The Law of Faking Your Own Death

October 24, 2012

I just finished the novel “Gone Girl,” by Gillian Flynn. It was about a sociopathic woman who strategically goes about faking her own death and framing her husband for the alleged murder. I won’t spoil the ending for anyone who is hoping to read it, but I’ll just say that it was a quick and enjoyable read.

And, of course, it made me want to see how many results I would get in WestlawNext if I ran a search for (FAK! /5 DEATH MURDER HOMICIDE) in California and Related Federal content.  And yes, I think in terms and connectors…it’s a job hazard.

So I ran that search in WestlawNext, and got 25 cases, 7 statutes, 17 administrative decisions & guidance, and 179 secondary sources. Glancing over the results, I see several within the first 20 that mention faking a death or murder:

United States v. Moore, 653 F.2d 384, 386 (9th Cir. 1981) – DEA informant faked a murder to assist government in building a case against another individual.

United States v. Herman, 189 F.3d 475 (9th Cir. 1999) – Police investigator’s faked an intended victim’s death during an investigation of a murder-for-hire case.

In re Pei Ti Tung, 2006 WL 6811016 (B.A.P. 9th Cir. Feb. 24, 2006) – Bankruptcy case that mentions debtor’s previous insurance fraud conviction where she faked the death of her former husband to collect insurance proceeds.

And, not surprisingly, several results come back where the court is mentioning a movie or fictional story about someone faking a death.

Some of the Secondary Sources included:

11 No. 10 Cons. Bankr. News 2– titled “Debtor Fakes Death to Avoid Student Loan Repayment

Christine Alice Corcos, Legal Fictions: Irony, Storytelling, Truth, and Justice in the Modern Courtroom Drama, 25 U. Ark. Little Rock L. Rev. 503 (2003)

DIARIES AS EVIDENCE

In “Gone Girl,” the female protagonist wrote a diary, backdating it to make it look like she maintained it for several years. This diary was a major evidentiary item for the police, as it demonstrated “proof” that the wife was scared of her husband. Let’s see how many criminal cases mention a diary as evidence in a murder case. I ran the following search:

DIARY AS EVIDENCE IN HOMICIDE

From the overview page, I click on “Cases” and then use the Topic filter to get just criminal cases.

We get well over 300 cases once we’ve applied the filter. Glancing through the initial results, I see the following:

Adams v. United States, 502 A.2d 1011 (D.C. 1986) – Portions of defendant’s diary admitted in a criminal case.

Parle v. Runnels, 387 F.3d 1030 (9th Cir. 2004) – Victim’s diary admissible in murder case.

The Parle case also contains a footnote directing the reader to the following article, which maintains that diaries of battered women are inherently reliable:

Lenora Ledwon, Diaries and Hearsay: Gender, Selfhood, and the Trustworthiness of Narrative Structure, 73 Temp. L. Rev. 1185 (2000)

State v. Kaufman, 227 W. Va. 537, 711 S.E.2d 607 (2011) – Court found that admission of a murder victim’s entire diary as a single statement was an abuse of discretion. Court maintained that the court must break down narratives and determine the admissibility of each statement individually.

I clicked on Secondary Sources next and found several promising results:

14A N.C. Index 4th Evidence and Witnesses § 1833 (4th ed.) – Titled: Diaries

57 A.L.R.5th 141 (Originally published in 1998) – Titled: Admissibility of evidence of declarant’s then-existing mental, emotional, or physical condition, under Rule 803(3) of Uniform Rules of Evidence and similar formulations