17 December 2004

Name that Crime

Pretend you are a prosecutor: What crime do you charge?
Pretend you are a Defense attorney: What defense to that crime?

(I expect plenty of comments from law students here. You all should be able to do this in your sleep having just finished finals.)


A husband and wife are traveling by car from Key West to Boston. After almost twenty-four hours on the road, they're too tired to continue, and they decide to stop for a rest. They stop at a nice hotel and take a room, but they only plan to sleep for four hours and then get back on the road.

When they check out four hours later, the desk clerk hands them a bill for $350.

The man explodes and demands to know why the charge is so high. He tells the clerk although it's a nice hotel, the rooms certainly aren't worth $350.

When the clerk tells him $350 is the standard rate, the man insists on speaking to the Manager.

The Manager appears, listens to the man, and then explains that the hotel has an Olympic-sized pool and a huge conference center that were available for the husband and wife to use.

"But we didn't use them," the man complains.

"Well, they are here, and you could have," explains the Manager. He goes on to explain they could have taken in one of the shows for which the hotel is famous. "The best entertainers from New York, Hollywood, and Las Vegas perform here," the Manager declares.

"But we didn't go to any of those shows," complains the man again.

"Well, we have them, and you could have," the Manager replies.

No matter what facility the Manager mentions, the man replies, "But we didn't use it!"

The Manager remains unmoved, and eventually the man gives up and agrees to pay. He writes a check and gives it to the Manager.

The Manager is surprised when he looks at the check. "But sir," he says, "this check is only made out for $50."

"That's right," says the man. "I charged you $300 for sleeping with my wife."

"But I didn't!" exclaims the Manager.

"Well," the man replies, "she was here, and you could have."


TWM said...

Not being an attorney I can only offer a lay person's answer to your questions:

Prosecutor could charge "theft of services" and if he or she were very inventive "solicitation of prostitution" - LOL

Defense would argue that a)this is a civil matter b) how can you steal something you did not actually possess or use c)the prices weren't made clear when they checked in d)his wife is too ugly for anyone to think he was serious with his offer.

What's my grade?

Raffi said...

I think I'd charge the innkeeper for not posting their price, under the state innkeeping regulations. OK, so we don't know for sure that the price wasn't posted, or that the state involved has such regulations, but I'm going to go with that.

Mister DA said...

Not a damn' thing -- it's civil. [-)

Gus said...

Sure... I'll bite (*).

Unless there are specific statutes governing the establishment and posting of nightly rates, &c, I don't think there are any charges against the innkeeper. This is a civil matter (breach of K, &c).

The only clearly criminal element is the mention of prostitution. This mention is an ex post counterfactual, so it seems absurd to charge the husband with solicitation: no harm no foul, and all.

Such a charge might be supportable on two fronts. First, there might be a societal harm independent of the non-existant harm contra personam. I don't know whether solicitation requires the realisation of the solicited illegal act; I expect that it doesn't. Second, the ex post counterfactual nature of the solicitation must needs be adressed. Here, the husband has, however, charged for the solicited service! He is therefore left two options: either maintain that he is charging for the solicited service, in which case he cannot deny the service solicited; or deny the service as solicted, in which case he is fraudulently retaining the innkeeper's $300! If the former, I expect the act requirement of solicitation is met; if the latter, I expect the act requirement of larceny is met (would $300 be petty theft?).

If, as prosecutor, I went with the solicitation argument, I might grab up a copy of a CrimLaw hornbook to look at the requirements of conspiracy, too. Not sure if I would charge the husband and the innkeeper, or the husband and wife (maybe all three!); but as I understand it (again, without having studied it), conspiracy is an inchoate offense, and therefore requires no act by the underlying conspirators.(1)

So, I propose three possible charges against the husband: sollicitation, larceny, and conspiracy.

As defense, I would probably inform the judge that I hadn't taken CrimLaw yet and, assuming that the possible punishments for the charges mandated court appointed counsel, request qualified representation for the husband. And, after my professer roles his eyes at me and says he thought we were done with that joke after the first week of classes, I would continue: arguing that the husband obviously had no mens rea, that his retention of the $300 was as part of a civil dispute; that his exhortation of prostitution was in kind with the claims of the innkeeper, and that like cases should be treated alike.(2)

So, there's my uninformed (and long) answer. All I ask is that you give us an informed answer!(4)


(*) With the provisio that while a 1L, I don't start CrimLaw until next quarter. And I also must comment that you seem to expect too much from us mere students! Having just finished finals, we should all be asleep, and not figuring out hypos! :)

(1) I expect that I would be walking, probably crossing, a line here between conspiracy and solicitation. Does conspiracy require an underlying criminal act be committed by at least one party? I don't think so. But it does require an underlying mens rea. In this case, would it be conspiracy to commit act of prostitution, or to sollicit? If the latter, a conspiracy charge seems to beg the question of solicitation.

(2) And, if possible, I might urge sanctions against the prosecutor. Though, as I understand it, prosecutors can't be sanctioned for being bloodthirsty jacka**es (doing their job?), no matter how much it might seem they deserve it. Not to condemn all, or even most, prosecutors; I just seem to hear more horror stories about them than about the defense side of things.

(3) OK, I also have another specific question. In criminal prosecutions, can allegations be made in the alternative (a la civil procedure)? Or can an indictment only put forth one theory?