Category Archives: television

Castle: “Cloudy With a Chance of Murder”

Posted on November 2, 2012 by | 22 comments

I’m getting up to speed on the latest season of Castle, and there’s a quick pair of issues in episode two which aired back on October 1.  The first issue was brought to our attention by Naomi, who writes:

In [the] episode, a suspect is arrested and immediately calls for his lawyer. While they’re waiting for the lawyer to arrive, Beckett and Castle remain in the interrogation room and ignore the suspect, but openly discuss the case in front of him in a (successful) effort to bait him into saying something incriminating. Legally, is this kosher? If it had turned out that the suspect was guilty of the murder, would his outburst have been admissible in court?

So is this okay? Also, what’s the deal with the suggestion that someone is going to jail for violating environmental regulations? Spoilers inside! Continue reading →

22 Comments

Posted in administrative law, criminal law, criminal procedure, television

Alphas: Pilot

Posted on September 28, 2012 by | 13 comments

Alphas is the 2011 SyFy series about the X-Men a group of individuals with extraordinary abilities brought on by a poorly-understood “next phase in human evolution. The pilot was last July, and it showcases some of the legal issues we’ve talked about on the site previously. Spoilers within Continue reading →

13 Comments

Posted in criminal law, television

Reaper and Deals with the Devil

Posted on June 8, 2012 by | 26 comments

We’ve talked about contracts with the devil on Law and the Multiverse before, in the context of the Ghost Rider movie.  Recently I’ve been catching up on the (sadly cancelled) TV show Reaper (available on DVD and via Netflix), which has the benefit of being considerably better than Ghost Rider was, but on the other hand it lacks Sam Elliott.

Anyway, Reaper‘s protagonist, Sam Oliver, is tasked by the Devil with capturing souls who have escaped from hell, most of whom have inexplicably gained supernatural powers related to their earthly sins.  In some cases the souls were people who had sold their souls to the Devil.  Normally this is done with a written contract, which we get glimpses of at various points in the show, but in one episode the Devil foolishly only made a verbal agreement with a mortal, Gary, and Sam is asked to get Gary’s signature on a written contract.  This leads to a couple of interesting legal issues.

(Note: We’re assuming that the Devil follows something close to common law contract law, as is typical in English and American Faustian bargain situations.)

I. Modification of Contracts

But wait, if the Devil already has a verbal agreement with Gary, why does he need a written contract?  If he wants to add new terms to the deal that weren’t covered in the verbal agreement (which seems likely given the size of the written contracts), then the Devil may also have to support that modification with additional consideration (i.e. something of value promised by the Devil).  According to the Restatement (Second) of Contracts:

A promise modifying a duty under a contract not fully performed on either side is binding
(a) if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made; or
(b) to the extent provided by statute; or
(c) to the extent that justice requires enforcement in view of material change of position in reliance on the promise.

Given the ‘gotcha’ nature of contracts with the Devil, we’d say subsection (a) doesn’t apply, since it’s highly unlikely that the new terms are fair and equitable.  Subsection (c) is basically a reference to promissory estoppel and wouldn’t seem to apply here, either.

It’s an interesting question whether subsection (b) applies, however.  It’s a reference to the Uniform Commercial Code’s rule that additional consideration is not required to modify a contract for the sale of goods.  Is the sale of a soul a sale of goods?  According to UCC § 2-103(k), “‘Goods’ means all things that are movable at the time of identification to a contract for sale.”  Is a soul movable at the time of the contract?  Maybe not, since (in the Reaper universe) the soul is attached to the body until death, at which point the soul either goes to heaven or hell.  On the other hand, the term also includes ‘future goods,’ but it isn’t clear to me that a soul would qualify, since it already exists, it just isn’t movable.

But let’s assume the Devil (and Gary) can find some worthwhile bit of new consideration in order to justify the modification, or that the requirement doesn’t apply.  Is there really a need for a written contract in the first place?  Couldn’t they modify the contract verbally? Is the original verbal contract even valid? It depends.

II. Signed Contracts and the Statute of Frauds

In general contracts do not have to be in writing.  The only fundamental requirements are an offer, acceptance of that offer, and consideration.  However, it was long ago recognized that some contracts deal with such important rights (e.g. ownership of land), that they really need to be written down.  And so the Statute of Frauds was created in England way back in 1677, and similar laws exist in most jurisdictions.  The exact terms vary from statute to statute, but two common terms are relevant here.  The first is that contracts involving the sale of goods above a certain value must be in writing.  The second is that contracts that cannot be performed within one year must be in writing.

