Kobe Bryant and Intent

The NBA suspended Los Angeles Lakers star Kobe Bryant for one game as punishment for elbowing San Antonio Spurs guard Manu Ginobili in his previous game. Bryant and the Lakers objected to the suspension because, according to Bryant, he did not intend to elbow Ginobili. League officials disagreed, noting that Bryant threw his arms backwards (striking Ginobili) after attempting a shot, an "unnatural" motion in basketball, according to Stu Jackson of the NBA front office. Bryant had an explanation: He flailed his arms as he did in an effort to draw a foul call. He hoped to draw attention to himself but did not intend to hit Ginobili. Bryant's explanation is credible because there is no known animosity between him and Ginobili.

I'm not especially interested in the merits of this dispute (except to the extent that Bryant's absence was the key to the Knicks' victory over the Lakers), but I do think it interesting that Bryant's exculpatory account was that he was trying to con the referees! And he's right in that assessment. Pretending to have been fouled is an important skill in the NBA. The generally acknowledged master was Reggie Miller, who after attempting a shot with an opponent in shouting distance, would frequently fall to the floor as though he had been shot by a sniper. Sometimes Miller would get the call; sometimes he wouldn't; but no one ever suggested that what he was doing was against the rules or even unsportsmanlike.

That's quite peculiar, isn't it? Well, yes and no. Consider parallels in the law. Sometimes deception merits special punishment. For example, a witness who lies on the stand commits perjury, a serious offense. Likewise a tax cheat who tries to disguise an illegal deduction by using the form of a transaction that is otherwise legal will not only have to pay the tax but could also be charged with tax fraud. Yet in other contexts, we seem to expect people to engage in deception. For example, a defense lawyer acts within his rights---indeed, probably has a professional duty---to challenge the veracity, perception or memory of witnesses that he knows are providing accurate testimony. What is cross-examination along these lines if not a deliberate effort to mislead the jury?

Is there a coherent account of when the law treats intent to deceive as relevant and when it does not? One might take the view that intent is never relevant because of the difficulties of proof---but of course the criminal law typically makes intent (or at least knowledge, which can be equally difficult to prove) highly relevant to culpability. Interestingly, although conventional wisdom holds that the difference between a category 1 flagrant foul and the more serious category 2 flagrant foul (which results in a player's ejection) is that the latter requires an intent to injure, the actual NBA rule does not draw a distinction based on intent. So apparently Bryant was relying on the common law of basketball in his defense.