CrimLaw

This Tuesday at 2:20 a.m. I entered a post answering questions posted on Legal Ramblings (normally I would just cite my prior note so it could be gotten to by clicking but Blog*Spot has decided that function will not work on my blawg anymore - I've sent a note asking that this be fixed but for now you'll just have to scroll down).

In it I stated that the professor had used a red herring. This was probably too harsh; I think I was channeling back to my own days in school at W&L. So I went back and looked thru the case which the professor cited and a couple of other cases which use it as precedent. My impression - and I have not spent overly long studying this - is that the point of this case is to deny the imposition a strict liability repondeant superior standard for criminal law (which would eliminate any intent in a crime). This is a truly strange decision filled with all sorts of civil language. "Vicarious liability?" "Strict liability?" "Respondeat superior?" I would really like to know why the heck they were pursuing agency law in a criminal case. Personally, I think the whole case could have been - should have been - decided thru an analysis of whether due process would allow the boss to be held liable if he was not a principal or an accessory or a co-conspirator to the illegal act (showing no intent/knowledge). But there is probably something I do not know about in Minnesota law which precludes that analysis and required the one put forth.

The proposed criminal strict liability standard is radically different than a standard which holds you responsible when an act containing a reasonably foreseeable / predictable risk of an illegal occurrence bears fruit. The former standard would hold you responsible for trusting your child to your spouse while you are ill and having that spouse do something insane and evil to her which you would not reasonably expect, [U] State v. Ring, No. C4-01-1151 (Minn.App. 04/09/2002), or engaging in a legal act with a co-actor and having the co-actor engage in an illegal activity outside the scope of the planned legal action in concert. Minnesota v. Guminga, 395 N.W.2d 344 (Minn. 1986). The latter would hold you responsible for racing cars toward Dead Man's Curve or passing a pistol back and forth spinning the cylinder and pulling the trigger. In the end, if the law professor meant that you cannot lower the standard in a criminal case to that of tort strict liability I believe he was correct. It is such an obvious principle that I've never seen it argued in court or read any cases like this one. That doesn't mean they aren't out there, just that none of my cases have required me to research in that area. Legislatures and prosecutors will try any theory once (or more likely dozens or hundreds of times until an appeal court agrees to take an on-point case, decides it is properly preserved and before the court, and stops that line of reasoning).

All statutes must, at the very least, include an attempted act and an intent to do something which obviously has potentially illegal consequences.

Except, of course, in Virginia we do have some crimes where the prosecutor doesn't have to prove intent/knowledge (see the last post).