# Question about “frivolous” legal defenses **URL:** \ **Category:** Factual Questions\ **Created:** [August 2, 2022, 3:32am UTC](https://boards.straightdope.com/t/question-about-frivolous-legal-defenses/968957 "2022-08-02T03:32:41Z")\ **Posts on this page:** 11\ **Page:** 2
**Author:** ![md-2000](https://avatars.discourse-cdn.com/v4/letter/m/9d8465/32.png) [@md-2000](https://boards.straightdope.com/u/md-2000)\ **Post date:** [August 2, 2022, 6:14pm UTC](https://boards.straightdope.com/t/question-about-frivolous-legal-defenses/968957/21 "2022-08-02T18:14:30Z")
Another point Bannon tried to make - that he was being unfairly singled out. He wanted to subpoena records related to the decision to prosecute, and someone like Nancy Pelosi. IANAL, but it seems to me that any court case where the defense tries to put the prosecutor on the stand and ask “why did you choose to prosecute specifically me??” will be shut down pretty quickly by the judge. The issue is “did you do the crime?” not “why are we prosecuting you?” The prosecution decision would have to be incredibly egregious for such a defense to work, I would think. I guess the question for real lawyers is - how does all this go down. I assume Bannon asked for example, for a subpoena for Pelosi, and the Prosecution had an opportunity to argue this is irrelevant? Or did Nancy’s office have to do that? Or did the judge have to sign off on the subpoena, and therefore need to know what general area a witness is expected to testify to? ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [August 3, 2022, 3:37pm UTC](https://boards.straightdope.com/t/question-about-frivolous-legal-defenses/968957/22 "2022-08-03T15:37:24Z")
> [@Horatius](#): > > Well, yes, but that’s pretty much what we pay the courts to do. They are supposed to act as an objective standard, divorced from the emotional entanglements that the parties to the dispute may experience, so they can render a judgement, “Position X is supported by the facts/law/jurisprudence, Position Not X is not.” > > You’re applying this to several controversial issues, because it feels “unfair” to tell one side they’re full of shit, but really, these are just the extremes. Okay, so where did the conclusion that fetal personhood is crap come from? If the courts have already concluded that, why are laws based on it still being passed? Could a defense one court in one state finds “frivolous” be seriously considered in another? (I assume so; I think I’ve always thought of THE LAW as this monolithic “objective” standard, despite the ample evidence otherwise. I also shudder to think of all the laws in red states that evoke God and Christianity, and whether that could somehow be leveraged to make the courts consider, or at least hear, Biblical stuff more.) Basically, I think my core question is that I know that courts _have_ to have some facts as already established before a case even enters the courtroom, but I’m not sure how far that can go when pertinent facts are out of the usual expertise of the law. I know that judges don’t _have_ to and usually won’t entertain a defense claiming that, say, DNA doesn’t really exist, but with all the controversies going on every day over basic science, I wonder what happens when someone bases a claim on, like, climate change being fraudulent. ---
**Author:** ![Horatius](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/horatius/32/3572_2.png) [@Horatius](https://boards.straightdope.com/u/Horatius)\ **Post date:** [August 3, 2022, 3:44pm UTC](https://boards.straightdope.com/t/question-about-frivolous-legal-defenses/968957/23 "2022-08-03T15:44:03Z")
> [@Leaper](#): > > Okay, so where did the conclusion that fetal personhood is crap come from? If the courts have already concluded that, why are laws based on it still being passed? The problem is, we _haven’t_ had a court rule on any of that, yet. The Supreme court struck down the right to abortion, and that’s triggered a lot of new laws coming into force, and lots of speculations about other such laws. But so far, no one has actually tried to kill a doctor because they were about to perform an abortion. So this is all just speculation about what might happen. People are taking this to both logical and illogical extremes just to ask, “So, now what?” The point is, the anti-abortion proponents clearly didn’t spend any time thinking about this before they decided to flip everything on its head. So now, we don’t really know what’s going to happen, and that’s a problem. But at some point, a court will make a ruling, and it’s a safe bet that this ruling will piss off a lot of people, on one side or the other, and possibly both. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 3, 2022, 4:04pm UTC](https://boards.straightdope.com/t/question-about-frivolous-legal-defenses/968957/24 "2022-08-03T16:04:48Z")
