But he said I could!

Let us suppose that a very large man—we’ll call him Chris—runs full speed at another man, who we’ll call Alex. Chris launches himself at Alex headfirst, using his arms to carry Alex to the ground, where Chris lands on top of him. Wow. That sounds like assault and battery, right?

Or what if Floyd repeatedly uses his fists to pummel Conor in the face and head, his ultimate goal being to beat Conor so badly that Conor can’t stand up again? Also assault and battery.

Except… not. Because if we stick jerseys on the first two guys and gloves on the second two, we have a different story. We have professional sports. And in the extremely unlikely event that Chris or Floyd were prosecuted for his actions, he’d have a good defense: consent.

The general idea behind the defense of consent is to avoid criminal liability when the “victim” has agreed to be victimized. And there are some interesting twists to this defense. For one, the victim has to be capable of granting consent, which means he can’t be too young, too mentally disabled, or too intoxicated. The consent must be entirely voluntary and not due to threats. Consent is also generally not allowed as a defense in homicide cases, although the idea of assisted suicide has changed some views on that point. And the actions taken must be within the scope of the consent.

That last point has led to some interesting cases. Several hockey players have been convicted for exceeding the game’s permissible boundaries and attacking opposing players. But the extra violence has to be truly excessive. For instance, Mike Tyson was never criminally prosecuted for biting off a chunk of Evander Holyfield’s ear. This could make a really interesting plot point, and it’s one I haven’t seen explored in fiction. So have at it!


Do you write paranormal or horror? Then today I have a plot bunny for you, courtesy of friends and my daughter. Let me preface this by saying that, like many attorneys, I enjoy considering legal hypotheticals. We can’t help it. Law school ruined us.

So my younger daughter recently sent me this text:

She was at a birthday party. I don’t even want to know how the subject came up. But I posted the text on Facebook, which led a couple of friends to make comments about zombies. And that leads to today’s plot bunny.

Suppose Alex is a zombie. And further suppose Alex  attacks Bob, a living human being, and kills him. And then, maybe after some time has passed and after Bob has begun his own zombification process, Alex eats Bob’s brainnnnns.

Assuming zombies are subject to criminal laws, can Alex be charged with two homicides?

Part of our answer will depend on an interpretation of the law. Homicide is generally defined as the unlawful taking of a human life. So are zombies human? If not, Alex can be charged with only one homicide, plus maybe desecration of a corpse. If zombies are human, another question arises. Does it violate double jeopardy to charge someone with killing a person and then destroying the zombie that person has become?

We could add some other twists as well. What if Alex kills Bob, abandons the corpse, returns before Bob has risen as a zombie, and eats his brainnnnns then? Would that still count?

And what defenses might Alex have? Can a zombie form mens rea?

One of my law profs once gave a lecture about how lawyers are vampires, but I think lawyers and zombies could be fun too. So please. Consider writing a zombie legal procedural novel?

Ineffective assistance

Last week I posted about the right of criminal defendants to be represented by counsel. Today I’m discussing a related matter—what if the defense lawyer sucks?

On the one hand, the case law is clear: defendants have the right to effective assistance. While this doesn’t mean the lawyer has to be a Clarence Darrow, it does mean she has to do her job competently. If she doesn’t, a conviction may be overturned.

Ah, but there’s a major caveat here. In order to make a claim of ineffective assistance of counsel, the defendant has to prove more than the lawyer’s incompetence. He also has to prove that, if it weren’t for her bad job, the outcome of the trial would have been different. This is called the Strickland test, named after the case in which the Supreme Court articulated it. In many cases, the test essentially means the defendant has to prove he’s innocent, which can be difficult even with a good lawyer.

Courts have upheld convictions in which the defense attorney was drunk at trial, was mentally ill and delusional, fell asleep during the trial, asked the defendant’s family for money to do DNA testing but kept the money and didn’t do the test.

I think ineffective assistance of counsel is an excellent and underused plot device. Imagine that your hero is innocent but gets a cruddy lawyer. Maybe that lawyer is even paid off by somebody to do a bad job? And now your hero has to prove he didn’t do it. Lovely!


Somewhere along the line, a rumor started that police can’t lie to suspects, especially if the suspect asks whether the undercover officer is a cop. If the cop does lie, the story says, it’s entrapment. This is a myth. Cops can and do lie all the time. It would be hard for them to do their jobs otherwise.

Nevertheless, the defense of entrapment does exist. Its primary purpose is to ensure that otherwise innocent people aren’t lured by police into attempting crimes they otherwise never would have committed. The underlying idea, I think, is that everyone has a price. Given enough incentive, even the most law-abiding among us might be tempted to stray. (This was part of the idea in the movie Indecent Proposal.)

In the United States, standards vary for determining whether entrapment has occurred. Some states use a subjective test, asking whether the defendant was predisposed to commit the crime. Others use an objective test. That asks whether a reasonable law-abiding person, placed in the defendant’s shoes, would have been likely to commit the offense.

