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Ivan Viehoff
2009-Feb-11, 01:29 PM
Suppose a person enters a house to murder its occupant, finds him in bed, and delivers enough injury that might be expected to kill him with reasonable certainty. But in post mortem it is discovered that the person was already dead. Are the perpetrator's actions any less reprehensible than if the person still had been alive? What should they be charged with (I realise that is likely to depend upon the jurisdiction)?

I ask because the present case has arisen in Britain. A lorry (US=truck) struck a car from behind pushing it under the stationary lorry in front, decapitating the 6 occupants. There is some evidence that the (rear) lorry driver was looking at his laptop computer shortly before the incident. The driver has been charged with Causing Death by Dangerous Driving, (a charge which is preferred in Britain where negligence in driving causes death to 3rd parties, since the courts have been reluctant to allow a manslaughter charge in these cases). The driver's defence to this charge is that the occupants of the car were already dead. The stationary lorry had stopped suddenly at a traffic queue, and, claimed the defendant, the car had struck it from behind at speed. Even if that much is true, it will be hard to determine whether the occupants were in fact dead or merely injured, as the effect of the second impact caused so much damage to the car and its contents that it was for some time uncertain how many people were in it.

Should it really matter, in relation to the charge against the lorry driver, whether the people in the car were still alive, or very recently deceased? If we have reasonable doubt about these people's condition prior to the accident, should that be a reason to give a not guilty charge? You should understand that the sentence the court can give for Causing Death by Dangerous Driving is rather larger than any sentence that can be given merely for a charge of Dangerous Driving.

geonuc
2009-Feb-11, 01:33 PM
I recall great debates about this in law school - the culpability of those who attempt to murder and fail and that of those who succeed.

As to the charge*, it sounds like attempted murder. Mutilation of a corpse is also a crime in most jurisdictions.

ETA: * In the case of the person entering a house to attack someone with deadly force.

closetgeek
2009-Feb-11, 01:40 PM
Ivan I am not sure how the charges are drawn in Britain but to my understanding, charges are based on intent. A driver killing another driver would likely be some kind of negligence or manslaughter, though it may vary depending on if the DA wants to make an example of the case. However, going into a house with the intent to kill is a first degree murder, case. I don't know how they would handle it, if the intended victim was already dead but my best guess would be some kind of attempted murder charge because the accused entered the house with that purpose in mind.

IMHO, no, it should not be taken into account because the negligence was present and had they been alive, he would have killed them anyway.

geonuc
2009-Feb-11, 01:51 PM
Crimes have specific 'elements', all of which the prosecution must prove to convict. Many crimes do have an element of intent.

Roving Philosopher
2009-Feb-11, 02:27 PM
I disagree. Whether or not they were already dead would seem pretty important. If they were already dead, the driver did not cause their death.

Consider this alternate case. The driver rear-ends a hearse carrying a body. The damage to the hearse is so great that, had the person in the back been alive, he or she would have been killed. Should the driver in this case be charged with causing death by dangerous driving?

The only real difference here is that the body in the back of the hearse is known to be dead. It will be on the defense to prove that the passengers were already dead (which is an admittedly high bar), but if they succeed, I can't see how he can be guilty of causing their death.

This case is different from the hypothetical in the OP, in that there was specific intent to commit murder, rather than death arising through negligence. Even still, I'm not entirely sure how the person in the hypothetical would be charged.

Cougar
2009-Feb-11, 03:01 PM
The driver's defence to this charge is that the occupants of the car were already dead.

He would have to convince the jury of that. The field of forensics has gotten very good, but I highly doubt it has gotten good enough to show someone died just seconds before any particular time.

Guilty.

Then he is going to be liable for a wrongful death civil suit. I hope he's got good insurance. If it can be shown he was messing with his laptop at the time, that could be gross negligence and kick in punitive damages.

Let's be careful out there!

geonuc
2009-Feb-11, 03:25 PM
Another legal aspect that plays into this is the doctrine of impossibility in attempt cases, also a hot topic in school. The British House of Lords held in the Haughton case that a valid defense to a charge of attempt was that it was impossible to commit what was intended. In the case of attempted murder, if the victim is already dead, it would have been impossible to carry out the intended crime.

In the US, most jurisdictions have abandoned this in favor of a belief approach - if the defendant believed the crime was possible, than a charge of attempt would stick. There are exceptions, flavors and nuances, of course.

closetgeek
2009-Feb-11, 03:38 PM
He would have to convince the jury of that. The field of forensics has gotten very good, but I highly doubt it has gotten good enough to show someone died just seconds before any particular time.

Guilty.

Then he is going to be liable for a wrongful death civil suit. I hope he's got good insurance. If it can be shown he was messing with his laptop at the time, that could be gross negligence and kick in punitive damages.

Let's be careful out there!

I believe they would be able to, based on the body's reaction to injuries caused, post mortem. Grant it, I am not educated and everything I say is based on forensic shows (please no jokes about a signature :shifty:), which can be misleading, but they can usually tell if a person is stabbed after they were killed or dead before they burned.

