Nashville Criminal Law Report

Ryan Braun Back in the News

Rob McKinney — Tue, 15 May 2012 14:35:30 -0600

Ryan Braun's drug test case is back in the news. As I was watching ESPN during lunch today , it was reported that Major League Baseball fired the arbitrator in the Braun drug testing case. I wish that I could do that in my cases . I don't like the judge's ruling. A couple of months later I fire the judge. I wish life was that simple.. MLB was unhappy in his ruling about the chain of custody in the evidence.The arbitrator found that the chain of custody was not established , therefore the results of the drug test were inadmissible in Ryan Braun's suspension hearing.

Chain of Custody is a basic concept in the rules of evidence . The concept of the chain of custody involves laying the basic foundation for the introduction of real evidence. The purpose of the chain of custody rule is to demonstrate that there has been no tampering , loss ,substitution , or mistake with respect to the evidence,

The basic concept recognizes that real evidence may be handled by different people between the time it is gathered and the time the evidence is tested. For example , a blood sample in a DUI is handled by the officer , the person in the evidence room , the Lab Tech at the Tennessee Bureau of Investigation , and the person that tests the blood for alcohol content. If there is a break in the chain the evidence may not be admitted.

In the Braun case , it appears that they could not prove the chain of custody in the case. thus , it was dismissed. The chain of custody is an issue that should be investigated in most DUI cases. It won the case for Ryan Braun.

Zimmerman's Legal Defense Team's Social Media Strategy

Rob McKinney — Wed, 02 May 2012 07:13:31 -0600

Who says you can't learn anything on Twitter ? Last night while I was listening to the Alabama Shakes debut release , I read a tweet from lawyer Bob Ambrogi who writes on law firm web sites and social media . The tweet linked to a post about George Zimmerman's lawyer creating a social media campaign.

It appears that the Zimmerman legal defense team has created a Facebook page as well as a Twitter account . I have never known a person facing criminal charges to launch a social media campaign . Interestingly , the lawyers for Mr. Zimmerman claim it is not to influence the public but rather to manage the emails and phone calls about their client. Two things may be going on as to why the social campaign was launched. First , the social media campaign puts a spin on the case from the defense perspective. Second , the firm is simply promoting itself. The criminal defense lawyers have the case of a lifetime with intense media coverage.Why not parlay that into a bigger reputation. I expect the court will issue a gag order to stop the media campaign.

On the local front, the question remains is whether other lawyers will launch a social media campaign about their clients or potential issues. How about a social media campaign on breath alcohol tests or police tactics. It appears to be an ongoing problem with how the courts deal with social media in the future.

Should Smartphones Be Banned From The Courtroom ?

Rob McKinney — Wed, 25 Apr 2012 16:09:50 -0600

Should smart phones be banned from the courtroom during trials ? A Kansas judge had to declare a mistrial recently in a murder trial . A local reporter from the Topeka Capital-Journal got permission from the court to use her camera phone to tweet from a murder trial. The reporter was even allowed to take pictures during the trial as long as no images of jurors were taken. A profile of one the jurors was taken. Once that was discovered , the court declared a mistrial.

Smart phone technology is becoming a growing problem for the courts. Juror privacy is one issue that was raised in this case. How about leaking trial testimony to future witnesses via tweets , Facebook, , and video or recordings from smart phones. It also brings the issue of whether phones should be taken from jurors during a trial. It is human nature not to want to discover some facts about a case if a juror feels they need the information.

In the Kansas case , the newspaper should be sanctioned for their negligence. The persons hurt was the victim's family and the defendant who were both denied their day in court since the trial was continued. A trial should be in a vacuum . No outside information other than what is presented from the witness stand is allowed, but influence seeps in. The courts must deal with these technology issues.

