Daredevil Season 2

I’ve received a few different questions about the second season of Daredevil, which puts Matt & Foggy’s legal practice front and center in a key storyline, which I won’t spoil here.  I’ve just gotten through watching the season, and wow is there ever a lot to discuss—and not in a good way.  More to follow.

Bound by Law: A Copyright Law Comic Book

Hat tip to Kohel Haver for pointing me to Bound by Law, a free comic book created by the Duke Law School Center for the Study of the Public Domain.  Bound by Law is a funny but educational introduction to the basics of copyright law, including fair use, infringement, and the public domain.  The book uses a documentary filmmaker as an example, but many of the issues apply equally to other arts and media.  Check it out!

Batman v. Superman and Import Licenses

(Lawrence M. Friedman is a partner at Barnes, Richardson & Colburn, LLP and an adjunct professor at the John Marshall Law School’s Center for International Law.  He is also the author of the Customs Law Blog and a previous guest poster here at Law and the Multiverse.)

Heading into Batman v. Superman: Dawn of Justice, I had some trepidation mixed with anticipation. You’ll have to judge the movie for yourself. My short review is that it is filled with great fan service and universe building, but continues to mistreat Superman as a character. To make up for that, Wonder Woman is great and Ben Affleck is perfectly good in the cowl and cape. That’s all I will say on the quality of the movie. What about the legal issues?

Very early in the movie, it becomes clear that Lex Luther and Lexcorp could use my professional help. Explaining why requires at least a minor spoiler. Consider yourself warned.

Continue reading

Guest Post: Insurance Fraud is No Laughing Matter

(This guest post was written by Kevin Wheeler, an associate attorney at Schlichter & Shonack, LLP.  Thanks to Steven Jones for sending in the question, and thanks to Kevin for a great guest post!)

INSURANCE FRAUD IS NO LAUGHING MATTER

Cameron Kaiser tries to play the Joker

I. Introduction 

In episode 41 of Batman the Animated Series, Cameron Kaiser, a casino mogul, opens up a brand new casino, “Joker’s Wild.” Gotham is shocked to see the casino is themed after one of Gotham’s most notorious villains. However, after some investigation by the world’s greatest detective, it is discovered that *spoiler alert* the Joker theme was part of an elaborate scheme to bait the Joker into destroying the hotel. Mr. Kaiser’s overspending on the casino had left him on the verge of bankruptcy, so he hatched this plot to collect the insurance money. Despite Mr. Kaiser doing everything he could to facilitate an attack on the casino, including assisting the Joker in escaping from Arkham Asylum and even letting the Joker deal in his casino, in the end, Batman is able to thwart Mr. Kaiser’s plans and lock the Joker back in Arkham to escape another day.

The topic of this article is whether Mr. Kaiser is liable for insurance fraud. This article will not focus on Mr. Kaiser’s ability to obtain insurance against an attack by the Joker, as that was discussed in a previous post. Instead the focus will be on the legal ramifications of intentionally baiting the Joker with the “Joker’s Wild” theme. As Mr. Kaiser would contend, “The joker is a classic symbol, long associated with cards and games, [he] can’t help it if there is a passing resemblance to some criminal fruit cake.”

Insurance fraud is an issue affecting everyone. At its core, the insurance business is simply the market of risk. Insurers take upon themselves the risks of their insureds, who in return pay the insurers insurance premiums. This system works because the insurers are able to assess the risks and distribute the costs evenly amongst all of their insureds. Fraudulent claims change the risk assessment for insurance companies. Insurance companies are forced to transfer the additional burden onto their insureds in the form of increased insurance premiums.

Each state has enacted its own statutory scheme to prevent and punish insurance fraud. Generally, when dealing with Gotham city this blog has applied New York law, I will continue in this tradition and use New York law in my analysis.

II. Insurance Fraud

New York Penal Law § 176.05 defines the commission of a fraudulent insurance act as taking place when a person “knowingly and with intent to defraud, presents, causes to be presented or prepares with knowledge or belief that it will be presented to or by an insurer, self-insurer or purported insurer or purported self-insurer, or any agent thereof, any written statement as part of… a claim for payment or other benefit pursuant to an insurance policy which he knows to: (i) contain materially false information concerning any fact material thereto; or (ii) conceal, for the purpose of misleading, information concerning any fact material thereto.” NY CLS Penal § 176.05.

On its own, the commission of a fraudulent insurance act constitutes insurance fraud in the fifth degree and is a misdemeanor. Insurance fraud rises to the level of a felony, when in addition to a fraudulent insurance act, the defendant also “wrongfully takes, obtains or withholds, or attempts to wrongfully take, obtain or withhold property,” the value of which determines the severity of the offense. NY CLS Penal §§ 176.05-176.30. Wrongfully taking insurance proceeds from the destruction of a $300 million casino would classify as insurance fraud in the first degree. NY CLS Penal § 176.30.

A. Knowingly and With Intent to Defraud

The first element of insurance fraud is that the fraud is committed knowingly and with the intent to defraud. “A person acts intentionally with respect to a result… when his conscious objective is to cause such result… A person acts knowingly with respect to conduct… when he is aware that his conduct is of such nature.” NY CLS Penal § 15.05. The question before us is whether Mr. Kaiser knew that his actions would result in a fraudulent act, and committed those actions with fraud as the intended result. Because direct evidence of a defendant’s mental state is rare, circumstantial evidence is sufficient.

Here, there is likely enough circumstantial evidence to show Mr. Kaiser acted with the requisite culpable mental state. The Joker and his crimes are well known to the citizens of Gotham city. Knowing of Joker’s tendencies toward destruction, Mr. Kaiser aided the Joker in his escape from Arkham Asylum on the same day the Joker’s Wild casino was unveiled. Mr. Kaiser clearly knew that the Joker would seek to destroy the casino and that thereby Mr. Kaiser could collect the insurance money. Similarly, this evidence shows that Mr. Kaiser’s acted with intent to defraud. There is no other reason Mr. Kaiser would help the Joker escape and even allow the Joker to act as a dealer in the casino.

Mr. Kaiser’s aid to the Joker is not the only evidence of his culpable mental state. We also discover through Batman’s sleuthing that the original theme for the casino was a medieval theme. As Mr. Kaiser is sure to argue, the joker is a perfectly reasonable theme for a casino, so the change in theme was innocent. The theme change, however, was recent enough to the opening that instead of a complete remodel, they simply placed joker wallpaper on top of knight wallpaper. This shows that it was not planned to be the theme of the casino, which puts into question his motive behind the switch. Combine that with the history of the Joker in Gotham city and his intentions become more clear.

