Another Fine Line

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

There is no shortage of fine lines of separation in the law causing no end of hand-wringing for law students, prospective bar exam takers, and novice lawyers, and some that probably still annoy even a veteran here and there. Take some areas of homicide for example: here’s one from a review course’s practice MBE.

A husband decided to kill his wife by poisoning her. He asked his friend, a pharmacist, to obtain some deadly poison, and to give it him without recording the transaction. Because the pharmacist suspected the husband’s motive, she supplied the husband with a small quantity of an antibiotic, instead of the poison. The antibiotic is harmless if administered in small quantities, except for the less than 1 percent of the population who are allergic to the drug. The husband injected his wife with the drug while she slept, and she died from an allergic reaction.

The pharmacist is an accomplice to:

A. Murder.

B. Manslaughter.

C. Criminally negligent homicide.

D. No degree of criminal homicide.

According to the bar review explanation, the correct answer is D.

My problem is with the selection of answer choice D over answer choice C.

True, the facts do not explicitly state any intent to harm on the part of the pharmacist, and further do not explicitly state any other criminal intent. But reasonable people could certainly argue with some conviction that answer choice C is not unreasonable.

There’s no problem in dismissing A because of the lack of any intent to kill on the part of the pharmacist.

Did you notice that answer choice B is simply “Manslaughter,” without specifying either voluntary or involuntary manslaughter? Rather slippery. The answer key explanation for B dismisses voluntary manslaughter as a possibility for the same reason it dismisses murder: lack of intent to kill.

But it also dismisses involuntary manslaughter that might fall under answer choice B. The explanation key dismisses that option by stating that “ ‘unlawful act’ involuntary manslaughter requires a killing in the course of a [non-dangerous ] felony or a malum in se misdemeanor” [“misdemeanor manslaughter”]. But that encapsulation does not go far enough.

Clearly, mala in se misdemeanor crimes fall within this category of “unlawful act” and therefore under misdemeanor manslaughter.

But LaFave, in his concise hornbook, notes that more acts than just those mala in se misdemeanors can fall within the scope of “unlawful act.” He states that unlawful act involuntary manslaughter may apply in cases of acts merely mala prohibita, even those that may only amount to civil wrongs, rather than criminal depending on the jurisdiction.

Among jurisdictions, LaFave states, the modern trend is to depart from “unlawful act manslaughter,” with only about half the states retaining some form.

In those that retain it, the unlawful act must be the cause of someone’s death, as it is in the above example. Further, the death must be foreseeable from the unlawful act, and the risk of death or serious bodily harm must be either merely unreasonable, or both unreasonable and high.

In this case, there’s a pharmacist dispensing medication without a doctor’s prescription, which depending on the medication and the statutes involved may explicitly be malum prohibitum, whether amounting to a crime or merely a civil wrong. In any case, it seems that would qualify as an unlawful act, and a death resulted.

The question is whether that, coupled with the risk of harm that is present, is sufficient to subject the pharmacist to involuntary manslaughter liability?

Generally, for “unlawful act” manslaughter, the risk must be an unreasonable risk of death or serious bodily harm.

Here, the facts indicate the antibiotic is harmful to “less than 1%” of the population, but the facts don’t indicate the scope of “harmful,” whether that’s mere injury or the possibility of death.

So, is there an unreasonable risk of death or serious bodily harm here? Without more, it would not seem so.

OK, I can live with that reasoning.

Now: Criminal Negligence Homicide --- Involuntary Manslaughter

Generally, a key factor in criminal negligence homicide is that the defendant must be aware that it is his conduct that creates a risk of harm. Criminal negligence homicide is conduct that, under circumstances known, involves a risk of death or serious bodily injury that is either unreasonable, or both unreasonable and high, which can also be termed “recklessness.” The concept of recklessness encompasses the conscious disregard of the risk of harm to others.

The review course’s answer key in this case stated that degree of negligence was not reached here, where the pharmacist supplied the husband with the “usually harmless” antibiotic. But here, the pharmacist knows that some people are allergic to the antibiotic, knows that there is some chance of harm if husband administers the drug to someone.

As a matter of logic, any risk of harm is unreasonable where there is no countervailing benefit (Less than 1% risk of harm along with efficacious treatment of illness vs. Less than 1% risk of harm only and without possible benefit).

The pharmacist knows he is not providing the antibiotic for medicinal purposes, and therefore he knows there’s a risk of harm that, perforce, is unreasonable. The result is a death: but for the pharmacist giving the antibiotic to the Husband, a death would not have occurred.

So why is D the correct choice? The line between answers D and C seems pretty thin, given the state of the law. Certainly, it seems these facts could present a case of criminal negligence homicide.

Left unexplored is whether the pharmacist’s professional knowledge factors into — or whether it should factor into — his awareness of the risk and therefore adds to his culpability.

This fact pattern is just too nebulous for a multistate-style multiple choice question: Too many blurred lines and opaque circumstances. This one was better saved as an essay.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.