Cougar
2009-Feb-11, 04:14 PM
I believe they would be able to, based on the body's reaction to injuries caused, post mortem. Grant it, I am not educated and everything I say is based on forensic shows...

I was going to say something about these forensics shows. So you think Abby (http://www.cbs.com/primetime/ncis/bio/pauley_perrette/bio.php) ;) could tell if they were already dead just seconds before they were crushed and decapitated? It's conceivable, I suppose, but I think it would be next to impossible since death doesn't shut off all bodily systems immediately. If it was several minutes, then maybe. But less than 10 seconds? Very doubtful. Is there a medical examiner in the house?

Fazor
2009-Feb-11, 06:51 PM
Well, I love legal questions (not that I consider myself by any means an expert, just opinionated and a little educated). But this one has me stumped.

Firstly, did I read it right that the car with the deceased occupants first struck the truck ahead of them, but then was hit from behind by the second truck, which caused decapatation?

If that's the case...I don't know how you prove the extent of their initial injuries. Regardless, he should be cited with the traffic violation (at least, he would be in Ohio), but from the injury liability standpoint... jeeze, just sounds like a real mess.

Gandalf223
2009-Feb-11, 06:59 PM
It sounds like a typical claim made by either a guilty defendant, or the lawyers representing a defendant who hasn't a leg to stand on. Even thought you may be guilty, all you need in a jury trial is to introduce some doubt.

Gillianren
2009-Feb-11, 07:04 PM
Well, reasonable doubt, which is more than just "some doubt." You can have the niggling sense that you might be wrong, but unless it's based on something, you should still vote to convict. I'm sure Geonuc can define it better than I.

Fazor
2009-Feb-11, 07:31 PM
I was discussing this with a co-worker over lunch (both being in insurance, we always deal with liability issues). The more I talked it through, the more I think he'll still be convicted. How do you prove they were already dead? Even if they had injuries that would have likely been fatal, his "finishing them off" prevented any possible attempts at saving them. If it were me, I'd say guilty.

BigDon
2009-Feb-11, 07:39 PM
I disagree. Whether or not they were already dead would seem pretty important. If they were already dead, the driver did not cause their death.

Consider this alternate case. The driver rear-ends a hearse carrying a body. The damage to the hearse is so great that, had the person in the back been alive, he or she would have been killed. Should the driver in this case be charged with causing death by dangerous driving?

The only real difference here is that the body in the back of the hearse is known to be dead. It will be on the defense to prove that the passengers were already dead (which is an admittedly high bar), but if they succeed, I can't see how he can be guilty of causing their death.

This case is different from the hypothetical in the OP, in that there was specific intent to commit murder, rather than death arising through negligence. Even still, I'm not entirely sure how the person in the hypothetical would be charged.

Whoa, Nellie.

Allow me to disagree.

You're not at all considering the "threat to society" aspect. Your bad driver could easily be Mrs. Beasley, the old english teacher.

That is nowhere near the same level of criminality as somebody who enters a sleeping person's house and shoots them in their bed. Whether or not that sleeper had a heart attack an hour earlier is irrrelavent. A person capable of doing that IS a threat to society at large.

Roving Philosopher
2009-Feb-11, 07:52 PM
Whoa, Nellie.

Allow me to disagree.

You're not at all considering the "threat to society" aspect. Your bad driver could easily be Mrs. Beasley, the old english teacher.

That is nowhere near the same level of criminality as somebody who enters a sleeping person's house and shoots them in their bed. Whether or not that sleeper had a heart attack an hour earlier is irrrelavent. A person capable of doing that IS a threat to society at large.I don't think we're disagreeing. Most of my point was in reference to the actual case, where there was no intent to commit murder. I was distinguishing it from the hypothetical case, which was offered as a parallel to the actual case. I assume the would-be murderer would still be charged with something, just not murder.

geonuc
2009-Feb-11, 08:04 PM
I don't know what the standard is in Britain, but it's probably the same as US law: the State (Crown?) must prove all elements of the crime "beyond a reasonable doubt". With the lorry driver, given that one of the elements of the crime is "causing the death" of someone, it must be proven that that in fact happened. If the defence introduces sufficient evidence to cause the jurors or bench to have a reasonable doubt as to whether the unfortunate victims were alive at the time, then the prosecution should fail.

Mind you, in the US, the concept of lesser included charge might be relevant. So, if acquitted of the most serious charge, the driver may be found guilty of a lesser driving negligence charge that doesn't require a death.

kleindoofy
2009-Feb-11, 08:16 PM
... You're not at all considering the "threat to society" aspect. ...
nullum crimen sine lege

Would you care to cite a law I break by being a "threat to society"? I believe one has to first commit a serious crime upon which a hard sentence is spoken if one is considered to be a "threat to society." I don't recall any "threat to society" law.

Or one is just totally bonkers and is put in the whoopy bin.

Fazor
2009-Feb-11, 08:24 PM
This applies more the the "corpse-killing" scenario, but here's how the law reads in Ohio:



2923.02 Attempt to commit an offense.
(A) No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense.

(B) It is no defense to a charge under this section that, in retrospect, commission of the offense that was the object of the attempt was either factually or legally impossible under the attendant circumstances, if that offense could have been committed had the attendant circumstances been as the actor believed them to be.