There is also evidence of financial motivation to commit fraud. Mr. Kaiser basically bankrupted himself on this casino. He would not likely be able to make back the money he spent on the casino, no matter the theme. Choosing the Joker’s Wild theme in Gotham, however, would also likely be seen as a poor business decision. At the unveiling, the citizens of Gotham are disgusted by the choice of theme. Given the traumatic experiences most of them have likely had with the Joker, it would be foreseeable that this particular theme would cause potential patrons to avoid the casino.

These circumstantial facts taken together likely show that Mr. Kaiser knew that choosing the Joker’s Wild theme as well as breaking the Joker out on the same day as the unveiling would likely result in the destruction of the casino. Despite the known result, Mr. Kaiser still themed his casino after the Joker and broke the Joker out of the asylum which, combined with Mr. Kaiser’s financial state, shows an intent to defraud.

B. Prepares a Statement Concealing a Material Fact

The next element of the crime of insurance fraud is preparing a statement concealing a material fact. Here, Mr. Kaiser has obviously not presented or even prepared any sort of written statement, as he was foiled by the caped crusader before his scheme could be accomplished. Mr. Kaiser is not off the hook, however.

The absence of a written statement will not preclude a prosecution for attempted insurance fraud. In People v. Vastano (App.Div. 1986) 117 A.D.2d 637, 637 [498 N.Y.S.2d 87, 87], the court found sufficient proof of attempted insurance fraud even though no claim had been submitted. In that case the defendant plotted out a crime of insurance fraud in which he arranged to have the car of one of his coconspirators disposed of; so they could split the insurance money. The coconspirator, however, never reported the car stolen to the insurance company. The court held that “The necessary overt act for an attempt need not be the final one towards the completion of the offense. Whenever the acts of a person have gone to the extent of placing it in his power to commit the offense unless interrupted and nothing but such interruption prevents his present commission of the offense, at least then he is guilty of an attempt to commit the offense.” People v. Vastano, 117 A.D.2d at 637.

Here, Mr. Kaiser has acted to the extent that he would “commit the offense unless interrupted and nothing but such interruption prevents his present commission of the offense.” Batman was the interruption that both prevented the destruction of the hotel and the insurance fraud. Similar to the Vastano case, Mr. Kaiser had almost completed his portion of the fraud. Without Batman’s “interruption” the Joker would have destroyed the casino, and Mr. Kaiser could have collected the insurance money.

III. What If Mr. Kaiser Had Not Helped the Joker?

If we change the episode slightly, this time removing Batman’s interruption and Mr. Kaiser’s aid to the Joker. What would be the result if Mr. Kaiser, had simply realized he had spent far too much on the Casino, and simply changed the theme to Joker’s Wild knowing the Joker would destroy it. Here, the facts are a little closer as Mr. Kaiser is no longer an accomplice to the arson of the casino. However, he is still would likely be guilty of insurance fraud if he seeks to collect the insurance money on the destroyed casino.

“The essence of insurance fraud is the filing of a false written statement as part of a claim for insurance.” People v Alfaro, 108 A.D.2d 517, 520, affd. 66 N.Y.2d 985; see also People v. Michael (App.Div. 1994) 210 A.D.2d 874 [620 N.Y.S.2d 637], holding that although the defendant was found not guilty of arson, it did not mean that she could not be convicted of third degree insurance fraud where proof was overwhelming that defendant was aware that fire was intentionally set to collect on insurance policy.)

Even if Mr. Kaiser had simply changed the theme of the casino in order to entice the Joker to destroy it, he would have to either a) misrepresent or conceal his change of theme, or b) report the change of theme to the insurance company.

If Mr. Kaiser elected to simply misrepresent or conceal the change of theme, then he would be committing “the essence of insurance fraud” by filing a false written statement as part of a claim. Even if his policy would have covered the loss of the casino had he been truthful, he would still be guilty of insurance fraud. In People v. Stevens, the defendant falsely reported to her insurer that her truck had been stolen, when in fact it had been driven into a pond. The court in that case held that “The commission of the crime of insurance fraud is not dependent upon whether the insured is ultimately entitled to be paid under the policy; it is committed when the insured knowingly files false information with the carrier in an attempt to collect under the policy.” So any material misrepresentation or concealment to an insurance company constitutes insurance fraud.

So what if Mr. Kaiser was truly innocent, and had changed the theme of the casino, not to bait the Joker, but because he truly believed that “The joker is a classic symbol, long associated with cards and games.” New York and other states require that all insurers must obtain an anti-arson application for all property insurance policies covering peril of fire or explosion. NY CLS Ins § 3403. An anti-arson application is an application for insurance or renewal of insurance, that includes certain questions that the applicant must answer in addition to the basic information normally supplied to an insurer. NY CLS Ins § 3403(a). This information includes financial and background information about the property and the applicant. NY CLS Ins § 3403(c).

The improvements entailed with the change of theme of the casino would also need to be insured. Therefore, Mr. Kaiser would have had to complete an anti-arson application for the improvements. During the application process, the property would need to be appraised and inspected. During these inspections, the insurance company would likely find out the nature of the improvements. If Mr. Kaiser were honest in this anti-arson application concerning his financial condition and the financial condition of the property, and the insurance company still chose to insure him, then a court would likely find that the insurance company accepted the risk of the Joker destroying the casino and Mr. Kaiser could collect. All that being said, an insurance company is not likely to insure a Joker’s Wild casino in Gotham.

 

News From My Day Job

If you’re curious about the kind of thing I do for my day job, here’s a short research article that was published today: James E. Daily, An Empirical Analysis of Some Proponents and Opponents of Patent Reform, 2016 Patently-O Patent Law Review 1.

Defending Kilgrave

(Spoilers for Jessica Jones ahead!  Trigger warning for discussion of rape.)

