You Be the Judge: Unconscious Murder


I am once again changing the names with this one, because it involves a person of some fame and it may prejudice the case if you know who the parties involved are. In any case:

A young African-American male is driving a car and is stopped by a policeman. The african-american is beligerent and insists that he did nothing wrong. The policeman attempts to arrest him. He resists. A struggle ensues. In the course of the struggle, the policeman pulls a gun and shoots the african-american man in the abdomen. The african-american man clutches his stomach, falls backwards, but then recovers. He lunges at the policeman and seizes the gun. Two shots are fired, and the policeman is killed. The african-american man limps away and eventually makes it to a hospital, where he is arrested for murder.

The events above are not in dispute. It is also known that the african-american man was unarmed until he seized the gun from the policeman.

At trial, the african-american man claims to have had no recollection of shooting the policeman. He recalls the struggle up until he was shot. He remembers an intense pain in the stomach, and the world going hazy, then black. He recalls hearing two gunshots, but can't recall seeing anything. Everything else is a haze until several days later when he found himself in a bed at the hospital.

Several doctors testified at trial that these symptoms are consistent with a loss of consciousness brought on by severe physical trauma, of a sort known to have occured in the past when people have been shot in the abdomen. When subjected to such trauma in a situation of danger, it is explained, the conscious mind shuts off and reverts to a reptilian fight-or-flight mode. People have been known to remain active while in this unconscious state for as long as half an hour, a long enough time frame to encompass the defendant's actions.

After hearing the evidence, the trial judged decided it was immaterial. If the defendant was found to have fired at the policeman, he was guilty of murder regardless of whether he was conscious or not. He instructed the jury to ignore all evidence relating to the defendant's lack of consciousness, and instead determine simply whether he fired at the policeman. The jury so found, and the defendant was found guilty of murder. He appealed.

The case now comes before your appellate court. The question is whether the defendant's unconscious state would be an excuse.

Note that the appeal is on the matter of improprer jury instructions; the trial judge instructed the jury to ignore everything related to the defendant's consciousness, on grounds that even if he was unconscious he would still be just as guilty. You are to decide whether the judge was correct in this decision. If you decide that he was, the conviction will be upheld. If you decide that he was not, the case will be sent back for a new trial that will consider the defendant's mental state, and a jury will determine whether he was conscious or not. For purposes of this appeal, it doesn't matter if you believe or disbelieve the defendant's claims. You must assume that they are true, and then ask yourself whether lack of consiousness would be grounds for acquittal.


The impromptness, if that's a word, of my response here is due to the fact that I am having trouble seeing more than one side to this particular issue. I just can't find any defensible reason for the judge to declare that information nonexistent (not just implausible but not present in the case). The whole purpose of the trial is to present information which the judge may or may not believe; his state of believing it is irrelevant. His role is only to preside over its being presented in an orderly fashion for consideration by the people who have been temporarily employed as jurors to evaluate it. If he decided to excise that information from the trial based on his opinion of its validity, I can't see how that isn't an abuse of his role as judge.

Therefore I'm highly suspicious that there's more to it than that, somehow, that I'm not seeing. Is there? What is it?

Ah. That's actually an interesting quirk of the anglo-american judicial system. We have fairly byzantine rules about what evidence is and is not excusable. For example: You'll perhaps recall cross-examinations from various courtroom dramas. The non-questioning party asserts objections, such as "Objection! Hearsay!" or "Objection! Irrelevant!" or "Objection! Conjecture!" We don't allow hearsay evidence (testimony about things you heard from other people about the event) except under unusual circumstances, because the feeling is that this sort of evidence is unlikely to provide a solid basis for deciding a case. It is, however, likely to prejudice the jury one way or the other if they know about it.

As an example of evidence that might be excluded (not the case in this trial, but the sort of thing that has been excluded): A man is on trial for murder. The prosecution wants to bring in evidence to indicate that he was involved in a shooting earlier in the day (which he hasn't been arrested or charged for, and on which there is no investigation ongoing). The defendant isn't being tried for the prior shooting and whether or not he shot someone earlier has nothing to do with whether he murdered the guy he's on trial for. Moreover, this earlier shooting would be a criminal act which requires a beyond-a-reasonable-doubt standard of proof. If the prosecution produces evidence that says "By the way, we think the defendant shot someone earlier in the day" either the defense responds and we get a whole mini-trial on the earlier shooting, with no possibility of punishment, or the defense decides to ignore it and leave the jury with the sense that the defendant is the sort of person who gets involved in shootings. In either case, the jury will probably prejudiced against the defendant. "This guy's a scumbag who likes to shoot people," they will think, which will cause them to be more likely to think the defendant is guilty, regardless of what the evidence may show.

There's also the thinly-veiled concern that juries aren't too smart and judges want to keep the issues as simple as possible. This is more a subjective thing and isn't rooted in any broad principle; it is therefore somewhat frowned upon, but often tacitly accepted.

But none of those reasons justifies excluding this information, does it?* The information on the defendant's possible unconscious state isn't hearsay and it isn't outside the scope of the case. It could be said to be conjecture, but only if most uses of the insanity defense are also conjecture. It seems equally iffy proving that someone was temporarily insane and proving that someone was temporarily blacked out. I can't see allowing the one (insanity defenses usually make it past the judge, don't they?) and not allowing the other unless it's purely a matter of the judge finding it implausible.

