Traditional media organizations cover big cases, and they do it well. Part of what’s neat about streaming normal courtroom proceedings as a part of OpenCourt‘s efforts is being present for the interesting hearings that would otherwise fall through the cracks.

For instance, in a scene about a week ago that echoed a plot line from the film “Minority Report,” a local defense attorney moved that a charge against his client should be dismissed on grounds the state would essentially be criminalizing a state of mind.

Both sides in the case agree the defendant, charged with attempt to commit a crime, seems to have prepared to rob a bank in Weymouth, Mass., acknowledging a witness and police report that describe a man sitting in the bank’s parking lot with a mask, wig, knife, rags obscuring his license plate, and a note for the teller.

The lawyer argued the man would have had to have gone into the bank and passed said note in order to establish the probable cause necessary for the state to make that charge — that even if you have a note, a mask, and other accoutrements for robbing a bank, that his defendant should not be charged on the basis that he might have only been close to “doing something stupid.”

An assistant district attorney countered that the man’s reason for abandoning his plan and driving away (before being eventually pulled over) was not “an act of volition” but a reaction: As he was preparing to enter the building, an officer parked a marked police cruiser across the street.

Where is the line? When does intent become a criminal act?

committing an overt act

Jeff Hermes, director of the Citizen Media Law Project at Harvard’s Berkman Center and a member of OpenCourt’s Advisory Board, wrote in his thoughts:

You can’t be arrested for merely thinking about committing a crime. To be found guilty for an attempted crime, Massachusetts law requires that the defendant have committed an overt act in furtherance of the crime and that the defendant was reasonably close to following through. However, mere planning or even preliminary acts where the defendant could still change his mind are not sufficient. After all, we want people to feel free to change their minds about committing crimes.

Generally, the overt act is the “falling domino” — an act that would lead a reasonable person to believe the defendant, barring unforeseen events, was actually going to follow through with the crime. For example, stepping through the door of the bank with a drawn gun would qualify; even if the defendant might still change his mind and walk right back out, a reasonable person would believe that the defendant was going to rob the bank.

Would the hypothetical “reasonable person” decide that merely sitting in a car with the necessary accoutrements was sufficient indication that the defendant was going to follow through? It’s difficult to say; I’ve never met the “reasonable person” myself, and there are so many details that would make a difference. Was the defendant muttering to himself excitedly, trying to psych himself up for the crime? Was he sitting in the car crying at his own desperation before simply driving away, with the nearby cop as a mere coincidence?

Each side will try to paint its picture of events, and the jury will be left to use inevitably incomplete and biased information.

Every time I encounter a hearing like this one, I universalize the concept of OpenCourt and imagine just how many opportunities to learn are missed every day as a result of not having a camera in every courtroom.

In this case, the motion was denied. Click the video above to view the ruling.

A version of this post also appeared on the OpenCourt blog.

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