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Wednesday, August 22, 2018

Big Little Lies--Crim Law Question

My wife and I just finished Season One of Big Little Lies. We enjoyed the show. But we were not fans of how it ended, specifically how the police resolved the investigation and why, why the women told the story they did, and what criminal law has to say about it.

SPOILERS after the jump. Substantive crim law people, please help us out.

Assuming what was shown on the screen is accurate, here is what happened:

Perry, Celeste's abusive husband, begins attacking and beating her on the patio, in front of a stairwell that has caution tape across it. Celeste's three friends try to pull him off and he beats them off. Celeste is on the ground and Perry stands over her and kicks her multiple times. The other three women are helpless to stop the attack, which appears that it could continue and result in serious injuries. A fifth woman, Bonnie, runs from the far end of the patio towards Perry and shoves him with two hands towards the open stairwell; he breaks through the tape and falls down the steps, dying in the fall.

The woman all agree to tell the story that as Perry was kicking her, he fell backwards through the tape and down the stairs. One detective dismisses that as bullshit, because the women's stories and language line up too perfectly. Her partner asks why they would lie. He suggests that this clearly was self-defense, that the pusher (the police do not know who that was, although the partner assumes it was Celeste) would be guilty of at most involuntary manslaughter, and would get at most a year of community service, likely cut in half. (Put aside that community service does not work that way).

Here are my questions:

• Is that right under the law? What we see on-screen looks like defense-of-others and was a two-hand shove to stop a large man from severely beating a smaller and prone woman. It was a tame physical act, calculated to try to stop the ongoing assault. Does his falling down the stairs, in a defense-of-other situation, turn that into a crime? Would any prosecutor charge that, in these circumstances?

• If it is a crime, then having the police be confused over the women lying is stupid. They are lying because the truth would result in someone being convicted of a violent felony for coming to an abused woman's aide. Even if her sentence is relatively light, it is still a conviction for a violent crime and still a felony with all the collateral consequences that follow. Given the choice between the truth and a conviction or a lie that cannot be proven otherwise, of course they will choose the lie.

• Perhaps the story is trying to set-up the impossible situation for abused women, that attempting to fight back costs more. And perhaps that will be the theme of Season Two. But I did not see the groundwork laid for that.

Posted by Howard Wasserman on August 22, 2018 at 11:11 AM in Criminal Law, Culture, Howard Wasserman, Television | Permalink


gdanning ,

Hereby , the definition of " burden of proof " from a legal dictionary ( can't believe that I need to do it ) here :

Burden of proof refers to the duty on a party in a case to submit sufficient evidence on an issue in order to avoid dismissal of the claim. In a criminal trial the burden of proof required of the prosecutor is to prove the guilt of the accused "beyond a reasonable doubt". In a civil trial, the plaintiff must prove their case by a preponderance of the evidence, which translates to a 51% likelihood that all the facts necessary to win a judgment as presented are probably true.

And now , to self defense specifically , here :

On some issues, the burden of proof may shift to the defendant, such as when the defendant raises a defense which requires affirmative proof by the defendant to defeat plaintiff's claim ......

So you read clearly , the burden of proof , shifts from prosecutor , to the defendant .

And by that , we are done here ....

Link to the dictionary :



Posted by: El roam | Aug 24, 2018 12:55:19 PM

gdanning ,

I don't overstate nothing . For it seems that you don't really understand that notion of burden of proof. For burden of proof, puts simply the burden for first opening or initiating the line of arguments or plea on one party or litigant. As such, concerning self defense, in no way, it can never ever be on the prosecution in case of self defense, but solely on the defendant.

Can you imagine, that the prosecutor, has a burden of proof, to prove that the defendant has acted so as it did, merely for self defense ?? Finally , acting on self defense , would typically exonerate the person , and he is the prosecutor , right ?? That doesn't exist dear friend !!

He who claims, he who pleads, he has the burden of proof. Since, the prosecutor, can't plead or claim that defendant acted out of self defense, he has no burden of proof. But later, to refute the self defense pleading or arguments , but that comes later , not as burden of proof , but burden to refute , not to prove .

Read again my first comment to you and citation therein from the verdict. This is really fundamental here.

