HomeColumnsJudge Joan ShkaneLegal Myths and Reality: May 2023 edition

Legal Myths and Reality: May 2023 edition

by Judge Joan Shkane

This is a continuing discussion of Legal Myths and Reality, because those informed are the most successful. 

MYTH: If you help someone in distress and they do not recover, you will be legally responsible for their injuries.   

REALITY:  Recently a friend asked me to advise her on the New York State Good Samaritan Law as it pertains to her church safety team.  Most states have a form of this law.  In New York State the law protects anyone who is arrested or sued as a result of giving assistance to someone seeking medical assistance for himself or another in a medical emergency.  That can mean any emergency, for example someone collapsing, or a car accident, or even a drug overdose.  A lay person, not a medically trained person, who renders or tries to render help in an emergency will be protected from conviction or from a civil penalty of money damages if (s)he gives medical care and the treatment fails.  It does not protect anyone from being arrested or from being sued.  It is a DEFENSE in both cases, to be used only after arrest for assault or worse, or after being sued. 

It applies only when the following occurs: a. help must be given in a manner that does not harm the victim; b. the helper must act in good faith; c. the helper must act to save a victim’s life or provide emergency stabilizing care; d. the care the helper gives must be reasonable under the circumstances; e. the victim must be in imminent danger; f. the victim does not object to the help. The helper cannot be responsible for creating the emergency and must not be grossly negligent or reckless in giving care.  If the helper is willfully and intentionally negligent or reckless, then the law will not defend the helper. 

These are all legal terms of art.  Reckless negligence is reckless indifference to the rights of others.  It will not be a defense if the helper failed to use even slight care or the conduct is so careless as to show complete disregard for the safety of others.  Someone acts recklessly when (s)he is aware of and consciously disregards a substantial and unjustifiable risk that a particular result may occur.  For example, the helper sees a car accident and pulls the victim out of the car into a busy lane of traffic without stopping the traffic, and the victim is injured or worse.  The Good Samarian law will not protect the helper because the helper probably was recklessly negligent and placed the victim in greater jeopardy for harm than (s)he was before the helper intervened. 

MYTH:  A trial lawyer choosing a jury in a criminal case, whether as prosecution or defense, has free rein to dismiss from service on the jury whoever (s)he chooses. 

REALITY:  Decades ago, the U.S. Supreme Court said that excusing certain people from a jury by either prosecution or defense in a criminal case solely because of the potential juror’s race or gender is unconstitutional and illegal.  To do so would undermine the parties’ and the public’s right to a fair trial and equal justice under law.  This applies especially to persons of color as an accused.  The reason for the rule is to prevent attorneys from selecting all-white or majority-white juries, who tend to convict at higher rates, and sometimes tend to engage in less rigorous deliberations.  Race can be a determiner of a lot of life experiences that may make someone more or less sympathetic to the prosecution or defense.  This is not acceptable because a juror must be as completely open-minded and unbiased as possible, so that a verdict is only on the facts and the law and nothing else. 

The judge in the trial must be the one who decides on excusing or retaining a particular person for the jury.  However, other than being admonished by the judge, and perhaps being forced to keep a potential juror over objection, there is no other form of punishment for the offending lawyer. Or at least none that has been regularly used.   

Now a new committee of law professors called The Accountability NY is examining this kind of misconduct back to 2021.   Ten current and former New York State prosecutors who have been noted by judges for illegally screening out potential jurors because of race or religion must face ethical complaints brought by the new committee. These complaints, if proven, could bring disciplinary actions.  Of these ten, several were promoted. In some cases, convicted persons won on appeal and their convictions were overturned as illegal.  Sadly, these defendants had spent years in prison before their conviction was overturned. Between 2004 and 2008 courts found that prosecutors committed this kind of misconduct 151 times, but only 3 were publicly sanctioned.   One of the prosecutors complained of, all in downstate New York, was prosecuting a Latino accused.  The prosecutor kept notes filled with racist and sexist instructions like “No Hispanics”, and “Stay away from grandmotherly types.” (as a grandmother, I find this particularly offensive!), and Italians if the accused is Italian (presumably because all Italians stick together!).   

Some experts in this field believe that other things can be done to reduce bias in jury selection.  One way may be to raise the daily juror pay since the vast majority of people who show up for jury selection are white who can afford to serve at a low daily pay rate.   A bill was introduced in the Legislature in 2021 to try to address this issue, but never came out of committee.  Arizona, Washington state, and California have already addressed the issue by passing corrective legislation so that they are now in accordance with the direction of the U.S. Supreme Court.      


Attention to legal myths can be important.  They can be a starting point for developing an interest in the law.  However, if specific legal issues are important in your life, for instance, regarding custody of children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths.  This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.       

Utica Phoenix Staff
Utica Phoenix Staffhttp://www.uticaphoenix.net
The Utica Phoenix is a publication of For The Good, Inc., a 501 (c) (3) in Utica, NY. The Phoenix is an independent newsmagazine covering local news, state news, community events, and more. Follow us on Twitter and Facebook, and also check out Utica Phoenix Radio at 95.5 FM/1550 AM, complete with Urban hits, morning talk shows, live DJs, and more.

Most Popular