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University of Miami Law Review

Luis E. Chiesa

Abstract

This essay discusses the “Evil Waiter Case,” a famous hypothetical fact pattern that has been the subject of much debate in the German, Spanish, and Latin American criminal law literature, but that unfortunately has not found its way into Anglo-American scholarly writings. The case presents us with a waiter who notices that the filet mignon she is taking to her assigned table is covered in a poisoned mushroom wine sauce. She nevertheless takes the dish to the table. The patron eats the poisoned filet mignon and dies several minutes later. Did the evil waiter kill the hungry patron or did she merely let him die? This essay argues that the evil waiter’s conduct shares morally relevant features of both actions and omissions, although it is neither purely active nor purely omissive conduct. It is, for lack of a better word, an “actmission” that is more blameworthy than a pure omission but less worthy of condemnation than purely active wrongdoing. Conduct counts as an actmission if it amounts to a failure to rescue (e.g. waiter fails to rescue patron) that is accomplished by engaging in a willed bodily movement (waiter places dish in front of patron). As a result of the hybrid nature of her conduct, the evil waiter should be punished more severely than if she had merely failed to rescue the patron, but less harshly than if she had actively killed the patron. More importantly, the Evil Waiter Case reveals that judges should not be forced to describe criminal conduct as either an act or an omission. Instead, American criminal law ought to recognize “actmissions” as a distinct category of conduct. Such actmissions should be punished more than pure omissions but less than entirely active conduct. Criminal law would thus be better served by replacing the act/omission distinction with the act/omission/actmission tristinction.

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