Zimmerman's Bond Reduced

Rob McKinney — Mon, 23 Apr 2012 13:45:43 -0600

Last week , George Zimmerman had a hearing to reduce his bail bond . It was anticipated Mr. Zimmerman would make the request .The way in which he made the request was a terrific move on his lawyer's part. In most cases , I do not put the accused on the stand at a bond hearing . Under Tennessee criminal law , one of the factors for reducing the bail bond is the likelihood of the conviction. So , the client should not testify in most cases since the assistant district attorney can make an inquiry about the facts of the criminal offense.

In the Zimmerman case , Mr. Zimmerman took the stand and made a public apology to the family . Great move. It appeared to be heartfelt and may have turned the public opinion of him in this tragic case. In most cases , it would be unwise to take this path. Due to the unique facts of this case , it was the right choice . Now everyone in America knows he is remorseful including prospective jurors. I think the public apology was a very strategic move by his lawyer. One thing was missing. Why did not the prosecutors cross examine Zimmerman on the facts. In Tennessee , this would have been fair game.

Reducing a bail bond in Tennessee is base upon several factors like the likelihood of conviction. I have previously written about all the factors the court will consider in lower bail bond.

Problems in the Crime Lab

Rob McKinney — Thu, 19 Apr 2012 17:06:43 -0600

Today is going to be a short post . I am constantly amazed that in voir dire in most criminal cases the district attorney focuses on CSI. The state wants to make sure the jury does not hold them to the standard of TV . In fact , it appears the proficiency in criminal crime labs across the country is severely lacking.. PBS just ran a great documentary on the subject. After you watch it , please post your comments on the subject. It appears the real CSI is not very trustworthy.

The Trayvon Martin Case Under Tennessee Law

Rob McKinney — Wed, 11 Apr 2012 06:57:53 -0600

Since Trayvon Martin's death much has been written and spoken on the news. It is a daily topic of discussion in the media. What would be different about the case if it happened in Tennessee rather than Florida. My first thought would be that Mr. Zimmerman would be under arrest. Tennessee criminal laws on self defense are completely different than Florida as well as the Grand Jury process.

Under Florida law, they have a wacky law on self defense called the " Stand Your Ground Law ". I am surprised we do not have the same law in Tennessee with the State Legislature's fascination with gun laws. The stand your ground law sets forth that anyone who perceives that their life is threatened is not required to retreat and has a right to use a weapon . Tennessee has no such law today. It also has a component that law enforcement must prove that the accused did not act in self defense and requires a pre-trial hearing to determine immunity. Under Tennessee criminal law , a jury decides if self defense is a viable defense. There is no pre-trial hearing to avoid a trial. Here is Tennessee's jury instruction on self defense ;

DEFENSE: SELF-DEFENSE

            Included in the defendant's plea of not guilty is [his] [her] plea of self-defense.

            When a person is assaulted, by the [use of force] [attempted use of force], in such a way as to create in his or her mind a reasonable belief that he or she is in imminent and actual danger of [death] [serious bodily injury], he or she will be justified in [threatening] [using] force to defend himself or herself even to the extent of killing another human being. The [threat] [use] of force can only be to the degree reasonably believed to be immediately necessary to protect against the other's [use] [attempted use] of unlawful force. The danger creating the belief of imminent [death] [serious bodily injury] must be real, or honestly believed to be real at the time, and must be founded upon reasonable grounds.¹

            A person may have been mistaken, based on his or her perception of the circumstances, as to the extent of the actual danger, but if he or she acts in self-defense from honest, even though mistaken, convictions as to the extent of danger he or she will not be held criminally liable for his or her action.

            In determining whether the defendant's [threat] [use] of force in defending [himself] [herself] was reasonable, you may consider not only [his] [her] [threat] [use] of force but also all the facts and circumstances surrounding and leading up to it. Factors to consider in deciding whether there were reasonable grounds for the defendant to fear [death] [serious bodily injury] from the [deceased] [alleged victim] include but are not limited to any previous threats of the [deceased] [alleged victim] made known to the defendant; the character of the [deceased] [alleged victim] for violence, when known to the defendant; the animosity of the [deceased] [alleged victim] for the defendant, as revealed to the defendant by previous acts and words of the [deceased] [alleged victim]; and the manner in which the parties were armed and their relative strengths and sizes.