I include this not because it applies to the traffic case (heck, it's Ohio law so who knows how it reads in the appropriate jurisdiction), but because it's interesting.

They specifically say that even if you couldn't possibly have done the crime, if you believed you could and you tried to, you are still guilty (Of attempted [applicable crime]).

It goes on to list the punishments, which depend on what crime you were attempting. Here's the link to the specific law (http://codes.ohio.gov/orc/2923) (scroll down to "Attempt")-- again this is for Ohio.

It's interesting (and actually rather smart, for once) that there's no "Attempted Murder" "Attempted Theft" "Attempted Smuggling of Forign Amphibians" etc., but rather a charge called "Attempt" that encompases all crimes, in the situation that you do not sucessfully pull them off.

geonuc
2009-Feb-11, 08:24 PM
nullum crimen sine lege

Would you care to cite a law I break by being a "threat to society"? I believe one has to first commit a serious crime upon which a hard sentence is spoken if one is considered to be a "threat to society." I don't recall any "threat to society" law.

Or one is just totally bonkers and is put in the whoopy bin.
BigDon said 'aspect', not 'law'.

kleindoofy
2009-Feb-11, 08:31 PM
BigDon said 'aspect', not 'law'.
Yes, but how are 'aspects' legally relevant?

One doesn't go to prison for commiting an aspect. Truck driver or Mrs. Beasley, the deed is important.

geonuc
2009-Feb-11, 08:44 PM
Yes, but how are 'aspects' legally relevant?

One doesn't go to prison for commiting an aspect. Truck driver or Mrs. Beasley, the deed is important.
I think you may have missed BD's point. But, as it is his point, not mine, I'll say no more.

chrissy
2009-Feb-11, 09:14 PM
Suppose a person enters a house to murder its occupant, finds him in bed, and delivers enough injury that might be expected to kill him with reasonable certainty. But in post mortem it is discovered that the person was already dead. Are the perpetrator's actions any less reprehensible than if the person still had been alive? What should they be charged with (I realise that is likely to depend upon the jurisdiction)?

I ask because the present case has arisen in Britain. A lorry (US=truck) struck a car from behind pushing it under the stationary lorry in front, decapitating the 6 occupants. There is some evidence that the (rear) lorry driver was looking at his laptop computer shortly before the incident. The driver has been charged with Causing Death by Dangerous Driving, (a charge which is preferred in Britain where negligence in driving causes death to 3rd parties, since the courts have been reluctant to allow a manslaughter charge in these cases). The driver's defence to this charge is that the occupants of the car were already dead. The stationary lorry had stopped suddenly at a traffic queue, and, claimed the defendant, the car had struck it from behind at speed. Even if that much is true, it will be hard to determine whether the occupants were in fact dead or merely injured, as the effect of the second impact caused so much damage to the car and its contents that it was for some time uncertain how many people were in it.

Should it really matter, in relation to the charge against the lorry driver, whether the people in the car were still alive, or very recently deceased? If we have reasonable doubt about these people's condition prior to the accident, should that be a reason to give a not guilty charge? You should understand that the sentence the court can give for Causing Death by Dangerous Driving is rather larger than any sentence that can be given merely for a charge of Dangerous Driving.

Actually that isn't what happened the guy was Portugese and he isn't claiming the family were already dead, THIS (http://news.bbc.co.uk/1/hi/england/7878605.stm) is what is going on in the courts so far, he is trying to get let off with a lesser charge.

closetgeek
2009-Feb-11, 09:17 PM
I was going to say something about these forensics shows. So you think Abby (http://www.cbs.com/primetime/ncis/bio/pauley_perrette/bio.php) ;) could tell if they were already dead just seconds before they were crushed and decapitated? It's conceivable, I suppose, but I think it would be next to impossible since death doesn't shut off all bodily systems immediately. If it was several minutes, then maybe. But less than 10 seconds? Very doubtful. Is there a medical examiner in the house?

No I watch Forensic Files and New Detectives, not crime drama's...and I do stay at Holiday Inn so that more than qualifies me as an expert. I don't know how long it takes for the effects of death to show up. I would imagine and outright decapitation makes a pretty mess and it's hard to say if the blood flowed out from a corpse rather than pumped out by a pulse.

KaiYeves
2009-Feb-11, 09:18 PM
In the house case, I assume it would be attempted murder.

chrissy
2009-Feb-11, 10:47 PM
He is trying to have the charge reduced to careless driving which doesn't hold much here, whereas manslaughter is jail time. The entire family was wiped out because he wasn't paying attention to the road ahead, if he wasn't using the laptop, he would have seen the danger ahead and slowed down ready to stop.

Jens
2009-Feb-12, 04:54 AM
About the general question, it seems unreasonable to me to charge a person for either murder or attempted murder if the person was dead. Whether they believed the person to be dead or not seems immaterial. I find it strange that US courts rule the other way. If a person thinks a doll is alive and tries to kill it, I can't imagine being able to convict the person.