Jessica Jones features a private investigator, an attorney, accused criminals, and a killer on the loose.  There are so many legal issues it’s hard to know where to begin.  The Legal Geeks have written about the feasibility of Kilgrave’s victims raising an insanity defense, but I’m interested in a related but trickier question: what defense could Kilgrave offer if he were hauled into court (and prevented from influencing the case using his powers)?  At first glance it might seem like Kilgrave is guilty of numerous instances of murder, rape, theft, and countless lesser offenses.  But as Kilgrave claims, he isn’t a murderer himself, he just tells other people to do it.  I will consider three possible crimes: Hope Shlottman killing her parents, Kilgrave’s rapes, and Kilgrave taking money from the poker players.  The show is set in New York City, so I’ll be using New York law for the analysis.

I. Intent

Before looking at each crime, I should first talk about intent.  Not all crimes require intent; there are strict liability crimes such as driving over the speed limit.  But most crimes require some form of intent, which can be divided into two classes: specific intent and general intent.

Specific intent means the state must “prove that the defendant has intended to commit some further act, or has intended some additional consequence, or has intended to achieve some additional purpose, beyond the prohibited conduct itself.” 35 N.Y. Jur. 2d Criminal Law: Principles and Offenses § 26.  Murder is the classic example of a specific intent crime.  The degree of guilt depends on the additional consequence or purpose intended by the defendant.  If the defendant intended to kill the victim, that’s intentional homicide.  If the defendant did not, then that may only be manslaughter.

General intent means that the state only has to prove that the defendant intended to commit the prohibited conduct.  Rape is the typical example of a general intent crime.  What matters is that the defendant engaged in sexual intercourse with the victim and the victim did not consent.  It does not matter whether the defendant was aware of the lack of consent or intended for the intercourse to be nonconsensual.

II. The Killing of Hope Shlottman’s Parents

In this case, Kilgrave instructed Hope Shlottman to shoot her parents, which she then did, resulting in their deaths.  This was done under the influence of result of a virus that Kilgrave produces, which causes others to obey Kilgrave’s commands literally and unflinchingly.  Hope herself has a few solid defenses: involuntary action, legal insanity, duress, and involuntary intoxication.  But what about Kilgrave?  Is he culpable?  After all, he just told Hope to kill her parents.  He didn’t pull the trigger himself.

Alas for Kilgrave, this argument is more effective as a delusional rationalization than a legal defense.  What Kilgrave did is a solid, though unusual, example of solicitation, the basic form of which is this:

A person is guilty of criminal solicitation in the fifth degree when, with intent that another person engage in conduct constituting a crime, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.

N.Y. Penal Law § 100.00.  The higher degrees of solicitation depend on the defendant’s age and the seriousness of the offense solicited (in this case, very serious).  Kilgrave both commanded and “otherwise attempt[ed] to cause” Hope to engage in conduct constituting a crime, which she then did.  Once the crime was carried out, Kilgrave became fully liable for the murder. N.Y. Penal Law § 20.00.

But wait!  Isn’t the whole point that Hope isn’t guilty?  How can Kilgrave be guilty of something that wasn’t a crime for Hope?  The New York legislature thought of that, and both the general accessory liability statute § 20 and the solicitation statute § 100 have provisions covering this scenario:

In any prosecution for an offense in which the criminal liability of the defendant is based upon the conduct of another person pursuant to section 20.00, it is no defense that:
1. Such other person is not guilty of the offense in question owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the conduct in question or of the defendant’s criminal purpose or to other factors precluding the mental state required for the commission of the offense in question; or
2. Such other person has not been prosecuted for or convicted of any offense based upon the conduct in question, or has previously been acquitted thereof, or has legal immunity from prosecution therefor

§ 20.05.  Similarly:

It is no defense to a prosecution for criminal solicitation that the person solicited could not be guilty of the crime solicited owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the conduct solicited or of the defendant’s criminal purpose or to other factors precluding the mental state required for the commission of the crime in question.

§ 100.15.

So Kilgrave is criminally liable for the intentional murder of Hope Shlottman’s parents, even though he only “asked” Hope to do it and she herself is likely not guilty of murder (and in any case was not convicted of it).

III. Rape

This is an even clearer case than the murder of Hope’s parents.  New York criminal law is clear that “A person is deemed incapable of consent when he or she is … mentally incapacitated.”  Penal Law § 130.05(3)(c).  Mentally incapacitated is defined as when “a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.” § 130.00(6).

In this case, Kilgrave rendered his victims temporarily incapable of controlling their conduct owing to a) the influence of an intoxicating substance (the virus) administered to them without their consent or b) the intentional viral infection, again without their consent.

Notably, the prosecution does not have to prove the exact nature of the intoxicant.  People v. Di Noia, 481 N.Y.S.2d 738, 740 (1984).  The considerable circumstantial evidence (Hope lying in bed for hours, refusing to leave, shooting her parents for no reason) is sufficient to show that her mind had been incapacitated.  Similarly evidence exists for Jessica (e.g. the injury to her ear).

Lack of consent could also be proven by Hope and Jessica’s physical helplessness.  § 130.05(3)(d).  Physical helplessness is defined as when a person is “unconscious or for any other reason is physically unable to communicate unwillingness to an act.” § 130.00(7).  Hope and Jessica were conscious, but they were physically unable to communicate their unwillingness to engage in sexual intercourse (as a result of Kilgrave’s compulsion).

Kilgrave can offer no defense to charges of rape.

IV. Theft

Here there is a glimmer of hope for Kilgrave’s defense team (though even this is illusory, as we shall see).  Kilgrave took hundreds of thousands of dollars from a group of wealthy men at a poker game by commanding them to go all in and then promptly fold.  However, at least under New York law, that may not have been theft (technically larceny).

Unlike murder, the end result was not inherently illegal.  Killing a person is generally a crime unless some exception applies.  But it is generally legal for one person to give another a large sum of money.

Unlike rape, the larceny statutes and case law are primarily concerned with the perpetrator’s evil intent, not the victim’s lack of consent or true knowledge.  Larceny most encompasses taking by fraud, embezzlement, extortion, false promises, and keeping lost property.  But Kilgrave didn’t do any of that.  He didn’t make any false representations or promises, he did not embezzle the money, he did not extort it on pain of some injury, nor was the money lost.

So here is one crime that Kilgrave may not be guilty of, at least arguably.  But there’s a catch: rather than simply tell the men to give him the money, Kilgrave nominally played along with the poker game.  This is not a crime in itself: New York appears to allow private, social gambling (although contracts for wagers are unenforceable).  But there is a catch:

Every person who shall, by playing at any game … lose at any time or sitting, the sum or value of twenty-five dollars or upwards … may … sue for and recover the money or value of the things so lost and paid or delivered, from the winner thereof.

