Years ago, I was asked to represent the driver of a new car who had accidentally run into an elderly woman who had stepped off the curb, knocking her down. She had fallen a few feet forward of the crosswalk, outside it. The automobile also stopped just forward of the crosswalk. The woman died.
Because the impact was so slight, there were no broken automobile parts on the road to show where the impact had occurred. And because the car was new, no dirt fell off to show the point of impact. There was nothing within the crosswalk to suggest that the point of impact was inside it.
To make out a case of vehicular manslaughter, which requires proof of a driving violation or negligence, the prosecutor would need to prove that the woman had been within the crosswalk at the time of impact. This would give her the right of way. The driver of a vehicle striking her there would, in all likelihood, be at fault for violating a pedestrian's right-of-way.
Had she been outside the crosswalk, the woman would have been jaywalking and the driver would have the right of way. The fault would not likely be his and he would probably not be guilty of vehicular manslaughter under that circumstance, as there was no evidence of his being negligent or of having committed a driving violation.
When the police arrived and asked what happened, the driver said that he'd been driving slowly, the woman had just stepped off the curb, he hadn't seen her until it was too late, and she had been in the cross-walk when he bumped her.
He was cited for vehicular manslaughter based on violating the right of way of a pedestrian.
At the arraignment I was handed a copy of the police report, which contained the above information.
Afterwards, when the client had departed, since he was not in custody, I went for coffee in the basement of the Hall of Justice, where I joined an experienced colleague, who asked what had brought me to the Hall that morning, and I explained that there was this tragic accident, which I described, and that my client had been charged, following his admission.
My colleague then asked a question I hadn't reached.
I was busy thinking my way through the Miranda law that I anticipated was going to play a role in this case. My colleague's question, however, did seem a revelation at the time. That's why I remember it over 25 years later.
It looked to me as though the driver's statement was going to come into evidence based on what I understood so far.
The officer had not Mirandized the driver, but he didn't have to. The driver had not been in custody when the officer asked what had happened. Until he told the officer that the woman had been in the crosswalk at the moment of impact, the driver was not even the focus of suspicion for having committed a crime, much less in custody. Until the driver opened his mouth, the officer had no inkling of a pedestrian right-of-way violation, or any other violation. Thus he could not necessarily suspect vehicular manslaughter.
The driver had incriminated himself by saying that the woman had been in the crosswalk when he struck her. His statement would be used to convict.
"Can the prosecution establish a corpus delicti?" my colleague asked.
That made me think in a new way, as a light switched on.
The corpus delicti for vehicular manslaughter is that the driver must have unintentionally caused the death of a human being as the result of the driver having been negligent or having committed a driving violation.
If the woman were in the cross-walk, as he'd said, she would have had the right-of-way, and the driver had to yield to the pedestrian. By failing to do so, he would have committed a driving violation. The corpus delicti would have been made out and his statement admissible in evidence.
If the woman were not in the cross-walk, however, the driver had the right-of-way and there would not have been evidence of negligence or a driving violation.
The significance of my colleague's question has to do with the admissibility into evidence of an admission or confession, quite apart from, and long pre-dating, the Miranda rules.
In order to protect against people being convicted for confessing to murders or other crimes that had never occurred, the legal requirement was that the prosecution had to be able to prove, independently of the admission or confession, that the crime charged had in fact been committed.
If John disappears or moves away and crazy Bill decides to walk into the police station to confess to murdering him, the police still have to prove that John is dead by criminal means before Bill's statement can be used to hang him.
I guess there were too many phony hangings at common-law, so the rule developed.
I like it when the law protects its process from abuse by disturbed people and overzealous authorities.
I wonder whether we still do that today.
My colleague in the coffee shop had instantly, on hearing the account of this accident, realized that there was a corpus delicti issue that I hadn't spotted, yet, if ever. As far as I'm aware, there's no universal checklist for analyzing all situations. There's just us.
Without my client's admission that he'd struck the woman in the crosswalk, the prosecution had no evidence where on the road he'd struck her. Apart from what the driver told police, there was no evidence to establish point of impact as being within the crosswalk. There were no witnesses, other than the driver.
