Shapeshifting and Trial Testimony

A number of superheros and supervillains–Mystique, Amalgam, Everyman, etc.–have the ability to change shape into the appearance of other people. This is used variously for heroic purposes or nefarious deception, but what would the legal system need to do to account for the possibility of a shapeshifter impersonating a witness in a legal proceeding?

The implications are startling. A key witness could be replaced with a shapeshifter to introduce or conceal critical evidence at trial. Heck, one can imagine a supervillain making a decent living impersonating witnesses for a fee!

But surprisingly enough, this is something that the legal system is already pretty well equipped to deal with.

I. Verification

One can perhaps think of technical means that a court could impose to verify the identity of witnesses given the possibility of a changeling impersonating them. Certain superheros might even find some side work this way, and enterprising inventors could too. But even aside from the potential cost and inconvenience, this is not something the court system would probably impose.

Why? Because juries are already tasked with evaluating the credibility of witnesses. No special care is taken to make sure that witnesses aren’t lying, so why should special care be taken to ensure that they are who they appear to be? Indeed, witnesses must already identify themselves, and we trust juries to tell if a witness is lying about their identity.  Perjury is also already a crime–and impersonating another to give testimony under oath is certainly perjury. So if we already trust juries to weigh the credibility of testimony, including the witness’s claimed identity, it would seem that the problem of shapechangers is an issue of degree rather than kind.

II. Cross-examination

The reason that the legal system puts such faith in juries and takes so few preventive steps to prevent perjury is the system’s reliance on cross-examination.

Cross-examination is the part in a trial where a witness is questioned by the opposing attorney, a process which witnesses universally report is No Fun At All. The attorney is deliberately attempting to catch and exploit inconsistencies, however minor, in the witness’s testimony, and even an entirely truthful, honest witness can be made to appear pretty silly by a skilled trial lawyer. A good discussion of how this works and the ways in which a cross-examiner can accomplish his or her objectives can be found in the Ten Commandments of Cross-Examination.

The reliance placed upon cross-examination is so great that it underpins one of the most fundamental rights in criminal procedure: the right to be confront witnesses. If an attorney is not able to convince a jury through cross-examination that a witness is either lying or unreliable, that’s basically just too damn bad.

This is because testifying in court is different from having a discussion with friends over a few beers; there are stringent rules for what can be said and what cannot be said, and the attorney not doing the questioning has every interest in seeing that they are enforced. Remember how in all those law shows attorneys are always yelling “Objection!” That’s because they’re trying to draw the judge’s attention to what they believe (or would like the judge to believe) is a violation of the rules of evidence (although in the real world the reason for the objection also has to be given).

And again, even an honest witness can be tripped up by a skilled attorney. How much more a witness who does not actually have first-hand knowledge of the testimony being offered? Even a shapeshifting telepath is going to have a really hard time slipping one past an attorney who knows what he’s about. By the time a witness appears on the stand, particularly in a case of any significance, both attorneys pretty much know what their respective witnesses have to say. They will all have given extensive depositions, and the trial process is less a revelation of new evidence than it is a formal way of entering that evidence into the record. Any deviation from a deposition is likely to be noticed by the examining attorney and immediately pounced on. It will quickly become clear to the judge and the jury that something fishy is going on, and at that point the gig is up: either the doppelgänger will be revealed, or the damage to the case intended by the shapeshifter will be avoided.

At this point, other laws come in to play. Subornation of perjury is itself a crime, so a party or attorney that solicited the shapeshifter to replace a witness is in big trouble, and tampering with evidence in this way could well be a violation of discovery rules. Rule 37 permits a judge to impose a variety of sanctions on a party that does not cooperate with the discovery process, up to and including both contempt of court and ruling that the record treat the issue in question as conclusively established for the opposing party.  The attorney may also be sanctioned directly under Rule 11.

III. Conclusion

So here it would seem that the legal system is already pretty well set up to deal with the possibility of shapeshifters in court.

21 responses to “Shapeshifting and Trial Testimony

  1. You should also consider a shapeshifter infiltrating the Jury.

    • That’s a fair point. Jurors are subject to a kind of limited examination during voir dire, but that’s normally the only time the attorneys speak to the jurors individually. Perhaps jurors’ identities could be confirmed before they entered deliberations, but I don’t think the law would need to be substantially modified. Jury tampering is already a crime, and while wholesale replacement of jurors by stand-ins is rare-to-non-existent, threatening and attacking jurors is not, and presumably the real juror would either have to be ‘persuaded’ to stay home, kidnapped, or killed in order for the infiltration to work. Infiltration is easy for a shapeshifter, getting away with it is harder.

