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Univ. of San Diego School of Law

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Monday, September 17, 2007

O.J. Simpson and the Claim of Right Defense

OJ does seem to have taken personal property by force or fear, implicating NRS 200.380, the robbery statute.  However, he evidently asserts that he was engaging in a sting operation to obtain the return of his stolen memorabilia-- a claim of right to the property he took.  Is that a defense?  Well, it is at common law (see 88 A.L.R.3d 1309 (1978)) As the California Supreme Court said in People v. Tufunga, 987 P.2d 168 (1999): "The claim-of-right defense provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery. At common law, a claim of right was recognized as a defense to larceny because it was deemed to negate the animus furandi, or intent to steal, of that offense. (See 4 Blackstone, Commentaries 230 (Blackstone).) Since robbery was viewed as an aggravated form of larceny, it was likewise subject to the same claim-of-right defense. (Id. at pp. 241-243.)"  However, for obvious reasons, not all jurisdictions continue to follow the common law rule.

Too bad for OJ that he is not in California; a quick search did not reveal to me on which side of the split  Nevada falls.  But parts, at least, of the Nevada criminal code were based on California's statutes, and therefore the California authority may be persuasive. Kramer v. State, 60 Nev. 262, 108 P.2d 304 (1940).

Jack Chin

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