NY Gen. Obligations Law § 5-421.  In other words, the men can sue to recover the money from Kilgrave because, technically, it was lost in a poker game.

V. Conclusion

Although perhaps unsurprising, it is reassuring to know that the nature of Kilgrave’s powers does not put him outside the reach of the criminal law.  And even in cases where it does, he might not be able to keep his ill-gotten gains.

Star Wars & Taxes

Over at Bloomberg BNA’s Federal Tax Blog there’s a fun post about the impact that taxes have had on Star Wars, both in the galaxy far, far away and in the real world.  Thanks to the blog’s editor Syd Gernstein for the tip!

Interview on “When We Last Left Our Heroes”

Yesterday I was interviewed for the podcast series When We Last Left Our Heroes, a great comics podcast series from BFM, a radio station in Malaysia. Recent episodes have featured interviews with Neal Adams and Paul Levitz, so I felt in good company.  Thanks to Umpagan Ampikaipakan for having me on!

Superman and Supergirl: Environmental Refugees

(This guest post was written by Kean Zimmermana recent graduate from Michigan State University College of Law.  This post is an in-depth exploration of Superman and Supergirl’s environmental refugee status touched on in a previous article. The analysis in this article has changed to reflect the Supergirl in the TV series and recent New Zealand Court decisions. That article can be viewed online at L&F Magazine.)

Introduction

The writers and contributors who have posted on Law and the Multiverse, as well as other legal scholars, have taken the opportunity to note the various legal issues that superheroes and villains face when it comes to the intricate web that is immigration law.  Recent developments in the world have lead to an increase in refugees, especially refugees forced from their homes not just by people, but by the environment.  Kryptonians would likely be counted among the other environmental refugees.  Similarly the survivors of Krypton would also struggle with many of the same setbacks.

The United States has instituted laws addressing refugees since 1948.[1]  In 1948, the  United States government enacted the first law for admitting persons fleeing persecution.[2]  The law permitted 205,000 refugees to enter the United States over the course of two years.[3]  It was not until 1951 that the first steps were taken to recognize refugees on an international scale.[4]  In 1951, the United Nations put forth the 1951 Refugee Convention, which is the underpinning of most refugee law in the world.[5]  The Convention defines refugees, their rights, and what obligations states have to refugees across the globe.[6]  The same Convention states that individuals may seek asylum if they have a well founded fear of persecution on account of one of the five pre-approved grounds.[7]  Those are race, religion, ethnicity, political opinion, or membership in a particular social group.[8]  While most countries that have adopted the convention’s regulations to govern refugee law, those same laws have not been updated to keep pace with current trends.  Currently, there is a gap between what the law provides and what is needed.[9]  The widening gap is most certainly the case of what is occurring with environmental refugees.

A. Environmental Refugees

Environmental refugees are growing in number across the globe, but both domestic and international laws have yet to grow along with the refugees.  According to the Organization for Economic Co-operation and Development, an environmental refugees is “a person displaced owing to environmental causes, notably land loss and degradation, and natural disaster.”[10]  These refugees are also known as “displaced people” or “climate refugees.”[11]  Environmental refugees are not a new phenomena, yet in recent years there has been an increase in attention to climate refugees.  This is correlative to the changes in climate that have occurred in recent years.[12]

I. Superman and Supergirl’s Not so Super Problem

A. Superman: A True Illegal Alien

There is no question that Superman, or rather Clark Kent, is not from this planet.  In fact he embodies the term “illegal alien” in that he never properly migrated to this country, or at least did not do so through official channels.  His provenance can be forgiven given the fact that he was sent by his parents from the planet Krypton.[13]  The reasons for the planet’s demise have varied over the years.  This post, however, adopts the theory from the Man of Steel movie.  In the Man of Steel, Krypton’s resources were over-consumed to the point that the planet imploded on itself.[14]   Environmental disaster on a planetary scale obliterated Krypton in its entirety.[15]

As a baby, young Clark could not be expected to file his asylum petition on his own.  The Kents adopted Clark after finding him in their field.[16]  The two possible ways this would occur today would be if Clark had been legally adopted as an abandoned child, or if the Kents had somehow managed to obtain forged documentation for Clark.  However, Clark would still have to file his claim for asylum the year after he turned 18.[17]  Clark would have clearly exceeded this statutory limitation as there is no evidence he has ever applied for asylum.[18]  Typically the law requires asylum seekers to affirmatively apply for asylum within one year after entering the United States.[19]  Recently, in a Board of Immigration Appeals decision, the court stated that an applicant’s age can be taken into consideration when determining if they can be exempted from the one year filing rule.[20]  Since there is no evidence that Clark ever attempted to apply for asylum this may have no bearing whatsoever.

Somehow Superman has the ability to renounce his United States citizenship in Action Comics 900.[21]  Renouncing American citizenship is governed under  section 349(a)(5) of the Immigration and Nationality Act.[22]  The backlash after this comic book was released was so huge that publisher DC Comics backtracked a week later and announced the issue itself was standalone.[23]  Being a standalone issue meant no further issue would explore Superman’s discarding of his American citizenship.  At least in this respect, it can be assumed that he has United States citizenship.  There is a chance that Kent was granted citizenship under the foundling statute even though it is rarely used.[24]  Based on this law, because Kent’s parentage was unknown as he entered the United States under the age of five, and since he hid his secret well after the age of twenty-one, he could possibly have attained legitimate United States citizenship through the statute.[25]

There is little debate that Superman had to leave Krypton before its ultimate implosion.[26] While Superman has never formally been considered a refugee, he fits the basic understanding of an environmental refugee in that he literally has no planet to return to.  Since it is presumed from DC that he somehow has citizenship, he does not have to examine this question.[27]  The same cannot be said for his cousin Kara Zor-El, also known as Supergirl.

