Defending Yourself

“Hey, Larry, nice haircut! Is your barber blind?” Frank laughed at his own joke and then smirked when Larry came closer. A couple of drinks must have skewed Larry’s judgment, Frank figured. The little runt forgot Frank was a pretty good boxer. Well, time to remind him. As soon as Larry got close enough, Frank laughed again. “I’m gonna smear the pavement with you, twerp.” To prove his point, he socked Larry solidly in the nose.

Larry crumpled. But then he got up, nose bleeding, and pulled out a pocketknife. He opened the largest blade and held it aloft. “Get out of here before I perforate you, Frank.”

Frank scoffed, danced to the right, and landed another blow, this one on the side of Larry’s head. When Larry fell this time, he knocked his skull against the edge of the bar. He twitched a few times on the ground before going still.

Frank looked up to see the bartender pointing a gun at him. “Sit tight,” said the bartender. “Police are on the way.”

“Yeah, whatever. It was self-defense anyway.”

Frank’s sounding awfully cavalier there. He’s going to wise up after he talks to a lawyer, because chances are he won’t be able to claim self-defense.

Self-defense is an old defense, one of the many that Americans adopted from England. It’s based on the premise that a person shouldn’t be held criminally liable for protecting himself, and it’s fairly commonly used. But there are rules as to when it applies.

One of those rules is that a defendant can’t use the defense if, like Frank, he initiated the violence. So Frank is out of luck already. But there are other limitations too.

  1. The person must reasonably believe he had to use force to protect himself. It’s okay if he was mistaken in the belief (“I thought I saw him reaching for a gun”) as long as the mistake was reasonable.
  2. The amount of force used must be proportionate to the threat. You can’t shoot someone who’s threatening to slap your face.
  3. The threat must be imminent. You can’t use this defense if the other person says, “Someday I’m going to kill you!”

So one corollary to the defense is that the threatened person must retreat if he can safely do so. It sounds as if Frank could have walked away from Larry, so he’s again out of luck. But there are two exceptions to this. One is called the castle exception, which holds that a person need never retreat in his own home. The other exception is recognized in some jurisdictions but not others, and is most popularly called the stand your ground doctrine. It holds that a person need not retreat even if he can safely do so, and it received a lot of attention during George Zimmerman’s trial for his fatal shooting of Trayvon Martin.

Self-defense extends to the right to protect other people. If Alice sees Bob being beaten by Carl and punches Carl in order to save Bob, she may be able to use the defense. But only if Bob himself could have used it! So if instead the bartender saw Larry pull the knife on Frank and, unaware that Frank started it, shot Larry, the bartender would be out of luck. So be careful before rescuing someone!

Self-defense does not include the right to protect property. You can’t use deadly force to keep someone from stealing your stuff.

This defense allows a lot of plot possibilities. Was your character reasonable when he mistakenly believed the other guy was reaching for a gun? Was the threat truly imminent? Did your character use an appropriate degree of force under the circumstances? Who intervened in the fight and did she have a right to?

As for Frank, he better hope that Larry pulls through. Otherwise he’s looking at a long stint in prison.

Making a killing

Storytellers (and their audiences) have been fascinated with the topic of homicide since before we started writing our stories down. Consider the Iliad, for instance, which is nearly 3000 years old. There’s a lot of death there, with the killings of Hector and Patroclus forming a central part of that tale. Even our legal concepts of homicide are old. Although specifics vary between jurisdictions (yadda yadda yadda), most US states base their homicide law heavily on English common law dating to the Norman Conquest.

All homicides involve the same action: one human being killing another. The parties do have to be human. No matter how intelligent or well-loved a non-human animal is, its killing cannot be a homicide. If you’re a spec fic author, you have some lovely opportunities to muse on the potential definitions of humanity. Sentient aliens? Artificial intelligence? The walking dead, undead, and reincarnated? Ooh, such possibilities!

