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Topic: A simple question
Message: Posted by: mastermindreader (May 25, 2015 11:18PM)
A "simple" question for those who believe they understand the law. It is the only question I remember in detail from when I took the bar exam. You may have some fun with it.

I'd ask that the lawyers or law school graduates on the forum not answer the question just yet. I want to see how a laymen would answer based on what he/she believes and/or knows about the law.

The following scenario takes place in Blackacre, a common law jurisdiction.

Mr. Jones believed that his wife was cheating on him and he decided to give her the scare of her life. His son agreed to help, because he didn't like her much either.

Jones proceeded to load his revolver with blanks and told his son that when his wife came home he'd confront her and fire a shot at her.

What Mr. Jones didn't know was that his son hated his mother even more than he did. When Jones briefly left the room, his son replaced the blanks in the gun with real ammunition.

Mrs. Jones came home. Mr. Jones confronted her, pointed the gun at her head and shot. She fell to the ground, blood spurting from her head.

Jones was shocked. He didn't mean to kill her and thought that he must have accidentally loaded a live shell into the revolver.

His son suggested that they better cover up the crime scene and the both decided, not being too bright, that the best way would be to burn the house down.

So they did. The fire department and the police arrived.

Mr. Jones confessed to shooting his wife. But an autopsy revealed that the bullet had only grazed her skull and rendered her unconscious. The cause of death was found to be asphyxiation due to smoke inhalation.

What crimes were committed and by whom?
Message: Posted by: LobowolfXXX (May 25, 2015 11:33PM)
What most people probably don't know is that it's pretty much the type of question that an entire first year's semester grade in criminal law would rest on. No turned in home work, no quizzes, no nothing. Just go to class for 16 weeks, then spend a couple of hours answering this, and that's your grade. The only difference is that your question would be 1(a), and 1(b) would be, "What defenses would likely be raised, and with what likelihood of success?"
Message: Posted by: arthur stead (May 25, 2015 11:41PM)
Bob, in my experiences with the law, I have found only one truism: "It all depends on how much justice you can afford."

So based on that, your question is irrelevant. Because even if a person has committed a crime, they could be found innocent in a court of law. Providing of course that they can hire the best attorney.
Message: Posted by: mastermindreader (May 26, 2015 12:15AM)
Arthur, the question is not whether they would be found innocent or not. It simply asks what crimes were committed assuming that all of the facts presented are true. It is simply a test of what you learned in law school and actually has little bearing on what actually occurs in court rooms. You will note for example, that the scenario takes place in a mythical common law jurisdiction, indicating that correct answers will reveal your understanding of common law.

Lobo is right, though. The question is far more complex than it appears and the answer(s) could well be used to determine a pass or fail in criminal law. And he is also correct that the second part of the question would go to how you would defend the case after you knew what the charges were.

In the bar examination questions like these also give an insight into the applicants skill in legal reasoning. You just don't give a list for an answer, but you're required to include the rationale behind every element of it.
Message: Posted by: mastermindreader (May 26, 2015 12:17AM)
[quote]On May 25, 2015, mastermindreader wrote:
Arthur, the question is not whether they would be found innocent or not. It simply asks what crimes were committed assuming that all of the facts presented are true. It is simply a test of what you learned in law school and actually has little bearing on what actually occurs in court rooms. You will note for example, that the scenario takes place in a mythical common law jurisdiction, indicating that correct answers will reveal your understanding of common law. Note also that the scenario contains "traps" for the unwary. such as those who learned the law by watching Perry Mason instead of attending lectures and learning the case law.

Lobo is right, though. The question is far more complex than it appears and the answer(s) could well be used to determine a pass or fail in criminal law. And he is also correct that the second part of the question would go to how you would defend the case after you knew what the charges were.

In the bar examination questions like these also give an insight into the applicants skill in legal reasoning. You just don't give a list for an answer, but you're required to include the rationale behind every element of it. [/quote]
Message: Posted by: mastermindreader (May 26, 2015 12:28AM)
Here's an example of one of the "traps" in the scenario: If you included arson as one of the crimes committed you would lose some major points from your total score. At common law arson was defined as the burning of the business or dwelling place [i]of another[/i]. In this case they burned down their own house. At common law, the name of that offense, if done with criminal intent, was simply "house burning." A complete explanation of that difference would, on the other hand, significantly add to your score, more so than if you just listed "house burning."

Take a shot. What crimes do you think were committed?
Message: Posted by: Dannydoyle (May 26, 2015 12:28AM)
This reminds me of the guy falling out the window and a gun being discharged and shooting him on his way down question.

My answer is arrest everyone and let the D.A. sort it out!
Message: Posted by: mastermindreader (May 26, 2015 12:34AM)
LOL. If you were taking a police officer examination, that answer would arguably be correct. Here you have to answer it the way the DA and defense attorney would.

One of the main reasons I posted this was to demonstrate what legal reasoning entails and what it means to "think like a lawyer."
Message: Posted by: stoneunhinged (May 26, 2015 12:57AM)
I'll take a shot.

1) There would probably be some kind of conspiracy charge, since two were involved. Conspiracy to frighten somebody? :) OK, maybe not. Howsabout "conspiracy to pull off a stupid prank." Right. Forget the conspiracy charge.

2) There should be some kind of manslaughter charge, because regardless of their intentions, their actions resulted in the death of someone.

3) Shouldn't their be something like an "obstruction of justice" charge for attempting a cover-up?

4) You eliminated any arson charge.

I mean, this is especially hard because you set the scenario up with common law, so even if we know somebody who knew somebody and possess some kind of anecdotal information, it probably wouldn't apply here. (Obstruction, for example, probably isn't a common law concept.)

Seems to me that this is hardly different from fraternity hazing going wrong. Hazing deaths are always tragic, but the only way to combat them legally is to make anti-hazing laws. Stupidity isn't illegal, either in common law or any of the fifty states.