B. Supergirl’s Dilemma

While Superman might want to file for Supergirl’s entry into the country through legal channels, there is no “cousin” spot for admitting someone into the country as a family member (he could only seek to admit a parent, spouse, child, or sibling).[28]  The most logical option at that point would be Deferred Action for Childhood Arrivals (DACA).[29]  Supergirl’s biological age is only thirteen given that she was trapped in the Phantom Zone, a place where time moves slower than on Earth, after she left Krypton.[30]  However, her actual age is suggested to be much greater given that she was stuck in the Phantom Zone while Superman grew into a man (her age after arriving in the United States is an estimated thirty-seven years).[31]  The United States government might not consider her young enough to qualify for DACA based on the elevated age. Biologically she would have entered the country before turning sixteen, but she would have been alive for thirty-seven years.  As such, Superman would likely seek either asylum or withholding of removal for his cousin.

The problem then exists is that Supergirl cannot claim asylum based on the fact that her planet no longer exists.  Actual displacement based on loss of home due to an environmental disaster would seem to fall under the concept of an environmental refugee, but as of right now environmental refugees are not recognized under most international laws.  Environmental refugees do not appear to be eligible for asylum solely based on their status as an environmental refugee.  Most countries base their refugee law on the 1951 Refugee Convention.[32]  As previously mentioned, the Convention prescribes five grounds upon which an individual can receive asylum.  Those grounds are race, religion, nationality, political opinion, and a particular social group.[33]  Supergirl must also be suffering from some kind of “persecution” that is based on one of the five grounds.[34]

In this case Supergirl’s persecution is simply that she is unable to return to her home planet of Krypton.  She lacks the opportunity to avail herself of the Kryptonian government since it is non-existent.  She would seek admittance to the United States, but she does not fall into a persecutorial nexus based on any of the five grounds.  At this point, the United States Immigration and Customs Enforcement (ICE) would contemplate whether or not it could forcibly eject Supergirl from the United States.  To do so would mean extreme costs on the United States government as simply containing her would likely cost upwards of $20 million.[35]  Even if Supergirl were to be ejected from the country, she would have nowhere else to go.

C. Super and Stateless

In effect Supergirl is actually a stateless person.  As of now the United States has not signed on to any of the major international conventions which attempt to reduce the number of stateless persons.[36]  Currently, the United States is lacking a basic framework to deal with stateless people, so most of its efforts are merely stopgap measures.[37]  The absence of a framework often leaves stateless persons in a position of limbo for excessive periods of time, especially if they no longer have a country to return to or no country which will accept them.[38]  Supergirl would likely be in a similar position as Krypton no longer exists.  After a determination is made that she either cannot return, or that it is too expensive to deport her, the government would probably require Supergirl to make routine reports to the Department of Homeland Security.[39]  Although she might be able to receive a work permit, if she were to ever leave the borders of the United States, border patrol could then deny her readmission.[40]

As a last ditch effort, Supergirl might try to claim asylum on the basis of her membership in a particular social group.[41]  She could argue that her particular social group is that of a Kryptonian who survived the destruction of the planet of Krypton.  However, such a group has yet to be acknowledged by the United States government.  Even then the persecution would have to be a form of past persecution.  Different circuits within the United States recognize different grounds or acceptable forms of past persecution.  Thus far, none have accepted the idea of “loss of a home” as a viable form of past persecution.  In fact, there is no law stating that the loss of a country, let alone a planet, amounts to persecution.  One of the only individuals in the world to make such an argument thus far has had little success.

II. Tuvalu: An Island and its Implications for Immigrants

Ioane Teitiota is the first man in New Zealand to seek asylum under the label of environmental refugee.[42]  Teitiota has been living in New Zealand since 2007 after leaving his Tuvaluan home; he believes his home will become uninhabitable before too long.[43]  Tuvalu is a Polynesian island nation located in the Pacific Ocean.[44]  The island is located halfway between Australia and Hawaii.[45]  Although very unassuming, the island is predicted to be the first island to succumb to rising sea levels.[46]  In 2009, there were many trees swallowed by the rising salt water, but as of 2012 whole parts of the island were consumed.[47] The highest point of the country above sea level is only a few meters high.[48]  Before the island is swallowed by the sea there are many Tuvaluans who are concerned that encroaching salt water will prevent any type of agriculture from persisting on the island.[49]  To that end, many Tuvaluans have fled their country, but not all have succeeded in trying to relocate.

The Court of Appeals in New Zealand denied Mr. Teitiota’s  application for Asylum in 2014 stating that his case was “fundamentally misconceived” and that it would “stand the [UN refugee] convention on its head.”[50]  While Teitiota argued that he would be facing “passive persecution” as a result of his government being unable to “protect him from climate change’s effects,” the court remained unpersuaded.[51]  Ultimately, the court felt that Teitiota’s arguments were “novel,” but “unconvincing” as granting him asylum would simply open up opportunities for millions of people living in low-lying countries to seek the same kind of asylum.[52]  To avoid a flood gates situation the Court affirmed the lower court’s decision to deny Teitiota’s claim for asylum.  The Court’s decision meant that Mr. Teitiota, his wife, and his three children born in New Zealand would have to return to their native home of Tuvalu.[53]

It seemed strange then that a different family from Tuvalu was granted New Zealand residency only months later after making similar claims.[54]  The family’s petition was the first “successful application for residency on humanitarian grounds in which climate change had featured.”[55]  The Court claimed the second case was different since the family had strong ties to New Zealand.  Like Mr. Teitiota’s claim, the second family was denied initially for not meeting the standards of the refugee convention.[56]  However, the second family successfully won their subsequent appeal by basing their argument on humanitarian grounds.[57]  In the July 2014 decision, the Court found that returning the family back to Tuvalu would be “unjust and unduly harsh.”[58]  The largest difference between the two applicants is the second Tuvaluan family has three generations of relatives living in New Zealand, increasing their ties to the community.[59]  Supergirl may be able to raise a similar argument since she herself has ties to the United States in the form of her cousin Superman.  This would likely fail though since Superman himself is only one man, not three generations of familial ties.  Furthermore, the United States has done very little within its own borders to make immigration exceptions for environmental refugees from abroad.

