by Barbara D'Amato
Okay, no politics. Just something I think is interesting.
A mugger attacks his victim, bashing him with a crowbar and then rifling his pockets. Having taken the victim’s watch, money, charge cards, even his silk scarf and Lobb loafers, he worries that the victim will remember him and gives him another hard blow to the head to kill him.
However, his victim is not dead. Rushed to emergency care, his life is saved, but he has severe brain damage and is in a permanent coma. His assailant is arrested two days later, using the victim’s credit card. [As a cop friend of mine used to say, “If they were all geniuses, we wouldn’t catch them.”]
The attacker is tried and convicted of attempted murder, or grievous bodily harm, or assault with a deadly weapon – the actual charge will depend on the jurisdiction and the state attorney. But he is not tried for murder.
Two years later, the victim dies. What happens to the attacker?
English common law has long held that if the death occurs more than a year and a day after the attack, it was not murder. Until very recently, medical science was unable to keep people alive for long periods of time after a “murderous” attack. Now, of course, people can survive in a coma for years or decades on life support.
In the U.K. the law reform of 1996 abolished the year-and-a-day rule. In the United States, the situation is mixed. Several states have explicitly abolished it. But it survives because the common law underpinning of our laws survives.
Year-and-a-day goes way back. In Europe in the middle ages, if a serf ran away from his master and could keep from being captured for a year and a day, he became a free man. In many parts of the U.S., year-and-a-day is tied to the definition of certain crimes. A misdemeanor may carry a sentence of less that a year and a day, often phrased as eleven months and twenty-nine days. A felony is punished by more than a year and a day.
Because of the difference between states on this, and because even in states that have abolished the rule, cases are still successfully argued against charging a person with murder when the victim lives more than a year and a day, there are rich veins here for a crime novelist to mine.