Absent the driver's statement there was no evidence to establish the essential corpus delicti needed to admit into evidence my client's statement.
"Catch-22!"
The DA needed my client's statement to establish the corpus delicti necessary to admit my client's statement, but the corpus delicti rule prohibited the DA from using my client's statement because there was no corpus delicti without it.
In sum, the DA could not use my client's statement as a bootstrap to establish the corpus delicti needed to use his statement.
Got that?
Thank you, Joseph Heller, for making this so clear!
He wrote Catch-22, the funniest book alive, when I read it as a first year law student, when it came out in paperback. I remember reading it and laughing on the subway, which is pretty strange, and on the ferryboat home, which wasn't. I commuted from Staten Island to Manhattan and back, which is a big reason why I moved to Californy as soon as I wuz sprung from NYULS.
Suddenly, my client's statement wasn't going to come in as evidence against him. Because someone, thankfully, had thought to ask the right question at the right time.
Without my client's statement, the prosecutor would be unable to prove that a crime had been committed, just that an unfortunate accident had occurred, sadly, resulting in a tragic death, a civil matter.
When the DA recognized the logic of that, this is how the case turned out.
Injustice, or justice, depending on point of view, had been prevented by the corpus delicti rule.
I didn't make the rules.
My job was to see that they applied for the benefit of clients.
Practicing law, it's called.
It's a collaborative profession. We talk to each other.
We pass along what we've learned through teaching.
Based on Miranda alone, my client's statement was likely to come in and would be sufficient to convict him.
My colleague, however, had instantaneously asked this other question, a prior question, apart from Miranda, that I hadn't quite reached yet.
I was impressed that he was able to do that.
I'd like to think that I would have thought of it in due course, but my friend beat me to the punch, so I can only speculate, and we will never know, will we, no matter what I say or would like to think.
My friend has reminded me of this incident over the years.
* * *
Earlier this year, I had become frustrated because I didn't know enough about computers to fix the glitches that cropped up so often.
Although I'd begun using computers in 1984 when I bought my first IBM-PC, and had learned how to use it and its successors to run word processing, communications, and other applications programs, I had fallen behind the learning curve. I'd been more interested in using applications than in correcting matters when they crashed.
After exhausting my efforts, unhooking all of the connections, and bringing "the box," the CPU, the heavy central processing unit, to the local supplier who'd built it, yet again, only to have him run a diagnostic showing there was nothing really wrong, just a little conflict between this program and that, I realized that I needed to come up to speed.
So I met my engineer son, Robbie, 29, at Frye's in Palo Alto, and with the help of one of the managers in the components department, assembled a list and purchased the parts needed to build (assemble, really) a nice, fast, computer.
The process of building my own computer would require me to read lots of documentation and other material, and in this way I'd come up to speed on hardware, software, and various diagnostics and utility programs. I'd learn the new terminology, and how the latest components worked.
Since this was to be an extra or backup computer, I was in no hurry, and despite the false starts and rookie mistakes, I got the thing assembled and running. Along the way I learned a lot more than when I'd started and felt mildly good about the effort. It had taken a long time and I had made errors that required lots of trouble-shooting. Later I learned that computer technicians spend hundreds of hours before becoming certified to build and repair computers. I found out why.
But there was one little thing I couldn't get to work properly.
There was one USB port that was refusing to cooperate and I couldn't figure out why. I had all the leads plugged into their proper jacks on the motherboard, or so I thought. But by this time I was tired of troubleshooting and resigned to forgetting about that one USB port, at least until I'd given the project a rest. Meantime, I'd use the other ports that did work.
My youngest son, Rick, 22, then paid a visit from out of town. Rick had graduated from MIT a few months before and was now working as as a mechanical engineer for an aerospace research and design company. He wanted to see the new computer, which I was proud to show him, mentioning that one of the USB ports was not working, however.
"Let me take a look," he said.
After checking things over and going into the box from the removable side panel, the equivalent of taking the case off earlier computer models, Rick figured that I must have attached a wire-lead to the wrong post.
"No way," I said, "I've got all the other ones right, and they all work. It must be the port itself that's not working, something in the software."
Inside of twenty minutes Rick had it fixed.
