&#39;Homicide by words&#39; hypothetical - First Amendment and jurisdictional questions This hypothetical is based on the ongoing prosecution of Mandie Reusch. Mr Y lives in Nevada, and Ms X lives in Wyoming. Ms X also suffers from depression and PTSD. They still speak to each other, and they have joint custody of their children. Mr Y is the ex-partner of Ms X. Over the last few months since their breakup, which was caused by Mr Y's infidelity, Mr Y continues to have many arguments with his ex. Consequently, Mr Y sends Ms X messages of similar nature to those of Mandie Reusch's for a couple of weeks. One day, Ms X decides to fly to California. On the same day, Mr Y is flying back home from New Jersey. They both fly on private jets. The previous night, they had an extremely heated and personal altercation on the phone. Whilst Mr Y is in the air on his flight back, he once again sends many of these messages to Ms X, who is, at this point, still in Nevada, driving to the airfield. But she sees these messages, and this is around the point where her suicidal thoughts begin to be more active than passive. During her flight, Ms X receives more of those extremely mean-spirited messages from Mr Y (in which he uses secrets that she trusted him with against her, explains how he told others about her secrets and so on). Mr Y sends these messages while his flight is still in New Jersey airspace. After everything that's happened, Ms X considers it too much to bear, and she takes her own life during her flight. When she does this, she is exactly over the border between Wyoming and Nebraska. In none of the messages does Mr Y explicitly tell or direct Ms X to end her own life. I have two questions: With these facts, assuming Mr Y was charged with involuntary manslaughter (like in MA v. Carter) or aiding a suicide, based solely or almost solely on the messages, under which jurisdiction would he be charged? Is Mr Y's speech in this case protected by the First Amendment? Thank you for your answers.
With these facts, assuming Mr Y was charged with involuntary manslaughter (like in MA v. Carter) or aiding a suicide, based solely or almost solely on the messages, under which jurisdiction would he be charged? Applicable Law States have jurisdiction both over crimes that are committed in the state and over crimes that cause harm in a state. The classic law school example is a murder committed by shooting someone with a gun across a state line. Both the state where the gun is fired and the state where the person is shot have jurisdiction over the crime. Jurisdiction generally requires a purposeful act directed at someone or something in the state where the harm is suffered in most cases. But that isn't a hard and fast rule of constitutional law in other contexts, and there are few cases on point. I would consider this to be an open question. Certainly, however, the mere fact that the victim of a crime is transported to another state for medical treatment, where that victim then dies from causes relate to the crime, does not give the state where the death ultimately occurs in the hospital jurisdiction over the offense. Double Jeopardy Indeed, the constitutional protection against double jeopardy does not prohibit both states from independently convicting and punishing the same defendant for the same crime in this situation under the &quot;dual sovereignty&quot; doctrine. As background, the Colorado Supreme Court decided a dual sovereignty double jeopardy case today. Application To Facts (The application to the facts has been revised upon closer examination of them.) The line about &quot;Ms X, who is, at this point, still in Nevada,&quot; is confusing because she was in California before and isn't described as ever being in Nevada. I presume that &quot;still in California&quot; was really meant. Mr. Y could be charged (at least) in Nevada or New Jersey from which the continuing course of communications was sent (undue emphasis on the final communication is probably inappropriate), and Wyoming, to which the bulk of the communications were directed and where the bulk of the harm was suffered. California and Nebraska do not seem to be places to which the communications were really directed or where the greatest harm was suffered. Momentary presence in Nebraska air space is probably insufficient. There are also a set of statutes that specifically address crimes committed during an airplane flight (see also here) that has been discussed in other answers at this website. To the extent that this is treated as a homicide committed while in flight, 49 USC § 46506, might also allow for a federal criminal prosecution. I'm not sure that this is really a crime committed in flight, however, as it involved a course of conduct. A single email or a single moment of death doesn't really capture it. It is more analogous to a poisoning taking place in many doses over a period of time. Is Mr Y's speech in this case protected by the First Amendment? No. First Amendment considerations do apply to crimes involving communications between people that are not false, but if there