    • Yes, an interesting point, but James basically has the answer.

      I would add, though, that as soon as a court finds out that a jury has been tampered with it will immediately vacate the ruling and declare a mistrial. As this would probably happen pretty quickly, the potential for permanent or even long-lasting injustice is wrong. One of the great things about the legal system is its ability to fix its own mistakes. So getting away with it really is an important part of evaluating the viability of a particular nefarious course of action.

  2. What about using the existence of shapeshifters as a defense in and of itself? Surely any eyewitness, or even videotape evidence would be worthless if it could be reasonably alleged that a shapeshifter was in reality the culprit. This would dramatically reduce the exculpatory value of such evidence, while at the same time weighing heavily to prejudice the jury. I’d contend that the existence of shapeshifters could dramatically influence the nature of how a lot of testimony and evidence is used.

    • The “reasonably alleged” part is key here. A judge isn’t going to let every defense attorney try the “It could have been Mystique!” argument. There has to be some kind of evidence to that effect. The question is not whether the defense’s story is technically possible–it usually is–but whether it generates a reasonable doubt.

      In short, it seems to me that the shapeshifter argument would be treated as an affirmative defense, i.e. a set of defined elements which must be established for it to be effective. Simply throwing up the possibility would not be enough: the defense would have to establish to the jury’s satisfaction that it actually was a shapeshifter, there being a rebuttable presumption that the person is who they appear to be.

      Either way the jury will have to decide whether or not they believe the defense’s argument. This is something that juries do anyway, and there don’t seem to be any real concerns about that. Or, at least, no concerns that adding shapeshifters into the mix would seriously aggravate.

      Of course, the other possibility is that Mystique etc. could impersonate someone and commit a crime. That’s already been dealt with in a number of comic book stories, and the basic fact is that yeah, that’s a problem. But if the accused really didn’t do it, than unless they were framed pretty carefully and their whereabouts accounted for, it’s still possible they could walk.

      • But wouldn’t this form of affirmative defense actually be applicable in a broad set of circumstances? Given her track record of impersonating both superheroes as well as government and law enforcement officials it seems like any defendant with a history of working on the side of justice has a useful alternate theory of whatever crime they are accused of. Further, Mystique’s status as a fugitive from justice means that it will be fairly difficult to account for her whereabouts to refute the claim that “She really did it!”.

        While at some level the reasonableness of this theory would lie in the interpretation of the jury I’d imagine that any halfway decent defense attorney could provide numerous examples of her past participation in this type of crime. This leads to a confusing situation: The mere existence of a supervillain would be dramatically detrimental to the efforts of the justice system to prosecute a whole class of defendants. Virtue (or perceived virtue) could be enough of a defense to invalidate almost all types of evidence of a crime.

  3. It wasn’t me it was the one armed … err the Shapeshifter did it. Given the Modern/Futuristic technology available for gathering evidence. Wouldn’t there be some evidence (DNA, energy signature, power armor oil, Etc.) that would lend credence to the presence or absence of the defendant.

    Which of course will lead to the debate about the crime scene being staged.

    You would think that after years of supervillian trials there would be a number of criminal defense attorneys capable of stalling out trials almost indefinately. Guess that is why none of the supervillians are locked up for any decent period of time, they must all plea out to lesser charges.

    • “Given the Modern/Futuristic technology available for gathering evidence. Wouldn’t there be some evidence (DNA, energy signature, power armor oil, Etc.) that would lend credence to the presence or absence of the defendant.”

      Except that kind of advanced identification technology doesn’t seem to be common in superhero universes — otherwise a simple mask or pair of glasses wouldn’t suffice to keep a hero’s identity secret. Consider how much blood and DNA evidence Batman or Spider-Man leaves lying around at the scene of a fight. Although of course if you obtain DNA from a crime scene, you still need to find a suspect to match it with, since it’s not like the state has everyone’s DNA on file. (Honestly, this is a topic I’d love to see a whole post about. Who does have DNA on file? Anyone with a criminal record? If DNA is collected in an investigation, is it always kept on file, or only if the subject is convicted, or not at all?)

