Public Defense

A conjoined criminal enterprise

By Gideon

nocaptionthistime

If a conjoined twin commits a crime, does his counterpart get punished too? That’s the question posed to Slate’s Explainer and in classic lawyer fashion, the answer is: who the hell knows.

At first blush, it would seem terribly unfair and unconstitutional: you punish the guilty and seek to avoid punishing the innocent. Assuming that we know which one of the twins committed the crime, would it be feasible to punish that person – via incarceration in this hypothetical – and not the other? It would, of course, be physically impossible to do so.

The brilliant minds at work across the internets who have been wrestling with this question since Slate’s piece was published offer some ways to also convict the innocent twin: accessory, co-conspirator, violation of a good samaritan law, so as to justify the inevitable imprisonment of that originally innocent person.

All of the above assumes that one twin is unambiguously guilty, and the other is unambiguously innocent. In real life, it’s hard to imagine such a clear-cut case. For example, a jury might be inclined to believe that the “good” twin acted as an accomplice, or perhaps an accessory, to the crime after the fact. This charge would apply if one sibling knew that the other had committed a crime?which seems likely under any circumstances?and that he intentionally provided assistance or comfort to his sibling rather than calling the police at the first opportunity. If the good twin were convicted of an accessory crime in federal court, he’d be subject to at most half the prison term appropriate to his evil brother. In some states, however, it’s legal to harbor a fugitive if that person happens to be your sibling.

One more way that a “good” twin might be convicted, even if he took no part in the actual committing of the crime: In some states, he might be found guilty of not stopping his brother. Although as a general rule, common-law tradition dictates that you can’t be held accountable for something you didn’t do, 10 states have so-called “duty to rescue” statutes. These require innocent bystanders to call the police or reasonably attempt to aid a victim in distress. (In four of these states, siblings of the offender are exempt from the law.) If one twin tried to stab someone, the other might be expected to grab his arm or drag both of them to the ground. The penalty for failing to rescue is usually a fine, though some jurisdictions allow for up to a year in prison.

All clever arguments, but they assume that the innocent twin is physically capable of preventing the other from committing a crime. I don’t know how the physiology of conjoined twins works, but if the guilty twin controls the legs, can the innocent one truly stop him?

There’s all sorts of other juicy stuff: obviously the innocent twin can testify against the other, but wouldn’t that require the defendant to take the stand, in a sense? Also, how would sequestration orders be followed? How might the defendant defend against charges of tampering with a witness? Of course, there would also be the case of the state’s eyewitness sitting right next to the defendant throughout the trial.

There’s even a (really, really, really bad) movie about this.

(If think about this too much, you’ll start seeing double. Get it? GET IT?)

Full post as published by A Public Defender on January 10, 2010 (boomark / email).