So my guess is that no charges would be filed.
Message: Posted by: Bob1Dog (May 26, 2015 01:19AM)
Here's what my layman's gut tells me.

Since the father spawned the idea of shooting his wife, whether with blanks or not, this was the seed that created the subsequent events. Not sure how the law treats the blanks in the gun changed out for real bullets. But the father's original intent to scare his wife caused her death. The son, in my world, also bears blame for putting bullets in the gun indicative of his intent, which was to kill his mother. Which "intent" bears the most weight? I think the murderous intent does. As for the house burning being the actual cause of death, it wouldn't have happened without the setup and changing to bullets. In my world again, the son's intent to murder carries the weight in charges.

So, again, in my layman's world, here are the charges:

Son: Premeditated first degree murder because of reasons stated above. Add to that whatever charge(s) are related to the willful setting the house ablaze. It may not be arson, but I have to believe it's a felony of some sort.

Father: Felony murder, based on his participation in the scheme and the sunbsequent felony (see Son above) of his involvement in setting the house ablaze. Add to that whatever charge(s) are related to the willful setting the house ablaze.

Interesting thread Bob, am anxious to see how my logic fared. (I'll admit I looked up the legal murder charges because I didn't think the father was guilty of 1st or 2nd degree murder, but he was a party to his wife's murder. I didn't know about felony murder, but it seemed to fit the case.)

Might you PM the actual charges and justification? :-)
Message: Posted by: Salguod Nairb (May 26, 2015 02:13AM)
The son would be charged with Murder in the 2nd, the father with manslaughter, and both with felony covering up a crime (whatever it is called, you hear the cop shows say it all the time). I suppose you could add desecration of a corpse too.

[img]https://31.media.tumblr.com/7a26a11222d2d5395d8d5f636e8bb6fa/tumblr_n02gkagPa41qb73tpo4_500.gif[/img]
Message: Posted by: mastermindreader (May 26, 2015 03:27AM)
Good answers so far, but here are a few issues you might consider:

Brian- There was certainly an [i]intent[/i] to desecrate a corpse, even to completely destroy it. A problem, though, is that the victim wasn't actually a corpse when they started the fire. It was the fire that killed her. But given that the intent existed, how does it apply in a situation in which the crime being attempted is impossible to accomplish? Also, does impossibility of commission have any effect on a conspiracy? (Here's where test takers would have to explain their reasoning and cite relevant case law either way, or better yet, both ways.)

Bob- Felony murder does not apply. Once again, Blackacre is a common law jurisdiction and felony murder is a statutory creation that did not exist under common law. (That was one of the other "traps" built into the scenario.) But you get one point back for showing that you are aware of the felony murder concept.

The fact that the son secretly loaded the gun could be interpreted as what's called an intervening cause following the father's attempt to scare his wife, thus possibly exonerating him because he had no intent to kill. There's no question, however, that he is guilty of an assault. (At common law, an assault only requires putting the victim in fear of imminent bodily harm, as distinguished from a battery, which is simply an unauthorized touching or striking.)

Jeff- Given that assault is simply putting someone in imminent fear of bodily harm, was there not a conspiracy to commit the felony of assault with a deadly weapon? Or can there be a conspiracy if there is no common understanding between the conspirators? In this case, both father and son had different intents and perceptions of the conspiracy's purpose. And the son's intent went far beyond assault with a deadly weapon. But it seems that both would have agreed, at least, that the gun would be pointed at the victim and its trigger pulled.

It might also be considered that the penalty for a conspiracy to commit a felony can be the same, or even worse, than it would be for the crime itself.

The scenario raises many other similar problems of interpretation and analysis.

Try focusing separately on the father and the son and look at their individual intents and perceptions.

But oversll, the answers so far are pretty good for laymen.
Message: Posted by: funsway (May 26, 2015 05:00AM)
Why not forget the possible crimes and get on with the important business of suing the gun manufacturer and the ammo maker and the house builder -- all obviously guilty of something.
Message: Posted by: tommy (May 26, 2015 06:01AM)
That is some question that is Bob.

I would say the son has committed murder and the old man manslaughter.
Message: Posted by: Magnus Eisengrim (May 26, 2015 09:31AM)
I guess that both men are guilty of murder. The son because he was attempting a criminal act and had the killing done through the use of an accomplice. Morally, his actions are no different from using a hit man. The father is guilty of murder because he caused the death of another person while committing a planned criminal activity.

I think that both would be guilty of murder had the bullet killed her, on much the same grounds.
Message: Posted by: slowkneenuh (May 26, 2015 10:42AM)
Although I am pis*ing against the wind, this is a good example of why we should have "common sense" law rather than common or statutory.

The husband had no intent to commit murder so that is not on the table. He is guilty of trying to cover up a crime, whether perceived or not, and possibly some insurance fraud relative to setting his (my assumption) property on fire. The son is guilty of murder no matter how the mother died because that was his intent and it came to pass regardless of the circumstances. He is also guilty of covering up a crime and also getting another person to participate unwittingly. The father gets a jail term, the son the death penalty, and the property or proceeds go to a charitable organization because they were used in the committal of a crime.
Message: Posted by: mastermindreader (May 26, 2015 11:15AM)
[quote]On May 26, 2015, tommy wrote:
That is some question that is Bob.

I would say the son has committed murder and the old man manslaughter. [/quote]

There are many other crimes involved, but I would agree that those would be two of them.
Message: Posted by: mastermindreader (May 26, 2015 11:18AM)
[quote]On May 26, 2015, Magnus Eisengrim wrote:
The father is guilty of murder because he caused the death of another person while committing a planned criminal activity.
[/quote]

Magnus. Under the felony murder rule that would be a possible charge, but as I noted earler, felony murder did not exist in common law and, therefore, doesn't apply to this scenario.