It’s hard to say how much a soul is worth, and of course there’s the issue of whether it’s a sale of goods in the first place.  But in Gary’s case he sold his soul for material wealth far in excess of the minimum required by the Statute of Frauds, so as long as a soul is a ‘good,’ then the Statute of Frauds might be triggered.

As for the one year exception: it depends on the term.  Someone who made a deal to live for at least one more year might trigger it, or someone who made a deal for a million dollars a year every year for twenty years.  But most deals with the Devil seem to be wrapped up pretty quickly, and Gary’s was no exception.  In fact, the Devil even contemplates having Gary killed in order to cheat him out of an opportunity to repent.

But even if the Statute of Frauds is triggered, Gary might have painted himself into a corner by accepting the Devil’s performance of his end of the bargain (i.e. the delivery of at least some of the material wealth).  Acceptance of partial performance can prevent a party from claiming the Statute of Frauds as a defense.  See, e.g., Railan v. Katyal, 766 A.2d 998, 1007-08 (D.C. Ct. App. 2001).  So in this case at least, the contract did not need to be in writing as long as the Devil was satisfied with the terms of the verbal agreement.  The Devil is correct, however, that proving the existence and terms of the verbal agreement can be difficult.

III. Aliases

At one point Gary signs the contract, but he signs an alias (‘Jim Fartington’).  Gary claims that this is not binding against him, since that’s not his name.  In fact, there is no particular requirement that a signature be one’s legal name, much less written in cursive or the like.  Instead, a signature is just a physical record of the intent to make a contract.  “The signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the signer.” Restatement (Second) of Contracts § 134 (emphasis added).  So when Gary signed the contract, he did so with the apparent intention of authenticating the signature as his own.  Thus, he may well be bound by the contract.

IV. Conclusion

Reaper is a great show, and it’s a shame it was canceled.  Despite the plot revolving around contracts with the Devil, there aren’t too many legal issues, but this episode raised some great contract law issues that we don’t get to talk about on the blog very often.  In this case, the Devil probably actually had Gary dead to rights.  I guess the Devil should have consulted an attorney, which you’d think would be easy for him to arrange.

26 Comments

Posted in contracts, television

A Grimm Case of Intestate Succession

Posted on May 4, 2012 by | 11 comments

Today’s episode of Grimm (“Happily Ever Aftermath“) involves a murder apparently motivated by money, specifically an inheritance.  But, as any law student who has taken a trusts & estates course can tell you, the devil is in the details.  Spoilers ahead!

Continue reading →

11 Comments

Posted in estate law, television

Harvey Birdman, Attorney At Law (Ep. 1-4)

Posted on April 30, 2012 by | 13 comments

Harvey Birdman, Attorney At Law is one of the original Adult Swim programs, similar in style and concept to the truly classic Spage Ghost Coast to Coast and produced by the same company. But instead of re-purposing old Hanna Barbera cartoons to make a surrealistic talk show, they’re re-purposing old Hanna Barbera cartoons to make a surrealistic legal sitcom of sorts.  In this post we’re talking about the first four episodes of the first season, which are available on DVD. Continue reading →

13 Comments

Posted in criminal law, criminal procedure, family law, television, torts

Awake and Doctor-Patient Confidentiality

Posted on April 13, 2012 by | 7 comments

Today’s post was inspired by a question from Andrew, who wrote about the television show Awake: “In the most recent episode, [the main character, a police officer] is involved in a hostage situation, and a psychiatrist is in the room, and talks about the hostage taker’s mental health in detail. Given the circumstances, was that legal?”

This is a pretty complicated question.  First, we have to determine which law applies, and there are several to choose from.  Often when people talk about doctor-patient confidentiality they are actually referring to the physician-patient privilege, which is a rule of evidence in some jurisdictions, including California.  Cal. Evid. Code § 994.  Since this incident didn’t involve the psychiatrist testifying in court, it doesn’t apply.

Apart from the evidentiary privilege, there is also a duty of confidentiality, which is both an ethical and a legal duty.  At the state level, California has the Confidentiality of Medical Information Act, and at the federal level there is the Health Insurance Portability and Accountability Act, better known as HIPAA.  Both of these apply in this case, but there are exceptions to both.