About the incident with the lorry, it seems reasonable the driver of the lorry in front would be able to clear it up by testifying whether there was one or two impacts. He wouldn't have any reason to lie, because he was in a line of cars from a previous accident, and wouldn't be liable either way.

Ara Pacis
2009-Feb-12, 05:19 AM
Re: injuries, I think it may be possible to reconstruct the timeline of the accident based on material science if one looks closely enough. Then it may be possible to see if a material was impacted once or twice, cut once or twice, bled upon at one position or two positions. I seem to recall seeing a documentary about an accident where a car hit a rail, split in two and tossed the driver out of the vehicle and they used computers and materials analysis to determine who was really driving in order to avoid a conviction of some sort for the sole survivor who was assumed to be responsible.

mike alexander
2009-Feb-12, 06:52 AM
I hear the ripping of headlines as this story makes it to Law and Order.

dink-dink

Tog
2009-Feb-12, 08:31 AM
About the general question, it seems unreasonable to me to charge a person for either murder or attempted murder if the person was dead. Whether they believed the person to be dead or not seems immaterial. I find it strange that US courts rule the other way. If a person thinks a doll is alive and tries to kill it, I can't imagine being able to convict the person.

That all comes back to intent. Did the person intend to kill the doll or a real person? If I decide to "get rid" of my ex-boss and sneak into his house and fire a shotgun into his bed at 3 AM, but he's still alive come morning? what should I be charged with? Does it matter why he's still alive?

What if the wounds were superficial?
What if there were life threatening, but the medics saved him?
What if I really only shot pillows?
What if I really killed his wife instead?

By my way of thinking, 3 of those should be attempted 1st degree homicide, and the last should be 1st degree homicide.

In all three, the intent was to kill him. A shotgun at close range is rarely beneficial. At 3 AM, it is reasonable to assume that he will be sleeping. The fact that I failed to kill him is what makes it "attempted". The reason I failed to kill him doesn't matter as much.

There really isn't a way to charge someone with "attempted negligence" which is what the truck case from the OP would seem to be. Gross Negligence sure, but certainly not Murder in the First. Maybe not even the Second.

I would think the main charge i the US wold be Vehicular Manslaughter with extenuating circumstances. The fast that he was driving the vehicle that killed them, and that it could have been prevented gets him the charge. The fact that the road was clear for a mile strongly implies that he wasn't watching at all.

For the hypothetical truck-car-truck sandwich, Cause of death from hitting a stationary object would be things like crushed sternums, maybe broken necks or impalement from objects that were unsecured in the back of the car. It just one of the reasons you don't keep lawn darts and bricks in the back seat.

For a rear impact that leads to decapitation, damage to sternum would be more likely to be a top down compression, or not at all.

In something like this where the exact timeline might really matter, I'd think it would be looked at very closely. Closely enough that a reconstruction based on injuries to the bodies and the car itself could be used to give a pretty complete picture. Did impact on all 6 members happen from the back of the head to the front? Or were some of them facing the rear of the car? If the parents survived, I doubt they would sit there without turning around to check the kids.

geonuc
2009-Feb-12, 08:45 AM
About the general question, it seems unreasonable to me to charge a person for either murder or attempted murder if the person was dead. Whether they believed the person to be dead or not seems immaterial. I find it strange that US courts rule the other way. If a person thinks a doll is alive and tries to kill it, I can't imagine being able to convict the person.
The question usually centers on a 'reasonable belief' that the criminal act will result in someone's death. Thinking a doll is alive is not reasonable. US courts are in the mainstream on this issue, with a focus on the culpability of the defendant.

Ivan Viehoff
2009-Feb-12, 10:46 AM
Actually that isn't what happened the guy was Portugese and he isn't claiming the family were already dead, THIS (http://news.bbc.co.uk/1/hi/england/7878605.stm) is what is going on in the courts so far, he is trying to get let off with a lesser charge.
That is the case. Here is a later report from the same source which includes mention that he is claiming that they were already dead. I belive my account is entirely consistent with what it says here. http://news.bbc.co.uk/2/hi/uk_news/england/7881682.stm

Tog
2009-Feb-12, 11:00 AM
Ahh, okay. I thought the lorry hit the car and climbed over the top. That makes it more clear that the car was hit from behind and shoved under the lorry in front of them.

If it's true that they crashed just seconds before, then he must have been following them very closely to be unable to stop in time.

I'd think there would also be two points of impact on the front of the top of the car. One where it hit the truck in front on it's own, then a second where it was forced under by the impact. Maybe there isn't enough left to be able to tell.

Either way, the drover of the first truck should have felt two impacts if the smaller car hit him first.

Jens
2009-Feb-12, 11:00 AM
That all comes back to intent. Did the person intend to kill the doll or a real person? If I decide to "get rid" of my ex-boss and sneak into his house and fire a shotgun into his bed at 3 AM, but he's still alive come morning? what should I be charged with? Does it matter why he's still alive?


