escaping prosecution because oops

[Hypoxia]

If you have mistakenly been declared dead, can you be charged with a crime? In what jurisdictions might you escape?

 

[Handley_Page]

If you have mistakenly been declared dead, can you be charged with a crime? In what jurisdictions might you escape?

A very interesting thought.
On the Vietnam memorial there's a particular name and I recall seeing pictures of the owner of that name standing at the memorial.

 

[SimonDoom]

A very interesting thought.
On the Vietnam memorial there's a particular name and I recall seeing pictures of the owner of that name standing at the memorial.

In the real world I am sure this is not a defense. But it's a great plot idea.

 

[Bramblethorn]

If you have mistakenly been declared dead, can you be charged with a crime?

It has happened: Thomas Sanders, 57, was declared dead in 1994 after he'd abandoned his family in 1987. However, that wasn't to say that he was exactly lying low. The Associated Press reports that a federal jury convicted Sanders for the kidnapping and death of a 12-year-old Las Vegas girl in 2010.

John Burney was successfully sued for life insurance fraud after being declared dead.

I don't know whether it varies by jurisdiction. There have been some cases where people declared dead had trouble getting that overturned, and I seem to recall hearing from either India or China of corrupt officials being bribed to declare living people dead so relatives could grab their land.

Also plenty of Loving Wives fodder here - what happens when a woman's husband is declared dead, she remarries, and then the guy shows up again?

 

[Handley_Page]

It has happened:

Also plenty of Loving Wives fodder here - what happens when a woman's husband is declared dead, she remarries, and then the guy shows up again?

This has happened for real. As i recall reading, after the War.

 

[Vix_Giovanni]

Depends on the statute of limitations.

The nature of the crime is the issue, not whether the person is dead. Additionally, whether the person is mistakenly thought dead or if they purposefully/fraudulently faked a death.

Some crimes have no statute of limitation (SOL). In most jurisdictions around the world, there’s no SOL for murder (i.e. the intentional killing of another with malice aforethought). So, it shouldn’t matter whether the accused was presumed dead and then found to be alive; the crime has no termination date. Some crimes have an SOL like some larceny crimes and in some jurisdictions even rape. In that case, if the time’s run out, the crime can’t be prosecuted.

However, the SOL can be tolled (stalled). The reason for tolling a SOL on a crime can be that the accused was presumed dead. Then the issue becomes whether the accused intentially amd fraudulently creates the presumption, or whether that was beyond his/her control, or whether the mistake was the police/state/prosecutor’s fault etc. The SOL would stop if the accused staged his/her own death and s/he could be charged. The SOL likely wouldn’t stop if it was the gov’s mistake.

Another complication is the jurisdiction that applies. The Fed has different jurisdiction from the military and from the states, so it will depend somewhat who is bringing the criminal charges.

Finally, other barriers could come up making prosecution of a stale case difficult: chain of custody, poisonous tree, Miranda rights, 6th and 7th amen. rights, Frye questions, other evidence questions, etc.

(This post is edited: I originally answered off 3hrs of sleep and misread the Q.)

 

[Zeb_Carter]

I don't know for sure but, logic, which government has none of, would tell you that once a person is dead, how could you kill them again?

I wasn't able to find any legal finding on it but, you might try finding a Legal forum and pose the question.

 

[SimonDoom]

I don't know for sure but, logic, which government has none of, would tell you that once a person is dead, how could you kill them again?

I wasn't able to find any legal finding on it but, you might try finding a Legal forum and pose the question.

Let's not get silly about this. You're not going to find a legal precedent for this because the premise is absurd.

The OP's question was whether, if A was declared legally dead, mistakenly and then A later committed a crime -- say, murdered someone -- could A be charged and prosecuted for murder. Obviously yes. The declaration was a mistake. No jurisdiction is going to allow a defense against murder on this basis. You can't go to court, alive and breathing, and argue that you actually are dead and therefore can't be guilty of a crime.

Your variation is whether, if A was declared legally dead, mistakenly, and B later murdered A, could B be prosecuted for A's murder. Same thing: obviously yes. You can't go to court and argue, no, this living, breathing person actually was dead before I killed him. Unless there's an explicit defense somewhere to the crime of murder then no court would let this fly. It's unlikely you're going to find a case raising the issue because it's so preposterous.

But in an alternative fiction universe it IS a cool idea for a story. It would take considerable suspension of disbelief, but that could be overcome.

