CrimLaw

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God Bless our Troops.
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Steven Wu asks a couple of interesting questions over at Legal Ramblings:

WARNING:
All answers strongly influenced by the fact that I practice in very conservative counties, in a very conservative Commonwealth, in the 4th Circuit.

(1) "[I]f I inflict a non-mortal wound on you, and you don't have to go to a doctor, but you go anyway and receive negligent care due to which you die [have I committed homicide]? Would this be governed by some sort of "reasonable person" standard: regardless of the necessity for medical care, if a reasonable person would go to a doctor, will medical malpractice not break the chain of causation?"

The theoretical answer here is that you have not committed homicide. You've probably guilty of Battery, Felony Battery, Attempted Murder, or Mayhem but not homicide. The pragmatic answer (at least in the courts wherein I practice) is that it had better be obvious that your action caused an injury which would not normally lead to death and is not the actual cause in this case: "Your Honor, Mr. Wu dislocating Mr. Jones' pinky did not cause the doctor to inject atropine into the heart of Mr. Jones when he fell asleep in the waiting room." Of course, cases are never actually that obvious. In most cases the prosecutor will probably charge some form of murder or at least manslaughter. Then arguments will proceed about intent, recklessness, and foreseeability.

(2) a. "[I]s all this stretching about causation due simply to statutory gaps?"

Yes. There is a real world dynamic which causes these stretches and eliminates "statutory gaps" no matter how clearly defined the law is. Anyone who practices for a period of time realizes there is a strong bias against the defendants in criminal proceedings. The trial judge is loathe to let someone who has participated in a perceived great wrong "get away with it." Therefore, unless the defense attorney can point to explicit, binding, same-State, appellate case authority - which neither the judge nor the prosecutor can distinguish on even the flimsiest of grounds - the judge will allow the prosecution's theory of the case to go forward (as long as it is remotely possible under the language of the statute). On appeal the appellate courts give a great amount of deference to the trial court's findings. They might give a nod to the rule of lenity or to the fact that they are supposed to decide certain constitutional issues de novo but they will bend over backward to uphold the trial court (because they don't want someone to "get away with it"). This is, of course, a very cynical view of how things work; unfortunately, I think it is realistic. The law will be bent to punish those who deserve punishment and thereafter precedent will be set so that the law doesn't mean what its plain language is; it means what the courts have decided it will mean.

b. "Can a state pass a law saying, "If you engage in drag racing or Russian roulette, you will be criminally liable for any and all deaths that result, even if you did not 'cause' the deaths by traditional criminal law or common law standards"? The professor at first said yes. Then he said there might be a problem due to State v. Guminga, 395 N.W.2d 344 (Minn. 1986), which held that criminal sanctions should not be given for vicarious liability. There might also be problems with mens rea and the doctrine of complicity (which we haven't covered yet)."

Yes. The language in it would have to be tightened up but it could be written into law; in fact, most States probably have a manslaughter statute which already covers such activity. Your professor's argument is a red herring. It reflects an error in perspective. Judges are myopic and generally could care less what another sovereignty has to say on a subject unless it is a question of first instance in a their State; even then they usually prefer closely related types of decisions from their sovereignty. This is particularly true in matters which are almost exclusively under State law such as criminal matters. Virginia courts care about precedent from Virginia courts, US constitutional decisions imposed by the federal supreme court, and perhaps 4th Circuit cases. A case from Minn. would probably carry as much weight as a case from the 9th Circuit does around here. All of which is to say, generalizing from a single State decision is faulty reasoning; your question would have to be answered according to the laws of each particular State.

Here's the rational for upholding the statute as I believe Virginia law would state it: "This statute only affects a defendant who acted in concert with a decedent in a reckless activity which had as a very forseeable consequence death. By participating in the activity a defendant is at the very least a principal in the second degree and shares entirely the responsibility for a decedent's untimely demise."

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