An actress was shot to death during a robbery on a New York street. Apparently the fatal shot was in response to her query "What are you going to do? Shoot us?" Don't get me wrong, this is a tragedy. A woman is dead, mere children have been arrested in connection with this crime, lives are ruined. However, (This is my current favorite tool of legal analysis) one wonders what possessed the victim to respond in such a way. We see it on the television all the time, I guess, silly bravado in the face of life threatening situations. Is it possible that this constant exposure to unrealistic situations has damaged the brains and instincts of normal people? Or are we still able to differentiate between reality and "other" despite the lies conveyed to us every day?
Is it possible that this actress was more likely to respond with fatal sarcasm than the average person, unschooled in the craft of "acting"?
On a law school exam I know exactly how these facts play out. Robbery (at common law which is about all you learn in crimes) requires the use of force or fear. The issue raised is whether the mere possession of a gun is force because clearly there is no FEAR. On my exam hypothetical you do not need to wonder why the victim was not afraid, you need only recognize that her lack of fear negates an element of the crime of robbery and move on. This is the case with most law school exams where people engage in all manner of inexplicable behavior in order to raise interesting legal issues for the student to discuss. But those are exams! This is reality. Why wasn't she afraid?
I was talking with Dork the other day who relayed to me the story of a young man who had attended a public hanging (Execution) and returned home only to nearly kill another child by reenacting what he had seen. I do not recall the date of this event but the fact that it was a hanging and a boy was allowed to witness it seemed to indicate that it predates both violent video games and MTV. Obviously this was an event experienced in this boys life as reality. It was, in fact, ACTUAL REALITY. The man hanged did not merely "act" hanged and then stand up for a round of applause. Yet clearly this boy did not understand the ultimate consequence of hanging a person or he did not care. Either way we cannot blame it on the distortion force-fed him by not-yet-existing media.
And here is my last thought about this, which angers me too, since I am not generally an attorney for the defense type of girl. Before you cast your spears at me though, really consider it.
If the victim was so out of touch with the reality that guns will kill you, so unafraid that she challenged the robber with dripping sarcasm, isn't it possible that the shooter did not experience the encounter as reality either? Can we presume that criminals understand the ultimate result of events such as these but victims do not?
I see a defense argument lurking in the wings. Our basic understanding of the nature of things, such as life and death, has been so manipulated and skewed by television, movies and video games that the perpetrator of a crime such as this one cannot truly be held accountable for such an unforeseen and unlikely consequence. "Guns kill people? Are you sure? I just watched The Life Aquatic where Jeff Goldbloom was shot point blank directly in the chest and got up and ran away... Guns kill people? Really?"
Maybe we do not actually understand the nature of an act such as this until we've actually killed our first victim. Actually experienced reality for the first time.
Take heart! I do not see success for this line of reasoning, absent the unique circumstances of reality which reunite a popular black defendant, Johnny Cochran and the Simpson jury. How likely is that to happen? Maybe I should write the screenplay.