Order of precedence in cases where more than one nation has an interest?

Question

... Disclaimer first: This is a hypothetical that came up during a discussion elsewhere. No real people were harmed during the creation of this question, and any resemblance to current or past events is purely an accident.

Here's the scenario:

• Alice is a British citizen and foreign exchange student currently studying at MIT.
• Kurt is a German citizen visiting Boston on a tourist visa. Because he's planning on a bit of traveling, he rented a car.
• Because Kurt is also a bit of an idiot, one fine evening he gets behind the wheel after drinking a bit too much, and Alice is killed in a hit-and-run during his DUI, which ends nonfatally a bit later against a lamp post.

There are three nations that would have an interest in this case:

• The USA, or at least the state of Boston where a DUI with a fatal accident took place;
• The United Kingdom, who have lost a citizen through no fault of her own and may want to have a word with the person responsible, or at least reparations of some kind for her family;
• Germany, who probably isn't happy with their citizen's behaviour right now, but is obligated to look out for the citizen's rights under their constitution.

Presumably, the US has first right here because they're the nation in which the crime happened, but how does international law shake out the rest of the order of precedence? Would the order of precedence change any if it had been a deliberate murder (say, Kurt buys a weapon in Boston, goes to the pub Alice happens to be in as well, a drunken argument happens and Kurt uses his newly purchased weapon to settle it)?

Answer 1

DUI is a crime under Massachusetts law so Kurt would be prosecuted there by that state.

Germany would offer consular assistance but this would not extend to preparing or paying for his defence. If convicted, and after serving his sentence, Germany and the USA would coordinate his deportation.

The UK would offer consular assistance for the repatriation of Alice's body and for the participation of her family in the trial, again this would not extend to paying for it. They would not assist in any civil action Alice's family might take against Kurt in a Massachusetts court.

While DUI is a crime in both Germany and the UK AFAIK they are not extraterritorial: that is the crime must be committed on their territory for them to prosecute it. Some crimes do have extraterritoriality but not DUI. Similarly, their courts would probably not hear a civil case because the correct venue is Massachusetts and they would probably entertain a motion to dismiss on that basis. Even if they did hear it, it would be heard under Massachusetts law.

Answer 2

The kind of interest analysis you are discussing is normally done for choice of law purposes in civil cases, not in criminal cases.

Criminal courts always apply only their own penal laws. See, e.g., The Antelope, 23 U.S. 66 (1825); Loucks v. Standard Oil Co., 120 N.E. 198 (N.Y. 1918) ("The courts of no country execute the penal laws of another."); Restatement (Conflict of Laws) (1934) § 427 ("no state will punish a violation of the criminal law of another state."). The cases are old, but the rule remains nearly absolute to this day.

A civil case for wrongful death damages could be commenced by Alice's family in courts in Boston, in courts at the place of her domicile in Britain, or in courts in Germany at Kurt's domicile there. The first would have jurisdiction because the incident occurred there. The second would have jurisdiction because that was a deemed place of the injury. The third would have jurisdiction because someone can be sued for their worldwide actions in the place where they reside.

Courts in any of those places could choose to apply interest analysis to determine which law (Mass., Britain, Germany) should apply to the wrongful death case on a question such as whether or not exemplary damages were available against Kurt in the wrongful death case.

In practice, courts that apply interest analysis usually end up applying the forum's domestic law, but in principle, this would not always be the case.

There is no clear cut precedence in interest analysis for choice of law and choice of law for one issue (whether traffic laws were violated) and another for another issue (whether exemplary damages are available, or who has standing to bring a wrongful death action). Usually, the decision of the first court with jurisdiction to enter a final judgment would control in a civil case.

In a criminal case, duplicative prosecutions by different countries for the same acts are generally not prohibited, assuming that countries other than the first to prosecute do so and that they are authorized by their laws to do so, and that they do not choose to refrain from prosecuting a case that has already been tried.

Answer 3

Britain could go to war with Germany.

This assumes that "Alice" is (was) Princess Alice of the United Kingdom, VA, CI (Alice Maud Mary; 25 April 1843 – 14 December 1878; later Princess Louis of Hesse and Grand Duchess of Hesse and by Rhine).

Given the historic time, the car which Kurt rented was probably a horse carriage (AFAIR, steam cars were not yet popular in the US at that time). Presuming that the "Kurt" in question is actually Kurt Eisner, he would have been 11 years old when the unfortunate death of Alice occurred. I assume that was before he developed the revolutionary tendencies, so it is questionable whether the British Empire would actually consider the whole affair really as an assassination.

However, wars have been fought about less.