But here's another important question that no one has addressed- how old was the son and what effect would his age have on the possible crimes committed? Did everyone just presume he was an adult?
Message: Posted by: Magnus Eisengrim (May 26, 2015 11:26AM)
Both Mr. Jones and his son could conceivably be minors...
Message: Posted by: mastermindreader (May 26, 2015 11:30AM)
Highly unlikely.
Message: Posted by: balducci (May 26, 2015 11:34AM)
Has anyone mentioned (possible) adultery on the part of the wife? I believe adultery is a crime in some common law states, though not in all.

Probably that is a standard wise guy answer. :)
Message: Posted by: mastermindreader (May 26, 2015 11:44AM)
There is no evidence of that in the facts presented, other than the husband's suspicion. But assume he was correct. Would the planning involved in the offense(s) indicate that the events took place in the heat of passion without premeditation? And recall that the husband's only original intent was to scare the victim.
Message: Posted by: TonyB2009 (May 26, 2015 11:53AM)
Before I look at the other replies, arson by both father and son. Murder by the son. Murder by the father because the woman died during the commission of a felony, arson. Probably assault, assault with a deadly weapon, for the father, something like reckless endangerment by the son.
Message: Posted by: mastermindreader (May 26, 2015 11:55AM)
Now read my previous comments. No arson, no felony murder.
Message: Posted by: TonyB2009 (May 26, 2015 12:04PM)
I have just read through the rest of the replies and see I am widely off-base. Great question, Bob. I am looking forward to the summing up.

Let's look at it again. The house burning may not be arson, but it could be fraud if the house is insured.

The father, assault and manslaughter, as well as concealing a crime and fraud against the insurers.

The son, murder, conspiracy to murder , concealing a crime, and fraud against the insurers.
Message: Posted by: Magnus Eisengrim (May 26, 2015 12:07PM)
[quote]On May 26, 2015, mastermindreader wrote:
Highly unlikely. [/quote]

Ah, we've established that they aren't in Tennessee! (Just kidding folks.)
Message: Posted by: Dannydoyle (May 26, 2015 12:39PM)
I think Greenpeace will come after them for burning the house.

Now they are REALLY going to get it!

Is it possible to just sentence them to "untill my headache goes away"?
Message: Posted by: mastermindreader (May 26, 2015 12:41PM)
Tony- There would only be insurance fraud if they burned the house down with the intent of making an insurance claim. If they made no claim after the burning, there would be no fraud.

Their purpose in burning the house down was to conceal evidence of a crime, not to defraud an insurance company.
Message: Posted by: arthur stead (May 26, 2015 12:49PM)
Bob, I still have a fatalist view of how facts can be twisted in a court of law. Plus I freely admit I don't have the brain power to think like an attorney. Nevertheless, here's my take on your scenario:

The father: charged with assault with a deadly weapon.
The son: charged with attempted murder.
Both: charged with tampering with evidence.
Message: Posted by: balducci (May 26, 2015 01:11PM)
[quote]On May 26, 2015, mastermindreader wrote:

Their purpose in burning the house down was to conceal evidence of a crime, not to defraud an insurance company. [/quote]
Might the law of nuisances apply? Apparently common law is one of the sources of nuisance law. I wanted to post a link to what I am talking about but it doesn't work because of formatting, anyone interested can try googling "THE LAW OF NUISANCES Environmental Regulation through the Backdoor".
Message: Posted by: TomBoleware (May 26, 2015 01:51PM)
How old was the son? That would indeed change things, wouldn't it?

Tom
Message: Posted by: Dannydoyle (May 26, 2015 02:02PM)
Why is everyone approaching this as if it is a trick question?
Message: Posted by: MobilityBundle (May 26, 2015 02:25PM)
Bob, before revealing the answer (if at all), it might be fun to give folks a "menu" of possible crimes. For example, you've already spilled the beans with respect to arson and house burning, but those would have been good to include. Even as a multiple choice question, the answers might be interesting.
Message: Posted by: mastermindreader (May 26, 2015 03:47PM)
[quote]On May 26, 2015, TomBoleware wrote:
How old was the son? That would indeed change things, wouldn't it?

Tom [/quote]

I already sugggested that his age might be a factor. In an actual exam you would probably want to raise that issue and explain what the possible crimes would be if he was a minor.

But Danny's right. It's not a trick question. Just a scenario that is trickier than it seems.

mobiltybundle-

I don't know about providing a list of possibilities. That would pretty well end the discussion because that's all the answer really is- a list of possibilities based on the facts provided with rationales given for each one.
Message: Posted by: Bob1Dog (May 26, 2015 04:40PM)
Great test! Good brain candy :-)
Message: Posted by: funsway (May 26, 2015 05:20PM)
I recall reading that Common Law in the courtroom related to "factual deliberation" ( I think it was called) has gone though some changes in recent decades.

So, does the year in which these events occurred have any bearing on the charges to be made? On the strategy of a defense attorney?

It seems that much of the story is based on statements from the father and son about intent, but may not be born out by fact. Why should we believe what they say about what occurred.

Of course, I may have been watching too much Law and Order.

As a side-bar, what if the son was the other party in the affair, and he didn't hate her but only wanted not to be found out?

Then the fire could be crime of passion and even the murder reduced to second degree
Message: Posted by: Theodore Lawton (May 26, 2015 05:24PM)
Sheesh. Some family! :lol:

I can't even begin to try. I'm not that smart to begin with and I got overwhelmed before the "she was just grazed" part.

I'm looking forward to the reveal Bob.
Message: Posted by: mastermindreader (May 26, 2015 06:22PM)
Funsway- The reason you should believe what's set forth in the scenario is simply because it is a hypothetical question in which all of the facts are assumed to be true.


Common law (the law of precedent) comes from the ancient laws of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts, as opposed to statutory laws which are enacted by legislative bodies, even though the latter are often based on the principles of common law.