is sufficient intent to cause suicide or other harm, the First Amendment yields to other considerations. The freedom of speech is not absolute. The exact place that the line is drawn is a matter of ongoing litigation. This specific issue is explored in depth in Clay Calvert, &quot;The First Amendment and Speech Urging Suicide: Lessons from the Case of Michelle Carter and the Need to Expand Brandenburg Application&quot; 94 Tulane Law Review 79 (November 2019). This article is responsive to that case of Commonwealth v. Carter, 115 N.E.3d 559 (Mass. 2019). The article explains in its introduction that: In February 2019, the Massachusetts Supreme Judicial Court in Commonwealth v. Carter' affirmed Michelle Carter's conviction for involuntary manslaughter as a youthful offender based on her urging Conrad Roy to commit suicide.' In doing so, the court rejected Carter's claim that her conviction violated her First Amendment' right of free speech. Specifically, it reasoned that Carter's words with Roy immediately before and while he died were &quot;integral to a course of criminal conduct and thus [did] not raise any constitutional problem.&quot; In brief, Massachusetts's high court concluded that Carter's speech caused Roy's death' and that the First Amendment provided her no refuge.'
So the most obvious is that the U.S. Miranda Rights specifically mention right to legal counsel and right to state provided legal counsel (Public Defenders) if you cannot afford legal counsel (Contrary to some opinions, these guys are very good at their job... it's just that they are also very over worked and private industry pays better). While the right exists in the U.K., the U.K. version of the required reading of rights only speaks to right against self-incrimination, which, if you want a difference is a good place to look. In the self-incrimination clauses, the U.K. and U.S. versions are very different. The U.K. right is a qualified right where as the U.S. is an absolute or unqualified right. This is a distinction which sounds silly upfront but is very serious in how things will transpire. Suppose that you are arrested for the murder of your spouse. You definitely did not do and the &quot;one armed man&quot; definitely did. Either way, you remain silent during interrogation. At trial, your defense is &quot;It wasn't me it was the one armed man&quot; and you intend to present evidence of this. In the U.S. this would be permitted, no further questions asked (or at the least, defeated by other means unrelated to you giving the cops the cold shoulder). In the U.K., this would be first be challenged by the prosecution with &quot;Why didn't you say this when you were arrested?&quot; and your silence on this matter will be used against you. In fact, asking that challenge in the U.S. is very inappropriate, as was recently seen in the Kyle Rittenhouse trial, where the Prosecution did ask that up front to Rittenhouse, prompting a scolding from the judge out of view from the jury. The reason for this is that in the UK there are more strict rules placed on cops during interrogation than there are in the U.S. (In the former, cops cannot lie to you about the facts of the case and they cannot interrupt your statements to them once you start to respond. This is par for the course in the U.S. for cops. In fact, in the U.S., shouting &quot;It was the one armed man&quot; on arrest can do more damage than just shutting up until you're before a judge and jury since that lets the prosecution use the implausibility of a one armed man against you (in both nations, statements that are against your interest do not violate hearsay rules, thus, the cops will only use such a statement against you... it's your job to prove it true or at least plausible enough to make a jury doubt the cops are right.). Also note that this is England and Wales jurisdictions only. Scotland, having its own legal system, retains the right against self-incrimination as an absolute right. Also a big obvious one but the read rights would not be called the &quot;Miranda Rights&quot; by the police or legal community (it may be, by the crooks they are arresting who have no clue that the TV version might be the U.S. one since it's more likely to get shown there than on U.K. TV.). In the U.K. they would be called &quot;Standard Cautions&quot; or &quot;Reading the rights&quot;. The U.S. name derives from the SCOTUS case Miranda v. Arizona which was the ground-breaking case that made this required by all police when interrogating a suspect. Additionally, each state has their own version, which generally reads the same way (they explain your 5th and 6th Amendment rights to silence and an attorney) and may vary on asking if you choose to waive the rights upon receiving an affirmative answer that the rights were understood (&quot;With these rights in mind, do you wish to speak to me?&quot; is the proper phrasing). They also are read from cards (business card to index card sized) where the right is printed in English and Spanish and the suspect must sign it as part of acknowledging that their rights were read.