> [@Horatius](#): > > But so far, no one has actually tried to kill a doctor because they were about to perform an abortion. Beg pardon?? > **[40 years of attacks on abortion clinics, mapped](https://www.vox.com/2015/12/1/9827886/abortion-clinic-attacks-mapped)** > > Since 1977 there have been eight murders, 17 attempted murders, 42 bombings, and 186 arsons targeted at abortion clinics and providers across the United States. In some cases, a small group of clinics have been targeted multiple times. That was from an article in 2015. I don’t know if there have been more murders since then. Oh, and in the US, it’s perfectly legal and constitutionally protected to publish a “hit list” of doctors who provide abortions, with their photos, home addresses, telephone numbers, office locations car make and model and licence plate number, and similar identifying information. > **[US judges rule in favour of abortion hit list](https://amp.theguardian.com/technology/2001/mar/30/internetnews.usnews)** > > Anti-abortionists in the United States have won the right to publish on the internet what amounts to a hit list of doctors who provide terminations for pregnant women. ---
**Author:** ![Horatius](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/horatius/32/3572_2.png) [@Horatius](https://boards.straightdope.com/u/Horatius)\ **Post date:** [August 3, 2022, 4:24pm UTC](https://boards.straightdope.com/t/question-about-frivolous-legal-defenses/968957/25 "2022-08-03T16:24:16Z")
> [@Northern\_Piper](#): > > Beg pardon?? I meant post-overturning Roe vs. Wade, which is the precedent for the whole, “I was defending the fetus” argument. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [August 4, 2022, 1:59am UTC](https://boards.straightdope.com/t/question-about-frivolous-legal-defenses/968957/26 "2022-08-04T01:59:13Z")
> [@Leaper](#): > > Okay, so where did the conclusion that fetal personhood is crap come from? Common law. By which I mean centuries, even millennia of prior jurisprudence. Keeper v. superior Court is a fairly well-known case on the subject, with a lengthy dissertation on whether a fetus is a “human being” under common law, and why it is appropriate to fall back on common law in the absence of a relevant statute. It’s under Roman number I, which begins: > I > > Penal Code section 187 provides: “Murder is the unlawful killing of a human being, with malice aforethought.” The dispositive question is whether the fetus which petitioner is accused of killing was, on February 23, 1969, a “human being” within the meaning of the statute. If it was not, petitioner cannot be charged with its “murder” and prohibition will lie. > > Section 187 was enacted as part of the Penal Code of 1872. [1] Inasmuch as the provision has not been amended since that date, we must determine the intent of the Legislature at the time of its enactment. But section 187 was, in turn, taken verbatim from the first California statute defining murder, part of the Crimes and Punishments Act of 1850. (Stats. 1850, ch. 99, § 19, p. 231.) fn. 2 Penal Code section 5 (also enacted in 1872) **[2 Cal. 3d 625]** declares: “The provisions of this code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments.” We begin, accordingly, by inquiring into the intent of the Legislature in 1850 when it first defined murder as the unlawful and malicious killing of a “human being.” > … and so on. > **[Keeler v. Superior Court](https://law.justia.com/cases/california/supreme-court/3d/2/619.html)** > > Keeler v. Superior Court, Supreme Court of California > [@Horatius](#): > > The problem is, we _haven’t_ had a court rule on any of that, yet. That’s not really the problem, for the reason just stated: that is, courts actually _have_ considered whether a fetus is a legal person or “human being”. Whether a fetus is a legal person or “human being” is separate from whether it may be lawful to terminate a pregnancy. Cutting both ways: it may be fairly argued that even if a fetus were a legal person, it should be permissible to abort. Because what other legal person may lay claim to another person’s body for their own sustenance? Likewise—and this is the case now in states where abortion is illegal, absent a statutory provision seeking to define a fetus otherwise—it is possible (thanks to the current SCOTUS) that a fetus may both be _not a legal person_, and yet unlawful to abort. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 4, 2022, 2:28am UTC](https://boards.straightdope.com/t/question-about-frivolous-legal-defenses/968957/27 "2022-08-04T02:28:24Z")