Nearly all laws today are statutory. But an understanding of the principles from which they were derived is an essential component of legal reasoning.

So, no, it doesn't matter when the events about took place. Assume they took place in the present in a mythical jurisdiction that still follows common law.
Message: Posted by: TonyB2009 (May 26, 2015 07:25PM)
One more crack at it.

The father: Attempting to conceal a crime. Manslaughter, because he killed the wife but didn't intend to. Assault, because of the initial gun attack. Conspiracy to pervert the course of justice.

The son: murder. Conspiracy to murder. Attempting to conceal a crime. Conspiracy to pervert the course of justice.
Message: Posted by: Dannydoyle (May 26, 2015 08:04PM)
I think it was Mrs. Scarlet in the kitchen with a melon baller.
Message: Posted by: mastermindreader (May 26, 2015 08:54PM)
Tony- Those are all good, but remember that in an actual test you'd have to give the reasoning behind each answer. Another issue, though, revolves around whether or not there was a conspiracy prior to the initial assault. There is also an argument that could be made that the son was guilty of attempted murder only for his initial actions. (I wouldn't necessarily agree with it, but it does form the basis for what could be a fairly complex defense strategy aimed at getting just a manslaughter conviction.)

Danny- Congratulations! But I'd hoped no one would spill the beans this early in the thread! :eek:
Message: Posted by: TomBoleware (May 26, 2015 10:26PM)
Like Tony, I was going to say I got a feeling the dad is somehow trying to cover up for the son.

Sounds like a screwed up cover up.:)

Tom
Message: Posted by: mastermindreader (May 27, 2015 12:20AM)
Tom- You're not supposed to add facts to the hypothetical. Accept the facts to be true as given. You seem to be overlooking the fact that the father actually believed that he killed his wife

That's how hypotheticals work, after all.

As we say in court, you're assuming facts not in evidence.
Message: Posted by: TonyB2009 (May 27, 2015 05:15AM)
Bob, I am beginning to see I was wise to drift into maths and physics. I was seriously considering law at 18, but my father said he would not support a lawyer, doctor or politician in the family, which limited my college choices. It is a more complex area than I realized.

As the mother was still alive when the fire was set, I assume they could both be charged with reckless endangerment(or as we could put it in Ireland, acting without due care and consideration causing actual bodily harm), and with assault on her. The other charges I mentioned in my last post I think I still stand by.
Message: Posted by: Steven Keyl (May 27, 2015 07:37AM)
I'm neither a lawyer nor law school graduate but I was pre-law for my undergrad, so would qualify as a pseudo-layman. Can I play?
Message: Posted by: mastermindreader (May 27, 2015 08:46AM)
Yes, Steve. Please do!.
Message: Posted by: mastermindreader (May 27, 2015 08:49AM)
[quote]On May 27, 2015, TonyB2009 wrote:
Bob, I am beginning to see I was wise to drift into maths and physics. I was seriously considering law at 18, but my father said he would not support a lawyer, doctor or politician in the family, which limited my college choices. It is a more complex area than I realized.

As the mother was still alive when the fire was set, I assume they could both be charged with reckless endangerment(or as we could put it in Ireland, acting without due care and consideration causing actual bodily harm), and with assault on her. The other charges I mentioned in my last post I think I still stand by. [/quote]

Given that intentionally burning the house down also recklessly endangered the firefighters as well as any neighbors, I'd say you've found a good one that was hidden in there!
Message: Posted by: TonyB2009 (May 27, 2015 09:54AM)
[quote]On May 27, 2015, mastermindreader wrote:
[quote]On May 27, 2015, TonyB2009 wrote:
Bob, I am beginning to see I was wise to drift into maths and physics. I was seriously considering law at 18, but my father said he would not support a lawyer, doctor or politician in the family, which limited my college choices. It is a more complex area than I realized.

As the mother was still alive when the fire was set, I assume they could both be charged with reckless endangerment(or as we could put it in Ireland, acting without due care and consideration causing actual bodily harm), and with assault on her. The other charges I mentioned in my last post I think I still stand by. [/quote]

Given that intentionally burning the house down also recklessly endangered the firefighters as well as any neighbors, I'd say you've found a good one that was hidden in there! [/quote]
So I am no longer bottom of the class. I am enjoying this more now.
Message: Posted by: LobowolfXXX (May 27, 2015 09:58AM)
The part about about them assuming she's dead when she has blood spurting from her head reminds me of the joke about the guy who calls 911 and says he actually he actually shot and killed his friend. The operator says she'll send someone, but asks if the guy knows for a fact he's dead. He says, "I think so...he's not moving, and he's lying there with blood all around him." The operator says, "Well, maybe he's alive...the paramedics could help. You've got to make sure he's actually dead, first of all." The guy says, "Hang on." After a pause, the operator hears five gunshots. "OK, he's dead. Now what?"
Message: Posted by: LobowolfXXX (May 27, 2015 10:00AM)
[quote]On May 26, 2015, mastermindreader wrote:
Arthur, the question is not whether they would be found innocent or not. It simply asks what crimes were committed assuming that all of the facts presented are true. It is simply a test of what you learned in law school and actually has little bearing on what actually occurs in court rooms. You will note for example, that the scenario takes place in a mythical common law jurisdiction, indicating that correct answers will reveal your understanding of common law.

Lobo is right, though. The question is far more complex than it appears and the answer(s) could well be used to determine a pass or fail in criminal law. And he is also correct that the second part of the question would go to how you would defend the case after you knew what the charges were.