California was one of the first states to recognize that therapists have an affirmative duty to warn others when a patient may have violent intentions.  Tarasoff v. Regents of the Univ. of Cal., 17 Cal.3d 425 (1976).  The Tarasoff case is fairly famous, and is frequently discussed in law school torts casebooks.  Notably, however, the Tarasoff case was decided before the CMIA was passed, and the CMIA does not contain an exception for protecting others from a violent patient.  This left therapists in a tricky position, relying on the exception in the evidentiary privilege to find an implicit exception in the duty of confidentiality.

This recently changed with the passage of AB 1178 in 2007, which amended the CMIA to allow disclosure of medical information

consistent with applicable law and standards of ethical conduct, by a psychotherapist … if the psychotherapist, in good faith, believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.

Cal. Civ. Code § 56.10(c)(19).  As it happens, this exception is taken almost verbatim from a similar exception in HIPAA.  From 45 C.F.R. § 164.512(j):

A covered entity may, consistent with applicable law and standards of ethical conduct, use or disclose protected health information, if the covered entity, in good faith, believes the use or disclosure:
(i)(A) Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and
(B) Is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat;

I didn’t do a detailed review of the case law, but I suspect disclosing a patient’s mental health information to a police officer handling a hostage situation probably counts.

So, to sum up, the exceptions to the state and federal duties of confidentiality allow the psychiatrist to disclose the information, and the Tarasoff case imposes a duty to do so.  It looks the psychiatrist was in the clear.

7 Comments

Posted in mailbag, television, torts

Castle: 47 Seconds

Posted on April 9, 2012 by | 10 comments

In the March 26, 2012 episode of Castle, “47 Seconds,” the police use a rather snazzy bit of technology to identify their suspect: a recording of real-time GPS data tracking all cellphones. We already discussed GPS tracking in reference to Batman: Noel, but this seems to be another situation which would implicate U.S. v. Jones, the recent Supreme Court case dealing with this sort of thing and its interaction with the Fourth Amendment. Continue reading →

10 Comments

Posted in constitutional law, criminal procedure, television

Superheroes and the Duty to Rescue

Posted on April 2, 2012 by | 35 comments

We’ve talked before about the duty to rescue, but there are a couple of facets of the issue that we haven’t addressed.  Plus, this issue came up (indirectly) in the most recent episode of Grimm, and we’ll talk about that, too.  First, a brief summary of our prior post.

I. The Story So Far

In general there is no duty to rescue or aid others, so superheroes aren’t on the hook (except perhaps morally) if they decide not to rescue someone, even if they could do so very easily.  However, once a rescue is attempted, a superhero must carry out the rescue with ordinary care.  Similarly, abandoning the rescue partway through may leave the superhero liable.  In short, they don’t have to rescue anybody, but if they try they must do so with reasonable care and they have to follow through.

There is, however, an exception for people in “special relationships.”  For example, parents have an affirmative duty to rescue their children.  However, it is very, very rare that the police or other government workers are considered to have such a special relationship with the victim of a crime or other endangered person, so even superheroes who work with or for the government will rarely be treated differently than if they were working as a private citizen.

Finally, at least five states (Massachusetts, Minnesota, Rhode Island, Wisconsin, and Vermont) have passed laws overruling the common law rule in some circumstances.  For example, 12 V.S.A. § 519(a) provides “A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.” (emphasis added).  Not only is this a fairly narrow exception to the common law rule, but the maximum penalty for violating it is a whopping $100 fine.  So while Vermont has pushed back against the common law rule, it hasn’t put a lot of weight behind it.  The other state laws have a similarly narrow scope and enforcement mechanism.

Note, however, that “without danger or peril to himself” part.  A lot of superheroes might get caught by that in situations where ordinary people would have an excuse.  There isn’t much that poses danger or peril to Superman, for example, so unless he owes an important duty to someone else or the imperiled person is already being assisted, Superman might find himself quite busy in Vermont.  This is especially true given that Vermont’s law, unlike the others, doesn’t require the rescuer to be at the scene, merely to “know that another is exposed to grave physical harm.”  Given Superman’s superhearing and other heightened senses, he is probably aware of most such situations in Vermont most of the time.  In fact, Superman should probably just stay out of Vermont entirely.

So those are the basics.  But what about people that are injured during a fight between a superhero and a supervillain?  Does the superhero owe them a duty of rescue or aid?  The answer is…maybe.