What differentiates the different kinds of homicide is the defendant’s mental state and the surrounding circumstances. We can subdivide homicide into three categories, each of which is comprised of subclasses.

Murder is the most serious kind of homicide. It involves unlawful killings–usually intentional killings, although there are a few exceptions to that rule. State definitions differ, but generally first-degree murder involves killing someone intentionally with some degree of premeditation. It doesn’t require a lot of premeditation. In some cases, first degree murder convictions have stood when the killer formulated his intent to kill a very short time before following through. Typically, though, he’s been thinking about it for a while. First degree murder may also include felony murders, in which the offender committed a felony—an armed robbery, maybe—and didn’t plan for anyone to die, but someone did. There are some interesting twists to the felony murder rule; I’ll cover them in a later post. In the US, first-degree murder is almost the only crime that carries a potential death sentence (the other being treason).

Second-degree murder is also intentional, but without preplanning. Cain and Abel get into a bar fight, Cain says “I’m gonna kill you!” and then he pulls out his gun and shoots Abel dead. That’s second degree. Second-degree murder also often includes “depraved heart” killings in which the killer didn’t necessarily want anyone to die, but acted with such extreme indifference to human life that a death was likely. The classic example is shooting a gun at a passenger train.

Manslaughter is a killing involving less culpability on the part of the offender. For voluntary manslaughter, the killer has acted “in the heat of passion.” That is, something provoked him so severely that he lost control of himself and killed. The classic example here is when the offender comes home and finds their spouse in bed with someone else. Involuntary manslaughter means the offender was so careless as to cause someone’s death. Vehicular homicides such as those caused by excessive speeding or drunk driving are often charged as involuntary manslaughter, although in some states they’ll be vehicular manslaughter instead.

Finally, there’s non-criminal homicide. This occurs when the killing is permitted by law (e.g., euthanasia and execution) or is justified under the circumstances, such as self-defense or some killings by police officers. As the name suggests, those who commit non-criminal homicides won’t face punishment. But somebody’s still dead.

Homicide law is complex, full of all kinds of little details that could make lovely plot points. For example, what do we mean by “killing”? Does brain-dead count? How direct does the relationship need to be between the offender’s acts and the victim’s death? What if the death occurs years after the attack, as in this case? How much premeditation is enough? When has someone acted with a depraved heart? (That was the issue in the recent trial of a Baltimore policeman for Freddy Gray’s death.) When is an act careless enough to justify criminal liability?

Even if we set aside the inherent drama of human life and death, it’s no wonder homicides have fascinated us for so long!

Hate Crime

Today I’m going to write about hate crime. This particular post is a bit difficult for me in light of the recent terrible events in Orlando, yet it’s also necessary.

hateBefore I get into particulars, I’m going to plug my own book. I’m currently working on the 4th edition, but if you want to know a lot of details about hate crime, I suggest picking up a copy of the 3rd edition. Obviously, not all the examples will be up-to-date, but it will tell you most of what you’d need to know. The references section is extensive, in case you want to research particular topics in depth.

Okay. So what is a hate crime? Most succinctly, it is a criminal act motivated by the victim’s group. Of course, there are lots of complications involved, and state definitions vary, but that definition is a good place to start. Now for some specifics.

Hate crime requires an underlying criminal act—i.e., something else that is already a crime. Assault. Vandalism. Trespassing. And so on. I know of one case where a KKK member burned a cross on his own property—something that would not ordinarily be a crime—but was nonetheless charged with a hate crime because he violated burn laws (he burned out of season without a permit).

How hate crime laws generally work is by increasing the penalty. This can be done in different ways, depending on the jurisdiction. The hate crime may be charged as a separate crime (meaning the defendant will get two convictions), or it may enhance or bump up the severity of the underlying crime.

If a person expresses hateful ideas without committing a criminal act, that’s hate speech. Examples would include yelling racial slurs, posting hateful content on the Internet, and distributing extremist literature. Hate speech usually cannot be punished in the United States because it’s protected by the First Amendment. There are some fuzzy areas, however, such as when the speech incites violence or amounts to a threat.