III. What the United States is doing for Environmental Refugees

There is no official legal framework to address the problems environmental refugees face when they try to enter the United States.  The United States has taken some steps to acknowledge this unique group of refugees immigrating into the United States.  The Immigration Act of 1990 does address granting temporary protection status to such refugees.[60]  Temporary protection status is granted when:

There has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected’ and when ‘the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state.[61]
Temporary status only applies to individuals who are already inside the United States at the time of the disaster.[62]  The temporary status includes six months of protection and the ability to work, but it does not allow for the admission of the claimant’s spouse or family.[63]  Temporary protection status was granted to victims of Hurricane Mitch in 1998 and victims displaced by the Montserrat volcano explosion in 1997.[64]  However, the granting of temporary protection status is discretionary.[65]  In addition to only protecting those who were environmentally displaced while they were present in the United States, as of 2014 only citizens of Haiti (earthquake), Honduras (hurricane Mitch), Nicaragua (hurricane Mitch), and El Salvador (earthquakes) were able to get temporary protected status for environmental events. [66]  There is no legal protection in the United States that creates a path to permanent status for environmental refugees.  As a country, the United States’ ability to protect those persons displaced by climate change is limited since its laws do not offer any substantive relief to those fleeing environmental disasters or rising sea levels outside of the United States.  In this lack of framework, the United States is consistent with many other international states who do not have legal frameworks to address the problems faced by environmental refugees.

Conclusion

In the end Supergirl will face the same fate as millions across the globe.  Without an adequate legal framework to deal with the surge in environmental refugees that is predicted to come in the next few decades, stopgap measures will be used to treat the environmental refugee crisis on too small a scale.  Excessive stopgap measures will lead to a bottleneck in the immigration system.  Supergirl will likely not be deported because of the sheer cost that would entail, and the fact that there is likely no Kryptonian agreement with any other country that would allow her to reside there.  In all likelihood, she will stay in the United States, but will not be able to ever qualify for United States citizenship since she falls within a grey area of the law.  This might not be as much of a problem, but if she were to ever save anyone outside of the United State’s borders then the United States could deny her readmission to the country. This would drastically limit the range of her allowable Superhero activities.

 

[1] History of U.S. Immigration Laws, Federation for American Immigration Reform, http://www.fairus.org/facts/us_laws

[2] Id.

[3] Id.

[4] Convention Relating to the Status of Refugees, 189 U.N.T.S. 137 (done at Geneva, 28 July 1951), as amended by the Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, T.I.A.S. No. 6577, 19 U.S.T. 6223, done at New York, 31 Jan. 1967.

[5] The 1951 Refugee Convention, http://www.unhcr.org/pages/49da0e466.html

[6] 1951 Refugee Convention, supra note 5.

[7] Id.

[8] Id.

[9] Climate Refugees, Michael P. Nash, LA Think Tank, http://www.snagfilms.com/films/title/climate_refugees

[10] Organisation for Economic Co-operation and Development, https://stats.oecd.org/glossary/detail.asp?ID=839

[11] National geographic, Climate Refugee, available at http://education.nationalgeographic.com/education/encyclopedia/climate-refugee/?ar_a=1 , last visited Apr. 20, 2015.

[12] Climate Refugees, supra note 9.

[13] Man of Steel, Zack Snyder, Warner Bros., 2014.

[14] Id.

[15] Id.

[16] Id.  (Adopt is likely a tentative term,  seeing as the Kents probably did not file the appropriate adoption paperwork as they did not want to risk the safety of their young child).

[17] INA §208(a)(2)(B).

[18] Id.

[19] INA §208(a)(2)(B).

[20] BIA Decision, Mar. 29, 2013, http://www.refugees.org/resources/for-lawyers/asylum-research/youth-and-1-year-bar-bia.pdf,

[21] Paul Cornell, Action Comics 900, (DC Comics, 2011).

[22] INA §349(a)(5).

[23] DC Backtracks Superman Renouncing His Citizenship, May 5, 2011, available at http://www.comicbookmovie.com/fansites/luffycapri/news/?a=36606, last visited Apr. 18, 2015.

[24] Ryan Davidson, Superheroes and Immigration Status, Law and the Multiverse, Dec. 22, 2010, available at http://lawandthemultiverse.com/2010/12/22/superheros-and-immigration-status/, last visited Apr. 20, 2015.  (James Daily Commentary).

[25] Id.

[26] Man of Steel, supra note 13.

[27] Paul Cornell, supra note 21.

[28] Bobbie Masters, Frequently Asked Questions About Immigration, Masters Law Firm, P.C., available at  http://www.coimmigrationlawyer.com/faqs.html

[29] USCIS, Consideration of Deferred Action for Childhood Arrivals http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca

[30] Supergirl, Warner Bros. Television (2015)

[31] Id.

[32] 1951 Refugee Convention, supra note 5.

[33] Id.

[34] Id.

[35] Matt Hershberger, Is Superman Undocumented?, http://themigrationist.net/2013/08/21/is-superman-undocumented/

[36] See Convention Relating to the Status of Stateless Persons, opened for signature Sept. 28, 1954, 360 U.N.T.S. 117 (entered into force June 6, 1960 ) ; see also Convention on the Reduction of Statelessness, opened for signature Aug. 30, 1961, 989 U.N.T.S. 175 (entered into force Dec. 13, 1975)

[37] Mikhail Sebastien, Stateless in the United States, http://www.washingtonpost.com/opinions/stateless-in-the-united-states/2013/07/04/ae4c7a72-debe-11e2-b2d4-ea6d8f477a01_story.html

[38] Id.

[39] Id.

[40] Id.

[41] 1951 Refugee Convention, supra note 5.

[42] Kathy Marks, World’s first ‘climate change refugee’ has appeal rejected as New Zealand rules Ioane Teitiota must return to South Pacific island nation of Kiribati, http://www.independent.co.uk/news/world/australasia/worlds-first-climate-change-refugee-has-appeal-rejected-as-new-zealand-rules-ioane-teitiota-must-return-to-south-pacific-island-nation-of-kiribati-9358547.html

[43] Id.

[44] Climate Refugees, supra note 9.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Marks, supra note 42.

[51] Id.

[52] Id.

[53] Id.

[54] Amy Maas, Tuvalu Climate Change Family Win NZ Residency Appeal, The New Zealand Herald, http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11303331

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Maas, supra note 54.

[60] An EU Strategy on Adaptation to Climate Change, Commission Staff Working Document, European Union (2013), 17 (internal quotation marks omitted).

[61] Id.

[62] Id.

[63] Id.

[64] Strategy on Adaptation, supra note 60.

[65] Id.

[66] Madeline Messic & Claire Nergeron, Temporary Protected Status in the United States: A Grant of Humanitarian Relief that is Less Than Permanent, http://www.migrationpolicy.org/article/temporary-protected-status-united-states-grant-humanitarian-relief-less-permanent

Batman and the Constitution: How can the Gotham D.A. convict criminals captured by Batman?

