The Original Post asked a specific question (basically):
Should a jury be allowed to decide if a victim should be liable for a reckless identification of an incorrect suspect?
The subsequent discussion has drifted off point by questioning whether, in this particular case, recklessness occurred. That’s not the issue.
The law professor quoted in the OP asserted that the issue should NEVER reach a jury, for reasons of public policy. The OP’er asserts this is a bad idea, that a jury should be allowed to make the determination.
Let’s get the debate back on point.
My assertion: this tort should be unactionable, unless criminal behaviour took place. If the victim makes a knowingly false accusation, that’s actionable. If the victim is merely reckless, then it shouldn’t result in liability.
Why? Mostly because I don’t trust juries in such situations. The mis-identified person could be a sympathetic plaintiff, and the jury will be, in my humble opinion, unlikely to properly take into consideration the exigencies of the moment. Now, that wouldn’t be in and of itself reason to make the actions unactionable, but when combined with the public policy in favor of encouraging the public to ID suspects without fear, I think it argues in favor of shutting the process of a lawsuit off.
However, I do not agree with the concept implicit in the quote from the law professor that rape victims should be treated in a “special” way, shielded from liability for “reckless” identifications when other victims are not. Either reporting crime and identifying criminals is to be encouraged, or the reckless behaviour is to be discouraged; rape isn’t entitled to a special treatment.
May a fact-finder infer knowing falsity only from the disparity between the attacker’s actual description and the falsely-accused man’s description? Again I refer you to my 4’10" 98 pound Asian man, or Metacom’s Tom, a 3’ 8" white midget who smells strongly of goat. May a jury, without more, use that disparity to conclude that her accusation was knowingly false?
Well, she was clearly wrong about who raped her, so the obvious question becomes, on what basis did she make her accusation. Evidently, not a very sound one. I’d say there’s definitely grounds for a lawsuit here.
If this happens, and if the attack occurred in conditions of sufficient lighting, and if she says she got a good look at her attacker, then we may conclude that it’s objectively unreasonable for her to have rationally held that belief. If she makes such an accusation, I’d hold out the possibility of something wierd happening psychologically with her: was she raped as a child by a large black man and has PTSD regarding the earlier incident?
Assuming that she wasn’t hallucinating or having flashbacks to an earlier incident, in such a case I think that criminal charges might be appropriate against her, or even civil charges based on the theory that she was malicious. I do not think that recklessness ought to be a consideration for a civil case: making it so opens up some very nasty floodgates, with relatively little benefit.
A white man living in a crime-ridden neighborhood is constantly afraid of being attacked by the drug dealers that ply their trade nearby. One day he’s mugged and beaten, and identifies a black man as his assailant, one of the dealers whom the police have just grabbed from the corner.
Subsequent investigation reveals a store camera video captured the attack, and it shows a white man jumping and beating the victim. The attacker is identified from the video and the victim’s wallet recovered in his possession.
What standard must the dealer meet to sue his accuser? The same one you’ve outlined above?
You may have pursuaded me to change my opinion here. I had previously asserted there’s no important difference between reckless and malicious (wrt whether the case is actionable). I offered willful blindess in a possession of stolen property charge as an comparative example. That comparison is unfair. I will now go away and ponder whether the reasonable person test can even be applied in a rape case. Hmmmm…
Whoops…
On the-preview-that-should-have-been I realize that I had erased the “willful blindness” comparison before posting. Even then I had considered it unfair. Please disregard. I continue to ponder though…
I don’t see any situation where a jury would have the ability to determine her level of certainty or sincerity. It’s not a question of whether a woman could be theoretically dishonest or “reckless” in misidentifying her assailant, it’s a question of whether any jury (absent other direct evidence) could ever be able to know that. I don’t think we can ask civil juries to determine how certain a rape victim was when she identified a suspect.
Pass. I also think it’s a ridiculous hypothetical that would never happen.
Yes, the same one: the dealer must show malice, I think. (As I said before, I would probably allow exceptional evidence of reckless disregard–if the white man told a friend, “If I ever get mugged in this neighborhood, I’m blaming it on the first person the cops show me,” then that’s evidence of reckless disregard for the truth). Absent proof of malice, it’s the cops’ job to recognize that witnesses may be frightened, confused, and all-around inaccurate, and to treat eyewitness evidence accordingly.
Bricker, let me turn it around on you. What do you see as the positive social implications of telling crime victims that if the person they identify as their attacker is not found guilty by the courts, a jury may decide whether their attempt at identifying their attacker will spell their financial ruin?
The fact that the other guy was arrested and charged with rape. You’re not actually going to question whether she was raped, are you? Can you show a cite for the police or the prosecutors having any doubt that there was an actual rape?
I can imagine someone saying she was attacked but not being ready to deal with the fact that she was raped, not being ready to say those words, if she was raped. I can imagine someone falsely accusing someone of rape. What I really have trouble imagining is a situation in which someone has consensual sex with someone, goes to the cops to claim that they were sexually assaulted, identifies someone other than her sex partner as her assailant, and then claims that this person raped her. That’s a pretty imaginative series of events.