These are some thoughts about the state of affairs in the US, I do not know how it works in the UK. In the US it seems to be a legal gray area. Gray enough that I do not think any lawyer could say for certain that the use of the data is legal. The data is stolen. If possessing stolen property is illegal then possessing this data is also likely illegal. Of course experts disagree, Stuart Karle, an adjunct media professor at Columbia University and former general counsel for the Wall Street Journal says: ...the documents have been published by the hackers, they are now public by virtue of being put on the Internet. But Barrett Brown was charged with trafficking in stolen authentication when he forwarded a link to some stolen emails. He signed a plea for acting as an accessory after the fact. He spent more than a year in jail while they sorted it out. In the US there is no law banning the download of hacked documents. In fact Bartnicki v. Vopper 532 US 514 (2001) stands for the rule that journalists can report on illegally obtained information. But contrast that with the Barret Brown prosecution! And decide where a data scientist fits. Also there is the question of whether an illegally recorded conversation is of the same "illegal" nature as hacked personal information.
The district court judge, as reported in this news story has held that there was probable cause to arrest Daniel Robbins in this case, and that his rights were not violated. If this ruling stands, officers acted legally, although they might still be required to return the phone with the images. Whether there is probable cause for an arrest (or a search) is always a very fact-based issue. I have not found the judge's actual decision, only a news summary of it, which can often be misleading. Specific facts about exactly what Robbins did or said may be important in determining whether there was in fact probable cause. It appears that Robbins intends to appeal this decision. If he does there may be an opinion from a Circuit Court of Appeals expanding on whether there was probable cause or any violation of rights, and why. Previous cases have established that normally there is no reasonable expectation of privacy for acts performed in public; that one my photograph or video record such public acts legally from anywhere that one may legally be; that there is a right photograph or record police officers engaged in official actions or the use of police powers; and that laws attempting to forbid such recording are unconstitutional when so applied. However, it seems from the news story that here the police officers were off-duty and not engaging in any official acts or use of police powers. That might change the ruling. I rather expect the district court's decision to be overturned, but there is no case exact;ly on point that i know of, and one can never be absolutely sure what a court will do in a particular case. I can see why police officers may have felt threatened, and why the Judge may have been inclined to sympathize with them, although I think the decision was incorrect. But a Judge of the Appeals Court might possibly feel the same way. Until the Appeals Court rules, one cannot be sure what the law in this matter will finally be. (It is possibly, but statistically a bit unlikely, there there will eventually be a ruling from the US Supreme Court on this case.) This article from Nolo Press discusses the issue of recording police, primarily in the context of police who are performing their official duties. It says: Almost every court to consider the issue has determined that the First Amendment gives you the right to record (pictures, video, and audio) police officers in public while they are performing their duties. But that doesn’t mean you’re allowed to record if you’re doing so surreptitiously (secretly), interfering with the officer, or otherwise breaking the law. The courts' primary rationale for allowing police officer recording is that the First Amendment includes the right to freely discuss our government, and the right of freedom of the press and public access to information. Given the prevalence of personal filming devices, more and more “news” is being gathered and disseminated by members of the public. The courts have found that freedom of the press applies to citizen journalists and documentarians just as it does to formal members of the press. (See, for example, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).) The Nolo article goes on to discuss whether a Section 1983 Federal suit against police officers who arrest someone recording their actions will succeed, indicating that this will depend on the specific facts of the case. The Nolo article mentions that one is not allowed to interfere with an officer during process of recording. What exactly constitutes &quot;interference&quot; is not fully clear, and will depend on the facts of a specific case. The Nolo article mentions other circumstances when recording an officer may not be legal.
