Tuesday, September 21, 2010

Upstairs Downstairs

Not a legal profession case, but of possible interest is a decision of the Vermont Supreme Court overturning a conviction for attempted voyeurism. The case involved upstairs and downstairs neighbors:

Complainant resides on the second floor of an apartment building located in a secluded area in Colchester, Vermont.  There is a window in her bathroom shower that overlooks a parking lot used by residents of the building.  The bottom of the window is at the level of complainant’s mid-chest.  When complainant moved in, her landlord suggested that she cover the window with a shower curtain to protect the window from water damage.  Complainant, however, did not do so.  She did not think anyone could see her through the window. 

 Defendant is complainant’s neighbor who resides on the first floor.  He can hear complainant’s shower turn on and off from his apartment.  On September 1, 2008, complainant saw defendant for a few moments while he stood in the parking lot looking at her bathroom window as she was showering.  On September 15, 2008, complainant again saw defendant standing in the parking lot looking at her bathroom window while she was in the shower.  This time, defendant stared at her window for three minutes with a hand on his crotch.  Complainant left the shower, went into her bedroom and took a picture of defendant—still looking up with a hand on his crotch—with her cell phone. 

Later that day, complainant asked her roommate—who is the same height as complainant—to stand in her shower.  Meanwhile, complainant went to the parking lot and looked up at her bathroom window to determine whether anyone could see her from the ground.  The parties disagree on what complainant saw when she looked up at her window and whether defendant could see any part of complainant’s body that is protected by the voyeurism statute.

The defendant was not charged with attempted voyeurism, but the verdict camr after a jury note. As a concurring opinion explains:

As the majority notes, defendant was only ever charged with voyeurism.  The charge of attempted voyeurism, upon which he was ultimately convicted, came about only after the jury had begun deliberating on the charge of voyeurism and appeared to conclude that defendant was not guilty of the charged crime, sending the judge a note asking, “If we think he is guilty of trying; but was not able to see her nipples. What kind of verdict do we give? We have not proven that he saw anything.”  In his initial instructions to the jury, the judge had told them repeatedly that “if the state has not met its burden [of proving each and every element of an offense], then you must return a verdict of not guilty for the offense.”  Why the judge did not simply repeat that basic principle of criminal law in response to the jury’s question remains a mystery to me.  Rather, the court responded by providing the jury with an alternative theory of the case and instructed the jury on the crime of attempt.  Neither the prosecution nor the defense had suggested this additional charge; defense counsel, in fact, strongly objected to it, arguing that such a change would be highly prejudicial and highlighting that she had not prepared for the new charge and would have changed her closing argument had she known such an instruction would be given.

(MIke Frisch) 


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