Obviously you should be charged with attempted murder in that case. But the case we're dealing with is, suppose that your boss died and was laid in state in his coffin, and you came in and shot him with a shotgun, thinking he was still alive? In that case, should it be attempted murder? The problem I see is that you were trying to do something that was impossible to do in the first place. You were trying to kill somebody who was already dead, even if you were unaware of this. I would argue that you're only guilty of mutilating a corpse.

Tog
2009-Feb-12, 11:05 AM
Obviously you should be charged with attempted murder in that case. But the case we're dealing with is, suppose that your boss died and was laid in state in his coffin, and you came in and shot him with a shotgun, thinking he was still alive? In that case, should it be attempted murder? The problem I see is that you were trying to do something that was impossible to do in the first place. You were trying to kill somebody who was already dead, even if you were unaware of this. I would argue that you're only guilty of mutilating a corpse.

In that case, I think you'd have to establish that I reasonably believed that he was still alive. If that can be established, then it would still be attempted murder. It might get plea bargained down to mutilating a corpse, but as long as my intent was to kill a person I believed to be alive, it's attempted murder.

geonuc
2009-Feb-12, 11:13 AM
I think I'm going to give up posting legal opinions. A law school education and passage of a state bar exam seems not enough for people to take them seriously.

Ivan Viehoff
2009-Feb-12, 11:27 AM
Another legal aspect that plays into this is the doctrine of impossibility in attempt cases, also a hot topic in school. The British House of Lords held in the Haughton case that a valid defense to a charge of attempt was that it was impossible to commit what was intended. In the case of attempted murder, if the victim is already dead, it would have been impossible to carry out the intended crime.
This is what I rather fear.

It remains to be tested in the present case whether the lorry driver was indeed negligent in striking the car. But if he was negligent, it does seem to me irrational that that the level of sentence he gets may depend upon doubt about whether the occupants of the car were recently deceased or not.

I think the law doesn't really know how to deal with this. In an offence with intent, you can have "attempt". But, as someone else said, you can't have attempted negligence. So in a case which alleges negligence rather than intent, if you are not actually the proximate cause of death, I don't think you can be charged with causing death.

Consider the case someone mentioned of hitting a hearse. If it had been a vehicle carrying passengers, they would have died. The negligence is identical whether it is a hearse or a passenger transport. (Well I suppose the driver might in rare circumstances be able to say "I could see it was a hearse so I knew it wouldn't kill if I struck it. So I made a deliberate decision to proceed on my present course and strike the hearse rather than risk a collision with on-coming traffic which would certainly kill." But normally the less serious consequences when it is a hearse is purely luck.) It seems to me that the criminal aspect of the case should not be affected by the luck of what happens. The person is not actually less or more a dangerous criminal as a result of the luck of what was contained in the vehicle they hit. But of course the civil compensatory aspect does depend upon that luck, and that is why we take out insurance. It is what insurance is for.

Ivan Viehoff
2009-Feb-12, 11:28 AM
I think I'm going to give up posting legal opinions. A law school education and passage of a state bar exam seems not enough for people to take them seriously.
Some of us are capable of distinguishing well argued posts from the less well argued. So don't lose heart just because you fail to convince everyone.

geonuc
2009-Feb-12, 11:46 AM
Some of us are capable of distinguishing well argued posts from the less well argued. So don't lose heart just because you fail to convince everyone.
It's not the failure to convince that disheartens me - I acknowledge an imperfect grasp of the law, and I try to couch my opinions accordingly. It's the apparent failure for people to even read what I've written that bothers me.

This is a common problem on BAUT, at least in my opinion. Many people don't pay attention to who is posting what. I do pay attention that. For example, if Swift posts something to do with chemistry, I am very likely to place a higher value on his opinion than on someone who I do not know to have a PhD in chemistry. Doesn't mean I accept it unreservedly, but you can be sure that if contradict Swift on that issue, I will do so armed with more than a trifle.

Legal issues tend to evoke wild opinions. Unfortunately, although it is not a difficult field for the average sort of intellect you find on BAUT, it is one that most people have little grasp of as it's not generally taught in school, as opposed to say, chemistry.

I probably sound like a whiner - sorry. But this is on mind also because of another thread involving someone else's expertise.

slang
2009-Feb-12, 12:27 PM
I hear the ripping of headlines as this story makes it to Law and Order.

Speaking of which, I think I remember an episode where a transplant surgeon was on trial under somewhat similar circumstances. Person had accident, might have survived, but was supposedly killed for transplant harvesting. It, IIRC, also hinged on the fact if patient was (brain)dead already or not. Of course in the end, during the trial, some unexpected evidence turned up to permit an easy answer to the problem.

Chuck
2009-Feb-12, 03:17 PM
If a crime must have been possible to commit then we have innocent people in jail as sex offenders.

One way such a person is caught is by a police officer pretending to be a child in an online chat room to lure a potential child molester into attempting a real life meeting. Entrapment issues are avoided by making sure that all suggestions come from the potential child molester. The police officer claims to be under age but never recommends that anything be done. So the potential sex offender offers to meet the person he thinks is a child, shows up at the meeting point, and gets arrested.

If the crime must have been possible for him to be charged then I don't see how he can be arrested. There is no child for him to meet. His intent was to commit the rape of a child but that could not have happened. It's not illegal to meet an adult for purposes of having sex. Should all of these dangerous people be released from prison?

