Wednesday, July 21, 2010


I was thinking about the false imprisonment post I did last week. I was thinking about the comments that went to using false imprisonment and/or falsifying evidence statutes to prosecute people who use text messages to falsely implicate someone in a crime.

As I thought about the post and the comments, a pretty obvious point occurred to me: Why don’t we simply make it a crime to “frame” someone? As I’m sure we all know, framing someone involves precisely what Ms. Manunga was doing in the case I wrote about, i.e., trying to have an innocent person prosecuted and convicted of a crime they didn’t convict.

(As Black’s Law Dictionary notes, “frame” means “[t]o incriminate (an innocent person_ with false evidence”. Black’s Law Dictionary (8th ed. 2004). I read once that the term comes from a practice police in some city began using, I think in the nineteenth century: They had a frame in their office and when they needed to solve a crime and didn’t have a clear suspect, they’d decide who should be held liable, take a photo of that person and put it in the frame, the frame somehow being used to identify suspects. That gave rise to the phrase “being put in the frame,” which became frame-up and then frame. I can’t find the book I read that in, so I can’t provide any details . . . but that’s how I recall it.)

Anyway, getting back to the point, it seems to me it might be a good idea to create a new crime, a “framing” crime that could be used, in and of itself, to prosecute those who, like Ms. Manunga, create false evidence and otherwise try to get innocent people convicted of a crime they didn’t commit. I then wondered if such a crime already exists.

As far as I can tell, it doesn’t, at least not in U.S. law. I searched U.S. state and federal cases to try to find one in which someone was prosecuted for the crime of framing another person, but couldn’t find any. I found quite a few cases in which someone raised the premise that they had been framed as a defense to the charges against them, but none in which someone was specifically charged with the crime of framing – or trying to frame – another person.

I then wondered why framing has never been criminalized. After thinking about it, I came up with a theory. See what you think of this idea.

My theory is that framing has never been criminalized because in the past defendants tended to claim they were framed by the police, rather than by private citizens. I found a number of cases, recent and not-so-recent, in which that’s what the defendant claimed happened to him/her. See, e.g., Good v. Curtis, 601 F.3d 393 (U.S. Court of Appeals for the 5th Circuit 2010) (defendant brought civil rights suit alleging that he was framed by a police officer); People v. Anderson, 2007 WL 4248940 (California Court of Appeals 2007) (defendant claimed “he was framed by a rogue police officer”); People v. McChesney, 39 Cal. App.2d 36, 102 P.2d 455 (California Court of Appeals 1940) (defense attorney claimed police “deliberately `framed’” his client). Not surprisingly, courts (and juries) pretty consistently rejected these claims, which often seem to have been based mostly on what the defendant said had happened to him/her, so the issue of framing doesn’t seem to have been a big issue for the criminal justice system.

In other words, if claims that someone was framed seemed to pretty consistently be specious, there weren’t any innocent victims whose plight might motivate a state legislature to make it a crime to frame someone, or try to. If that premise is correct, it also explains why the cases in which a defendant claimed one of his/her partners in crime was responsible for framing him/her. Those claims never seem to have gone anywhere, either, so, again, if the claims of having been framed are pretty clearly specious, there wouldn’t be any pressing need to adopt laws that would directly outlaw the act of framing (or trying to frame) someone.

So maybe framing itself has not been criminalized because, basically, there were few, if any, credible claims that someone had actually been framed, which meant there wasn’t a problem that needed to be addressed by creating a new crime. Legislatures create new crimes when conduct that inflicts a new and as yet unaddressed “harm” crops up. Think of sexting or cyberbullying. Both of those activities involve the infliction of what some, at least, regard as new “harms” the infliction of which calls for the creation of new crimes. I, personally, don’t agree with that viewpoint, but many people do.

Maybe the lack of credible claims that someone had been framed was also in part due to the difficulty of really framing someone effectively. Police probably were (and are?) the focus of framing claims because they’re in a good position to fabricate evidence, if they are so inclined. Prior to our extensive reliance on online communications, it would be very difficult (albeit not impossible) for a private citizen to create correspondence that could credibly be used to frame a hapless person. You’d have to create letters they supposedly wrote and/or received, be sure you got the signatures (and, if necessary) letterhead right, be sure the appropriate fingerprints (especially the suspect’s) were on them and to really make it credible have them travel through the mail as evidenced by an envelope with a postmark on it. All of that would be quite difficult, probably beyond the resources and talents of people who were likely to frame someone else.

