- This video was made
possible by Tab for a Cause. Raise money for charity
just by opening tabs, which you were going to do anyway. Link in the description. In the wake of the death of George Floyd, the whole country has erupted
into protests and riots, but with the charging of the officer who placed his knee on
the neck of George Floyd for over seven minutes, it really raises more questions
than it actually answers. Such as what's the difference between second-degree murder
and third-degree murder? And why was the police officer who had his knee on George Floyd's neck for over seven minutes initially charged with
third-degree murder, but now recently the
prosecutor has upgraded that to second-degree murder? And what about the other officers? Do they face liability? They've been charged
with aiding and abetting. What is that, and what penalties can they
potentially face as a result? And what would happen if
a bystander stepped in to try and prevent this
tragedy from happening? What legal repercussions would they face? Let's talk about it. (news reel music) Hey, Legal Eagles, it's
time to think like a lawyer, because there are a lot of legal questions surrounding what's going on with the officers who were involved in the death of George Floyd. Now, to recap as you're probably aware, in Minneapolis an officer
named Derek Chauvin placed his knee on the
neck of George Floyd in the process of apprehending Mr. Floyd while other officers were nearby. Now I'm not going to
show the footage of this. I'm also going to refrain
for the time being about opining over whether this act itself was justifiable police force,
or whether it was homicide. As of today, the autopsy
reports are coming back, and we're getting more
information about that. But I do want to talk
about the actual charges that were levied against Officer Chauvin as part of this particular incident. This is going to be an
ongoing series of videos. I'm gonna try and get them
out as quickly as possible to talk about these really
important legal issues, including what happened in
the George Floyd incident and all of the ensuing
actions with the protests, riots, looting, freedom of speech, whether you can deploy the military within the United States. Unfortunately, all of
this is on the table. I never thought that would
be the case, but here we are. So with that background, let's look at the different
varieties of murder that could have been charged and were in fact charged
in this particular case, and why the prosecutor
might have initially charged murder in the third degree and now have upgraded that to
murder in the second degree. As we've talked about
a lot on this channel, the different varieties of murder relate to the intent associated
with the particular action. Sometimes the same act
can be a different crime or not a crime at all, depending on the mental
state that someone has. And in criminal law, the state of mind is called the mens rea. In other words, the guilty mind. Did you have the requisite intent for something to be considered a crime? And in Minnesota, you start
with the most heinous homicides that have the most specific
intent requirements, and by the time you get
to third-degree murder it has less specific, more
general intent requirements, and it carries with it a lighter sentence. So let's look at the first statute, murder in the first degree as defined by Minnesota Statute 609.185, which states that whoever
does any of the following is guilty of murder in the first degree and shall be sentenced
to imprisonment for life. Sub One: causes the death of a human being with premeditation and
with intent to effect the death of the person or of another. Intents to effect the death of a person is exactly what it sounds like. You specifically intended by your actions you would bring about the
death of another person. You intended that specific result. That's called specific intent. But premeditation is just slightly a little bit different than that. It requires some planning ahead of time. We tend to think of
premeditation as lying in wait and just waiting for someone to come by planning your murder. A sniper on a roof. And those certainly
qualify as premeditation, and it certainly qualifies as
murder in the first degree, but premeditation can
come about in an instant. If you have that specific
intent to not only hurt someone but to cause their actual death, that is murder in the first degree, and under Minnesota law
you get life in prison. People have speculated that
potentially this police officer might have interacted with Mr.