Fazor
2009-Feb-12, 03:29 PM
About the general question, it seems unreasonable to me to charge a person for either murder or attempted murder if the person was dead. Whether they believed the person to be dead or not seems immaterial. I find it strange that US courts rule the other way. If a person thinks a doll is alive and tries to kill it, I can't imagine being able to convict the person.

As mentioned, the killing of a doll is not really an applicable situation. They might have those nice men in the white uniforms escort you to your soft-walled room; but they wouldn't convict you of attempted murder.

Lets use a doll in a more applicable situation. Someone breaks in to an ex's home with the intention of killing them. As they sneak around the corner, they see their victim's sillouette in the dark. They open fire, then turn and flee.

The ex, after wetting the bed the were sleeping in, flips on the lights and finds that the dress-fitting manequin they use to design clothes is full of bullet holes.

Shouldn't the guy with the gun be charged with attempted murder? He tried to kill his ex, but mistook what he was shooting at. Or should they charge him with reckless discharge of a firearm (a law that applies to firing a gun at an inanimate object) and let him go home, where he's free to try to kill his wife tomorrow?

He wanted to kill someone. He tried to kill someone. He would have killed (or grossly injured) someone, but an outside circumstance prevented him from doing so.

The example in the OP would go something like, you break in to your ex-boss' house, ticked off that he canned you for spending all day on BAUT instead of working. Your wife left you when you couldn't make the mortgage payments, and now she's seeing him. That jerk! So you're going to stab him to death in his sleep. You sneak up realy quiet like and find him laying there. You raise the knife and plunge it in! Stabbing him repeatedly. Then you slink back home, leaving bloody footprints all the way to your apartment across the street.

Well, the autopsy reveals that your boss had taken some medications before he went to bed, and those medications shouldn't have been mixed. At the time of your stabbinig, he was dead from an inadvertant OD. But as far as you knew, he was alive. You entered his house intending to kill him, and you carried out the actions you believed would kill him. You left "knowing" you murdered him. Meaning you willingly commited the act of murder. Just afterwards you find out that oops, he was already dead.

Should that overdose give you a free pass on your actions? It does lessen your sentence, at least in Ohio. Just not much. (I think the difference is there's no death-penalty option, but could be wrong).

Ivan Viehoff
2009-Feb-12, 05:33 PM
If a crime must have been possible to commit then we have innocent people in jail as sex offenders.

One way such a person is caught is by a police officer pretending to be a child in an online chat room to lure a potential child molester into attempting a real life meeting. Entrapment issues are avoided by making sure that all suggestions come from the potential child molester. The police officer claims to be under age but never recommends that anything be done. So the potential sex offender offers to meet the person he thinks is a child, shows up at the meeting point, and gets arrested.

If the crime must have been possible for him to be charged then I don't see how he can be arrested. There is no child for him to meet. His intent was to commit the rape of a child but that could not have happened. It's not illegal to meet an adult for purposes of having sex. Should all of these dangerous people be released from prison?

Well fortunately the courts take a fairly tough line against entrapment evidence in this country. We nearly put an innocent man in prison, who fell for this trap. The police sometimes find it hard to accept they are chasing the wrong man. In this case, they eventually found the rignt on. http://en.wikipedia.org/wiki/Rachel_Nickell_Murder

Fazor
2009-Feb-12, 06:19 PM
Chuck, (Sorry I missed your post initially--was typing my last one at the time). That's a good example; the difference being they still charge the offender with soliciting a minor, rather than attempted solicitation. I don't know why there's a difference, but it's a difference in name only. (Of course, the usual dislaimer that laws depend on jurisdiction; I only am familiar with Ohio).

Another good example is attempted robbery. Someon grabs someone on the street, shoves a gun at them, and says give me all your money. The victim, unfortunately, has nothing to give. The robber flees. It was technically impossible to rob someone who had nothing, but you still charge them with attempted robbery. You see this a lot when someone breaks into or robs a store, but fails to get into the register or vault. More often, in desperation they grab something stupid like a carton of smokes or a watch, and turn it into a sucessful robbery. But you hear about people failing to steal anything and still being charged with attempt all the time.

Gillianren
2009-Feb-12, 06:48 PM
Speaking of which, I think I remember an episode where a transplant surgeon was on trial under somewhat similar circumstances. Person had accident, might have survived, but was supposedly killed for transplant harvesting. It, IIRC, also hinged on the fact if patient was (brain)dead already or not. Of course in the end, during the trial, some unexpected evidence turned up to permit an easy answer to the problem.

The use of a pain killer, I believe. One that obviously wouldn't be used in the case of someone actually considered brain dead.

I value your expertise, Geonuc. I try to value the expertise of any expert on the board. To be fair, I don't always remember who's an expert in what, but that's a failing of memory rather than a failure of acceptance on my part.

slang
2009-Feb-12, 09:02 PM
[...]