P.S . : When I write Universal , that is to say , not only in the US . For that doctrine , is exercised so typically , all over the world almost basically .


Posted by: El roam | Aug 24, 2018 12:24:10 PM

El roam:

And I was not referring specifically to Texas either, which is why I said "as in most states," and why I included the cite to California law. You are greatly overstating the burden of the defendant coming up with some evidence of self-defense; that is an extremely low bar. The upshot is that the People must prove the absence of self defense (or defense of other) beyond a reasonable doubt.

In the case that is the subject of the post, the fact that the decedent was beating up the woman easily meets the burden of "some evidence" in support of defense of other, so the People would have the burden of proving, beyond a reasonable doubt, either that the defendant did not honestly believe that the woman was in danger of death or serious bodily injury, or that it was unreasonable to believe that that was the case.

Posted by: gdanning | Aug 24, 2018 11:27:17 AM

Gdanning ,

First , I didn't refer to Texas particularly , but just picking it up , as an illustration , for Universal perception in criminal law . This is not a federal law or issue , and it may vary . That is why I wrote in my P.S : “ Typically “ .

Second , The issue is fundamental , that is to say , that a defendant who would plead for self defense ,would have anyway the burden of proof whatsoever . Why ?? Because otherwise , it can't be brought forward by the prosecutor . The prosecutor , can't raise self defense issue for the defendant ( he needs to accuse the defendant ) . So , defendant , can principally , sit , and not plead or claim nothing , and the burden would be on the state of course . But, when dealing with self defense , he needs to plead , needs to claim , and present his defense . The prosecutor , can't do it in his shoes . In accordance , the prosecutor , will have to prove or contradict his version ( that as been mentioned , must be raised by him at first place , not by the prosecutor ) .

And in fact , in that case you brought , I quote :

The defendant bears the burden of producing some evidence in support of a claim of self-defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the defendant produces such evidence, the State bears the burden of persuasion to disprove that defense. Id. The burden of persuasion is not one that requires the production of evidence. Id. Rather, it requires only that the State prove its case beyond a reasonable doubt. Id.


Posted by: El roam | Aug 23, 2018 1:02:27 PM

el roam:

It appears that in Texas, as in most states, the People have the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense / defense of others https://caselaw.findlaw.com/tx-court-of-appeals/1754796.html

See also Calif law (CALCRIM 505 - Justifiable Homicide: Self-Defense or Defense of Another - "The People have the burden of proving beyond a reasonable doubt that the [attempted] killing was not justified.")

Posted by: gdanning | Aug 23, 2018 12:08:16 PM

FWIW, the show is based on a book by Lianne Moriarity, which is set in Australia.

Posted by: Anon | Aug 23, 2018 1:08:11 AM

There is no too much discussion here in fact . It is a classic ( or alike ) situation of acting as self defense or defense of the other . All this provided that the actor or perpetrator didn't place himself at first place , in the criminal situation , but , was compelled to react so , on line so . Here I qoute for example , the penal code of Texas :

Sec. 8.05. DURESS.

(a) It is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.

(b) In a prosecution for an offense that does not constitute a felony, it is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by force or threat of force.

(c) Compulsion within the meaning of this section exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.

(d) The defense provided by this section is unavailable if the actor intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.

(e) It is no defense that a person acted at the command or persuasion of his spouse, unless he acted under compulsion that would establish a defense under this section.

End of quotation :

The tragedy many times , lies somewhere else ( especially for women ) . They are , or , feel too weak for hitting back on line , and stand on their ground . They accumulate rage and frustration , and finally , they hit back , out of context , not in an “ on line “ criminal" hot " situation , so to take the male or husband by surprise . In such case , they don't have any defense , but , maybe reduced sentence .

P.S : concerning burden of proof , it is typically on the person defending , to prove it in court .


Posted by: El roam | Aug 22, 2018 1:17:16 PM

The push could be turned into a crime (probably some version of manslaughter) given the existence of the stairs, if (1) it was reasonably foreseeable to Bonnie that her push could result in Perry falling down the stairs and getting seriously injured or dying, and (2) the relevant state does not provide for a defense-of-other defense.

Posted by: Steven R. Morrison | Aug 22, 2018 11:45:30 AM

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