Now, however, as we saw in the Manunga case and in the New Hampshire case that Anonymous posted in a comment, it isn’t all that hard to fabricate credible evidence that a suspect threatened someone or sent messages that could be used to falsely incriminate him/her in the commission of a crime. That change in circumstances might warrant adopting statues that making framing (and trying to frame) someone a crime in and of itself. I emphasize “might” because I’m generally opposed to creating new crimes unless we’re dealing with activity that (i) inflicts serious “harm” and (ii) cannot effectively be prosecuted under other, existing criminal statutes. If and when we decide those two conditions are met for framing (or online framing), we may want to create the new framing crime.

As to the first issue, I think what happened to the victims in the Manunga and New Hampshire cases illustrates that serious “harm” is inflicted by framing, even when the frame is discovered before the victims are convicted and locked up for a while. The second issue, I think, is likely to be the dispositive one in deciding whether or to create a new, “framing” crime.

The two obvious possibilities for prosecuting framing under existing criminal statutes (unless I’m missing some other good candidates?) are false imprisonment and falsifying evidence. As I noted in my last post, I don’t think false imprisonment is a particularly satisfying option because my sense is that at least some U.S. states don’t incorporate the “fraud or deceit” version of false imprisonment into their law. If fraud or deceit isn’t included as a potential element of false imprisonment, you could wind up with results like the one in the Minnesota case I described in the false imprisonment post, the case in which the court threw out the false imprisonment charge because the child wasn’t physically restrained. She was, at most, deceived into staying with her grandparents.

We could address that factor, I suppose, by having state legislatures incorporate the fraud or deceit option into their statutes. Even if we did that, and even if that option proves satisfactory, it strikes me as a pretty cumbersome way to go about prosecuting the crime if I’m right about the prosecution’s having to rely on Model Penal Code § 2.06’s “use of an innocent party” option. That is, since perpetrators like Ms. Manunga don’t themselves confine or restrain the victim but trick the police into doing it for them, it’s kind of an attenuated way (at least IMHO) to go about prosecuting the crime.

What about the other option – the falsifying evidence option? As I noted in one of my comments to the false imprisonment post, most (probably all) U.S. states make it a crime to falsify and/or fabricate evidence “with intent to produce it, or allow it to be produced for any . . . deceitful purpose, as genuine or true, upon any trial” or similar proceeding. California Penal Code § 134. Some of these statutes specify that the person alleged to have falsified and/or fabricated evidence must have done so with the belief that the evidence will be used in a case that’s either pending or that is about to begin.

Here, for example, is Montana’s tampering with or fabricating evidence statute:

A person commits the offense of tampering with or fabricating . . . evidence if, believing that an official proceeding or investigation is pending or about to be instituted, the person:

(a) alters . . . any record, document, or thing with purpose to impair its verity or availability in the proceeding or investigation; or

(b) makes . . . any record, document, or thing knowing it to be false and with purpose to mislead any person who is or may be engaged in the proceeding or investigation.

Montana Code § 45-7-207(a). I don’t see the need to prove that the person falsified or created false evidence believing a criminal case was pending or would be instituted as a particularly significant obstacle in cases like the Manunga or New Hampshire ones. The whole point of manufacturing false evidence is to have a criminal investigation begun, one that leads to a criminal prosecution, so it’s at least inferentially clear that those who perpetrate these schemes are aware that the evidence they create will be used in court.

On the one hand, fabricating/altering evidence statutes clearly could, I think, be used to prosecute the Manungas of the world. The only reason I think we might want to consider creating a framing offense concerns the nature of the “harm” at issue: The “victim” in fabricating/falsifying evidence cases isn’t the person (if any) whom the false evidence is used against; it’s the justice system. The “harm” these statutes address is attempts to corrupt the justice process by debasing the evidence it relies on to adjudicate cases. And often there isn’t any “harm” to a person; defendants or potential defendants often fabricate/falsify evidence in an attempt to avoid being held responsible for crimes or civil wrongs they’ve committed. Regardless, though, of whether individual “harm” results from fabricating or falsifying evidence, the “victim” is the justice system.