In the bar examination questions like these also give an insight into the applicants skill in legal reasoning. You just don't give a list for an answer, but you're required to include the rationale behind every element of it. [/quote]

The only thing I was graded on in my first year criminal law class was a 2-question (with sub parts), 8-hour essay final.
Message: Posted by: mastermindreader (May 27, 2015 11:08AM)
Pretty much the same with me, Lobo. On th bar exam, I think I filled two complete testing booklets with my analysis and answers to the question in the OP.
Message: Posted by: Steven Keyl (May 27, 2015 11:21AM)
Best guesses...

Both of them:
[list]
[*] [b]Conspiracy[/b]; rationale: together they planned to carry out an assault of the mother
[*] [b]Obstruction[/b]; rationale: Setting the fire was an attempt to cover up the evidence of a criminal activity.
[*] [b]Reckless Endangerment[/b]; rationale: by setting the fire in a house they are engaged in conduct which has a very high chance of seriously injuring another person, whether it be a firefighter, people in a neighboring house, people alive in the house, etc.
[*] [b]Felony Murder[/b]; rationale: a murder that occurs during the commission of a felony would be classified as felony murder. As the death occurred during the commission of multiple felonies it would clearly fall under this umbrella. (Don't know if this falls under common law or if it is statutory; I suspect it may be the latter, in which case it couldn't be included under Bob's initial conditions)
[/list]

The Son:
[list]
[*] [b]Aggravated Assault[/b]; rationale: This is an intent to harm which displays wanton disregard for human life. The son's actions easily fall into this category.
[*] [b]Attempted Murder[/b]; rationale: Putting the live round in the gun was an action that was designed to bring about the death of his mother.
[*] [b]First Degree Murder[/b]; rationale: Simply because the bullet didnít cause the actual death does not absolve the son of guilt. The fire is considered an "intervening cause" and would only absolve the son if the injury resulting from the initial assault was an unforeseeable event. †That the mother would be injured by a bullet does NOT classify as an unforeseeable event, nor does the subsequent fire set to cover up the act, therefore the son is still fully liable for the murder. So whether the son committed the murder with a bullet or with fire, he committed murder in the 1st degree because it was willful (intent) and deliberate (it was planned and premeditated while they laid in wait for her to return).
[/list]

The Father:
[list]
[*] [b]Assault[/b]; rationale: simple assault is creating the fear of serious harm or injury toward another person. The act of pretending he had a loaded gun aimed at his wife perfectly fits the definition of assault.
[*] [b]Criminally Negligent Homicide[/b]; rationale: His actions directly contributed to her death. If the father hadnít brought about the initial assault the subsequent events wouldnít have occurred and she would still be alive.
[/list]
Message: Posted by: mastermindreader (May 27, 2015 12:14PM)
Steven- As I noted earlier in this thread, felony murder is indeed statutory and didn't exist under common law.

The first conspiracy theory (conspiracy to commit assault on the mother) isn't quite so clear. The father simply told the son what he intended to do. They didn't plan anything together. The son later acted on his own by replacing the blanks with real bullets.

The question hidden in there, however, is whether or not the son had a duty to report, or try to prevent, his father's intended act.


The second conspiracy, though, (conspiring to cover up the crime by burning down the house) is another story.
Message: Posted by: TonyB2009 (May 27, 2015 12:53PM)
I never spotted that the son might have reported this and so stopped it. There could be another charge there - accessory before the fact, I think the cop shows would term it.
Message: Posted by: Steven Keyl (May 27, 2015 03:13PM)
Bob, on the first conspiracy theory, in your original scenario you said, "His son agreed to help, because he didn't like her much either." At that point, they've committed conspiracy, no?

It's also unclear from the original scenario if the son was present at the shooting. If not, then Tony's charge of accessory before the fact is another good one.

These are fun to think about. When this one has been exhausted you should come up with a few more, Bob.
Message: Posted by: LobowolfXXX (May 27, 2015 04:45PM)
[quote]On May 27, 2015, Steven Keyl wrote:
Bob, on the first conspiracy theory, in your original scenario you said, "His son agreed to help, because he didn't like her much either." At that point, they've committed conspiracy, no?

It's also unclear from the original scenario if the son was present at the shooting. If not, then Tony's charge of accessory before the fact is another good one.

These are fun to think about. When this one has been exhausted you should come up with a few more, Bob. [/quote]

A criminal conspiracy requires both an agreement to engage in the criminal activity and also a substantial step in furtherance of the criminal act. If you and I agree to rob a bank, we aren't yet guilty of conspiracy, but if you then go to the store to buy a ski mask and I stake out the bank to learn the guards' schedules, now we're guilty of conspiracy.
Message: Posted by: mastermindreader (May 27, 2015 06:11PM)
[quote]On May 27, 2015, Steven Keyl wrote:
Bob, on the first conspiracy theory, in your original scenario you said, "His son agreed to help, because he didn't like her much either." At that point, they've committed conspiracy, no?

It's also unclear from the original scenario if the son was present at the shooting. If not, then Tony's charge of accessory before the fact is another good one.

These are fun to think about. When this one has been exhausted you should come up with a few more, Bob. [/quote]

You're right, Steven. Mistake on my part. But the point still remains that he gave no help at all and, in fact, had completely different intentions than the father.

It doesn't really matter whether or not the son was present as far as accessory charges would go. A getaway driver at a bank robbery is an accessory before and after the fact, as well as a co-conspirator and aider and abettor. It' doesn't matter that he never went into the bank.

It could be argued, though, that conspiracy, accessory, and aiding and abetting charges, only apply to the house burning.
Message: Posted by: TonyB2009 (May 27, 2015 08:23PM)
Surely, Bob, the son could be done for conspirace, accessory, etc, in relation to the assault on the wife as well as the house burning?
Message: Posted by: mastermindreader (May 27, 2015 09:34PM)
Maybe. But you need to explain your reasoning. It could be argued that they had no common purpose at all in the first event. How would that effect conspiracy charges or aiding and abetting? And who would be an accessory to what?

