From: simon@saguenay.iro.umontreal.ca (Daniel Simon)
Subject: Re: Simon says it ain't so (was: Say it ain't so)
Organization: Universite de Montreal, Canada
Date: Thu, 31 Dec 1992 22:59:16 GMT

In article <1992Dec28.183945.6626@panix.com> eck@panix.com (Mark Eckenwiler) writes:
>In <1992Dec23.205301.25402@IRO.UMontreal.CA>,simon@magpie.iro.umontreal.ca sez:
>>  Mr. Eckenwiler's rather laconic response to my posting
>>suggests that he considers the police officers' admission that they
>>had beaten Rodney King to have established "actus reus" by itself.
>
>Correct.
>
>>But I cannot agree; after all, had the beating presented in the
>>infamous "King" videotape merely been of a slightly different
>>character (had Rodney King offered considerably greater resistance,
>>for instance, or had the police officers obviously stopped once his
>>resistance ceased), then even Mr. Eckenwiler would likely have agreed
>>that "actus reus", far from being established, was in fact very much
>>in doubt.
>
>Mr. Eckenwiler is amused to note that you do not understand the system
>of proof in the U.S. criminal system, and he vigorously disagrees with
>your conclusion above.

I grant that the information on which I am relying pertains to 
*Canadian* criminal law, but I would be sincerely surprised if American 
law differed in these respects.

>Unless Mr. Simon is interested in arguing that the LA videotape was
>faked, he is wrong to dispute that it conclusively establishes the
>actus reus portion of the assault charges leveled against the
>officers.  His confusion is manifest in his claim that a defense of
>justification negates (or "negatives", as Professors Kadish and
>Schulhofer would say) proof of actus reus.

	"*Actus Reus* means the whole definition of the crime, with the 
	 exception of the mental element....*Actus Reus* includes.....
	 not merely the whole objective situation that has to be proved
	 by the prosecution, but also the absence of any ground of 
	 justification or excuse....."

					Glanville Williams,
					*Criminal Law:  The General Part*
					(2nd ed., 1961)

>Consider the following: "I deliberately shot X in my house."  WRT a
>charge of assault with a deadly weapon, my concession that I did so
>constitutes a complete proof of both the necessary mens rea (intent)
>and the actus reus (the deed itself).  Now add the fact that X was an
>armed and menacing intruder.  I may raise the defense of
>justification, and may even sustain my burden and be acquitted.  This
>does not alter the fact that my offense was complete within the
>meaning of the statute; it merely means that my otherwise criminal act
>was excused.

I concede that the defense has a greater burden in arguing a 
justification than in contesting overall guilt.  However, once 
successfully argued, that particular defense does indeed negate
"actus reus".  (Moreover, I would hazard a guess that in cases of 
possible excessive use of force by police officers, the necessity of 
proving justification on the balance of probabilities is not likely to 
be a serious obstacle to the defense, since a reasonable doubt about 
lack of justification would give strong support to a "mistake" 
defense.)

>Mr. Simon appears to be confusing such defenses (justification,
>excuse) with defenses such as insanity, mistake, and the like.  The
>latter category is used to negate an element of the charged offense
>(here, mens rea).  A justification defense does no such thing, and it
>demonstrates Mr. Simon's poverty of understanding that he claims
>otherwise. 

I did indeed suffer from a poverty of understanding of Mr. Eckenwiler's 
point.  Perhaps had his explanation of it consisted of more than a 
single cryptic and dismissive (not to mention misleading) sentence, I 
might have understood it better.

>>Of course, both Mr. Eckenwiler and Mr. Nieporent (whose original claim
>>prompted my posting) may believe that the *contents* of the actual
>>videotape, as interpreted by them, establish "actus reus" (although
>>"mens rea" is another matter).  But the mere fact that the beating of
>>Rodney King was videotaped, and the contents of the videotape conceded
>>by the defendants to be accurate, confers no special status upon that
>>particular piece of evidence that is not also conferred on more
>>conventional evidence--Lemrick Nelson's admitted presence in the
>>vicinity of the Rosenbaum murder, for instance.
>
>Other, of course, than the fact that beating someone with a baton
>satisfies the actus reus element of assault, whereas "being in the
>vicinity of the crime" isn't an element of murder in any jurisdiction
>with which I am familiar.

I stand by my claim that *neither* the police officers' beating of 
Rodney King *nor* the proximity of Lemrick Nelson to the Rosenbaum
murder establish "actus reus".  Of course, quibbles over the exact
definition of the term are rather beside the point, now that I 
understand Mr. Eckenwiler to be discussing the specific issue of 
justification.

>I will allow to pass without further comment Mr. Simon's entertaining
>claim that a defense stipulation "confers no special status" on a
>piece of evidence.

I do not know exactly by what formal or informal means the defense in 
either the "King" or "Rosenbaum" cases acknowledged certain facts (that 
the beating of Rodney King occurred as recorded on the videotape; that
Nelson was in the vicinity of Rosenbaum at the time of the murder).  I 
was merely observing that such acknowledgements would have the same 
effect in both cases--resolving some issues, but leaving the rest 
to be decided by the jury.  The fact remains, Mr. Eckenwiler's 
questionable legal gymnastics notwithstanding, that both juries 
resolved the remaining issues in remarkably similar ways, 
interpreting apparently damning evidence as leaving a reasonable 
doubt about guilt.  I remain puzzled by the strange willingness of 
some people to react to two such similarly baffling jury decisions in 
such radically different ways.


"Que dites vous?  C'est inutile?  Je le sais!		Daniel R. Simon
 Mais on ne se bat pas dans l'espoir du succe`s!"	simon@iro.umontreal.ca
					-Rostand
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