Floyd prior to this incident. If that were the case and this
police officer premeditated and preplanned the murder of George Floyd, well then that could give rise to murder in the first degree. But that seems credibly unlikely. You have to imagine that
most police officers aren't walking around with an ax to grind and they're just trying to do their jobs. I know it might be hard to
give the benefit of the doubt, but I think in this case
that probably applies. So let's assume that
murder in the first degree is off the table. Even if it's true, it would
probably be too hard to prove. And so, now that takes
us to the now famous or infamous murder in
the third degree statute in Minnesota Statute 609.195, which states that whoever, without intent to affect the death of any person, causes the death of another person by perpetrating an act
eminently dangerous to others and evincing a depraved mind,
without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years. So, murder in the third degree no lacks any specific
intent requirement at all. It simply says that someone did something
incredibly dangerous or stupid and really, really
should have known better that these acts could cause
the death of another person. I won't go into the long tortured history of what a depraved mind is. It's a concept that goes back
to Old English common law. But for the sake of
argument, this is something that is not necessarily
specifically intended. Let's say it's a person who did not intend for someone to die, but the actions were so depraved
that it was very possible that someone could have died as a result. So this is something that's a
lot worse than mere negligence where the question is
would a reasonable person have done this particular thing. But it's a lot less than
first and second-degree murder where you have to specifically intend to have killed the person in question. I think an example of this would be if you were making a
bomb in your own house and the bomb went off, you survived, but it killed a family member who happened to be in the house. You'd probably be charged
with third-degree murder, because you probably didn't intend to kill a member of your family, but it's so reckless to
have been building bombs in the first place that you
should have known better, you didn't care about the
sanctity of human life, and therefore you'll probably be guilty of third-degree murder
as a result of that, even though you never
specifically intended for anyone to be hurt or die. So that takes us to murder
in the second degree, which you will not be surprised has a slightly less
onerous intent requirement. If you look at Minnesota Statute 609.19, murder in the second degree, it says that whoever does
either of the following is guilty of murder in the second degree and may be sentenced to imprisonment for not more than 40 years. Sub One: causes the death of a human being with intent to affect the death
of that person or another, but without premeditation. So really, second-degree
murder, at least in Minnesota, is very similar to first-degree murder, except you lack the premeditation. So you did in the instant
want to bring about the death or great bodily harm of another person. But you didn't necessarily
have a plan ahead of time. You didn't premeditate
that particular crime. You didn't premeditate the fact that you were going to murder that person. Often this can be seen in firing wantingly
into a crowd with a gun. And, in fact, I won't go into it, but in this particular
statute in Minnesota it specifically says that if
you commit a drive-by shooting that that qualifies as
second-degree murder. So word to the wise. You can't get out of a
second-degree murder charge by firing into a crowd from a car claiming that you never
intended the specific death of any one of those people. That would still give rise to a second-degree murder
charge in Minnesota. Hey, Legal Eagles, it's
Devin from the future. I want to amend and update
this particular video, because the first video
that you have been watching is a combination of clips that I shot before and after the
Attorney General of Minnesota upgraded the charges against
former officer Chauvin. Now I covered the felony murder rule in the section that deals with the other officers who were charged, but part of the analysis
regarding second-degree murder made it seem like Chauvin was charged with traditional
second-degree murder as opposed to felony murder, because in Minnesota
the felony murder rule is wrapped up in the
second-degree murder charge. It is both the traditional homicide where you have the specific intent and also the kind of homicide where you don't have specific intent because of the felony murder rule. And because it's a combination of clips from different times, it
made it seem like Chauvin was charged with the traditional form of second-degree murder. When, in fact, I was
merely trying to explain what that general type
of murder constitutes. But in reality, Officer Chauvin was
charged with felony murder, which I'll talk about and explain. I received some comments from viewers that were confused by that, so I greatly apologize for that confusion. There's a lot of news going on, and in an effort to try
and get things out quickly sometimes things like
this are not explained in the kind of detail
that they probably should. So the issue here is that the Minnesota statute
on second-degree murder contains both the
traditional specific intent required second-degree murder and also what's called
unintentional killing where a death occurs during
the course of another felony. Here, it seems the Attorney General is arguing that Officer Chauvin was engaged in potentially
some sort of assault which constituted a felony, and during the course of that
felony George Floyd died. Thus, he was engaged in a
felony, a dangerous felony, and someone died, therefore,
that meets the requirements of the felony murder rule,
which we've talked about. It doesn't require specific
intent to commit the murder. It requires specific intent to
create the underlying felony. In this case it would be
probably some sort of assault. That's sort of an issue, because there's this doctrine
called the merger doctrine, where in most jurisdictions
that have felony murder you can't use the underlying crime that has basically the same