Not saying you're wrong. But what is your rationale? (Note that the reasoning is actually more important than getting the "right" answer.) In court, obviously, both sides would be argued.
Message: Posted by: tommy (May 28, 2015 02:55AM)
It is a cool question and I canít figure it out. Over here, to avoid double jeopardy, they normally lump all the minor offence into one charge if they are all part of one enterprise. I think here they would keep it simple and charge the son with murder and the old man with manslaughter. The judge then would hear the details and take them into account when it came to sentencing them. I mean, I do not think they would charge the old man with manslaughter by burning a house causing the death of his wife and charge him with burning the house separately. If they did so, then I think that would put him in danger getting two sentences for the same enterprise. I think they might charge him separately with conspiracy with the son to pervert the course of justice though. I have not read anybody elseís answers yet as I wanted to see if I could get alone. Every time I try to figure it out my it sends me circles.
:)
Message: Posted by: Withnail (May 28, 2015 03:46AM)
Going for a UK based answer....

Arson, ie deliberate burning down of a property (can be your own)
Conspiracy to commit murder
Perverting the course of justice
Possession of firearms
Illegal discharge of firearm
Manslaughter (if not arguing for a guilty murder verdict)

I'd say they're looking at 15 years, out in 9 ...

Hmmm, I need to watch another episode of suits ...
Message: Posted by: TonyB2009 (May 28, 2015 06:14AM)
Bob, here is my reasoning. The father divulged that he was going to assault the wife. The son agreed to particupate. There is the conspiracy, even though he planned on taking the assault in a direction the father did not intend. He had knowledge of the assault beforehand (accessory) and agreed to participate (conspiracy). The fact that he switched the bullet does not change the assault (although it now makes it a different and more serious class of assault).

The fact that the father was not aware of the son's plans mean that he is not guilty of accessory or conspiracy in relation to the actual shooting.
Message: Posted by: mastermindreader (May 28, 2015 08:50AM)
[quote]On May 28, 2015, Withnail wrote:
Going for a UK based answer....

Arson, ie deliberate burning down of a property (can be your own)
Conspiracy to commit murder
Perverting the course of justice
Possession of firearms
Illegal discharge of firearm
Manslaughter (if not arguing for a guilty murder verdict)

I'd say they're looking at 15 years, out in 9 ...

Hmmm, I need to watch another episode of suits ... [/quote]

Again, the queston is based on common law, not the statutory laws of either the UK or the US. The definition of arson as the burning of the dwelling place of another comes directly from English common law.

Who conspired to commit murder? Did the father intend or plan to murder his wife?
Message: Posted by: mastermindreader (May 28, 2015 08:54AM)
[quote]On May 28, 2015, TonyB2009 wrote:
Bob, here is my reasoning. The father divulged that he was going to assault the wife. The son agreed to particupate. There is the conspiracy, even though he planned on taking the assault in a direction the father did not intend. He had knowledge of the assault beforehand (accessory) and agreed to participate (conspiracy). The fact that he switched the bullet does not change the assault (although it now makes it a different and more serious class of assault).

The fact that the father was not aware of the son's plans mean that he is not guilty of accessory or conspiracy in relation to the actual shooting. [/quote]

I think you'd agree with me that I'd probably do better defending the father than the son in this case. :eek:

Keep in mind that there aren't absolute answers to many of the questions in the scenario. It's not about the destination. It's all about how you get there.
Message: Posted by: TonyB2009 (May 28, 2015 11:12AM)
The son would be very difficult to defend I imagine. Keeping the father out of the electric chair would be easier. At the moment my poor brain is addled.

I believe that in the original scenario the gun was legally held. Just speculating here, but was the son entitled to legally hold the ammunition? Is there a charge there? Probably not in the USA.
Message: Posted by: saysold1 (May 28, 2015 01:56PM)
Bob - thougt you would enjoy this article from today's NY Times:

http://www.nytimes.com/2015/05/29/us/mystery-and-discovery-on-the-trail-of-amede-ardoin-creole-music-pioneer.html?hp&action=click&pgtype=Homepage&module=photo-spot-region®ion=top-news&WT.nav=top-news
Message: Posted by: mastermindreader (May 28, 2015 02:06PM)
As a life long lover of Zydeco, I found that article fascinating. Thanks for letting me know about it. Maybe it would be a good topic for another thread?
Message: Posted by: saysold1 (May 29, 2015 09:23AM)
I remember you mentioning your love for the zydeco music recently so I thought of you when I ran across this article. I know it's off topic but as as Tom Cruise said in Risky Business... Sometimes you gotta say what the .,. 😀

If you want to start a new topic feel free mastermindreader
Message: Posted by: TonyB2009 (Jun 1, 2015 05:41PM)
Bob, two days have passed. I think it is time to give us your thinking, as a lawyer, so that we can see how far we felt short.
Message: Posted by: stoneunhinged (Jun 2, 2015 07:04AM)
[quote]On May 28, 2015, mastermindreader wrote:
Keep in mind that there aren't absolute answers to many of the questions in the scenario. It's not about the destination. It's all about how you get there. [/quote]

Der Weg ist das Ziel?

I suppose that I might offend some of you, but my take on on lawyers and lawyering is this: it's sophistry, plain and simple.

It's a lot of fun thinking through such a scenario from a layman's perspective. But at the end of the day, most of us want something like "justice". And for that we have to go back to the philosophers of old. Or we don't. Because we don't really want to learn. Not most of us. But for those of us who do, I would ask this:
Message: Posted by: Magnus Eisengrim (Jun 2, 2015 07:50AM)
Northrop Frye once said (roughly) that to answer a question is to ossify the thought behind it.
Message: Posted by: TonyB2009 (Jun 2, 2015 10:17AM)
[quote]On Jun 2, 2015, stoneunhinged wrote:
It's a lot of fun thinking through such a scenario from a layman's perspective. But at the end of the day, most of us want something like "justice". [/quote]
Leaving law aside in favour of justice, the son gets life (in the European sense) for murder, and the father gets a far lighter sentence for assault.