(This guest post was written by Kevin Lelonek as a response to a comment on this post from way back in January, 2012.  In his own words, “Kevin is a dual degree student pursuing his J.D. and M.B.A. in Buffalo, New York. He’s in his last year of the program and looks forward to starting his career. And of course, he’s a total nerd.”)

 

Batman and the Constitution: How can the Gotham D.A. convict criminals captured by Batman?

In the comments to a previous article about Batman’s relationship to the “State,” Crazy Jay raised some serious questions about how the Gotham District Attorney is able to prosecute Gotham’s criminals when Batman is involved in the apprehension of those criminals. Crazy Jay asked “how can the District Atty. Prosecute a criminal if the Batman had his mitts all over the evidence?” Crazy Jay asked about how Due Process, Miranda Rights, Cross Examinations, the “Fruit of the Poisonous Tree” doctrine, confessions, and Search Warrants, the staples of criminal law, work in a world with Batman.  How indeed? So let’s get started.

  1. Another Night on Patrol

The simplest case in which Batman stops crime infringes on no Constitutional protections. Consider the following: two masked men armed with shotguns enter a bank. One of the tellers quickly signals the silent alarm. The two armed men wave their shotguns around and demand the bank’s patrons lie face down on the floor. They turn their shotguns to the tellers and demand that the tellers empty their drawers. The armed men take the money from the tellers’ drawers and threaten the bank manager to open the safe. Before the armed men can leave with the money Batman intervenes, disarms the robbers, ties them up, and leaves them for the police. The police arrive as Batman disappears in the shadows.

Generally, criminal Constitutional protections only operate against the government. Due process, depending on which theory of it we are talking about, is a broad concept. We can conceptualize it as a series of steps and attendant procedures that the government must take to obtain a conviction.[1] For example, a police officer needs probable cause before he can arrest someone, and the government must prove each element of the crime beyond a reasonable doubt to obtain a conviction.[2]

Certainly in the above example the police that first arrive at the bank have probable cause to arrest the two armed men that Batman tied up.[3] At this point the two suspects are still masked and tied up, the two shotguns are presumably on the bank floor somewhere out of reach, and the police were summoned to the bank by the silent alarm. Statements by the patrons and employees provide further evidence of crime against the two men, making for a lawful arrest. Upon arresting the suspects, the police must read the suspects their Miranda rights. If the officers fail to do this, they risk having the suspects’ subsequent statements or confessions excluded at trial.[4]

In this situation there is nothing stopping Harvey Dent (pre-acid) from prosecuting the armed men. The fact that Batman thwarted the robbery does nothing to alter the fact that the two men forcibly stole property. To commit third degree robbery in New York, a person must: (1) wrongfully take, obtain, or withhold property; (2) with the intent to deprive the owner of such property or to appropriate the same for himself; and, (3) threaten another with the use of immediate physical force to prevent resistance to the taking of property or to compel the owner of the property or another person to deliver the property. [5]

Even if there were no surveillance cameras, the patrons of the bank and the bank’s employees can present evidence against the robbers sufficient to establish the elements of the crime.  Testimony to the facts above establishes that the armed men: (1) wrongfully took and obtained property that did not belong to them, the bank’s money; (2) intended to deprive the bank of its money and to appropriate the money for themselves when they demanded it from the tellers and bank manager; (3) used their shotguns to threaten the immediate use of force to prevent resistance to their demands. Further testimony to the effect that Batman intervened, disarmed the masked men, incapacitated them, tied them up, and left them for the police, who arrived shortly thereafter to unmask the armed men in front of the patrons and employees, establishes the identities of the defendants as those of the two armed men. The sum of all of this testimony seems to carry the prosecution’s burden of proof.

Of course the defendants are still entitled to their Sixth Amendment rights to put on a defense and to confront witnesses.[6] But Batman’s intervention does not alter these rights in any way: he is not preventing the defendants from presenting their own evidence in court or from cross examining the government’s witnesses against them. Assuming the defendants do not rat each other out for plea deals, we can imagine them putting on a common defense that attacks the credibility, perception, and memory of the witnesses with the intent to cast doubt on whether the defendants were in fact the robbers unmasked by the police. Lacking a population of witnesses that has sudden memory loss or that was lacking its required corrective eyewear (think My Cousin Vinny) it’s safe to say Dent gets his conviction on this one.

  1. Fruit of the Poisonous Tree

The “Fruit of the Poisonous Tree” doctrine only applies to evidence that is discovered as a result of a violation of the Fourth Amendment.[7] The doctrine is an exclusionary rule that operates to preclude the introduction of evidence that was obtained as a result of a bad “search” or “seizure” (i.e. a search not based on a warrant or an arrest without probable cause).[8] Since the Constitution only restricts government action, it seems that the “Fruit of the Poisonous Tree” doctrine would never apply to Batman. But this raises the question of how evidence procured by Batman, which he then turns over to the police, would be handled. Consider Batman: The Long Halloween when Batman leaves Carmine Falcone’s ledger on the GCPD HQ’s rooftop after meeting with Commissioner Gordon and Harvey Dent there.[9] Seemingly, the issue the government would face is establishing the ledger’s authenticity, that the ledger is in fact Carmine Falcone’s and that it details his illegal operations.[10] Assuming Batman is not testifying, the government would need to produce a witness who could identify the ledger as the ledger Carmine Falcone used to document his criminal enterprises.

  1. Confessions

Under the Federal Rules of Evidence, hearsay is generally not permissible testimony.[11] Hearsay is defined as a statement that the declarant makes while not testifying at the current trial or hearing.[12] However, a statement made by an opposing party is not considered hearsay. [13] Thus, a criminal defendant’s statement is not hearsay because the defendant is the opposing party to the prosecution in its case against the defendant. Accordingly, the confession Batman obtains from a suspect is admissible evidence at court. Getting the confession into evidence is another matter. Likely, Batman will not be testifying at the criminal trial. Unless Batman obtained the confession in the presence of another, who can testify to its substance, it probably won’t be used as evidence. Even if admitted, there is a credibility issue with the confession: if Batman “beat” the confession out of the defendant, the defense can attack its credibility by arguing that the confession was coerced.