            If you find that the defendant's fears of [death] [serious bodily injury] were genuine and reasonable under the circumstances, then [he] [she] would have had the right to [threaten] [use] as much force as was apparently necessary in [his] [her] own self-defense. If, on the other hand, you find that the defendant was not genuinely or reasonably fearful of [death] [serious bodily injury], or that [he] [she] [threatened] [used] force going beyond the real or apparent necessity for [his] [her] own defense, then [his] [her] [threat] [use] of force would not have been justified

The second major difference in the case under Tennessee law is the role of the Grand Jury. In the Martin case , the prosecutor chose not to present the case to the Grand Jury . Under Florida law , that prevents the case from being charged as a first degree murder case. It has been reported that the prosecutor can present the charges herself. It appears that most prosecutors avoid the Grand Jury process in Florida unless it is required. Under The Tennessee Rules of Criminal Procedure , all cases must be presented to the Grand Jury. The Grand Jury must decide to return an indictment or a presentment before the case can proceed in the Circuit Court level.

The results would be entirely different under Tennessee Criminal law. No pre-trial hearings on the issue of self defense . No immunity from prosecution if the judge found self defense. . Mandatory review of the case by the Grand Jury. In fact , the Grand Jury could inquire into any report of a criminal offense if it was raised by a member of the Grand Jury. Different state maybe a different result.

Supreme Court Upholds Strip-Search For Any Arrest

Rob McKinney — Wed, 04 Apr 2012 14:21:12 -0600

This week the U.S. Supreme Court held that a any person arrested for any offense however minor is subject to a strip search.. I expect this ruling will open the floodgates for jail house strip searches in the search for evidence. The country's highest court adopted a new standard that any correctional officer can order a strip search. Prior to this ruling , a correctional officer must have had reasonable suspicion that the person possessed contraband. The strip searches embraced by the Court are forbidden by statute in at least 10 states . Also , the court opinion is in violation of international human rights treaties which ban strip searches.

Nashville Davidson County, Tennessee Sheriff Daron Hall applauded the new law in that it gives flexibility to correctional; officers. Sheriff Hall's opinion is in direct conflict with the standards of the American Correctional Association of which he is president. The new ruling opens up the possibility of abuses;

How does it apply to foreign nationals who are protected by international treaties ?
Will a police officer try to encourage a correctional officer to perform a strip search ?
Will a person in Nashville be arrested rather than being issued a criminal citation ?

The last concern is most important to those charged with a crime in Nashville. In some minor criminal offenses , the police can cite and release a defendant. A criminal citation is issued then a person must later appear to face the charges. A criminal citation is used in simple cases like simple possession of drugs , patronizing prostitution and shoplifting. Now , the police might consider arresting someone in order for correctional officers to perform a strip search.

The next coming issue in this area could be body cavity searches. Is the Court going to approve this search of person's body cavities next ?

Church Supervisor on Trial for Sex Abuse by Priests

Rob McKinney — Wed, 28 Mar 2012 12:11:57 -0600

Monsignor William Lynn is on trial in Philadelphia over felony charges of endangering children and conspiracy that he shielded sex abusers . It is thought to be one of the first trials in the nation on this theory of prosecution. The central theory of the state's case is that Monsignor Lynn knowingly allowed priests who had sexually abused minors to be reassigned to positions where teachers or parents would not know about the charges. Lynn's defense is that he notified his supervisors and he should be found not guilty. One problem with that defense is that it did not work in the Nazi war crimes trials or any other trial that I am aware of where blame is shifted up the chain of command.

Under Tennessee criminal law , it appears that Monsignor Lynn could be convicted on these charges. Tennessee has a provision under it's criminal code called criminal responsibility . Basically , the law provides that you responsible for the conduct of another if you assist in the crime . Criminal responsibility also provides that you are liable if one has a duty to prevent the commission of a crime or promotes or assists in its commission. Clearly , Mr. Lynn knew of the sex abuse and transferred these priests where they could resume their abuse.