On that question of law vs justice, I want justice when I have been wronged, but law when I am less sure of my grounds!
Message: Posted by: mastermindreader (Jun 2, 2015 11:26AM)
[quote]On Jun 2, 2015, stoneunhinged wrote:
[quote]On May 28, 2015, mastermindreader wrote:
Keep in mind that there aren't absolute answers to many of the questions in the scenario. It's not about the destination. It's all about how you get there. [/quote]

Der Weg ist das Ziel?

I suppose that I might offend some of you, but my take on on lawyers and lawyering is this: it's sophistry, plain and simple...[/quote]

Ja, der Weg is das Ziel.

As to discussions of law and lawyering being sophistry, the same could be said about philosophy and any philosophical discussion we have here. The Constitution itself is the product of legal thinking. I wouldn't call is sophistry.

Nor would I call legal argument sophistry if I was an innocent defendant facing time in prison, or a prosecutor, or anyone else trying to argue that a particular finding would represent "justice."

Why the need to put down an entire profession?

The funny thing is that no one seems to like lawyers until they really need one.

But I'm sorry that you found the topic to be an exercise in sophistry. The hypothetical covered a large part of the common law that all of us live under to one extent or another. And, as you can see, any scenario can produce a minefield of actual (not theoretical or sophist) issues. A good lawyers job is to help the client navigate his or her way through without getting blown up in the process.

The purpose of this thread wasn't to see if people could get the "right" answers. There are many answers on both sides of the issues presented in the hypothetical. The idea was to see if members could identify all of the legal issues raised. And, if you take all of the answers given, I'd say you identified most, if not all, of them.
Message: Posted by: Tom Cutts (Jun 2, 2015 11:36AM)
I am surprised no one has brought up negligence on the part of the father in the matter of gun storage. More so if the son is a minor having left the gun in a manner which it could be tampered with.
Message: Posted by: mastermindreader (Jun 2, 2015 11:47AM)
[quote]On Jun 2, 2015, Tom Cutts wrote:
I am surprised no one has brought up negligence on the part of the father in the matter of gun storage. More so if the son is a minor having left the gun in a manner which it could be tampered with. [/quote]

Good point, but I think it was at least alluded to when I mentioned that the age of the son would be a factor to consider. Continuing down that route, though, you could also argue that the father would have been guilty of contributing to the delinquency of a minor.
Message: Posted by: LobowolfXXX (Jun 2, 2015 11:48AM)
I think it's a pretty good mix of rhetoric and sophistry.

Like magic.
Message: Posted by: mastermindreader (Jun 2, 2015 12:04PM)
But the effects on people are vastly different. A bad magician can leave you wanting your money back. A bad lawyer could end up leaving you in prison.

There is also quite a difference between law as practiced by ambulance chasers and legal scholarship.

For example, would you consider Learned Hand to be a sophist?
Message: Posted by: stoneunhinged (Jun 2, 2015 12:16PM)
[quote]On Jun 2, 2015, LobowolfXXX wrote:
I think it's a pretty good mix of rhetoric and sophistry.

Like magic. [/quote]

Exactly. I said that I didn't mean to offend. I didn't. I myself have a lawyer. My sister is a lawyer. Some of my Cafť friends are lawyers.

Still, it's sophistry.
Message: Posted by: TonyB2009 (Jun 2, 2015 05:20PM)
[quote]On Jun 2, 2015, mastermindreader wrote:
The funny thing is that no one seems to like lawyers until they really need one.
[/quote]
My lawyer is one of my closest friends (and not because I get in trouble a lot!). I got good news today and she was the first person I thought to ring.

Having said that, my father told me he would not help me in college if I studied law!
Message: Posted by: mastermindreader (Jun 2, 2015 05:28PM)
Like I said, no one likes lawyers until they need one.

And, Jeff, you seem to have a limited idea of what lawyering actually entails. Do you consider preparing wills and trusts, drafting deeds, writing contracts, public service law, constitutional law and legal scholarship to be sophistry?

I don't. My only intent here was to provide an active illustration of what it means to "think like a lawyer."

If you want to know what actually goes on in law school, this clip from the film "The Paper Chase" is completely accurate. In fact, I had a Civil Procedure professor who was exactly like Professor Kingsfield, who John Houseman portrays here:

[youtube]cZJEhlIefxA[/youtube]

Sophistry- I think not.
Message: Posted by: LobowolfXXX (Jun 2, 2015 06:33PM)
[quote]On Jun 2, 2015, mastermindreader wrote:
But the effects on people are vastly different. A bad magician can leave you wanting your money back. A bad lawyer could end up leaving you in prison.

There is also quite a difference between law as practiced by ambulance chasers and legal scholarship.

For example, would you consider Learned Hand to be a sophist? [/quote]



Let me preface with a decent working definition of sophistry:


"Subtly deceptive reasoning or argumentation



My Advanced Criminal Law professor was a former defense attorney. I asked him once what percent of his clients were innocent. He responded with a very small number. Let's say, charitably, that most criminal defendants are guilty. The defense attorney's ultimate goal at trial is an acquittal, even if the client is guilty. To do that, he or she generally attempts to convince the jury that the client is factually innocent. Or at least that he might be, i.e. reasonable doubt exists. That is, he or she is trying to lead them to an incorrect conclusion. That's the deceptive part. And it has to be subtle, because if it isn't, they're not going to reach that conclusion. Or in my longest practice area, eminent domain, attorneys attempt to argue two different market values for the same piece of property - often widely disparate. They're not both right (in fact, they're usually both wrong). And if they represented opposite clients, they'd argue for different valuations. Subtly and misleadingly. Or take an automotive accident case. Attorney A says Client C is at fault; Attorney B says Client D is. Through subtle argumentation, at least one of them tries to bring the jury to an incorrect conclusion.