"How did you do that?" I asked.
"You had a lead plugged onto the wrong post on the motherboard," he said as my heart sank.
"I didn't know that you knew how to fix computers," I said after he showed me my mistake.
He'd never built a computer, he'd said earlier, when I told him about the computer project I had undertaken. He'd been interested. He might like to build his next computer himself, he said.
"Checking out motherboards is what I do at work," Rick said.
Rick's company purchases motherboards built to specification from a supplier. They're used to control the aircraft his company produces. Rick's job, one of them, is to check the motherboards out to see whether they work properly. Then Rick and the other engineers modify them with their own added-on equipment. Rick has to see that the motherboards still work properly after being modified.
Sometimes Rick finds out that the smoke has escaped and they have to buy a new motherboard.
Engineers operate on the theory that electronic equipment runs on smoke, which is fine until it escapes.
A little engineering joke, that.
I asked Rick whether, in checking motherboards at work, he used a checklist, such as, "Check this part or connection first, and then that, etc.," until he'd found the problem.
Automobile mechanics know they must check out dead cars system-by-system: battery, fuel, ignition, etc., in a logical fashion until they've isolated the reason why the car won't start. Then they can fix it.
Rick said they didn't use a checklist to trouble-shoot complex motherboards, to my surprise.
"It's a very non-linear process," he said.
"Hmm," I thought, "This is a different kid than the one I watched growing up."
"Non-linear?"
Yes, Rick explained, the trouble-shooting process, at least as he did it, was not a follow-the-dots, step-by-step, in-logical-order process.
Trouble-shooting for Rick was more like looking at all of the dots at once and noticing the pattern, or the hole in the pattern, which should point to the problem. Once you've got the problem identified, resolving it is often comparatively easy.
Which reminded me of my colleague who asked that question about whether the prosecution could establish a corpus delicti independent of my client's statement.
There may be more art than science to good lawyering and good engineering, as these examples illustrate.
Or, as a friend puts it, "There's more poetry than logic in what you just said," when someone gets off a telling line.
Lawyers are taught to break down fact situations issue-by-issue.
Sometimes, however, it's a very good idea to back up, or step away and try to gain a little perspective on a complex set of facts. You want to see the whole picture. You'll see things differently.
The Chinese, I've read, have an expression for this, calling it thinking with the head of a mouse and thinking with the head of an ox. Focusing on detail vs. focusing on the big picture.
Scientists break problems down into their simplest possible components in order to isolate issues and variables. "Reductionism," this is called. But they have to be able to step back to see how their conclusions fit into the larger picture of the world.
Lawyers might speak with a respected colleague on the theory that two heads are better than one, as I think I've demonstrated above.
That's probably why we continue using twelve people on juries. It's hard to put something phony past twelve heads, although, as at Salem, it has happened, hasn't it? The false convictions we've been reading about lately in death penalty and rape cases are our modern-equivalent scandal. See the Illinois moratorium on executions under Gov. George Ryan, and Scott Turow's excellent book.
It's not a bad a idea in considering a legal problem to ask whether there's some prior question that needs to be asked, such as "Izzit constitutional?" especially when dealing with a statute, a statutory scheme involving more than one statute, or some other governmental act that we may have been taking for granted as legal, to our detriment.
For an example of an entire statutory scheme being struck for unconstitutionality, see State Farm v. Campbell (2003) 538 US 408, where the Supreme Court declared unconstitutional the State of Utah's system of laws and rules that allowed unlimited punitive damages. Now there are due process limits.
* * *
Do you like that?
Do you have a better way of dealing with puzzling legal problems?
How would you describe your way?
What checklist would you devise that will catch all contingencies?
Are you an artist or a logician?
Or some of each?
Incidentally, computer trouble-shooting references often use checklists to help guide the effort. Legal work-books also provide checklists of elements, questions-to-ask, etc. Pilots work off checklists before going up in an airplane.
It's too easy to forget to check the fuel level without checking it off on the list.
Then Newton's Law of Gravity, which is about power, not justice, might kick in to provide a nasty fall.
You can bet, however, that I've never overlooked thinking about the corpus delicti rule before thinking about Miranda since the above incident.
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