Entrapment comes up as a defense most often during sting operations, when undercover officers induce someone to do something illegal. Of course, the intention of the operations (we hope) is to catch people who already planned illegal activity. Sting operations can be very useful in a variety of contexts, such as prostitution, drug trafficking, and auto theft. But if the operation goes too far, innocent people may be drawn in. Police who want to engage in these activities need to be careful not to cross over the line.

For federal cases on entrapment, check out Jacobson v. United States (involving child pornography) and Sorrells v. United States (alcohol during Prohibition). Either could serve as good plot inspiration.


Oops! I made a mistake!

Fatigued after an 11-hour flight, Anna grabbed her well-worn suitcase off the luggage carousel. That bag had seen a lot of miles with her. She took a taxi home, left the suitcase near the front door, and collapsed into bed. She’d missed that bed!

Jet lag is rough. She woke up 12 hours later, still feeling bleary. After pouring coffee down her throat, she dragged her suitcase into the bedroom to unpack. But when she tried her usual combination, the lock wouldn’t open. She tried again. Nothing. Swearing, she thought to check the name tag.

Oh no. It  was someone else’s battered black suitcase. Hers was probably still sitting at the airport, but that wasn’t her biggest worry. She’d stolen someone’s stuff! What if the police were already on their way?

Anna can relax. She’s not going to be making a trip to the Big House, at least not over the suitcase.

Mistake can sometimes be used as a defense to criminal charges—but only sometimes, because there are two kinds of mistake.

The first kind is called mistake of fact. It occurs when the defendant was wrong about some material fact, such as Anna believing she’d grabbed her own suitcase. As long as Anna’s mistake was reasonable, it will usually be successful as a defense.

Why? (This paragraph is law geekiness, and you are welcome to skip it if so inclined.) Crimes require that the defendant commit a particular act—or fail to do a particular act, like paying taxes owed. This is called the actus reus, the evil act. But most crimes also require that the defendant have a particular state of mind at the time of the action. This is called the mens rea, the evil mind. Larceny, for example, requires that the defendant take someone else’s property (that’s the actus reus) and that she do so intentionally (the mens rea). So if Anna honestly believes she’s grabbed her own suitcase, she didn’t intentionally take someone else’s stuff and therefore didn’t have the mens rea. So she can’t be convicted.

(Okay, extreme geekiness over.)

The other kind of mistake is mistake of law. This happens when a person believes that the law permits a particular action—but the person is wrong. So if I honestly believe it’s legal to light up a joint in Boise (it’s not), the cops can arrest me and I won’t be able to use mistake as a defense.

The reason behind this rule makes policy sense. If we allowed people to claim mistake of law, well, wouldn’t everyone just purposely avoid learning what the law says?

So here’s a real-life example. Every fall I host a barbecue at my house for my department colleagues. It’s the one (and generally only) time everyone comes to my place. I live in a subdivision with a lot of identical-looking houses. A couple of years ago, one of my colleagues drove to my house, opened the front door (unlocked), and marched inside—only to discover it wasn’t my house. Luckily for her sake, nobody there noticed and she crept back out. But if she had been caught, she’d have had a valid defense.

Are you a cop?

Lola batted her eyelashes and smiled at the man. “How about a date?”

He shrugged. “Maybe. How much?”

After a brief hesitation, she countered with a question of her own. “You a cop?”

“Are you kidding? No way. I hate pigs.”

“Okay. You give me a hundred bucks and I’ll rock your world.”

The man reached into his pocket and pulled out a pair of handcuffs. “Guess my world’s gonna stay steady tonight. Hands behind your back.”

“Hey! You lied! You can’t do that!”

“Already did. Now, you want me to recite your rights or you wanna do it for me?”

Is Lola right? Did Officer Smith entrap her when he lied about his identity?


The police are allowed to lie. They do it all the time when working undercover or performing sting operations. I don’t know when or how the rumor started that they have to tell the truth when they’re asked whether they’re cops, but it’s entirely false. Police can lie about other things too. It would frequently be hard for them to do their jobs if they had to be honest all the time.

Lying does not constitute entrapment. In order for someone to successfully use the entrapment defense, she must prove that police enticed her to perform an illegal act she wasn’t otherwise inclined to do. If that undercover cop offered people a million bucks to sleep with him, a lot of people might be tempted even though they’d never previously considered prostitution. In Lola’s case, however, it’s only a hundred dollars. Plus she initiated the exchange, which is pretty good evidence that she was predisposed.

There are some limits to what police can lie about. If a suspect invokes her Miranda rights and asks to speak to a lawyer, the cops can’t grab a random colleague in a suit, put him in the interrogation room, and have him tell the suspect he’s an attorney.

One frequent lie used to good effect by police happens when there are two or more suspects. Each is questioned separately, and each is (falsely) told that his colleague had confessed and ratted him out. Suspects under those circumstances often confess in a vain attempt to save themselves.

An urban legend says that police have pretended that a Xerox machine is a lie detector, as shown in this scene from The Wire. I don’t know if that’s ever really happened, but police often do get creative.