> [@Leaper](#): > > If the courts have already concluded that, why are laws based on it still being passed? Becasue courts are not the final word. Legislatures and the people can change the common law, statute law, and state constitutions. If the highest court in a state declares that as a matter of common law, fetuses are not persons, the legislature could pass a statute the next day to revoke that common law and declare fetal personhood by statute. May be harder if a court rules no fetal personhood based on a statute, or a state constitution, but ultimately the elected reps or the people can change the statute or the constitution. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 4, 2022, 2:29am UTC](https://boards.straightdope.com/t/question-about-frivolous-legal-defenses/968957/28 "2022-08-04T02:29:16Z")
> [@Leaper](#): > > Could a defense one court in one state finds “frivolous” be seriously considered in another? Yes, if the state criminal law varies sufficiently between the two states. ---
**Author:** ![md-2000](https://avatars.discourse-cdn.com/v4/letter/m/9d8465/32.png) [@md-2000](https://boards.straightdope.com/u/md-2000)\ **Post date:** [August 4, 2022, 4:50am UTC](https://boards.straightdope.com/t/question-about-frivolous-legal-defenses/968957/29 "2022-08-04T04:50:30Z")
> [@ASL\_v2.0](#): > > > [@Leaper](#): > > > > Okay, so where did the conclusion that fetal personhood is crap come from? > > Common law. By which I mean centuries, even millennia of prior jurisprudence. It’s been a fact since time immemorial. Heck, even the law written down in 1000BC by one culture said so - Exodus 21:22 - _22 “When men strive together, and hurt a woman with child, so that there is a miscarriage, and yet no harm follows, the one who hurt her shall be fined, according as the woman’s husband shall lay upon him; and he shall pay as the judges determine._ In this particular “eye for eye, life for life” culture, causing a miscarriage was a property crime, pay a fine to the husband - not a murder, pay with your life. The same principle applies to common law to this day. (Fun fact, that’s the _ **Revised Standard Version – Catholic Edition** _ - a Catholic Bible translation) ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [August 4, 2022, 5:13am UTC](https://boards.straightdope.com/t/question-about-frivolous-legal-defenses/968957/30 "2022-08-04T05:13:11Z")
Just now, I am also reminded of **People v. Kurr** (2002), a Michigan case that determined deadly force could be used, in defense of others, for a fetus. In Michigan. Specifically in light of relevant statutes passed by the legislature. So again, it’s not that this question just hasn’t come up—it has—it’s that whether “defense of a fetus” might be allowed (whether the argument could even be put forward in front of a jury) as a defense to murder or not will depend, first of all, on the particulars of the law in that jurisdiction. If the legislature has enacted statutes that give rise to notions of fetal personhood, then quite possibly defense of a fetus might be allowed as a defense to murder. But if it hasn’t, then common law would likely still apply, in which case a fetus isn’t a person or “human being” as far as _the law_ is concerned. Which I hope highlights just how difficult these questions can be to answer in the abstract. What might amount to a meritorious defense in one jurisdiction could be deemed frivolous (or at best novel, and ultimately not allowed to even make it in front of a jury) in another. [https://caselaw.findlaw.com/mi-court-of-appeals/1081169.html](https://caselaw.findlaw.com/mi-court-of-appeals/1081169.html) And as previously noted, even if a particular defense might theoretically be allowed as a matter of law, the facts might be so at odds with the necessary elements to successfully raise the defense as to make it meaningless. It’s one thing to say “He was coming at me pounding his fist into his palm and saying he was going to beat my kids out of me, so I picked up a kitchen knife and stabbed him.” It’s something else altogether to say “I found out this guy performs abortions, and we all know those are illegal, so I put a pipe bomb beneath the driver’s seat of his car and rigged it to go off just as soon as the car started moving again.” ETA: Here’s a helpful blurb from **Kurr** , highlighting how variations in statute (or whether a statute even exists) across jurisdictions—not only in terms of who is a person, but the requirements for self-defense, the definition of murder, etc.