Yeah, I kept it vague on purpose :) It's the punchline of the entire episode, and did not really matter for the discussion.

chrissy
2009-Feb-12, 10:01 PM
That is the case. Here is a later report from the same source which includes mention that he is claiming that they were already dead. I belive my account is entirely consistent with what it says here. http://news.bbc.co.uk/2/hi/uk_news/england/7881682.stm

Just taken a quote from the report:


"The pattern of injuries is consistent with a vehicle being driven at high velocity into the back of the Toyota," he said.

Questioned by Oliver Jarvis, who is defending Mr da Silva, Dr Rogers said it would be impossible to rule out the possibility that the Stathams died in a prior impact to the crash involving the defendant's lorry.

However, Dr Rogers told the jury that he would not have expected all six family members to have died in those circumstances.

The trial continues.

My bold.

If the car driver saw the vehicles either slowing down or stopping last minute and he would have swerved to avoid hitting the lorry infront of him, this to me shows he stopped behind the lorry (maybe a bit too close) and the lorry driver who hit the car from behind wasn't paying attention to the road ahead as he should have been, he hit the car killing everyone inside.

A different scenario, if the car driver hit the lorry in front of him, only he and his wife would deffinately be killed out right but all four kids too in a people carrier??

Fazor
2009-Feb-12, 10:06 PM
A different scenario, if the car driver hit the lorry in front of him, only he and his wife would deffinately be killed out right but all four kids too in a people carrier??
It would be very uncommon (but not impossible) for six passengers to be killed instantly from hitting a stopped vehicle at anything but rediculous speed. There'd have to be some very good evidence, IMHO, to show that they were killed before the second truck hit them.

Gillianren
2009-Feb-12, 10:38 PM
Yeah, I kept it vague on purpose :) It's the punchline of the entire episode, and did not really matter for the discussion.

Oh. Sorry. It was the "I think I remember" bit.

chrissy
2009-Feb-12, 10:49 PM
There'd have to be some very good evidence, IMHO, to show that they were killed before the second truck hit them.

The truth will out soon enough.

slang
2009-Feb-12, 11:06 PM
Oh. Sorry. It was the "I think I remember" bit.

I was pretty sure of the storyline, just wasn't sure if it was Law & Order. Oh well, it's not like it's a newish episode anyway. Fun episode tho.

Amber Robot
2009-Feb-12, 11:21 PM
A different scenario, if the car driver hit the lorry in front of him, only he and his wife would deffinately be killed out right but all four kids too in a people carrier??

Can't they just ask the driver of the front lorry whether or not he felt two impacts? It would seem easy to confirm or not whether the car with the family had collided with the lorry before the second one hit it.

chrissy
2009-Feb-13, 12:08 AM
I would think they have/are doing so, but sometimes when your in a large lorry you might not feel any rear impact, it just depends on how hard "if" the car did hit the front lorry the driver would know.
He might have felt one or two hits... we will see how this trial continues when the other lorry driver is up to give evidence.

Jens
2009-Feb-13, 01:56 AM
I think I'm going to give up posting legal opinions. A law school education and passage of a state bar exam seems not enough for people to take them seriously.

I'm not sure who is not taking you seriously. I've read your posts, and haven't necessarily agreed with everything, but I think I made it clear that I was posting what I felt personally to be reasonable, not what courts might rule.

Fazor
2009-Feb-13, 05:02 AM
I would think they have/are doing so, but sometimes when your in a large lorry you might not feel any rear impact, it just depends on how hard "if" the car did hit the front lorry the driver would know.


Okay, but can a car hit your truck (sorry, I refuse to say 'lorry'. Oh no, i said 'lorry'! I said 'lorry' again! etc. etc.)

Anyway, can a car hit your truck and you don't feel it, yet the impact was hard enough to instantly kill all 6 occupants? Remember, it'd have to fit both those conditions.

Jens
2009-Feb-13, 05:39 AM
Okay, but can a car hit your truck (sorry, I refuse to say 'lorry'. Oh no, i said 'lorry'! I said 'lorry' again! etc. etc.)


I know it's tough. But it's much tougher learning a foreign language: they don't use the right words for anything. :)

Tog
2009-Feb-13, 08:06 AM
Anyway, can a car hit your truck and you don't feel it, yet the impact was hard enough to instantly kill all 6 occupants? Remember, it'd have to fit both those conditions.

There was a case where a guy on a bullet bike hit the back of a moving semi hard enough to get his head stuck in the door on the back of the truck. The estimates speed of the bike was 120 mph and the truck was moving at interstate speeds (55-75). The driver reported feeling a slight bump from the impact. Can be found on Snopes by searching "Tulsa Motorcycle Accident", but as there are photos, I won't be providing a link.

There should also be skid mark evidence on the road. If the car was stopped before the second truck hit it, there are only a couple of ways to play it out.

Car has automatic transmission and is in drive with the driver's foot on the brake.
Car has automatic transmission and is in park, engine running or not.
Car has automatic transmission and is in neutral with the motor running.
Car has manual transmission, in gear, clutch and brake pressed.
Car has manual transmission, in gear, clutch only pressed.
Car has manual transmission, in neutral, foot on the the brake.
Car has manual transmission, engine off, in gear or parking brake set.
Car has manual transmission, engine off, in neutral, no brake set.