  1. Search warrants

Now, the best (most interesting) for last: search warrants. In the ordinary case, police need a search warrant based on probable cause to search for and seize evidence.[14] Although inapplicable to the bank example above, we can imagine a situation in which Batman infiltrates a warehouse and identifies a large hidden cache of Penguin’s weapons. Batman alerts Commissioner Gordon to the location of the weapons. Before the GCPD can search the warehouse and seize the weapons it must first obtain a search warrant from a magistrate judge. In the usual case, a police officer who has witnessed what she suspects to be evidence of crime appears applies to a magistrate for a warrant based on what she witnessed. In the present case, Commissioner Gordon has not personally witnessed the weapons cache.[15] Being an honest cop, the Commissioner will not lie under oath to obtain a warrant. Luckily, under the Constitution the police, and our Commissioner, can obtain a warrant based on a tip from a reliable informant!

A search warrant based on an informant’s tip (hearsay) requires that the totality of the circumstances indicate to the magistrate judge that there is a fair probability that contraband or evidence of crime will be found at a particular place. [16] The totality of the circumstances test takes into account the truthfulness and accuracy of the informant, as well as the basis of the informant’s knowledge.[17] Since this test is not rigid, probable cause could be found on facts provided by an informant either because the informant has been reliable in the past or because evidence of the informant’s basis of knowledge of those facts is strong.[18]

Lacking independent police obtained evidence of crime[19] (i.e. Harvey Bullock sees the cache of weapons himself), Gordon can appear before the magistrate judge (or provide an affidavit) to testify that: (1) he received a tip that there is a large cache of weapons in a warehouse in Gotham; (2) the warehouse is owned by Penguin; (3) the tip was provided by an informant with the alias “Matches,” (a named informant because Commissioner Gordon regularly relies on tips received from Batman); (4) “Matches” has supplied truthful and accurate tips in the past (meaning he has given tips in the past that resulted in the GCPD finding what “Matches” said it would find); and, (5) “Matches” personally gained access to the warehouse and saw the weapons cache. The more specific Commissioner Gordon can describe the weapons cache and the warehouse, the more likely the warrant issued on Batman’s tip is likely to withstand its subsequent challenge by Penguin after he is arrested. Thus, the tip is more reliable when Batman takes an inventory of the weapons and informs Gordon that Penguin has 20 cases of fully automatic Uzi’s and 10 cases of RPG’s. Likewise, the more the GCPD uses “Matches” as an informant who leads it to evidence of crime, the more reliable “Matches” becomes as an informant!

Conclusion

Now, this is not to say that Batman himself is not potentially criminally and civilly liable for his actions. If he crashes through the skylight window of the bank in the first example, in appropriately dramatic fashion, he would likely be liable for property damages. Also, his use of physical force against the two armed bank robbers likely constitutes assault.[20]

All of the foregoing indicates that Batman’s aid in stopping crime should not hinder the successful prosecution of criminal defendants by the Gotham DA. This of course makes the “revolving door” in Gotham all the more inexplicable. If Batman’s participation in law enforcement is legal, why are the super villains never successfully incarcerated?

We might consider the insanity defense to criminal charges. In New York, the defense is not called the insanity defense; instead it’s the mental defect or disease defense.[21] It requires that the defendant, at the time of the offense, lacked substantial capacity to know or appreciate the nature or consequences of his conduct, or that his conduct was wrong. But one study found that the insanity defense was only raised in 0.85% of cases, and was only successful in 26% of those cases.[22] Perhaps we can imagine that the 0.22% (0.85% * 26%) of successful insanity cases are those made by the likes of Joker, Two-Face, the Ventriloquist, and the more colorful members of Batman’s Rogues Gallery. In any event it seems Batman’s involvement in law enforcement does not prevent the successful prosecution of criminal cases.

 

[1] Allen, Stuntz, Hoffmann, Livingston & Leipold, Comprehensive Criminal Procedure, 87-97 (3rd ed. 2011).

[2] Miles v. U.S., 103 U.S. 304 (1880).

[3] Dunaway v. New York, 442 U.S. 200 (1979).

[4] Miranda v. Arizona, 384 U.S. 436 (1966).

[5] NY Penal Law §§ 155.05, 160.0, 160.05 (McKinney 2015).

[6] See, e.g., In re Oliver, 333 U.S.  257 (1948); Washington v.Texas, 388 U.S. 14 (1967).

[7] Wong Sun v. U.S., 371 U.S. 471 (1963); Mapp v. Ohio, 367 U.S. 643 (1961).

[8] See, e.g.California v. Hodari D., 499 U.S. 621 (1991); Mincey v. Arizona, 437 U.S. 385 (1978); Katz v. U.S., 389 U.S. 347 (1967).

[9] Jeph Loeb & Tim Sale, Batman: The Long Halloween, (2011).

[10] Fed. R. Evid. 901(a).

[11] Fed. R. Evid. 802.

[12] Fed. R. Evid. 801(c).

[13] Fed. R. Evid. 801(d)(2).

[14] U.S. Const. amend IV; see, e.g., Johnson v. U.S., 333 U.S. 10 (1948).

[15] Presuming the weapons cache is hidden and would require entry into the warehouse to identify, Commissioner Gordon cannot go to the warehouse to corroborate Batman’s tip and provide independent evidence of crime: such action would be an unlawful search.

[16] Illinois v. Gates, 462 U.S. 213 (1983).

[17] Id.

[18] See id. As an aside, the “accurate and truthful” and “basis of knowledge” aspects of the test can, as a practical matter, be established by the same evidence. The events happen in the following sequence: (1) the police appear before the magistrate to present evidence based on a tip from an informant for a search warrant; (2) the magistrate issues the warrant; (3) the police execute the warrant, search, find evidence of crime,  and arrest the defendant; (4) the defendant is charged and challenges the basis of the warrant; (5) the trial court reviews the magistrate’s determination of probable cause taking into account whether the informant has provided accurate information in the past, and on whether the police found what the informant said it would find.  The fact that the police found what the informant said it would find establishes that the informant was “accurate and truthful,” and that the informant had a reliable basis for his knowledge (how else would the informant know what the police would find!).

[19] Illinois v. Gates, 462 U.S. 213 (1983).

[20] N.Y. Penal Law § 120.00 (McKinney 2015).

[21] N.Y. Penal Law § 40.15 (McKinney 2015).

[22] Michael Perlin, The Jurisprudence of the Insanity Defense, 108 (1993).