How broad or narrow is the “reasonable man” principal applied to jury instruction?
Here’s the Washington pattern instruction on criminal negligence.
WPIC 10.04 Criminal Negligence—Definition
A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that [a wrongful act] [(fill in more particular description of act, if applicable)] may occur and this failure constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation.
There seems to be some precedent in New Mexico that involuntary manslaughter stemming from the negligent use of a firearm (which is itself unlawful) requires a showing of ordinary negligence only. But of course I am not a lawyer, and certainly not licensed to practice in New Mexico.
It was not until State v. Grubbs, 85 N.M. 365, 512 [****10] P.2d 693 (Ct. App. 1973), that the foundation was laid for applying a civil negligence standard to an involuntary manslaughter conviction although not in the context of a vehicular killing. In Grubbs, the defendant shot and killed the decedent and was convicted of involuntary manslaughter by an unlawful act not amounting to a felony. Id. at 366, 512 P.2d at 694. The unlawful act was the negligent us of a weapon under what is now NMSA 1978, Section 30-7-4(A)(3) [***213] [*673] (Repl. Pamp. 1994). Grubbs, 85 N.M. at 366, 512 P.2d at 694. The Grubbs Court distinguished Clarkson and Hayes on the grounds that neither case discussed the application of the criminal negligence standard to the unlawful act portion of the involuntary manslaughter statute and that those cases involved vehicular killings. Id. at 367, 512 P.2d at 695. The Grubbs Court upheld the defendant’s conviction, holding that the word “negligent” in the “negligent use of a deadly weapon” statute was to be given its ordinary meaning because the legislature failed to indicate that it intended a different construction of the term. Id. at 368, 512 P.2d at 696.
From State v Yarborough , 120 NM 669; 1995-NMCA-116; 905 P2d 209
Los Angeles Times Oct. 28, 2021
Safety on set: What you should know, and what you can do
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There’s no specific OSHA regime for film and TV shoots; instead, they’re subject to the same regulations that apply to most other industries, such as rules for noise, fire prevention, construction safety and personal protective equipment.
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Notably, OSHA recommends but does not require film shoots to have a written safety plan for their sites. According to the International Alliance of Theatrical Stage Employees, the union that represents film and TV crews, “These plans include inspection protocols, emergency medical care, and hazard reporting methods.” They also would train employees to identify hazards and identify the people responsible for correcting them, IASTE wrote.
I guess we know why AD Dave Halls got such a nice plea deal: He cleared himself of serious charges and will testify that Baldwin and Reed have different memories of what happened compared to his own.
Halls has come in for harsh criticism for two actions just prior to the shooting. First, according to the widely reported narrative, Halls took the gun from Gutierrez Reed and handed it to Baldwin. (First A.D.s typically do not touch firearms on set.) Second, he declared it a “cold gun,” meaning it did not carry an explosive charge.
But in his deposition, Halls denied that he had done either of those things.
Halls testified that he checked the gun with Gutierrez Reed — as was their typical practice — and then she was the one who handed it directly to Baldwin.
He also said he did not announce that it was a “cold gun.”
“I don’t have any recollection of me saying that,” Halls said. “I have recollections of Hannah saying it.”
Could be relevant to these two conflicting statements:
In that first police interview, Baldwin told interrogators that Gutierrez-Reed handed him the gun and assured him it was safe: “She said, ‘Do you want to check?’ — and I didn’t want to insult her, we never had a problem. I said, ‘I’m good.’”
Also, in a second conversation with the police a week later, Baldwin said it was actually Dave Halls, the film’s first assistant director, who handed him the gun while announcing, “cold gun.” (Halls has since agreed to a plea deal with prosecutors.)
That’s from a recent NY Times opinion piece, using the whole incident as a talking point for why we should all exercise our right to remain silent. I highly recommend it. Gift link below:
From a negligence standpoint, I don’t really see why it should change things one way or the other, but the point is, (1) it’s an inconsistency, and any inconsistency can be used to undermine his testimony should he choose to give it, and (2) even if there had been no inconsistencies, the fact that he said anything at all means the prosecution can now use those statements against him, with or without his testimony in court. If he wants to offer a clarification of what he said or why his prior statements we inconsistent, the only way he can do that is by actually testifying. Which would then subject him to cross examination, which I would imagine could get ugly.