II. Injured Bystanders and the Duty to Rescue

The long-held common law rule was that there was a duty to rescue if one was legally responsible for the injury.  “If the actor by his tortious conduct has caused such bodily harm to another as to make him helpless, the actor is under a duty to use reasonable care to prevent any further harm which the actor then realizes or should realize as threatening the other.”  Restatement (First) of Torts § 322 (emphasis added).  Normally, however, superheroes are acting under a legal privilege that allows them to avoid responsibility for a lot of bystander injuries.

For example, suppose Batman throws a gas grenade in order to stop some criminals who are about to attack a civilian, but the wind shifts and the gas causes an injury to a bystander.  Batman would not be liable for that injury unless he realized or should have realized that the gas grenades created an unreasonable risk of causing such harm.  Restatement (Second) of Torts § 75.  No legal responsibility, no duty to rescue.

But the common law has developed, and now many jurisdictions observe a duty to rescue even when the injury was caused non-tortiously.  “If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.”  Restatement (Second) of Torts § 322 (emphasis added).

So going back to our example: under this new standard, Batman would have a duty of reasonable care to prevent further harm to the helpless bystander even though he was legally privileged to cause the harm in the first place.  Of course, “reasonable care” might mean “very little care” if there are more pressing matters at hand, such as a fleeing supervillain to catch or another group of henchmen about to attack other bystanders.  But if there is no other danger, then Batman may be obligated to at least call 911 or take the injured bystander to the hospital.

This rule means that superheroes would have to be very careful to avoid harm to bystanders, lest they be on the hook for preventing further harm, whether from themselves or from others.

III. Grimm and the Duty to Rescue

On the most recent episode of Grimm  (“Island of Dreams”), Nick’s co-worker Sergeant Wu is poisoned by a magical cookie meant for someone else.  Rather than take Wu to the hospital, Nick leaves him in the care of a Fuchsbau* named Rosalee who remembers seeing her father treat a similar case of poisoning several years ago.  As it happens, she (mostly) successfully treats Wu, who seems mostly unharmed.

* As an aside: the mostly nonsensical, horribly pronounced pseudo-German on that show is really irritating.  Hire a consultant, NBC, seriously.

Here, Rosalee (and to a lesser extent Monroe, who assists her) are in a bit of a bind.  What is reasonable in this situation?  Taking Wu to a regular hospital?  Rosalee assures Nick that the doctors won’t know how to treat the poisoning.  But the alternative doesn’t seem much better.  Rosalee’s knowledge is second-hand at best, and she’s not a trained healthcare worker, even among the creatures of Grimm.  And, of course, if things had gone badly, none of them would have been able to explain what had happened.

Initially, Nick himself doesn’t seem to be in any danger of liability, since having Rosalee treat Wu wasn’t Nick’s idea, and in fact he wanted to take Wu to a hospital at first.  But after Wu recovers somewhat, he helps Rosalee and Monroe take Wu to his house so that he can wake up in a familiar environment.  At that point, Nick became party to the rescue and could be liable if a reasonable person would have taken Wu to the hospital at that point.  And that means a reasonable person who knew only what most people know about the world (i.e., nothing about magical cookies or Grimms).

IV. Conclusion

Superheroes need to know the ins and outs of the duty to rescue and its many exceptions and caveats.  In some states superheroes may even have a limited affirmative duty to rescue others, and in Vermont at least that could be a real problem.  Those $100 fines can add up, and failure to pay them could result in a contempt charge.  In Superman’s case the bad PR would probably be worse than the fine or even the contempt charge, but it’s still something to watch out for.

35 Comments

Posted in television, torts

Person of Interest: Witness

Posted on March 2, 2012 by | 14 comments

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 Comments

Posted in criminal law, evidence, mailbag, television, torts

Grimm: Game Ogre

Posted on February 29, 2012 by | 9 comments

[Note! This post is the subject of Law and the Multiverse Retcon #11. The 2020 U.S. Supreme Court decision Ramos v. Louisiana has reversed the law in Oregon (and Louisiana) and also my analysis of this case!]

It’s been a while since we’ve done a post on Grimm, and today we have a brief post about an interesting quirk of Oregon law brought up by episode 8, “Game Ogre.”

