Criminal Law, Empirics, and the Duty to Rescue

Around this time of year new professors start to think about their courses and I thought I would add in my contribution. One of the struggles of teaching criminal law is that the doctrine is often divorced from reality. This is hardly a new observation, but I am always struck by the divide between the practice of criminal law and the course we teach to first year students. As a simple example, the standard criminal law class spends little or no time on narcotics prosecutions, even though drug cases are an important, if not the dominant, feature of the practice of criminal law. One way to overcome that divide is to bring some empirical work into the classroom so I thought I would share some of the items I have used or plan to use in the future.

The first installment is on the duty to rescue, a standard part of a criminal law course. Most states do not impose a general duty to rescue. If a stranger about to drown in a lake, most states will not charge someone who fails to rescue him with murder. Of course, in some situations courts will impose a duty. For instance, you cannot let your spouse or your child drown. Similarly, a nurse hired to care for someone who is ill is obliged to intervene if the patient seems to be having a heart attack. After introducing the general rule and exceptions, my class spends time analyzing and breaking down these distinctions as well as arguing about the reasons to either impose or not impose a general duty to rescue.

Without some understanding of rescue rates in the real world, though, the discussion is very abstract. I have found this paper by David Hyman to be a very nice addition to the class. He finds that even in a world without a duty to rescue, rates of non rescue are very low. Far more people die risking their lives to rescue strangers than die from failing to be rescued by someone who could have helped but did not. The relatively aberrant nature of non-rescue helps shape and ground the discussion of this issue.

It also provides a hook to compare punishment and reward. While we do not punish a failure to rescue, we do reward rescue. We take the same approach with reporting crime and serving as a cooperating witness. There are financial rewards available for reporting crime and if you are charged with a crime, there are rewards available in the form of reduced jail time for testifying against co-defendants. We do not, though, punish those who fail to report crime (aside from the rare misprision statute) or decide to remain silent. My experience is that students find these comparisons interesting and helpful.

You may also like...

8 Responses

  1. Stephen Aslett says:

    Have you taken a look at Marin Scordato’s “Understanding the Absence of a Duty to Reasonably Rescue in American Tort Law,” 82 Tul. L. Rev. 1447 (2008)? Despite its title, Scordato does discuss the relative merits of a criminal law duty to rescue.

    Available at SSRN here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1139243

  2. Orin Kerr says:

    Do duty to rescue issues come up a lot in criminal practice? My sense is that this is the kind of issue that is an interesting puzzle, but not particularly closely related to practice. Also, what are the interesting substantive crim legal issues raised by narcotics prosecutions? I cover the meaning of possession in the “guilty act” materials pretty early on in the semester, but what else is there?

  3. Kevin says:

    I just finished 1L year, take my comment with a grain of salt.

    I thought that the usual Crim Law course was just fine, even though I am very interested in drug crime and policy. Aren’t the more interesting issues of drug crime (sentencing, incarceration, etc.) more properly dealt with in other courses? I can’t imagine a good place where drug crime would actually fit into learning the basics of conspiracy, attempt, or crim statute interpretation.

  4. Kevin says:

    Also, your duty to rescue remarks are spot-on. We covered a bit of duty to rescue, and if I recall our casebook had a small comment from one of the Conspirators (I think it was Eugene, don’t hold me to that) regarding duty to rescue. Going over an actual study would be invaluable – and not just for duty to rescue, but interesting studies across the spectrum of crimes covered.

  5. Jeff says:

    Re last sentence of your last paragraph, Mr Minzer – – we in UK aren’t pampered by the existence of such procedural mollycoddling.

    Hats off to your written constitution; from what we see from here you all do appreciate what you’ve got, as you should.

  6. Max Minzner says:

    Orin, I don’t have data on the frequency of duty to rescue cases, but my instinct is the same as yours. Prosecutions are probably rare. That’s the reason I think it is worth trying to bring some data to bear on the issue. Without it, I worry students may think that prosecutions for non-rescue (and non-rescue itself) are common in the real world.

    Orin and Kevin, I agree that drug prosecutions do not fit well in the basic criminal law course because the issues that arise in practice are so deeply factual. I fear that this is a problem with the class, though. It troubles me that the dominant crime in the real world makes little or no appearance in criminal law. This is similar to the common critique of contracts. Drafting is a large portion of the practice of contract law, but the contracts course emphasizes litigation.

  7. Orin Kerr says:

    Max,

    Two thoughts.

    First, narcotics does make an appearance in most criminal law classes, right? In my experience, a not-insignificant chunk of cases in most crim books are narcotics cases, even if the elements of the crime are not specifically analyzed (because the elements are usually very easy). And criminal procedure courses are largely about narcotics: in particular, studying Fourth Amendment law is largely about studying narcotics investigations.

    Second, I respond to the relative insignificance of duty to rescue cases by not teaching the subject (or at least not discussing it for more than about 5 minutes). Students generally get this topic in torts, and it seems so uncommon in criminal law that there isn’t much to dwell on. That’s my take, anyway.

  8. Max Minzner says:

    Orin,

    Thanks for the thoughts. I certainly can’t argue with the choice to exclude the duty to rescue. I’ve been tempted to do that as well.