Criminal responsibility could even be brought in other types of cases . In the past several weeks , a women was charged with vehicular homicide. Reports from the news indicate she may have been over served at a bar. Under the doctrine of criminal responsibility the bartender or the bar could be charged .

One thing that makes it an easier case for the state is that they are trying one of the priests for an attempted rape of a young boy. The evidence may show up to 20 other cases where Lynn swept these allegations under the rug.

Are Female Stalkers as Violent as Male Stalkers ?

Rob McKinney — Wed, 21 Mar 2012 16:10:41 -0600

The Jury Room Blog ran a great post today on whether female stalkers are less likely to be violent than male stalkers. it is always assumed in domestic violence cases across Tennessee and elsewhere it is always the male that is the violent one. According to a study by Strand and McEwen that appeared in Psychological Medicine , that is a false assumption. According to the study , women stalkers are just as likely as male stalkers to be violent.If one is being stalked by a female who is a former romantic partner , there is a high risk of violence if you are the one perceived as ending the relationship.

Stalking should be taken seriously between both male and female stalkers.Could stalking by females make men more vulnerable to domestic violence charges when they try to deal with the issue without calling the police. Educating the jury could be difficult in the South when faced with convincing the jury that a man is just as much risk to be a victim of domestic violence as a women.

Review of Mad Donna's BAS Hamburger

Rob McKinney — Wed, 21 Mar 2012 14:54:33 -0600

Our burger review this week took us back to East Nashville to Mad Donna's. It was my first time there .It was a fun place with a open patio .I learned that it it is a popular brunch place on the weekends. I ordered a BAS burger which stands for bacon,avocado , and Swiss. 8 ounces of 100% Angus beef cooked to your liking.The typical sides to the burger were iceberg , a mealy tomato , and a red onion. I must admit that I like the red onion or a sweet onion. No grilled onions for me. I like the raw onion flavor. Toasted bun wrapped the burger. One interesting twist was the ranch dressing. Perfect foil to the avocado.Nothing special about the fries but they did offer sweet potato fries as well..

Vibe is great. I would have liked to have eaten outside but deferred. Price point was cool with a $24.00 tab for two burgers and drinks. Service was great with Reid .

Rating was three out of five stars.

By the way the photo was mine.

Jerky Kid Defense Fails in Rutgers Privacy Case

Rob McKinney — Sun, 18 Mar 2012 11:49:41 -0600

Dharun Ravi was convicted last week on invasion of privacy charge as well as other charges . His criminal defense team tried to portray him as a jerky kid that meant no real harm. Mr. Ravi was charged for videotaping his roommate with his computer and then posting about it on Twitter .The jury rejected that defense and returned a guilty verdict.Ravi now faces prison and possible deportation.The New York Times reported Ravi turned down a plea bargain offer that would have required public service.

Here are a couple of thoughts why the kid defense did not work;

Mr. Ravi did not take the stand to explain his conduct.
Mr. Ravi gave videotaped testimony and admitted many of the facts of the case.
Mr.Ravi tried to change electronic messages .
It was alleged that Mr.Ravi tried to encourage a witness to change their testimony.

These facts indicate that the jerk kid defense would not work. The jury saw his taped interview, it had to be rebutted by his own testimony.

The biggest mistake was not accepting the plea bargain offer that was reported. The details were unclear but reports indicate it only included public service work.The risks of rejecting a plea bargain which avoids going to prison is always a gamble no matter how strong the defense.Being young and dumb is still a viable defense for youths charged with crimes , it appeared to the jury that Mr. Ravi may have been a little more sophisticated by his tweets.

DUI Checkpoints in Tennessee on St. Patrick's Day

Rob McKinney — Fri, 16 Mar 2012 13:25:55 -0600

Tomorrow is St. Patrick's Day . Please drink responsibly and take a cab if you go out to a party . The Nashville Tennessean ran a story on the number of DUI roadblocks planned for St. Patrick's day. The Tennessee Highway Patrol plans over 50 DUI checkpoints and drivers license checks over the weekend . Here is a short video on DUI roadblocks.