 

[Hypoxia]

I wasn't inquiring about murder -- although that's possible. She's missing awhile, corruptly or mistakenly declared dead, returns home to hubby misbehaving, takes revenge on his playmates, yada yada. No, it's more like, she returns home while dead -- and shoplifts, strokes people, borrows cars, wanders into bedrooms. What can she get away with? And where?

 

[TarnishedPenny]

There was a twist on this which I have seen in a (non Lit) story and I apologize in advance for forgetting author and title. A was convicted of murdering B and served (I think) her sentence. On A’s release, she discovered that B was still very much alive and killed him.

The question was then whether she be prosecuted for the exact same crime for which she had already been convicted and done prison time?

 

[Zeb_Carter]

There was a twist on this which I have seen in a (non Lit) story and I apologize in advance for forgetting author and title. A was convicted of murdering B and served (I think) her sentence. On A’s release, she discovered that B was still very much alive and killed him.

The question was then whether she be prosecuted for the exact same crime for which she had already been convicted and done prison time?

It was a movie - Double Jeopardy with Tommy Lee Jones and Ashley Judd. Was a book first. In the movie she never killed him, just got him to confess to insurance fraud and such in front of Tommy Lee. He played a cop. When asked was he going to stop her, he replied, "No, she already served her time for killing you the first time, she can't be tried again for the same crime. Besides, she's the one with gun."

 

[CuteSlaveLisa]

It has happened...
Also plenty of Loving Wives fodder here - what happens when a woman's husband is declared dead, she remarries, and then the guy shows up again?

"TOMMY" The Who 1969

Captain Walker whom the British Army declared dead in 1941 was liberated by the Americans in 1945. He returns home to find his wife with another man, a fight ensues and the boyfriend is killed...

Would it have to go in 'Fan Fiction'?

Love and Kisses

Lisa Ann
.

 

[Vix_Giovanni]

I wasn't inquiring about murder -- although that's possible. She's missing awhile, corruptly or mistakenly declared dead, returns home to hubby misbehaving, takes revenge on his playmates, yada yada. No, it's more like, she returns home while dead -- and shoplifts, strokes people, borrows cars, wanders into bedrooms. What can she get away with? And where?

Hey Hypoxia; Yes, I completely misread and made up part of what you’d posted. Smh. I can only blame lack of sleep.

I edited my originally off topic answer and I hope that the new response about statutes of limitations is actually helpful. In short, the crime/charge matters more than whether the person was missing/presumed dead. What she can get away with completely depends on the SOL, and whether she intentionally went missing.

• Shoplifting: there’s an SOL to bringing criminal or civil charges so as long as she didn’t fraudulently/intentially go missing, then she’s off the hook
• Borrows cars— is she “borrowing” or “taking?” In any case, there’s SOL for both and it will depend on if she purposefully/intentially went missing
• Trespassing:same answer as shoplifting/larceny

 

[SimonDoom]

There was a twist on this which I have seen in a (non Lit) story and I apologize in advance for forgetting author and title. A was convicted of murdering B and served (I think) her sentence. On A’s release, she discovered that B was still very much alive and killed him.

The question was then whether she be prosecuted for the exact same crime for which she had already been convicted and done prison time?

Yes she can, because it's not the same crime. Double Jeopardy wouldn't apply. It was a different criminal act.

 

[SimonDoom]

I wasn't inquiring about murder -- although that's possible. She's missing awhile, corruptly or mistakenly declared dead, returns home to hubby misbehaving, takes revenge on his playmates, yada yada. No, it's more like, she returns home while dead -- and shoplifts, strokes people, borrows cars, wanders into bedrooms. What can she get away with? And where?

The issue is the same regardless of the type of crime. The question is whether any court in a criminal case would allow you to make the "I'm not really alive; I'm dead" defense to a criminal charge. Unless someone has some reason to believe that such an absurd defense IS recognized, there's no reason to believe it would be.

The statute of limitations defense raised by Vix Giovanni is a legitimate issue but it's a different issue.

 

[Vix_Giovanni]

The issue is the same regardless of the type of crime. The question is whether any court in a criminal case would allow you to make the "I'm not really alive; I'm dead" defense to a criminal charge. Unless someone has some reason to believe that such an absurd defense IS recognized, there's no reason to believe it would be.

The statute of limitations defense raised by Vix Giovanni is a legitimate issue but it's a different issue.

I’m not sure how it’s a different issue. If you can appear (I mean legally, not like Casper the ghost), it doesn’t matter whether you’ve been declared dead or whether you’re alive. Not everything Hypoxia raised is a criminal matter, part is criminal and part is civil recovery. You can recover against an estate. Am I missing something?