  4. I’ve thought about this problem from a slightly different perspective, which is the Harry Potter world, where there is a potion that lets you impersonate a person (polyjuice potion). In that world any magic-user (it’s not clear what would happen if a non-magic user took the potion) can take a potion and impersonate a random individual whose body matter (i.e. hair, nail clipping, etc) has been sampled.

    Mystique permanently has this ability, but she is not alone in the Marvel universe and there are many advanced techniques for impersonating people in the comic book worlds. I think in these cases you’d have to worry far more about a wide range of abuses:
    * impersonating the defense or prosecuting attorney
    * impersonating the judge
    * replacing the whole jury
    * impersonating the bailiff, and simply letting the villain escape, or attacking the defendant or witnesses in a place where they are supposed to be secure
    * impersonating the defendant, in order to facilitate future escape plans

    The possibilities are endless. I think the courts (and the police, and businesses in general) would need to develop far stronger methods of identification beyond simply trusting the jury or the cross-examiner to weed out liars.

  5. Shapeshifters could make a killing by providing alibis. “I need to kill this person around 9pm in this area. What can you do for me?”

    “Give me your cell phone, credit card, car with OnStar, and a hair sample. I’ll make sure I have a car breakdown in the next state after shopping there and making calls. $5000, plus you get to buy me dinner, drinks, and a movie.”

  6. Pingback: DYSPEPSIA GENERATION » Blog Archive » Shapeshifting and Trial Testimony

  7. A few questions regarding this, and some of what you’ve said may be particular to US evidence laws, but even if you deviate as a witness from a prevoius accounting of the facts there isn’t any particular penalty for doing so. In fact it happens all of the time, spousal assault cases are a good example. I know that in Canada we have the KGB rule (from the case R v G(K.B.) that allows a videotaped police statement that is made under oath to be admitted as a witnesses testimony, and for the Crown to treat their own witness as an adverse witness, but that’s really an issue of getting them to talk about why they changed their story.

    So I suppose what I’m trying to ask is, does it really matter if the shapeshifter took the place of a witness? Sure they might cast serious doubts as to their own credibility, but that might very well be the point. It might actually be exceptionally useful to replace the prosecution’s witness and just go in completely the opposite direction from what they need. Wouldn’t Lex Luthor be well served by having Everyman replace the witness (or witnesses) for the prosecution? Then no matter what Everyman says doubt is cast on the entirety prosecution’s case.

  8. I’m not sure about your point about the shapeshifter being found out. How would you easily figure out if someone was a clever shapeshifter who has studied the case and is trying to sabotage it for their allies?

    It seems very simple to me to have a shapeshifter take the place of key witnesses for the prosecution and intentionally muck up the case. It doesn’t have to be a materful performance, it just has to screw up enough and make enough holes in it for the defense attourney to cross examine.

    On top of which your shapeshifting ally could simply become a fly, catch a jury member alone, turn into a lion, eat him, then turn into him and hang your jury, right?

    With all these possibilities it would make for a cool explanation for why supervillians are caught in one issue but they’re causing havoc again a few isssues later.

  9. I would think the testimony of shape shifters in the place of actual witnesses would fall under the hearsay rules of evidence. Specifically 801c of the federal rules of evidence. This rule states, as I’m assure you are aware of, that hearsay is a statement made by a person outside of the court to prove the truth of the matter. I’m not an attorney, but a shape shifter who testifies as someone else to prove the truth of the matter seems to fall under hearsay. Of course if the shape shifter fell under an exception, such as an expert witness then there wouldn’t be a problem.

  10. A retinal scan would differentiate between you and your doppleganger. Also
    If shape shifters became a problem, how long would it take before a blood
    Test became avalable to show who is whom?

    • Not necessarily. Mystique passed a retinal scan to get into Cerebro in the first X-Men movie.

      The extent to which shapeshifters assume the form of their targets varies from instance to instance, but in at least one version, the change was complete enough to fool a retinal scan.

      Blood tests are probably more reliable, but they aren’t quick. Running a DNA analysis takes at least a couple of hours, so it isn’t a very good way of rapidly authenticating someone’s identity in a few seconds, which is what you’d need here. Again, the question is whether the person in the courtroom right now is who they appear to be.

  11. What about the “I was inhabited by Deadman” (or anyone else who can do that), defense? Perhaps the prosecution can subpoena Deadman and get him to inhabit a body and show up to testify, but how do they demonstrate that it really is him and not someone else with similar abilities?

    What about the Red Kryptonite defense? Controlled by Parallax?