—can lead to very different outcomes: > … Moreover, the legislative analysis of the act indicates that, in passing the act, the Legislature was clearly determined to provide criminal penalties for harm caused to nonviable fetuses during assaults or negligent acts against pregnant women. See Senate Fiscal Agency Legislative Analysis, SB 21 and HB 4524, August 4, 1998. > > Because the act reflects a public policy to protect even an embryo from unlawful assaultive or negligent conduct,[5](https://caselaw.findlaw.com/mi-court-of-appeals/1081169.html#footnote_5) we conclude that the defense of others concept does extend to the protection of a nonviable fetus from an assault against the mother. We emphasize, however, that the defense is available solely in the context of an assault against the mother. Indeed, the Legislature has not extended the protection of the criminal laws to embryos existing outside a woman’s body, i.e., frozen embryos stored for future use, and we therefore do not extend the applicability of the defense of others theory to situations involving these embryos. > > We acknowledge that in Ogas v. Texas, 655 S.W.2d 322, 325 (Tex.App., 1983), the Texas Court of Appeals rejected the defendant’s assertion that she was entitled to use deadly force to protect her unborn child. However, unlike Michigan, Texas has codified the defense of others theory in its criminal statutes. See Tex Penal Code Ann 9.33. Section 9.33 provides that one may use deadly force against another to protect a third “person,” and “ person” is defined by the penal code as “an individual, corporation, or association.” See Tex Penal Code Ann 1.07(a)(38). Moreover, and significantly, “individual” is defined as a “human being who has been born and is alive.” See Tex Penal Code Ann 1.07(a)(26). Under these circumstances, the court concluded that “an unborn fetus is not included within the statutory definition of ‘person’ and, hence, not included with the provision of Sec. 9.33.” Ogas, supra at 325. > > Michigan has not similarly codified the defense of others theory in its criminal statutes, and we are therefore not bound by restrictive statutory definitions. Our Legislature, as noted earlier, has expressed its intent that fetuses and embryos be provided strong protection under the law from assaults against pregnant women, and we believe that our decision today effectuates that intent. > > The common law of other states is likewise distinguishable. … ---
**Author:** ![Horatius](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/horatius/32/3572_2.png) [@Horatius](https://boards.straightdope.com/u/Horatius)\ **Post date:** [August 5, 2022, 5:53pm UTC](https://boards.straightdope.com/t/question-about-frivolous-legal-defenses/968957/31 "2022-08-05T17:53:14Z")
> [@ASL\_v2.0](#): > > Which I hope highlights just how difficult these questions can be to answer in the abstract. What might amount to a meritorious defense in one jurisdiction could be deemed frivolous (or at best novel, and ultimately not allowed to even make it in front of a jury) in another. And this highlights something I’ve noticed. There’s a certain subset of people who think that human laws must be entirely consistent with natural laws. To them, the question, “Is a fetus a human being?” must be answered in an objective manner that is entirely dependent upon some physical reality. But human law has never actually been so bound. We can pass laws that say whatever we want them to say, even if it directly contradicts natural law. In some cases, doing that would be incredibly stupid, of course, but when has that ever stopped the human race? So yeah, “Fetal personhood” has only the meaning that human laws and jurisprudence has decided it has. Arguing about anything else is kind of pointless, unless you’re trying to get the law changed. [Previous page](https://boards.straightdope.com/t/question-about-frivolous-legal-defenses/968957.md?page=1)