The State Bar Association of North Dakota Winter 2014 Gavel Magazine | Page 10

SHAKESPEARE
AND THE
LAW

What We Lawyers Can
Learn From the Bard

By Lynn M. Boughey

Twenty years ago, two able lawyers and
three distinguished judges heard the real
trial of the century, oral arguments in the
celebrated case of State of Denmark vs.
Hamlet, Formerly Prince of Denmark. The
event was hosted by the Associaiton of
the Bar of the City of New York.
What’s that you say? He dies at the end?
Well, apparently not. Hamlet lived (perhaps Horatio found an anecdote at the
last moment, so the rest is not silence!),
and Hamlet had been tried and convicted
for numerous offenses, and has submitted
his appeal to the Royal Danish Court of
Appeals for the Elsinore Circuit.
State of Denmark v. Hamlet,
Formerly Prince of Denmark
The briefs, transcript of the oral arguments, and the trial transcript (the text of
the play itself) are all found in the delightful book, The Elsinore Appeal: People v.
Hamlet (1996 St. Martin’s Press).
What were some of the issues on appeal? The insanity defense, of course.
“‘Twas madness.” Or perhaps at the very
least diminished capacity! The play begins

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with Hamlet seeing the ghost of his father,
who sets him upon this bloody path. And
does he act quickly, decisively, with little
haste? No.
Hamlet, supposedly a law student
attending the German school of Wittenburg, awaits more substantive proof,
bides his time, and – according to the
prosecution – sets up the basis of his
insanity defense by feigning madness. The
prosecution claims, with some ample basis, that Hamlet’s self-serving statements
indicating madness should all be rejected
as a well-thought-out ruse.
And of course, Hamlet understandably
claims self-defense as to Laertes, who in
the duel cut him first with the unbated
and envenomed sword. Hamlet did not, at
that point, know that the sword he rested
from Laertes had a venomous unction applied to it and was merely “returning the
favor” of this most unkindest cut of all.
What of Polonius, you say? The bothersome counselor and Ophelia’s father, who
was behind the curtains in the Queen’s
bed chamber? Hamlet thought him the
King, his Uncle and newly anointed
“step-father” by his marriage to Gertrude
his mother. Can the criminal intent to kill
one follow to the other?
And what of Rosencrantz and Guildenstern, Hamlet’s two erstwhile school
chums? What defense does Hamlet
impose? That his forging of the document
that led to their being put to death by the
King of England was done while Hamlet
was out at sea, in international waters,
and as such Denmark had no jurisdiction!
The learned counsel and distinguished
judges dealt also with poor Ophelia’s
death. Can a suicide following a lovers’ breakup be a criminal offense?
Were Hamlet’s actions “reckless” and
proximately caused her death? Or was it
“merely” negligent homicide?
And by the way, is sending a “Dear
John” letter to a jilted lover who subsequently commits suicide a proper basis
for criminal liability? And what of his
comments, overheard by Ophelia, about

the virtues of suicide (“To be or not to be
. . .”)? Is Hamlet at least civilly liable for
“pushing” poor Ophelia literally into the
drink?
Moreover, there is a significant factual
question: Did Ophelia really commit
suicide? There is an eyewitness that says
he saw her along the river, slip, hold onto
a willow, fall into the brook, and drown!
How can such a conviction, we must ask,
stand?
But this is not all. Hamlet further asserts
that the King, his Uncle, is really the one
to blame for the many deaths, and for his
own death as well. Even Laertes, in his dying declaration – clearly admissible under
Rule 804(b)(2) – concurs and asserts that
Claudius is to blame, not Hamlet!
Finally, Hamlet asserts that he is the
rightful king and has sovereign immunity
from all charges [