States vary as to which groups are protected by hate crime laws. All states with hate crime legislation cover crimes motivated by race, religion, and ethnicity or national origin. Only some include sexual orientation, and even fewer include gender or gender identity. A few include other categories such as age or disability.

Hate crimes are the only crimes that require proof of the offender’s motive. For example, hitting someone because you don’t like their favorite football team is not a hate crime; hitting someone because you don’t like their religion is a hate crime. Both these of these involve the same action–intentionally hitting someone–but what differentiates them is the reason why. Identifying hate crimes is often difficult and prosecutions are rare. California has fewer than 100 hate crime convictions in a typical year.

Hate crime reporting rates are low, especially for certain victims. Such hesitancy might come from those who are undocumented, who fear the repercussions of reporting, or who are from communities that have poor relationships with law enforcement.

The vast majority of people who commit hate crimes—some estimates say 95%—do not belong to organized hate groups. Yes, some are committed by racist Skinheads and members of other groups. But most aren’t, and that’s something you might want to keep in mind when you write.

As the Orlando events illustrate, it is sometimes difficult to distinguish hate crime from terrorism (and other forms of violence, such as gang violence). In fact, I’d argue that there’s probably little meaningful difference in terms of the mindset of the perpetrators. Most offenders fit a basic profile: young men without significant criminal records, many of whom seek to prove their masculinity and/or impress peers. While the specifics may vary, I believe most of these offenders are influenced by similar psychological, emotional, and societal factors. Common factors include feelings of alienation or lack of power, as well as exposure to messages (from family, religion, the media, the government, and from the culture at large) condoning bias against certain groups. There is some evidence that specifically in cases of hate crimes against LGBT people, some perpetrators may be struggling with their own unwanted attraction to members of the same sex and with internalized homophobia. It’s too early to say for sure, but it appears this may have been the case in the Orlando shootings.

Obviously, I could go on at great length. So if you have specific questions, please feel free to ask.


Double Jeopardy

I find myself sorely tempted to make a bad joke involving Alex Trebek’s long-lost twin. But I’ll spare you.

The protection against double jeopardy is contained in the 5th Amendment to the US Constitution:

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.

But the US didn’t invent the concept; we just borrowed it from English common law. The general idea is that it’s unjust to try a person repeatedly for the same crime.

There are two major repercussions to this right:

  1. Once someone is acquitted (found not guilty) of a crime, he can never be retried for the same offense. Period. Not even if three seconds after the acquittal is entered, he laughs evilly and admits his guilt. Not if new evidence is discovered. Not if God Himself comes down to Earth and says the guy did it.
  2. Once someone has been convicted and has completed his punishment, he can’t be given additional punishment for the same offense.

So if you’re a prosecutor, you want to make damned sure your case is solid before you step into court, because if you lose, you won’t get a second chance.

But the right also has limitations.

  1. Under something called the dual sovereignty doctrine, a person can be prosecuted by multiple jurisdictions for the same offense. Supposed George kidnaps Avery in California and drags him through Oregon and Washington before getting nabbed just south of the Canadian border. All three states can independently prosecute him for kidnapping, as can the federal government since the crime crossed state lines. He could get four separate convictions, four separate sentences. As a matter of policy, states will often decline to prosecute if the defendant is already facing hard time somewhere else—why spend the time and resources?—but that’s up to them.
  2. Double jeopardy doesn’t stop a person from being tried if he commits the same offense again. Suppose George is acquitted of robbery and the next day he commits a new robbery. He can be tried for the new one.
  3. Double jeopardy doesn’t stop a person from being tried for separate offenses. Suppose George not only kidnaps Avery, but also kills him. Even if George is acquitted of murder, he might still be tried for kidnapping. Law in this area gets sticky, so be careful. Suppose George stabs Avery and Avery survives. Now suppose George is acquitted of attempted murder—but two days later, Avery dies. Can George now be tried for murder? Probably, but it depends on the jurisdiction. Or suppose George kidnaps Avery, Barbara, and Carlos, all at the same time. If he’s acquitted of Avery’s kidnapping, can he now be tried for Barbara’s? And then Carlos’s? Maybe. Depends which rule the jurisdiction uses.