I would just like to clarify, in addition to the other answers and what Dale M alluded to, one important detail: Unless you are carrying out the death penalty, no one under any circumstances is allowed to kill anyone else. What you are sometimes authorized to do, is to use deadly force. There is an important distinction between the two. When using deadly force, you are using extreme force to stop someone doing something, which may result in getting that person killed, but killing isn't the point, stopping whatever he is doing is. If instead of a knife you had a gun on the train, you shot the guy in the face, his crime spree came to and end, yet he was still alive but unconscious, and you decided to "finish the job" and shoot him some more, you'd be going to prison. The language is important. Even if in self defense situations, if you say that you were shooting to kill, you're going to be in serious trouble, but if you say you were shooting to stop, you're in the clear.
“Anything you say can be used against you in court.” Is what the police say in the USA. “You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?” is what they say in New South Wales. “You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.” is what they say in England and Wales. And so on. Whether Mark wants to mention that he was robbing a bank on the far side of town at the time is entirely up to him. If he does, and that can be verified it’s likely the murder charges will be dropped and armed robbery charges will be brought instead. Note that in many jurisdictions, if the defence intends to use an alibi defence, the prosecution must be told about it at a very early stage or it can’t be used at all.
I can't comment on what the legal situation would be in your home country, but as a matter of U.S. law, the hypothetical scenario you've described is not illegal. First, because you aren't a U.S. citizen and because you aren't operating in the United States, the U.S. government probably has no jurisdiction over you, your website, or your conduct. Even if it did, the most relevant statute, 18 U.S. Code § 1017, would not apply. The statute prohibits the &quot;fraudulent or wrongful&quot; use of the FBI's seal. But &quot;fraudulent&quot; and &quot;wrongful&quot; generally refer only to conduct where one uses deception or other means to obtain money, property, etc. to which they have no lawful entitlement. United States v. Enmons, 410 U.S. 396, 399 (1973). Because you aren't using the seal to obtain anyone's property through deception, this use would not fall within the statute's proscriptions. Even if the government sought to prosecute you, you would have a valid First Amendment defense. The First Amendment protects the right to free speech, and it does not allow statements to be criminalized merely because they are false. United States v. Alvarez, 132 S. Ct. 2537 (2012). This outcome should be unsurprising to most U.S. observers. I think most people would agree that the U.S. obviously cannot prosecute a Hollywood producer for making a movie dramatizing the FBI's efforts to shut down the Pirate Bay, even if it displayed the FBI's seizure message on a monitor in the course of the movie, and even if it showed the seal being used on a completely fictional website. The hypothetical you're describing is not materially different. In both cases, the seal is being used to falsely create the impression -- for entertainment purposes -- that the FBI has shut down a website. Saying false things for entertainment purposes is not a crime in the United States.
Regardless of the context of the first solicitation, Officer Jones' second solicitation was made in willful refusal to accept Betty's unambiguous "no" for an answer; this is sexually coercive behavior, specifically postrefusal sexual persistence. If this question is assessed from the perspective of the "average" woman, then after her initial declination, extraction of a "yes" cannot be considered uncoerced. Here's a question: how many times does she have to say no before it starts to count? Before it counts against her finally being exhausted, harassed, or intimidated into capitulating? Because by that logic, he never has to stop; he can continue to harass her until he finally accomplishes his objective (grounds to arrest her) - in which case, why bother with the pretense? If it takes 200 "no's" to wear her down to "whatever", then the first 200 "no's" just didn't matter as much as the first "whatever", so why bother with the formality of pretending like the first mattered when it clearly does not? To demonstrate the significance of her initial "no, thanks" and his subsequent refusal to accept it from another perspective: if Betty and Jones were coworkers in the same office, if he continued to solicit her after being told no the first time, that would be the definition of sexual harassment on his part and it would not matter how genial or friendly or casual he thinks he's being; furthermore, if her workplace failed to intervene on her behalf, they would be engaging in sexually discriminatory behavior by creating a hostile work environment, regardless of how genial / friendly / casual, etc. It's hard to see how this could act as evidence of her having committed a crime in one context while being grounds for termination of his employment in another context. HTH.