elements as the death itself to form the basis for
the felony murder rule. Because you can imagine that the exception would swallow the rule. Where if you engaged in any
kind of dangerous felony, that would automatically
be upgraded to a murder because the felony murder rule kicks in. So most jurisdictions
have this merger doctrine that prevents this sort
of upgraded charge, because sometimes just
because someone dies as a result of a felony being
committed at the same time when it's exactly the same
as the killing itself, it doesn't necessarily make sense. That's why you have other things like murder in the third
degree or manslaughter that generally cover
unintentional killings. But Minnesota doesn't
have this merger doctrine which allows prosecutors
to have the discretion to upgrade the charge for
an unintentional killing up to the status of murder
in the second degree. Now whether that is a
good thing or a bad thing is a policy decision that
I'll leave up to you, especially under these circumstances. So I'm sorry I caused confusion with the first version of this video. I should have gone into more detail about the felony murder rule, and I'll try to do better in the future. Back to the original video. So now that you know the difference between first, second,
and third-degree murder, it's impossible to overlook
the elephant in the room here, which is that when you have
an officer-involved death it's really, really hard to prove intent. It's hard to prove
intent for any defendant, let alone a police officer. As we've talked about, the burden of proof to convict someone of first
or second-degree murder is very, very high. Remember, we have a reasonable
doubt standard here, so that's the highest burden
in all of criminal law. And when you are saying that someone is guilty
of first-degree murder, you have to prove not
only the specific intent that they intended to
kill the person at issue, but also that they had
planned it ahead of time. A prosecutor does have discretion to include what are called
lesser-included offenses. So if you decided to charge someone with murder in the first degree, you could also charge
them at the same time with murder in the second degree and murder in the third degree. And then the jury then gets to choose which of those three particular offenses they get to ultimately decide on. Sometimes you might not charge
the highest possible crime, because it's gonna be harder
to convict with the jury. A phenomenon that often see with juries is that if they refuse to
convict on the highest charge, sometimes that bleeds over until they get to either a
very low lesser-included charge or no charge at all. So there's an art for prosecutors to choosing the right charge to go with. And sometimes you only
want that one charge so that you don't give
the jury the flexibility to be able to choose from this whole menu of lesser-included charges. And not only that, but when
you make the premeditation and the specific intent requirement of some of the included charges, lack of intent then becomes relevant. The defense is allowed
to bring in that evidence to say this officer did not
have this premeditation. This officer did not have
this specific intent. You wouldn't want that to
happen as a prosecutor, because it can have repercussions
in terms of the evidence that actually comes in at trial. It kind of bleeds over. The jury hears that he didn't
have these kinds of intent, and while they shouldn't consider that with respect to some of those
lesser-included charges, they tend to do that, especially
when you have an officer who often gets the benefit of the doubt that they were just doing their job. So if you're the prosecutor and you omit first and
second-degree murder, then the defense is not
able to bring in evidence that would be relevant to rebut those specific intent requirements. There's often a big difference between the highest possible charge that the prosecutor could bring and the charge that the prosecutor is most likely to get a win from. And even though it's no solace to the family of George Floyd and no solace to the people
who are out protesting, the charges that were brought against former Officer Chauvin here
came very, very quickly. It's really the exception
rather than the rule that number one, charges
are brought against an officer in the first place, and number two, they're
brought as quickly as they are. I will say, though,
that I strongly disagree with a theory that is
circulating on the internet that has been bolstered by Harvard Law Professor Laurence Tribe who was very critical of the
third-degree murder charge. And he wrote in the Boston Globe recently, "More critically, anyone
steeped in Minnesota law "would recognize that the
third-degree murder charge "would likely be summarily
dismissed for the ironic reason "that Chauvin clearly
aimed his acts at Floyd. "Such a miscarriage of
justice would surely trigger "still more chaos and violence." I really think Professor
Tribe gets this wrong here. If you have the requisite mental state for murder in the first degree or murder in the second degree, you can accurately be charged with murder in the third degree. Just because you have more
than the requisite mens rea doesn't mean you get to get off scot-free of the lesser charges. And if the prosecutor only brings a charge of murder in the third degree, that's not going to be dismissed because you had a worse mental state than what was required for
murder in the third degree. That's just not how that works. So we have talked about former Officer Chauvin in particular. Let's talk about the
potentially three or more other police officers who were nearby. Do they face potential
criminal consequences? And the answer is maybe. The first question that
I received over Twitter was can they be guilty of felony murder? I really think that that
is incredibly unlikely. Felony murder is something that happens when you have people who agree
to engage in a specific crime and during the course of
that crime someone dies. And when that happens,
all of the co-conspirators are guilty of felony murder, not just the person who pulls
the trigger or uses the knife. Here, it would be very, very
difficult, probably impossible, to prove that the police in question here all conspired to conduct some crime. So it's very unlikely that