If you are out in Nashville , stop by the party at Dan McGuinness where the McKinney Law Offices is the official wristband sponsor to prevent minors from getting a beer.

Murfreesboro Judge Issues Gag Order In MTSU Murder Trial

Rob McKinney — Tue, 06 Mar 2012 10:36:00 -0600

Rutherford County Tennessee Circuit Judge Don Ash issued two key rulings in the murder trial of Shanterrica Madden . First , the court issued a gag order . The Government moved the court for the gag order which would prohibit the attorneys from publicly discussing the case. The state asked for the gag order to "ensure the jury pool is not tainted " . It is unusual for a court to issue a gag order in most criminal cases.

The court had already granted a motion for a change of venue . A request for a change in venue is a written motion seeking to have the jury pool made up of folks from another county . It is most common in high profile capital murder cases where there has been intense pretrial publicity. Rule 21 of the Tennessee Rules of Criminal Procedure sets out the procedure. The court may change venue on the defendant's motion or on its own initiative with the defendant's consent. The key point that the court must consider when deciding the motion for a change of venue is when a fair trial is unlikely because of undue excitement against the defendant in the county where the offense was committed.

The Tennessee Criminal Court of Appeals has adopted several factors the court can consider when granting a motion for a change of venue ;

1. The nature, extent, and timing of pretrial publicity.

2. The nature of publicity as fair or inflammatory.

3. The particular content of the publicity.

4. The degree to which the publicity complained of has permeated the area

from which the venire is drawn.

5. The degree to which the publicity circulated outside the area from

which the venire is drawn.

6. The time elapsed from the release of the publicity until the trial.

7. The participation by police or by prosecution in the release of publicity.

8. The severity of the offense charged.

9. The absence or presence of threats, demonstrations, or other hostility

against the defendant.

10. Size of the area from which the venire is drawn.

11. Affidavits, hearsay or opinion testimony of witnesses.

So where will judge Ash get the jurors. The rule provides the court shall change the venue to the nearest county where the same cause for a change of venue does not exist. Stay tuned as to where Judge Ash selects the jury pool from.

Does A Criminal Conviction Impact Your Immigration Status.

Rob McKinney — Mon, 05 Mar 2012 12:15:16 -0600

Several weeks ago , I had the chance to work with Nashville immigration lawyer Sean Lewis . Since Padillia v. Kentucky , it is critical that a criminal defense lawyer consult with a immigration lawyer before entering a plea bargain. Now under Rule 11 of the Tennessee Rules of Criminal Procedure , it is mandatory for the court to make an inquiry.In the case Sean and I worked on , we were able to hammer out a plea agreement that would not have any immigration consequences.

I asked Sean to do an interview on these important issue. This is the first of a three part series of interviews. The first is cases involving those under a temporary protected status . I hope you find the interviews helpful.

Review of The Pharmacy

Rob McKinney — Sun, 04 Mar 2012 12:49:31 -0600

Last year , I started reviewing the best hamburger joints in Nashville here at the Nashville Criminal Law Report . I had a ton of fun doing it , but I thought it might not be for a blog that was discussing serious criminal law issues. So, I discontinued the posts . Some people asked where were the posts . Where was I going to try next ? I missed it. In the words of The Terminator , "I'm back". I created a new category called outside the law which will give me an outlet to write about stuff I like .The first post is my burger review of The Pharmacy .

First time I tried to go it was slammed . Last Friday , I got in and grabbed a table. The vibe was vintage East Nashville . Hipster. Tres cool. The Pharmacy wants to set itself up as a burger parlor , soda parlor , and a beer garden. It succeeds in all attempts .The backyard beer garden has my name on it for a future date nf a Friday afternoon of beer drinking .