Not under the law of defamation. An “official” accusation is not the standard that must be met. Instead, it is the common definition of accusation that applies. You can claim your best friend of stealing the last Twinkie, and that would be an accusation.
Nor is the fact that it was the actions of the police/DA that cause the actual harm to Mr. Matthew a bar to liability. The actions of the officials is the damage caused by the defamation. In defamation, if you falsely accuse Joe Schmoe of stealing from petty cash, and as a result Mr. Schmoe is fired, you are liable for the damage - the loss caused by the firing.
In this case, I have no problem with letting this go to a jury, under a recklessness standard. It’s a high burden to meet. If the woman was honestly mistaken, or if her mental state was such that she wasn’t in a condition to make an accurate identification, or if the circumstances were such that a proper ID was difficult, she won’t be liable.
We ask juries to make determinations about levels of certainty or sincerity, and states of mind in general, all the time. Every time there is a fraud case, the jury must determine state of mind. Hell, in murder cases, juries must determine premeditation, again an issue of state of mind.
Well, one “positive social implication” is that a man whose face was broadcast by regional news media for five days over a heading “suspected serial rapist arrested” will have some recompense for the damage done to him.
And it’s worth pointing out that a jury will actually DELIVER “financial ruin” only if they determine that the crime victim’s report was so utterly unlikely to be true that it represents a gross deviation from the standard a reasonable person would exercise in similar circumstances.
No. Memories, even sincere ones, can be stunningly unreliable, especially after trauma. It’s not unusal at all for people to misidentify the race or size or even gender of a suspect.
I’m sure you’re familar with the experiment that’s conducted sometimes in criminalistics or psyche classes in which a brief “crime” scenario is enacted in front of the class (someone pretends to snatch a purse, for instance, and there’s often a chase), the actors leave the room and the class is then asked to write down as many details as they can remember. Invariably, the accounts vary wildly as to the descriptions of the suspects, the number of people involved, the sequence of events, etc.
I once watched a film in a psyche class which illustrated the unreliability of human memory by showing a study in which a group of subjects was asked to watch a video of a dramatized bank robbery. Sometime later (I think it was a week- might have been a month), the subjects were asked to give their accounts of what they saw. They were way off. Even under hypnosis, they weren’t even close. The film I watched juxtaposed the robbery video with the oral accounts of the subjects under hypnosis and more than one of them misidentified the race and/or physical size of the suspects as well as how many there were, what they were wearing, who did what when, etc. It was especially instructive to see how SURE they all were. They weren’t being reckless, they weren’t lying, they were POSITIVE they were right.
Human memory is a constructed phenomenon. It’s not a video recorder. That’s why false memories are so easy to implant and why they feel experientially identical to “real” memory. That’s because there IS no such thing as a “real” memory in the sense of an accurate, journalistic recording of events. The brain reconstructs memory from retained information. Usually, the reconstructed memories are close enough to reality that it doesn’t matter. However, it is not fair to expect a traumatized victim to have perfect recall or to expect her not to be susceptible to something as suggestive as a suspect in custody and helpful police encouraging a positive identification.
Even if a rape victim can still be “reckless” or dishonest in that situation, I don’t think there’s anyway for a jury toknow it, no matter how far off the physical similarity might be (and in this particular case it sounds like it wasn’t far off at all).
If it’s worth pointing out in your second paragraph (as a way of minimizing the harm of this idea), it’s also worth pointing out in your first paragraph (as a way of minimizing the benefit of this idea).
The real harm, as I see it, is for future rape victims. If they know that a wrong identification may spell their financial ruin, or even a correct identification that doesn’t lead to a conviction may spell their financial ruin, that constitutes a strong disincentive to attempting to identify their attacker. It may lead to the savvier rapists threatening their victims: “Tell anyone about this,” they could say, “and I will sue the shit out of you.” They could tell the victim this either at the moment of the rape or the next day.
Imagine another case: a woman accuses a man of rape, and he is tried and found not guilty because the jury believes the sex was consensual. The man then sues the woman for reckless disregard to the truth: his theory is that she convinced herself after the fact that it was rape. Would you support that case going to trial?
If the woman is malicious, then certainly there’s a case. But allowing cases to go forward in which reckless disregard is the standard? I see meritorious cases of this sort as being vanishingly rare, but unmeritorious cases as carrying significant social risks.
Then would you agree that we can no longer permit rape accusations alone to be sufficient evidence to convict? That is, we adopt a rule of evidence that requires something beyond a woman’s testimony – some other piece of corroborating evidence – to convict on a rape charge. Since you point out the memories can be so stunningly wrong, I assume you’ll be in favor of this idea.
Is there a significant difference in the physical attributes of the wrongly accused guy and the guy whose DNA impliacted him? As far as I can tell from the (very limited) info we have, the answer is: No.
I still say if anyone was negligent in this case, it was the cops. They acted on info from someone who:
Significantly changed her story after the alleged attacker was found
Identified the guy in the headlights of a car, soon after her attack
This is pretty much exactly how I feel about it, along with the point about how the threat of civil liability could be used to intimidate victims. We don’t need to add MORE anxiety and trauma to the process of victims identifying attackers. It’s the responsibility of police and prosecutors to determine the credibility of the victim’s identification before they bring a suspect to trial.