So yeah...without putting a value judgment on it, I think a good deal of it is sophistry. It pretty much has to be; you have trained, practiced arguers attempting to convince people of mutually exclusive conclusions.
Message: Posted by: mastermindreader (Jun 2, 2015 07:20PM)
Your definition itself is subtly misleading. Sophistry is defined by Merriam Webster as "the use of reasoning or arguments that sound correct but are actually false." "Specious" is given as a synonym.

I don't equate the legal reasoning I was trying to illustrate in this thread with either.

It's true that sophistry is often found in legal arguments. But legal reasoning and scholarship is a different story entirely. Again, would you consider Learned Hand to be a sophist?
Message: Posted by: LobowolfXXX (Jun 2, 2015 07:27PM)
My subtly misleading definition was "full definition [#]1" at Merriam-Webster.com

I don't know what Learned Hand was like as a lawyer. Being a judge is a different thing, as judges are not advocates.
Message: Posted by: mastermindreader (Jun 2, 2015 07:29PM)
[quote]On Jun 2, 2015, LobowolfXXX wrote:
My subtly misleading definition was "full definition [#]1" at Merriam-Webster.com

I don't know what Learned Hand was like as a lawyer. Being a judge is a different thing, as judges are not advocates. [/quote]

EXACTLY- I pointed out earlier that lawyering encompasses much more than advocacy. Judges are lawyers, too. Legal advocacy and legal analysis are quite different. The point of this thread, which is now entirely off track, was to illustrate legal analysis and thinking.
Message: Posted by: stoneunhinged (Jun 3, 2015 01:09AM)
I LOVED the Paper Chase.

As for definitions of sophisty go, I stand by my claim.

As for my understanding of lawyering goes, I stand by what I have written.

Bob, I didn't say what I didn't say. Don't presume anything about what I didn't say. Read what I wrote, rather than what I didn't write.
Message: Posted by: tommy (Jun 3, 2015 01:25AM)
Chicanery.
Message: Posted by: stoneunhinged (Jun 3, 2015 02:09AM)
[quote]On Jun 2, 2015, mastermindreader wrote:
...was to illustrate legal analysis and thinking. [/quote]


It's not off track at all. I'm saying that legal analysis and thinking are sophistry. How is that off topic?

And to everyone: please pardon the grammar of my last post. I edited poorly, and I apologize.

Bob, have a beer!

:stout: :stout: :stout: :stout:

(Why is the first beer orthographically presented? I'm confused.)
Message: Posted by: mastermindreader (Jun 3, 2015 11:24AM)
Okay, then. Since my OP was sophistry I apologize for posting it and will try to do better in the future. :eek:

And I drink rum, not beer!
Message: Posted by: stoneunhinged (Jun 3, 2015 11:26AM)
[quote]On Jun 3, 2015, mastermindreader wrote:
And I drink rum, not beer! [/quote]

Sophist!
Message: Posted by: Magnus Eisengrim (Jun 3, 2015 11:31AM)
[quote]On Jun 3, 2015, mastermindreader wrote:
Okay, then. Since my OP was sophistry I apologize for posting it and will try to do better in the future. :eek:

And I drink rum, not beer! [/quote]

No worries. Socrates was often called a Sophist.
Message: Posted by: stoneunhinged (Jun 3, 2015 11:59AM)
[quote]On Jun 3, 2015, Magnus Eisengrim wrote:
[quote]On Jun 3, 2015, mastermindreader wrote:
Okay, then. Since my OP was sophistry I apologize for posting it and will try to do better in the future. :eek:

And I drink rum, not beer! [/quote]

No worries. Socrates was often called a Sophist. [/quote]

One might even suggest that the entirety of Plato's work was an attempt to distinguish philosophy from sophistry.

But everyone seems to assume that I have used the word "sophistry" pejoratively. Which I might have done. But then again, maybe I didn't. Maybe I'm proud to call myself a sophist. Maybe, deep down, I really wish I were a lawyer.
Message: Posted by: mastermindreader (Jun 3, 2015 12:01PM)
I know, but in that sense the reference was to a method of teaching. Indeed, law schools still teach via the Socratic method. The objection I have is equating sophistry to analysis when it really only applies to certain, but hardly all, legal arguments.
Message: Posted by: stoneunhinged (Jun 3, 2015 12:26PM)
Bob, the so-called "socratic method" is part of a legal education, but has little or nothing to do with Socrates or philosophy.

I know a wee bit about your world, but you seem to know nothing about mine. I think you feel insulted, but I had no intention of insulting you.

I admire lawyers and lawyering. I admire my sister--who wasn't just an ordinary lawyer, but an exceptionally accomplished one (before cancer forced her to retire). You dudes ROCK.

Nevertheless, you belong to a profession, and you think professionally. "Professional" doesn't mean "Truth-seeking".

There is no such thing as a professional truth seeker. Ain't no money in it.
Message: Posted by: LobowolfXXX (Jun 3, 2015 12:44PM)
[quote]On Jun 3, 2015, stoneunhinged wrote:
Bob, the so-called "socratic method" is part of a legal education, but has little or nothing to do with Socrates or philosophy.

I know a wee bit about your world, but you seem to know nothing about mine. I think you feel insulted, but I had no intention of insulting you.

I admire lawyers and lawyering. I admire my sister--who wasn't just an ordinary lawyer, but an exceptionally accomplished one (before cancer forced her to retire). You dudes ROCK.

Nevertheless, you belong to a profession, and you think professionally. "Professional" doesn't mean "Truth-seeking".

There is no such thing as a professional truth seeker. Ain't no money in it. [/quote]


And in fact, in an adversarial proceeding, at most one side wants the jury to find the truth. Sometimes (eminent domain valuation proceedings) neither side does.