There are other complications too. Double jeopardy may or may not apply after a mistrial, depending on how and why the mistrial occurred. Double jeopardy doesn’t apply to civil matters (so even if someone’s acquitted, he can be sued) or to habeas corpus and other proceedings.

The takeaway for you as an author? Double jeopardy can make an interesting plot point, but take care how you use it.


“Sally, darling, would you please open the bottle of wine?”

Sally smiled at her dashing boyfriend, who was busy pan-searing their steaks. “Sure, honey. Where’s the corkscrew?” She opened a kitchen drawer, closed it when she saw it contained nothing but take-out menus, and then opened the drawer next to it. She found a wadded ball of knitted fabric. Curious, she examined the object more closely. “What’s this, honey?”

Carl glanced over his shoulder. “A cap.”

“It’s… a ski mask.”


“Do you ski?” She found this unlikely since they lived in Florida, but anything was possible.

“No. I hate the cold.”

“Then why do you have a ski mask?”

“I wear it when I rob banks.” He gave her a devilish smile. “It’s my accessory to crime.”

Yeah, okay. I’m sorry. Couldn’t help myself.

What is an accessory to crime? Specific definitions vary by jurisdiction, but a good general definition is this: an accessory is someone who helps commit a crime but doesn’t actually commit the crime itself. The parties who do commit the criminal act are called the principals. A person may be an accessory before or after the fact, depending on when the assistance is given.

Suppose Carl’s car is in the shop, and he asks Sally if he can borrow hers for his next bank heist. She says sure and hands over the keys. She’s now an accessory before the fact. In most of the US, if she was aware she was helping him commit a crime, she is liable for the same punishment as Carl, even though she wasn’t actually at the bank. Not only that. If he shoots and kills someone during the robbery, she’s liable for felony murder—potentially a capital offense—as long as the prosecutor can show that murder was a reasonably foreseeable outcome of a bank robbery.

On the other hand, suppose Carl’s car is doing fine. He doesn’t borrow hers and doesn’t tell her he plans to rob First National Savings & Loan. But after the robbery, he shows up at her place with a bag of money and a big smile. “Darling, would you do me a favor and stash this sack of cash in your closet? Oh, and if anyone asks, tell them I was here all day, okay?” If she agrees, she’s an accessory after the fact. She’s going to end up being charged with something like obstructing justice. The prosecutor will have to prove she knew Carl had committed a crime and she intended to help him get away with it. She will not be punished as severely as Carl, and if he happened to kill someone during that robbery, she can’t be charged with felony murder.

What about an accomplice (sometimes called an aider and abettor)? They also help commit crimes, but they’re present at the scene. Suppose Sally drives Carl to the bank—knowing he’ll rob it—waits in the parking lot until he comes running out and jumps into the passenger seat, and then drives away. She’s an accomplice. And just like an accessory before the fact, she’s as criminally liable as Carl.

There are all sorts of interesting twists we can add. What if Carl gets killed by a police officer during the robbery? If Sally helped him, she’s still liable for any crimes he committed. She could even be charged with his murder—even though she wasn’t there and a cop lawfully shot him! Or what if Carl’s a snake and rats her out in exchange for a plea deal? Then Sally might do more time than him. We can imagine her fuming in prison.

Accomplice liability offers the possibility of all sorts of interesting plot twists. And a bad pun or two.


I’ve Been Robbed!