What I'm asking is, assuming that the judge's exclusion was based on his personally not believing the information (which is how it looks), is that not an abuse on his part?

*That's a very goofy-looking sentence, grammatically speaking. Is that even right?

Let me start by saying that there's a whole course that I'm going to have to take on this general subject called Evidence. It's entirely about what evidence can be included, what must be excluded, etc. So I'm not 100% sure on what I'm discussing here; I'm working from general intuition.

My inclination, though, would be that the evidence was excluded on irrelevance grounds.

In any criminal defense case, there are two essential tactics: You can dispute the events (in this case, argue that the defendant didn't shoot the policeman) or you can provide an affirmative defense. An affirmative defense says "Yes, the defendant committed the acts you accused him off, but under the circumstances you should not punish him." An example: Self-Defense. Suppose you walk out of a bar and are set upon by a group of three men. You use your kung-fu skills to beat them up. They press assault charges in criminal court. You would get off easily on the grounds that they attacked you and you needed to assault them as self-defense.

The trick is that there are only a limited number of accepted affirmative defenses. If it isn't recognized, it's not valid. So take our case. Suppose, instead of the unconscious defense, the defendant instead argued that he was justified in killing the cop because the cop was a bad guy. A great deal of evidence is submitted showing that the cop kicked puppies, stole lollipops from schoolchildren, and evicted poor widows. Therefore, it is argued, the defendant was justified in killing the cop, because everyone's better off without the cop around.

All of this, properly, would get thrown out. It doesn't matter how evil somebody is, you're not allowed to murder them. If it were allowed in, the jury might allow the information to weigh on their decision. They might think "Well, he did kill him, but Officer Klosky had it coming. Let's acquit." The evidence has to be excluded because it proves a point entirely irrelevant to the trial.

Similarly, here, the judge would be within his discretion if he believed that unconsciousness was irrelevant. If it's not a real defense, then the jury shouldn't hear or consider information about it because it doesn't matter. Just as, above, the judge wouldn't ask the jury to weigh on the question of whether Officer Klosky was a bad guy, so here the judge wouldn't ask the jury to decide whether the defendant was unconscious if unconsciousness was not an excuse.

At the same time, the way new affirmative defenses get made is when novel defenses are upheld on appeal. Assume, here, that unconsciousness has never been used as a defense before. It's entirely new, and therefore the trial judge properly excluded the evidence, because there's no precedent. The appellate court has more discretion, so the question then becomes: Should unconsciousness, as outlined here, be a defense?

The judge is a hypocrite. If somebody shot him in the stomach, he'd blindly fight like hell, too. In this case, he wants us to believe that we must all behave like lobotomized sheep no matter what the police do. How about dragging in the Louima case? And any prior questionable decisions on the job of the officer in question. The rational officer would call for back up. This officer over reacted. You just don't do that when you carry a loaded gun.
We had a case like that here. An 18 year old African American man in a car, unarmed. He panicked when the police wanted him to get out of the car (who could blame him now). The officer STOOD IN FRONT OF THE CAR WITH HIS GUN DRAWN. WOuld you get out of the car? Hell, I wouldn't. And the officer had no reason to think the young man was armed. That's the kicker. Witnesses (all black) said that the female officer accompanying the shooter kept urging him, "Just shoot him. Just shoot him." The officer did. Right through the front windsheild and into the kid's face. The kid died instantly. And for what? Driving a few miles too fast? Puh-leeze. If he had been white and living on the wealthy white side of town, he would have gotten a slap on the wrist. Certainly not shot. The law, as it is practiced all over this greatly declining country of ours, is biased.
There was a hearing. The officers are still on the job. They were re-assigned to a new neighborhood for THEIR safety. How unjust.

This would not be the first case where a Judge wrongly instructs the jury to disregard evidence presented. Mind bothering though, how is it possible to disregard something that was already presented. The mind is such that once it has recorded the information it stays there, we cannot just erase it. So the issue is not only with the Judge but also the jury. Although, instructed to disregard the evidence, aren’t they supposed to be using their common sense (if they had any) when dealing with sensitive issues as someone’s life or freedom? I also believe that it would have been a far better solution for the officer to call for back up. It has become so easy these days to just shoot someone. It seems that life doesn’t have value anymore and officers are taking the easy way out by shooting the victim.

In this case it comes down to the Black American man’s word against a dead policeman. Of course the question is whether he is telling the truth or not. However, if it was the other way around, and the young Black-American was shot dead, I am sure that the policeman would not be standing in front of a jury. If anything he would be named a Hero for saving the world! Do you think that the policeman did not want to shoot the young man? After all during the struggle there was no way of knowing who would be the last man standing. So come on, where is the fair treatment that we all preach about? I think that Judge should reconsider his decision! He should have allowed the jury to use the evidence presented in order to arrive to a decision of guilt or innocence, otherwise what is the point of a having a jury if they are being used like brainless puppets?

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This page contains a single entry by Zach published on January 17, 2006 9:42 PM.

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