So, hypothetical legal question here. I watched Penn and Teller do a trick where they talked about how long someone can survive without breathing, then had an audience member lock Teller into a cylinder filled with water. As you might expect, ‘problems’ with the lock and key trapped Teller in the cylinder for several times the longest someone might survive while they made an elaborate show of trying to get him out while repeatedly calling out time. Now, obviously the trick worked and he was alive at the end, but what if they screwed it up and whatever safety backup they had failed, so he did actually drown?
Would the audience member who locked him into the water face charges for some kind of homicide, or is there some general legal defense that would apply? With so many magicians doing dangerous stunts, something like this must have happened before, but I don’t know that there’s a defense of ‘he told me it was safe to do this dangerous thing’ available.
I can’t imagine any prosecutor charging the audience member with anything. The death would be due to a failure of equipment, not anything the audience member did.
You could, of course, come up with a scenario where the audience member uses this as a murder method, but they would have to have access to the equipment.
To be convicted of murder or voluntary manslaughter requires proof of intent. In the situation you describe, the audience member reasonably expected that Teller would either escape from the water himself or (in the event of a screw-up) would be rescued by assistants, so a charge/conviction for murder/VM seems unlikely.
IANAL, but from the Wikipedia page ISTM that “constructive manslaughter” would also be out, since there wasn’t an initial unlawful act that precipitated the death.
Finally from that page, “criminally negligent manslaughter” also seems out, given the vigorous reassurances from the performers that everything was going to be fine.
As an aside, they talk about this very trick in their book “Cruel Tricks for Dear Friends”. Whenever they performed it, they had a guy with a sledgehammer standing off stage, and Teller had a specific hand symbol that meant “The trick to let me breathe isn’t working, please rescue me.” When they performed it on Saturday Night Live, something went wrong and he was getting air, but not quite enough. He was within a few seconds of giving the symbol when Penn (who didn’t know anything was wrong) finally let him out. So they definitely have multiple methods to prevent accidental deaths from happening.
To further simplify things, consider Michael Massee, who pointed a gun at Brandon Lee and pulled the trigger and killed him – and never faced any criminal charges, and as far as I know no one ever called for them – because, like plenty of actors before him and since, he was told to fire a blank from a prop gun, and mundanely did so.
No intent, no reasonable belief that he was doing something that could lead to someone’s death, not a crime. If anything, Penn or crew members would be held responsible for negligence or reckless disregard, or even intent if there was evidence of that. It’s no more a crime than holding a beer for the winner of a Darwin Award.
I think this is referred to as “death by misadventure”. It would be an accidental death, in which there was no intent nor reasonable probability of harm. In a sense, like a fatal sports injury, sustained within the normal parameters of competition. If a sprinter running second place collapses and dies on the track, you cannot blame the winner of the race, for setting a pace that the stiff could not sustain.
Judges often use the “reasonable person” doctrine, in ruling whether it would be reasonable for a participant to have a certain expectation.
Except in this case the trick would be designed by Teller. Penn is the equivalent of the girl in the bikini who distracts you while the magician does the tricks.
The only way this could be negligent is if there was some way to show that the trick was in fact done in a negligent way. If I hand my wife the car keys and she drives the car off a cliff I haven’t committed a crime, even though I know people sometimes get into car accidents.
I think what I was missing in my head is that the ‘reasonable person’ standard can take a step back. I was thinking ‘it’s obviously not reasonable to lock someone in a tank of water’, but it is reasonable to lock a professional magician in a tank of water during his magic trick since you know there’s preparation and a trick involved.
But that’s it, Penn may be negligent in not noticing the problem occurring, or stage crew may have made a mistake in setting up equipment and Penn neglected to check carefully. I’m just pointing out that there are people on stage who could have some responsibility for the mishap, but the audience member has no superior knowledge that would make him liable.
Can the audience member called up to the stage to unwittingly participate in a homicide have grounds to sue for psychological distress and trauma suffered from the experience?
I assume you mean if the trick went wrong and Teller did actually die. They could try and sue the venue, but I’m sure the theater would be protected by all the legalize regarding this that’s printed on your ticket. Be like trying to sue a stadium because you got hit with a foul ball.
As much as I love Penn & Teller I was never overly impressed with this trick. I mean I get that the whole point of their act isn’t magic but to be funny and fuck with the audience. But it was just so obvious how this one worked…
Teller continues to breath thru his nose being inside the scuba mask. To eliminate any bubbles it must also have air circulation tubes hidden under the mask strap and down the back of his clothes. However this type of thing could easily malfunction as stated above.
Isla Fisher almost died during the filming of the water tank scene in Now You See Me. The chain she was supposed to escape from got tangled in her costume and she couldn’t get out of it. There was a button that would dump all the water but she couldn’t reach it because of the tangled chain. And there was a diver on standby with an air tank to rescue her but they hadn’t prepared a clear procedure like Penn and Teller had so he didn’t realize she was in trouble. So Fisher was actually on the verge of drowning and everyone on set thought it was just great acting. Fortunately she was able to untangle the chain before she passed out.
If you watch that Fox show from the 90s Magicians Code they explain how the audience “volunteers” are always part of the show, i.e. Employed by the magician.
And I can assure you, this is completely and utterly wrong. I have been called onto stage to act as a volunteer for a magician, as have a few of my friends at different times. None of us were employed by, or even knew, the magician.
There may be specific magicians who use volunteers for specific tricks. But for basic stuff like locking padlocks, turning cabinets or picking cards, I can assure you the volunteers are not always stooges and I suspect are almost never stooges.
It’s not just that there wouldn’t be mens rea, no magic trick, at least not the ones at the level of P&T, would ever give a volunteer from the audience any real control or effect over the workings of the trick.
Yes, stooges are used when necessary to make the trick work. Magicians don’t want to pay a stooge to help them out when they could perform the illusion without them. Mainly stooges are used in mentalism acts because no one can actually read minds. Occasionally they will be used to fill out a show, but a magician can’t get by very well on a single gimmick requiring a confederate. ‘Instant Stooges’ are another thing, the use of audience members to unknowingly contribute to the effect. That’s a controversial topic in the world of magic, but they are not really stooges in the sense of confederates, and would not be responsible for the results of an act going wrong either.
Also, if a magician asks for help from someone named Moe, Larry, Curly, or Shemp then the magician should be held responsible for any mishaps because of their own reckless decision to enlist the aid of actual Stooge.