 

[MelissaBaby]

If you have mistakenly been declared dead, can you be charged with a crime? In what jurisdictions might you escape?

Damn, I should have tried that.

 

[Hypoxia]

The idea occurred to me too late for this April Fools contest -- maybe next year -- and I guess I'm seeking a jurisdiction somewhere on Earth where the 'dead' aren't prosecuted. (Enough exist where actual corpses ARE! Their estates, anyway.) A story based on that is hopefully no more fantastic than mom-in-sons-lap tales.

 

[SimonDoom]

I’m not sure how it’s a different issue. If you can appear (I mean legally, not like Casper the ghost), it doesn’t matter whether you’ve been declared dead or whether you’re alive. Not everything Hypoxia raised is a criminal matter, part is criminal and part is civil recovery. You can recover against an estate. Am I missing something?

My comments were addressed solely to the criminal issue raised by Hypoxia in the initial post. That's all I was addressing. Recovery against an estate is a completely different issue that would arise in a different case.

In a criminal proceeding, statute of limitations (i.e., "too much time has passed to be able to prosecute me") and "I've been declared dead" would be completely different defenses. They would not be the same issue.

The issues are completely different in a civil matter, like a suit against an estate. If you were judged to be dead, and your estate was carved up and turned over to people, and ten years later you appeared and wanted it back, then sure, your rights might be altered by the earlier declaration. But that has no bearing on whether you could assert the "I've been declared dead" defense in a criminal prosecution against you.

 

[TarnishedPenny]

Thanks, ZC!

So, SD, she can be convicted twice of murdering the same individual - twice? I would've thought that the second attempt might have involved a stake through the heart.

Mind you, the law is Weird, capital W. There was the case of a cop in Toronto convicted in 2016 of the attempted murder of a dead man. It get complicated, but the cop made a righteous shoot (knife-wielding man on a trolley). Those first shots killed him - dead as a doornail. Five seconds later, the cop shot him again. That second shooting was adjudged attempted murder, even though he shot a corpse.

 

[SimonDoom]

So, SD, she can be convicted twice of murdering the same individual - twice? I would've thought that the second attempt might have involved a stake through the heart.

.

I'm not a Double Jeopardy expert. I'm relying on basic publicly available sources. A key element is whether it concerns not just the same crime but the same facts. The second "murder" (the real one) is not the same act -- it's based on completely different facts. So, no, Double Jeopardy wouldn't apply.

In the example you cited the attempted murder was part of the same overall event, so it's a different situation.

Then, too, it happened in Canada, and things get pretty strange up there.

 

[Vix_Giovanni]

My comments were addressed solely to the criminal issue raised by Hypoxia in the initial post. That's all I was addressing. Recovery against an estate is a completely different issue that would arise in a different case.

In a criminal proceeding, statute of limitations (i.e., "too much time has passed to be able to prosecute me") and "I've been declared dead" would be completely different defenses. They would not be the same issue.

The issues are completely different in a civil matter, like a suit against an estate. If you were judged to be dead, and your estate was carved up and turned over to people, and ten years later you appeared and wanted it back, then sure, your rights might be altered by the earlier declaration. But that has no bearing on whether you could assert the "I've been declared dead" defense in a criminal prosecution against you.

My post raised three issues that would need to be considered: 1) whether the person was declared dead because of mistake or by fraud, 2) what crimes were committed and 3) whether any evidence/discovery issues could come up.

Death isn’t a defense to a criminal act, it’s a rebuttable presumption. If you are alive and appearing in a criminal matter, then you’re not dead. If you show up in court and say, “I’m not guilty because I’m dead,” the court will take basic judicial notice of the fact that you’re alive. But judicial notice won’t impair you from raising defenses such as capacity (example, I was legally dead because I was in a coma at the time of the crime).

Because judicial notice and the rebuttable presumption is that you’re alive, the first defense question would be whether you can be charged with the crime. SOL will trump; if the time has tolled, there’s no crime. The next question is whether the SOL shouldn’t toll; either there was a mistake or intent/fraud. If there was fraud then the time doesn’t toll. That’d be the first query of any prosecutor; can’t charge if there’s no case.

Even if the time tolled for a shoplifting, trespass etc, the injures party could still bring a complaint against either/both the person presumed dead and his/her estate. Under the circumstances, the person and estate are joint and severally liable.