Yep, until I read this article I didn’t know there were conflicting statements. Makes me wonder what other people on set that day said in their statements. I’d have to go back to see what exactly the woman that sued said in her statements. I also don’t know what the friend of Halyna said in his. I’m not sure that anyone else was actually on set when the shooting happened. This has been dragged out so long I’ve probably forgotten half of what was said in the early days.
For better or worse, people like Baldwin that don’t feel they broke the law want to help the police. This is a good example for not doing that. He was talking to police from the beginning.
Maybe go ugly either way. Judging from his fanbase, he seems to be a likeable person. If he can hold his cool on the stand, he’s probably got a pretty good shot at convincing a couple of jurors.
I always thought Alec wouldn’t be charged. He has a tough legal fight ahead.
Hannah Gutierrez-Reed has always been expected to face charges. Her job was to keep accidents from happening.
Here are the complete charges against Baldwin from the D.A.:
What’s next? Will the DA allow Baldwin and Hannah Gutierrez-Reed to voluntarily return and turn themselves in?
Bail?
Travel outside the state?
Obviously Baldwin has the ability to hire a crack legal team.
One thing I will say is I don’t see how they could possibly make out a case for the alternative count I (involuntary manslaughter during a lawful act). Either his use of the deadly weapon was negligent—in which case he’s guilty of involuntary manslaughter during an unlawful act—or it wasn’t. In which case, he doesn’t have the mens rea for even involuntary manslaughter.
ETA: seems like the DA really is trying to proceed with the “lawful act” alternative on the premise that Baldwin was negligent not as an actor, but a producer. But then my sense was he’s not that kind of a producer, that his producer credit might as well be honorary, for credit (and money, too, I am sure) only, not as a decision-maker.
I heard this on TV so it must be true (said tongue in cheek). They were saying he was late to the safety training and ignored it in order to talk on the phone. So it doesn’t sound like it was focused on his producer status but rather on his actions as an actor.
At the end of the day the argument is an actor responsible and qualified to check whether the bullets in the gun are live rounds or not. Yes, I know a dangerous instrument requires a higher bar. But I don’t think its any actors responsibility when theres no reason for live rounds to be on set at all.
Honestly, on a set where the armorer allows live rounds to show up I’m not sure how much difference paying attention at the safety training would make.
IANAL, and don’t know how much, if any, weight the law places on “how the average peer of a defendant would act in similar circumstances.” But I believe the average actor would believe that an on-set gun in a production with an armorer is absolutely cold, and therefore “could” have treated the gun similarly to Baldwin in the same circumstance.
IOW, I don’t believe most actors would have considered pointing and firing (or misfiring) an assumed cold gun at a camera while rehearsing for a scene requiring that angle shot to be reckless, and they may have made the same mistake. In hindsight it was reckless behavior, but in foresight it would be deemed reckless to a responsible gun owner, but maybe not to an actor given limited training.
This nails it. I know this has been hashed and re-hashed already, but this is not the same thing as being at your buddy’s house and he hands you his new gun to check out.
On a movie set, it is not the actor’s job to make sure a gun is safe. It’s the armorer’s job, period. In fact, that’s pretty much the only reason you even have an armorer on set. The old line “You had one job” actually applies here.
All that said…I’ve had more competent ‘armorers’ on a community theatre project handing me a plugged up, barrel-welded-shut gun. But I still don’t think Alec is criminally liable
Your premise is based on an armorer as a single point of safety and they’re not. I posted up thread that OSHA does not distinguish between movie sets or other industrial settings. Safety is a group effort. There doesn’t appear to be any form of safety validation of the gun in this example. If the stories are correct Baldwin didn’t engage in the process from the start.
I’m surprised David Halls cut such a sweet deal. He has over 20 years experience. He makes a living giving orders and keeps production on schedule.
Hannah has said she felt rushed and pressured. That Dave grabbed the gun and took it to Baldwin.
It doesn’t excuse what happened. But Halls was the authority figure here. Baldwin was an actor with producing credit. He wasn’t managing production.
I agree. Halls seems like the most irresponsible actor here. They should have thrown the book at him.