I tried the Farm Burger . A eight ounce patty of Tennessee beef , country ham , egg ,and bacon with mustard . The condiments are extra . I asked the server what would be the best to go with the farm burger and he suggested just a simple slab of cheddar cheese . Confession. I like condiments. The crunch of an onion or pickle was needed. It was served on a bun from Provence . I thought the bun was squishy and took away from the burger . Cooked medium . It was juicy and the meat was perfect. A hamburger is a mish mash of different ingredients that put together makes a great sandwich. The farm burger failed due to the bread and my choice of not ordering some condiments.

You had a choice of sides . I chose the tater tots. I did take a bite of my friend's German potato salad . There was a star of the show . It was the milkshake. Since I had to work a little on a late Friday afternoon , I gave up the beer for a malted chocolate milkshake . One word describes it ,delish. I also sampled the root beer float which was equally good.

I definitely plan to go back and try a burger with the fixings. I give the farm burger as tried 3 out of 5 stars .

Tennessee Judge Takes the Fifth

Rob McKinney — Thu, 01 Mar 2012 17:59:26 -0600

Since I have been a criminal defense lawyer , I still don't understand why people accused of a crime talk to police officers or do not exercise their Fifth Amendment rights against self-incrimination. We should all follow the actions of a sitting Tennessee judge. Hawkins County Tennessee Judge James Taylor recently invoked his rights of self incrimination several times in a judicial complaint. Judge Taylor is alleged of committing theft.

First , the Fifth Amendment does not cover most police interactions. So , you don't have to give a statement to police at the scene of a traffic stop or consent to an interview by a police officer . The Fifth Amendments protects a person.... against being incriminated by his own compelled testimonial communications. To receive Fifth Amendment protection , a person's statement or act must (1) be compelled (2) be testimonial ; (3) incriminate the person in a criminal proceeding.The protection enables a defendant to refuse to testify at a criminal trial or answer official questions put to him in any other proceeding, civil or criminal, formal or informal where the answers might incriminate him in future proceedings.

So take a lesson from the judge and keep your mouth shut.

Use of Cell Phones Pose New Problems for Police

Rob McKinney — Wed, 29 Feb 2012 13:07:04 -0600

The ABA posted an article on the explosion of the use of cellphones that are being used to video police. It seems that average citizens are now video taping police officers in the performance of their duties. A Boston man was arrested for video taping an incident where he thought police were using excessive force. Simon Glik was arrested for violating a state wiretap law. Later, the case was dismissed. In a civil rights case, Mr Glik brought the 1st U.S.Circuit Court of Appeals in Boston held that Mr. Glik had a constitutional right to video-record the police performing their duties.

“Our recognition that the First Amendment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts,” the panel wrote. The case went back to the federal district court and the parties are in discovery

Smart phones such as the iPhone have both video and audio recording abilities. So, can you record your conversations with police or video tape a police officer conducting an investigation? From the ruling in the Glik case, it appears so.

A police officer stops your car, should you record what he says? Often in most DUI cases, a police officer will assert that you are slurring your words. What evidence can you get or provide to counter that testimony? The answer is a recording. What about the field sobriety tests? Can a passenger video tape you walking the line? One solution that would be an easy fix is for the Metro Nashville Police Department to install working video recorders on all patrol cars, not just the DUI officers' cars.

Technology is changing our legal landscape in ways unimagined just years ago.The image below is a Maryland State Trooper whose image was captured on the stopped motorcyclist's camera, which was on the motorcyclist's helmet. The video was later posted on you tube.

Ashland City Tennessee DUI Law Alert

Rob McKinney — Tue, 28 Feb 2012 17:12:11 -0600

Tennessee has a uniform driving under the influence (DUI) laws. However , the application varies from jurisdiction to jurisdiction. If you are convicted on DUI in Tennessee , Tennessee Code Annotated 55-10-403(p)(1) provides that a person convicted of a DUI shall report within 30 days to commence the sentence . Generally , you have 30 days to report to serve your sentence .

In the 23rd Judicial District , the court requires a multiple offender to report immediately . If you request to serve your time on weekends , you must first pass a drug test. The 23rd Judicial District is comprised of the following counties in Tennessee ' Cheatham, Dickson , Houston , Stewart , and Humphreys counties . So , make your plans before you enter a plea. The is one good thing for those charged in Ashland City , Tennessee . Work release is available as an option.

