Brow Beat

The Shaggy Defense: America’s Favorite New Legal Term

R. Kelly’s child pornography trial, which I covered for Slate in 2008 , came down to a simple matter of opinion: Did a VHS tape that looked like it showed R. Kelly peeing on and having sex with an underage girl actually show R. Kelly peeing on and having sex with an underage girl? The jury ultimately sided with the defense, and the ” I Like the Crotch on You ” singer was acquitted .

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How did the singer win the day? By saying, essentially, It wasn’t me . According to Kelly’s lawyers, the sex tape in question could very well have featured an R. Kelly lookalike, or perhaps a nefarious moneygrubber could have inserted his visage using the kind of CGI technology seen in the Wayans brothers’ movie Little Man . I dubbed this the “Shaggy defense” in honor of the man behind the 2000 hit ” It Wasn’t Me and jokingly predicted that law schools would soon be lecturing on this stratagem.

Turns out I might be right. A few weeks ago, Virginia Lawyers Weekly noted that U.S. District Judge Jackson Kiser declared that “the so-called ‘Shaggy defense’ [was] inappropriate for a summary judgment motion.” In the case at issue, Preston v. Morton , a man was struck by a tractor trailer while installing traffic lights. The accused driver’s defense: It wasn’t me.

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As the judge explains in his ruling :

In the present case, I do not mean to suggest that the case against Defendants is as clear cut as the case against the adulterer in the song (as part of the song’s “charm” is the absurdity of such a claim by someone in the narrator’s situation). I use this term merely to illustrate the defense claiming the offending party was someone else.

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Judge Kiser, who in a footnote credits me with coining this important term, doesn’t dismiss the Shaggy defense as a viable legal tactic after all, there can be legitimate cases of mistaken identity. He does, however, argue that it’s “not a matter for summary judgment.” Kiser explains that “[w]hile Defendants are free to assert, at trial, that they were not the negligent party, the question is obviously one of disputed, material fact. Whether the named defendants actually committed the acts complained of is the sine qua non of virtually all civil actions.” The way I read this, Kiser is saying that R. Kelly and his legal braintrust were onto something: The Shaggy defense, like the jury system and the principle of habeas corpus , is one of the pillars underpinning American jurisprudence.

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