When evidence is falsified or fabricated for the express purpose of framing a person, we have the “harm” noted above – the justice system “harm” – but we also have “harm” to an individual victim. If we prosecute the Manungas of the world for falsifying evidence, we really only address the “harm” to the justice system “harm,” or so it seems to me. One of the functions of criminal law is to denounce conduct that society regards as reprehensible and therefore intolerable. When we convict someone of falsifying evidence, we’re denouncing the act of “harming” the integrity of the justice system (only).

I’m not lobbying for a framing offense, at least not yet. My disinclination to create new crimes unless and until that truly seems necessary makes me hesitant to say we need a new, framing crime. So this probably winds up being one of my most – perhaps my most – waffling and inconclusive posts.

File it in the “for whatever it’s worth” folder.


Anonymous said...

How are these situations different from, say, this one:

A teacher in Orange County, CA (Greg Abbott) framed by his estranged wife and her new boyfriend. They planted drugs and a gun in his car at school (serious crimes, if true) and then called the police on him.

It is also somewhat ironic that text messages helped do them in!

Anyway, they were charged with filing false police reports. Seems like a potential "framing" crime? And I assume when the police do it, they are charged with some sort of "falsifying reports" charge, since that must be illegal also?

Susan Brenner said...

I don't think this case differs from the ones I posted about and Anonymous described in a comment to the False Imprisonment post . . . except this case wasn't based on using falsified text messages to incriminate an innocent person. If you're assuming the framing crime I hypothesized about in this post would not apply to non-tech framing like the case you mention . . . then you're wrong. If we create a framing crime, it should apply to both tech and non-tech framing cases. My comments about the use of tech were simply meant to illustrate that tech can make it a lot easier for private citizens to frame each other which, again, MIGHT justify creating a framing crime.

As to whether police can be charged with falsifying evidence if they frame someone, I couldn't find a reported case dealing with that issue but I did find this news report on Westlaw.

Arrest warrants were issued Monday for three police officers accused of conspiring to frame a suspect. . . . Sgts. Edward Ortiz and Brian Liddy and Officer Paul Harper were accused of framing a suspected gang member on a weapons charge. . . . Ortiz and Liddy face [38] counts of filing a false report and conspiracy. Harper is charged with perjury and conspiracy.

First Three Officers Charged in Police Scandal, Vero Beach Press Journal (April 25, 2000), 2000 WLNR 7889362.

Anonymous said...

Recommend Jeffery Deavers 2008 book The Broken Window. The villian frames people with their own forensic evidence.

"The Broken Window is classic Deaver fare: Taking place over three frantic days, the novel features dozens of twists and turns, fascinating, highly researched details—about identity theft, data mining and threats to privacy, as well as forensic science—and, of course, offers the typical multiple surprise endings the author is known for crafting"

Susan Brenner said...

Actually, I read The Broken Window . . . but thanks for the recommendation, anyway.

Anonymous said...

This kind of thing ('framing') happens all the time in family law / child custody cases. Bogus allegations of abuse / molestation, unfit parent, etc.

Also, just think of Rampart Divison & LAPD. Or the Dallas cops and the fake drug scandal of 2001. Or the Chicago police scandal which lead to the emptying of the entire Illinois death row. Or the Boston FBI office who allowed several guys to spend 30+ years in prison because the FBI framed them for murder - and resulted in a $101 million judgment. Or the NW scientist, Wen Ho Lee. Or the first guy accused as the anthrax killer. Or Richard Jewel.

I'd go on, but I'm getting carpel tunnel from all the typing.

Cops frame people all the time.

Mercutio said...

Not an attorney, but a layman.
IMHO, most framing incidents would fall under conspiracy, which is already illegal.
Uncertain as to what the elements are that differentiate the criminal statute from the civil statute.

Susan Brenner said...


Always happy to hear from laymen (or laypeople) . . . most of what this blog deals with ultimately involves policy and practice.

I can constitute conspiracy as long as at least two people are involved in the frame-up (or as long as the perpetrator believes two people are involved, as when a criminal thinks he's working with another person who's really an undercover officer).

You can't conspire by yourself, i.e., no other legitimate conspirator, no faux conspirator law enforcement officer.

As I recall the Manunga case, she operated on her own, so conspiracy wouldn't be an option.

If 2+ people are involved in a frame-up they can be charged with filing false reports (or my hypothetical framing crime) and with conspiring to commit the crime of filing false reports/framing.