Your Rights At A DUI Checkpoint In Tennessee

Rob McKinney — Mon, 27 Feb 2012 16:12:42 -0600

Here is a video blog on your rights at a DUI checkpoint under Tennessee law. Look for the use of DUI checkpoints or roadblocks around any major holiday.

Hermtiage Women Charged With Vehicular Homicide

Rob McKinney — Tue, 21 Feb 2012 17:14:05 -0600

Nate Rau of The Tennessean ran two stories about a Hermitage , Tennessee women charged with vehicular homicide . The catch is she was not driving the car in the deadly crash. Her boyfriend was at the wheel . Metro Nashville Police charged her under the theory of that she was criminally responsible for the vehicular homicide charge while her friend was driving. It is unique legal theory and has been used rarely rarely in the past. . The owner/passenger DUI charge is common in Nashville DUI cases . Typically , someone else drives the car while the owner is a passenger . Driver gets arrested for DUI then so does the owner of the car. In fact , it has statutory authority under T.C.A. 55-10-201.

Criminal responsibility is based upon the simple theory that if I give you some help to commit a crime , I am just as responsible as the person that does he crime. One example is you give me twenty bucks to take you to the bank so you can rob it. Under those facts , I am just as guilty for the bank robbery because I knew what you were going to do. In a vehicular homicide , the knowledge that the driver is going to be involved in a deadly car crash is more remote. In fact , there is no Mens Rea for the crime other than reckless conduct. How can a person anticipate recklessness. here is the jury instruction for criminal responsibility ;

T.P.I. -- CRIM. 3.01

CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER

The defendant(s) [is] [are] criminally responsible as a party to the offense(s) of _____________________________________________________

if the offense(s) [was] [were] committed by the defendant's own conduct, by the conduct of another for which the defendant(s) [is] [are] criminally responsible, or by both. Each party to the offense may be charged with the commission of the offense.¹

[The defendant(s) [is] [are] criminally responsible for an offense committed by the conduct of another if, acting with the culpability required for the offense, the defendant(s) cause(s) or aid(s) an innocent or irresponsible person to engage in conduct prohibited by the definition of the offense.]²

[The defendant(s) [is] [are] criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the defendant(s) solicit(s), direct(s), aid(s), or attempt(s) to aid another person to commit the offense.]³

[The defendant(s) [is] [are] criminally responsible for an offense committed by the conduct of another if, having a duty imposed by law or voluntarily undertaken to prevent commission of the offense and acting with intent to benefit in the proceeds or results of the offense, or to promote or assist its commission, the defendant(s) fail(s) to make a reasonable effort to prevent commission of the offense.]⁴ [A defendant who is criminally responsible for an offense may be found guilty not only of that offense, but also for any other offense or offenses committed by another, if you find beyond a reasonable doubt that the other offense or offenses committed were natural and probable consequences of the original offense for which the defendant is found criminally responsible, and that the elements of the other offense or offenses that accompanied the original offense have been proven beyond a reasonable doubt].^[5][In deciding the criminal responsibility of the defendant, the jury may also take into consideration any evidence offered that the defendant attempted to thwart or withdraw from any of the offenses that followed from the original offense.]^[6]

Before you find the defendant(s) guilty of being criminally responsible for said offense(s) committed by the conduct of another, you must find that all the essential elements of said offense(s) have been proven by the state beyond a reasonable doubt.

The problem with the charges against Erin Brown is that it opens the doors for the expansion of what can be considered a criminal act. Can the bartender be charged for selling a beer . How about the store ? How about the Titans after someone leaves a game after buying a beer. One solution is to put more teeth in the dram shop act which puts civil liability on those that furnish alcohol. I doubt that happens because that industry is protected by a horde of influence peddlers. My guess is the state legislature will pass another law that over-criminalizes ones conduct. Right now Ms.Brown's case is going to the Grand Jury. Disclaimer. My opinions are my own .