Of those 8, only three would not leave some sort of tire mark on the ground as the car was shoved forward. All three would involve letting the car sit in neutral with no brake set. While possible, the idea of sitting in neutral with no brake set seems odd to me.

If the car had his the truck in front first, they would have to be in gear or drive. A manual transmission would have most likely killed the engine when the wheels stopped spinning. I doubt the car would have had the power to continue spinning the wheels. An automatic might have been running still. If it was, that probably wouldn't leave marks on the ground either. I'm really tempted to say that there should be more than enough information to see whether there was a first impact or not.

chrissy
2009-Feb-13, 08:23 PM
There was a case where a guy on a bullet bike hit the back of a moving semi hard enough to get his head stuck in the door on the back of the truck. The estimates speed of the bike was 120 mph and the truck was moving at interstate speeds (55-75). The driver reported feeling a slight bump from the impact. Can be found on Snopes by searching "Tulsa Motorcycle Accident", but as there are photos, I won't be providing a link.

I have seen that one, the motorcyclist survived too, he had many broken bones because he was dragged for quite a few miles.

chrissy
2009-Feb-13, 08:29 PM
Well we won't know what the out come is until he goes to Chester Crown Court on November 4 this year.

Tog
2009-Feb-13, 08:29 PM
I have seen that one, the motorcyclist survived too, he had many broken bones because he was dragged for quite a few miles.
Not according to Snopes. He didn't make it.

chrissy
2009-Feb-13, 09:18 PM
Must have been a different one, the lorry driver didn't realise anything hit the back of his lorry.

Tog
2009-Feb-14, 01:28 AM
Must have been a different one, the lorry driver didn't realise anything hit the back of his lorry.
Those pictures went around a while ago with a story that said the driver didn't feel the impact and went anther couple miles before someone stopped him. The rider in that version lived. The photos were the same ones though.

Jens
2009-Feb-14, 07:43 AM
According to Snopes, a version went around where it was said he survived, thanks to wearing a helmet. But unfortunately, that's apparently not what happened.

Ivan Viehoff
2009-Feb-16, 09:50 PM
The outcome for those of you interested.
http://news.bbc.co.uk/2/hi/uk_news/england/7888653.stm

The lorry driver was found guilty of 6 counts of causing death by careless driving, but acquitted of causing death by dangerous driving. (Dangerous driving is notoriously difficult to prove.) The jury was 11-1 even on the careless driving charge. Evidently the defence of them already being dead was not taken seriously by most of the jury. He was sentenced to 3 years. The maximum sentence is 5 years. Since the judge said it was about as serious a case as can occur, I find it curious that he didn't get nearer to the maximum sentence. Perhaps maximum sentences are reserved for those who more actively seek to evade justice. In Britain, it is normal for sentences to run concurrently. With time off for good behaviour, he will probably be free in less than 2 years.

mugaliens
2009-Feb-16, 11:03 PM
This is one of those wonderful debates about the way the law should read, and the way it actually reads.

Logically, you cannot kill something that is already dead. That rules out all forms of murder, manslaughter, and accidental death. In the same vein, all forms of attempted cessation of life are null and void if the object has no life.

It's no longer a human, and it's certainly not alive. It is, however, a corpse, and as already been mentioned, there are laws on the books prohibiting various actions against a corpse.

That's logic.

The law, on the other hand, varies quite a bit. In some jurisdictions the law may call actions against a corpse "attempted murder," looking at intent rather than facts. In other jursdictions the statutes may not be so specific, but leave things open enough for a judge to so rule.

captain swoop
2009-Feb-17, 12:18 AM
Police cited lack of evidence from the scene after the fire. THey couldn't say why, or how long he was distracted so couldn't prove Dangerous.

closetgeek
2009-Feb-17, 01:18 AM
The law, on the other hand, varies quite a bit. In some jurisdictions the law may call actions against a corpse "attempted murder," looking at intent rather than facts. In other jursdictions the statutes may not be so specific, but leave things open enough for a judge to so rule.

Isn't intent the basis of what the person is charged with? I am pretty sure, at least in the US, that a person is charged with what the prosecution believes he/she can prove the suspected intended to do.

SeanF
2009-Feb-17, 02:42 PM
In some jurisdictions the law may call actions against a corpse "attempted murder," looking at intent rather than facts.
Intent is one of the facts. Surely you don't think that someone who intentionally hits a pedestrian with a car should receive the same punishment as someone who accidentally hits a pedestrian with a car?

HenrikOlsen
2009-Feb-17, 03:50 PM
Isn't intent the basis of what the person is charged with? I am pretty sure, at least in the US, that a person is charged with what the prosecution believes he/she can prove the suspected intended to do.
Except in the case of charge bargaining, where the person is charged with the maximum the prosecutor can agree with the defense that the defendant will plead guilty to.

mugaliens
2009-Feb-19, 12:19 AM
SeanF, CG - of course. I didn't say the law was wrong for looking at intent. I believe it's a good thing they do! The problem is, it's not only not easily proved, it's also often wrongly proved.