the jury instruction you might want to request when the weapon is neither a gun nor a knife

This wikilog article is a draft, it was not published yet.

by: Ryan • April 16, 2014 • no comments

Many of my posts are inspired by news stories. Basically, I'll read about a trial or a conviction, and I'll wonder, did the defense attorney argue this? Did he ask for that? I don't often quote those news stories, however, because I have no idea how accurate the story is. Even if accurate, the defense lawyer may have done exactly what I suggested, or she may have had a really good reason for not doing them.

But I'm going to make an exception in this case. Again, I want to emphasize that I have no idea from reading the story whether the defense attorney could have or should have done what I'm suggesting. Or maybe they did and it didn't help. But I want to tie the argument into real facts, rather than a clumsy hypothetical.

The Oregonian story describes a conviction for robbery I and assault II based on the following events:

The charges stemmed from an April 27, 2013, incident that witnesses caught on camera: Paul didn't get far with a cash register after he whacked a 60-year-old kiosk clerk with a soda can and yanked the till. Dropping the register, he ran from the snack counter and went home, where police soon found him.

What I don't know for certain, but seems to be the case, is that the "dangerous weapon" -- what made it a robbery I and assault II -- was a soda can. (There are, I should note, other possibilities.)

If so, I imagine the defense attorney argued that the soda can wasn't a dangerous weapon. A weapon, sure, capable of causing an injury, but not a "dangerous weapon," which has a much higher threshold. But that's just half of the argument I would recommend. He should also have asked for an instruction telling the jury that they must find beyond a reasonable doubt that the defendant knew it was a dangerous weapon.

Here's what I've written previously on this topic:

What the standard jury instructions don't say, at least not explicitly, is that the defendant must know that the riding crop is a dangerous weapon. That is, the defendant, who has used this riding crop on this woman a dozen times, as well as a half-dozen other women, each time without complaint, must know that it is "likely" to cause disfigurement, or some other requirement of serious physical injury, even though it has never done so before (nor did it do so in this case).

Defense counsel can, of course, argue this without an instruction. But why not seek the imprimatur of a judge's command that the jury must find, beyond a reasonable doubt, that the defendant knew that the riding crop, in the manner it was used, was a dangerous weapon? Jurors aren't lawyers, and so they don't have the experience or training to appreciate the connection between mens rea and actus rea. Better for the judge to make it clear, rather than the lawyer. The standard instructions are ambiguous on this issue and therefore not particularly helpful.

I'm not aware of any case law that explicitly says the mens rea of assault applies to whether the weapon is a "dangerous weapon." There is favorable case law that would strongly suggest it does (see State v. Barnes, 329 Or 327 (1999), not applying the "knowing" mental state to the seriousness of the injury, but implying that it would apply to either the action or the surrounding circumstances). Absent unimpeachable precedent, the trial court could rule against the defendant and deny the instruction.

I have picked a particularly sexy hypothetical, but in fact this issue comes up routinely. It happens whenever it's an unconventional weapon, something other than a knife or gun. (And it comes up often with female defendants who are arguably more likely than men to pick up something nearby in a domestic fight. We've all seen the staple of bad domestic comedies, the vase, thrown at the unfaithful spouse.) Whether the weapon is a boot, or a crutch, or a candlestick holder, if the state has not alleged serious physical injury, we can assume there wasn't actual serious physical injury. Rather, there is the requirement that "in the manner it was used, it was likely to have caused serious physical injury." In other words, the defendant is being convicted on a counter-factual, something that didn't actually happen.

This special jury instruction could result in an acquittal or reversal, even if the usual elements of the crime (dangerous weapon, injury) are met.

I have a memo that lays out the legal analysis. I'm happy to share it upon request.