the felony murder rule comes into play. Actually, except there
is one way that it might. You can imagine a scenario, and I don't know if this is
factually correct or not, where all four of these officers agree or have an understanding that let's say they're just
gonna rough up a suspect, as the president asks
law enforcement to do. And then during the course of that crime, that suspect happens to die. Then all four of those officers could in fact be guilty
of second-degree murder, felony murder, under Minnesota law. But that's also not really necessary here, because as we've seen the
Minnesota District Attorney charged the other three officers
with aiding and abetting. So whereas the felony murder rule kicks in where everyone has agreed to
commit this dangerous felony, aiding and abetting happens
commensurate with the crime with no premeditation, or you can be an accessory to
a crime that happens later. Now the requirements
for aiding and abetting are pretty simple. One is that a crime was committed, which in this case would be
the murder of George Floyd. The second is that the accused, and in this case the other officers, intentionally aided, counseled, or induced that person
to commit the crime. The accused acted with the
intent to facilitate the crime, and the accused acted before
the crime was completed. So there are really two
crucial questions here. One is did any of these
officers take an affirmative act to help Officer Chauvin? And the other is did they do it with the intent to help
the crime being committed? That is not an easy thing to prove, especially if you have officers
who are merely standing by. Refusing to render aid
is not the same thing as taking an affirmative act with the intent to
facilitate the initial crime. And then you're faced with the question of did they have a duty to
act to prevent the death? In the United States generally speaking, people don't have a duty
to intervene affirmatively to stop an injustice from happening. The counterargument would be that they might be guilty of manslaughter, perhaps in the first or second degree. Wherein Minnesota, you cause
the death of another person by what's called culpable negligence, whereby the person creates
and unreasonable risk, and consciously takes
chances of causing death or great bodily harm to another. So again, it would be a question of whether they created the risk itself. I don't know if there is a specific law that would require them
to actively intervene. Generally speaking, there isn't one. So unless a prosecutor
can show a specific act that they took that made things worse or created the situation
itself, the other officers are probably not going to
face criminal repercussions. And then similarly, there is the concept of being an accessory after the fact, and that happens where the
accused assists the person with the specific purpose
to design or hinder or prevent that person's
apprehension, trial or punishment. So again, if they took a specific act with the intent to hinder that person, in this case former Officer
Chauvin from being prosecuted, then they would be an
accessory after the fact. And then finally, the question I got dozens and dozens of times on Twitter: Could a Good Samaritan intervene to say push the officer
off of George Floyd to prevent the injustice from happening? And I think the answer
to that is probably not. We have laws that prevent
people from interfering with police officers' jobs. You have obstruction of justice. Even when the police are
perpetrating something that is manifestly unjust, you still can't effectively assault and batter a police officer. So my advice to most
people, #NotLegalAdvice, is do what the people did here. Take out your cellphone,
video record everything. It's really been a huge
boom I think to society the fact that everyone has a
video camera in their pocket, and it reveals the kind of
injustice that's going on on an everyday basis. And we just saw as of today
that I'm recording this video that the chief of police
for Louisville was fired because two police officers
who were involved in a shooting had not activated their body cameras. I think body cameras should
be required on all police. I don't really understand
the arguments against them. Sorry to lapse into opinion here. But we can't rely on the
police to police themselves, and I really think the
most important thing that anyone can do is
to just record injustice whenever you see it and publish it. That is the best that you can do without getting into
legal trouble yourself. And I think that it's done a lot of good and it will continue to do a lot of good. It's been incredibly difficult to watch the videos that
have come out recently, whether it's George Floyd,
whether it's Ahmaud Arbery, or whether it's the protests. It's really easy to get
sucked into the thinking that we're all helpless and that there's nothing that we can do. But if you wanna do
some good in this world, I would recommend a
charity that I work with called Tab for a Cause, which allows you to
raise money for charity just by opening up tabs in your browser and surfing the internet, which you were probably gonna do anyway. Tab for a Cause is a browser extension that allows you to pick
a charity of your choice, and then every time you open up a new tab, instead of a blank page it displays a beautiful
new customizable tab with a couple of tiny ads. And the money that you
generate through those ads is donated to the charity of your choice. And you can see in real time how much money is being generated. It's gamified so that every
time you open up a new tab you create a heart which
then you can donate to the charity of your choice. Tab for a Cause users like
you have raised over $900,000. So just click the link in the description to download Tab for a Cause
and download the extension. It's literally the least
that we can possibly do, and you can do some good by doing what you were going to do anyway. So, do you agree with my analysis? Do you think the prosecutors should have stayed with murder
three or gone to murder two? Leave your objections in the comments, and check out this playlist over here with all of my other "Real Law Reviews" where I talk about all of the crazy things that are happening in the news today.