 

[SimonDoom]

My post raised three issues that would need to be considered: 1) whether the person was declared dead because of mistake or by fraud, 2) what crimes were committed and 3) whether any evidence/discovery issues could come up.

Death isn’t a defense to a criminal act, it’s a rebuttable presumption. If you are alive and appearing in a criminal matter, then you’re not dead. The court will take basic judicial notice of that fact. But that won’t stop you from raising defenses such as capacity (example, I was legally dead because I was in a coma at the time of the crime).

Agreed. But that has nothing to do with Hypoxia's initial post. The simple question is, If you are prosecuted for a crime, can you get off on the ground that a court previously declared you to be dead? There's no reason to infer from the various amusing and interesting scenarios we might dream up that there would be any scenario under which the answer would be yes. The issues you raise aren't germane to that question and the answer to it.

I agree there are many other related interesting issues that arise in related but different situations, but they're different issues.

To respond more specifically to your paragraph's three issues above:

1. It makes no difference whether the court declared you dead by mistake or fraud. You're not dead, so you can't claim to be dead and get off.

2. It makes no difference what crimes you are alleged to have committed. You can't raise the "I'm dead" defense to any of them.

3. It doesn't matter what evidence there is. You're alive, and you can't claim otherwise. Evidence is irrelevant.

Regarding "rebuttable presumption", I don't know what you mean. Surely if you are in court being prosecuted the prosecutor need not overcome a rebuttable presumption that you are, in fact, dead. There might be some issue about who you are and whether you're the same person as that person declared dead many years ago. But that's not germane to whether you can be prosecuted for the crime.

This is all sort of abstract. It might be helpful to think of a specific example where Hypoxia's question might conceivably be answered in the affirmative. I can't think of any.

 

[MelissaBaby]

Sydney Barringer's Unsuccessful Suicide

 

[Vix_Giovanni]

Agreed. But that has nothing to do with Hypoxia's initial post. The simple question is, If you are prosecuted for a crime, can you get off on the ground that a court previously declared you to be dead? There's no reason to infer from the various amusing and interesting scenarios we might dream up that there would be any scenario under which the answer would be yes. The issues you raise aren't germane to that question and the answer to it.

I agree there are many other related interesting issues that arise in related but different situations, but they're different issues.

To respond more specifically to your paragraph's three issues above:

1. It makes no difference whether the court declared you dead by mistake or fraud. You're not dead, so you can't claim to be dead and get off.

2. It makes no difference what crimes you are alleged to have committed. You can't raise the "I'm dead" defense to any of them.

3. It doesn't matter what evidence there is. You're alive, and you can't claim otherwise. Evidence is irrelevant.

Regarding "rebuttable presumption", I don't know what you mean. Surely if you are in court being prosecuted the prosecutor need not overcome a rebuttable presumption that you are, in fact, dead. There might be some issue about who you are and whether you're the same person as that person declared dead many years ago. But that's not germane to whether you can be prosecuted for the crime.

This is all sort of abstract. It might be helpful to think of a specific example where Hypoxia's question might conceivably be answered in the affirmative. I can't think of any.

Hypoxia gave specific examples above. Those might help.

I am an attorney with years of litigation experience. There’s no way to make them “clearer”, they are terms of art. I’m giving specific legal terms, because Hypoxia raised a legal question and in reply to your post about defenses.

A court doesn’t declare a person is dead.

That’s not in the court’s jurisdiction. If you are standing in court having been charged of a crime, either at arraignment or trial, etc, the court (a term of art for the judge) will simply take judicial notice of the fact that you are there as evidence that you are alive. Judicial notice is a legal term of art.

Rebuttable presumption is a term of art. One is presumed to be dead, until that presumption is proven wrong. Meaning, that presumption can be rebutted.

If you are charged of a crime, there are specific defenses to the crime. Those defenses are different than presumptions. You can only raise allowable defenses to a crime, based on the nature of the crime itself and the statutory/penal law.

The statute of limitation is the very basis of due process in America, and in the 21st cent many other countries too. If there’s no time left to a crime to issue, you can’t be charged with that crime. That is the very first question that must be asked under due process. If the prosecution (the state) can’t identify who you are, they can’t bring a crime against you for the same reason.

Evidence rules absolutely matter, particularly in an odd fact pattern. It matters whether the state can prove a crime against you. If evidence has gone stale, or if it is the fruit of a poisoned tree or it doesn’t meet Frye evidence rules, then there will likewise be no case against the accused.