I. The Setup

The villain of the episode is, unsurprisingly, an ogre.  Nick’s partner Hank helped put him in prison 5 years before the episode, and after escaping from prison the ogre comes after Hank.  In the episode, Hank admits that he “misplaced” a faked security camera tape that might have established an alibi for the ogre.  Hank’s reasoning was that the ogre had a really good lawyer, and if only a single juror felt that the tape established reasonable doubt, then the ogre would have walked.

Interestingly, Oregon—where the show takes place—is the only state in the country for which that isn’t necessarily true.  The Oregon Constitution provides that “in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise.”  Ore. Const. art. I § 11.  Oregon has since replaced first degree murder with aggravated murder, but the unanimity requirement applies to aggravated murder.  See, e.g., State v. Sparks, 336 Or. 298 (2004) (en banc).  We’ll come back to aggravated murder in a moment; first a discussion of jury verdicts and the Constitution.

II. Unanimity and the Constitution

Federal statutory law requires a unanimous verdict in federal cases (Fed. R. Crim. Pro. 31).  However, this requirement is not necessarily rooted in the Constitution, and the states can permit convictions on less than unanimous verdicts.  Apodaca v. Oregon, 406 U.S. 404 (1972).  There was not a clear majority in Apodaca, so depending on which Justice you want to believe, the reason for this is either because the Sixth Amendment simply doesn’t require it or because that part of the Sixth Amendment isn’t incorporated by the 14th Amendment.

So just how much less than unanimous is okay?  The Supreme Court hasn’t drawn an exact line, but the Apodaca case upheld 11-1 and 10-2 convictions, though a later case held that 5-1 was impermissible.  Burch v. Louisiana, 441 U.S. 130 (1979).  Justice Blackmun, concurring in Apodaca, said that he’d be okay with 9-3 but not as far as 7-5.

So that’s the constitutional law aspect.  Now let’s turn to the facts of the case.

III. Aggravated Murder and Lesser Included Offenses

The show isn’t specific, but the ogre was probably charged with aggravated murder.  From the definition of aggravated murder in ORS § 163.095:

 “aggravated murder” means murder as defined in ORS 163.115 which is committed under, or accompanied by, any of the following circumstances:

…

(e) The homicide occurred in the course of or as a result of intentional maiming or torture of the victim.

In this case the ogre tortured his victim for two days, which would surely count.  So a guilty verdict would have to be unanimous, right?  Not necessarily, via the magic of lesser included offenses.  Basically, the concept of a lesser included offense recognizes that many crimes consist of “committing crime X, plus some other stuff.”  Thus, if someone commits the more serious crime, they’ve necessarily committed the lesser included offense of crime X.  A classic common law example is that robbery is larceny plus assault (i.e. stealing something by force or the threat of force).  So if someone commits a robbery, they’ve necessarily also committed both a larceny and an assault.

This has a few different practical effects.  For one, a defendant can’t be convicted of both an offense and a lesser included offense for the same criminal act.  So for example someone who forcibly steals a purse can’t be convicted of both robbery and larceny, since the larceny was part of the robbery.  Of course, if they forcibly steal a purse and then non-forcibly shoplift some jewelry, then that’s two separate acts and they could be convicted of both a robbery and a larceny.

Another practical effect of this doctrine is that a defendant can, however, be convicted of any lesser included offense of the crime charged.  Keeble v. United States, 412 U.S. 205 (1973).  In fact, in a capital murder case, the Constitution requires the jury to be given instructions for lesser included offenses like manslaughter.  Beck v. Alabama, 447 U.S. 625 (1980).

So, in the ogre’s case, the jury would have been instructed that they could find him guilty of aggravated murder, which requires a unanimous verdict, or they could find him guilty of a lesser included offense, which would require only 10 guilty votes, or they could acquit him.  So if one or two jurors believed the faked alibi tape, but the other 10 or 11 still thought the ogre was guilty of aggravated murder, the jury could still find him guilty of regular murder or manslaughter, the one or two votes to acquit notwithstanding.

In just about any other jurisdiction, the jurors who believe the alibi would vote to acquit and the result would be a hung jury.  Of course, if three or more jurors believed the alibi then all bets are off, even in Oregon.

IV. Conclusion

“Game Ogre” wasn’t the strongest Grimm episode, but more recent ones have been better.  We’ll definitely cover those in future posts, but we couldn’t resist the opportunity to make a post out of what is ordinarily a piece of legal trivia (although maybe it’s not so trivial to criminal defendants in Oregon!).

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