Exhausted after a long diurnal cycle of guiding ships into port, Mazx hastily parked her hovercraft in the garage, grabbed her bag, and trudged into the house. All she wanted was a tall glass of Ganymedian pinot grigio, a few slices of leftover pizza, and a couple episodes of CSI: Mars. But as soon as she entered her living room, she discovered her furniture in shambles and her collection of priceless antique plastic Coke bottles missing. “Oh no!” she cried. “I’ve been robbed!”

Hang on there, Mazx. Unless the laws have changed by the 23rd century, you haven’t been robbed at all. You’ve been burglarized. But laypeople and writers get this one wrong all the time.

The definitions for both crimes—burglary and robbery—are old ones, originating in medieval England. In the modern United States we’ve tweaked and updated the definitions of both crimes, but the distinction between them remains. And it’s important.

Suppose one evening during the 14th century, Lionel breaks into Chaucer’s house to steal his astrolabe. Lionel would be guilty of burglary, which at that time was breaking and entering a dwelling place at night, with intent to commit a felony. Notice how Lionel doesn’t actually have to be successful in stealing the astrolabe to be charged with burglary. If Chaucer grabs him as soon as Lionel enters the home, and if it can be proved in Ye Olde Court of Law that Lionel intended to steal something while he was there, Lionel’s going to hang for burglary. If he’s successful in taking the astrolabe, Lionel can be charged with a second crime as well: larceny (the unlawful taking of another person’s property).

Today, the definition of burglary is considerably broader. Most states have eliminated the breaking requirement–entering is enough. They’ve also eliminated the requirement that the act take place at night, they’ve expanded the types of places that can be burglarized, and they’ve included people who enter for nefarious purposes other than felonies. California’s burglary law (Cal. Penal Code sec. 459) is a good example of this. In present-day California, Lionel is a burglar if he walks into Target with intent to shoplift, if he enters a mine to steal gold, or if he breaks into a car to take spare change from the console.

But what about robbery?

Well, let’s go back to medieval times. Robin Hood hops out of the trees and points his bow and arrow at a monk. “Hand over your shillings or I’ll shoot!” Robin yells. Robin has just committed robbery: taking another person’s property, with the intent to permanently deprive the person of that property, by means of force or fear. Robbery is actually two crimes packed together—a larceny plus an assault (the threat or actuality of harmful or offensive contact).

Modern robbery laws haven’t changed much since Robin Hood’s time. In California, for example, robbery is

the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear (Cal. Penal Code sec. 211).

In Mazx’s case, someone entered her home and took her Coke bottle collection. This is burglary. If, on the other hand, the bad guy had aimed his blaster at Mazx while she was at a stop sign and ordered her to give up her hovercraft, that would have been robbery.

Now let’s suppose Mazx arrives home before the bad guy gets there. As she’s pouring her glass of wine, the bad guy bursts in through the front door (which Mazx foolishly left unlocked), points his blaster, and shouts, “Give me your bottles!” Mazx, however, kicks the blaster from his hand, wrestles him to the ground, and hogties him with a kitchen towel faster than you can say qgrzxtiltbom. When our bad guy gets hauled before a 3D image of the judge, he’s going to be facing both burglary and robbery charges. His burglary was complete as soon as he stepped through the door intending to steal things, and the robbery happened when he implicitly threatened to shoot Mazx if she didn’t hand over her precious bottles.

Why does the difference between burglary and robbery matter? Back in medieval times, both burglary and robbery would get you hung, and nowadays they’re both felonies. But while burglary is classified as a property offense, robbery is considered a violent crime—not only has the victim lost property, but she’s also been threatened or physically harmed. Burglary can be devastating, but robbery is more dangerous. Robbery will generally bring a harsher punishment than burglary. (Keep in mind that theft and carjacking are generally not legal terms. They have come into popular use through the media, but they wouldn’t be used by cops or the courts.)

I know, I know. “I’ve been burglarized!” sounds less dramatic. But if you’re aiming for accuracy in your writing, remember to keep burglary and robbery straight.