  12. I can answer the DNA question posed by Christopher Bennett. In the United States, for the past approximately 10 years, have been collecting the DNA of all people convicted of a felony in the United States. See to learn more about the the DNA database. This essentially means that only if you’ve been caught, convicted, and swabbed in the last 10 years. Sometimes suspects are swabbed, or even defendants. I have defended clients accused of crimes where the State has moved to obtain their DNA. A technician from the State crime lab comes and swabs their cheek with a q-tip and puts in on a slide and off they go. I’m not sure if that information is then included in CODIS, it would be my presumption that it is not.

    I like the idea that this would be an affirmative defense…except it doesn’t really have to be. The SODDI defense has been around since the law began (otherwise known to defense practitioners as “Some Other Dude Did It”). In a world where shapeshifters are known to exist it would be a valid defense at any time. It would simply go to the believability of the defense and the skill of the practitioner in making it fly with the jury.

  13. We all seem to have forgotten someone. There is/was a paranormal who was an attorney, Matt Murdock, aka Daredevil. He had used his enhances senses during trial cases. How would have an effect on cases he worked on?

  14. Please pardon me if this is somewhat off-topic, but this is the best place I could find. There doesn’t SEEM to be any way of contacting the author directly.

    If you are willing to go beyond comics, into books, I find myself wondering if the Animorphs would qualify as unlawful combatants due to being (technically) completely naked during most of their combat activities. This could be answered here, or in a separate entry.

    I could actually see practical arguments either way. On the one hand, no civilians are likely to be shot or detained if the Animorphs stuck to the ethics they had in the books. On the other hand, making birds, endurance-running predators such as wolves, or domesticated animals suspect could have serious implication on local ecology and food supplies as the opposing force took various actions to defend itself. It is hardly as if tin-pot dictators or gangsters need further flimsy excuses under which to starve out civilian groups they don’t like (in this case by shooting their herd animals). Similarly, shooting cats or similar species could be a clever way to encourage the spread of disease in an area. Even against a foe following military treaties the large scale application of insecticides to military facilities could prove problematic to the local ecosystem and helocopters with shot-gun loads in their chain-guns could devastate local raptor populations… Ok, actually that might be a really stupid tactical attempt to removing raptors from one’s airspace, but I am sure that creative minds could come up with something sufficiently nasty.

    Since many of you may be less than familiar with the details of the setting, I shall take some time to provide some details. The Animorphs considered using a person’s form without that person’s permission to be highly ethically suspect. There main use of their powers was to turn into animals. This is in contrast to the comic-book supers I know of, but I am sure there has been some obscure one that I don’t know about. Mystique and Jericho can only do human forms to my knowledge, and Beast-Boy’s green color would qualify as a uniform by all sanity. I realize that the real world law might not agree with me here, but given the distant possibility that some Scottish freedom-fighters might one day wish to revive the tradition of going into battle in blue paint, and no clothing, I wouldn’t be surprised either way, and it is plausible to consider that the Geneva Convention etc would have developed differently enough to cover such things. The Animorphs, on the other hand, could duplicate any animal (including homo sapiens) perfectly, except for injuries/foreign substances, such as tattoos, missing limbs, and there was that time they tried to turn into steers and ended up as bulls…

    It is also worth noting that only with years of intense practice could they absorb anything other than fairly tight and thin clothing. Even then, their big accomplishment was SHOES. For this reason, they are most useful in a stealthy mode.

    This is especially applicable to any adult animorphs after the end of the combat action in the book who, years later, might have hypothetically might have come out of their well deserved retirement in a way different from that portrayed in the books. I THINK that morphing technology was provided to various anti-terror groups, and it is certainly plausible an Andilite warrior would quite be willing to pitch in again such evil-doers, if only to preclude the possibility of the highly dangerous human race eventually verging over into evil and becoming an interstellar threat.

  15. P.S. I know that leg-bands would solve this, but with the vast variety of forms a Animorph with open access to the world’s zoos would have that would be rather a lot of equipment to try to carry in thin enough pockets, and a hassle to put on while/after morphing. And, of course, that leaves out the possibility going fully “incognito”.

    Would turning into a duplicate of an enemy guard-dog mean you could be shot as a spy if captured? I assume that most militaries would put identifying marks on the harness/armor of their dogs, and having an ally dress you in a duplicate or “liberated” harness would almost certainly put you into “treated as a spy” territory.

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