remedies.

      It seems to me that the law has to decide whether or not Reese was a drug dealer distributing a controlled substance or an idiot trying to save a life.

      That’s a pretty good summary of the arguments that would be made for and against the defense of justification. Although Reese is a “former-United States Special Forces Ranger and CIA officer,” so he’s presumably not an idiot and likely had at least some first aid training.

  5. Would the necessity defense apply to employment law? Say the witness had a job that requires drug testing and he got hit with a test and popped hot? Would he be able to sue in court if he was fired? How about if he got hit with a federally-mandated test (like the DOT does for truck drivers), rather than one given by the employer?

    I’m familiar with the system used for drug tests in the US Army, and I think it’d be a tough row to hoe for the witness, since he’d likely get hit with a “No Legitimate Use” designation under MEDCOM Regulation 40-51. Then it would depend on whether or not he could sell his Chain of Command on his use, which could administratively discharge him. He’d probably have a better chance of getting out of a court martial, but may not be able to keep his job.

    • Remember that the witness has two possible arguments: justification and innocence, since it isn’t clear to me that having an illegal drug administered to you counts as possession (or at least not proof thereof) in New York.

      Anyway, it would depend on the terms of the witness’s employment contract, if any. If he could be fired without cause, then it wouldn’t matter either way.

      Otherwise, the problem is that he may not have any proof showing that the use was justified or innocent. For example, John Reese might be understandably reluctant to testify, lest he waive his 5th Amendment rights and risk being charged himself.

      But assuming the witness has a contract that allows termination only for good cause, and assuming the witness can prove that the cocaine was present in his system legitimately, then I don’t think he could be properly fired for it.

      • James Pollock

        There IS a parallel, which is use of medical marijuana in states where this is legal. I believe the various courts are still sorting out how the use of a medical marijuana license applies to employment law.

        I think if the employer can show that the employee’s work was impaired by the drug, it would be a legal termination, even if an employment contract specified termination only for cause. Since the cocaine is going to be well out of this guy’s system before he comes back to work from his gunshot wound, that isn’t going to apply to Mr. Witness.

  6. “On the other hand, New York does not seem to recognize an “internal possession” theory of possession (e.g. using an elevated blood alcohol level as the sole evidence in proving that a minor had been in possession of alcohol). ”

    My understanding (admittedly limited) is that this is true in many (if not most) US jurisdictions. In Texas for example, it’s illegal to possess, sell, transport, etc. illegal drugs. But there’s no law about using them as such. This is why police don’t end up arresting someone when they smell marijuana in the home but see no drugs in plain view.

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