Costumes and the Confrontation Clause

One question that we get frequently here on Law and the Multiverse is whether superheroes that wear identity-concealing costumes could wear them in court.  A closely related question is whether a superhero could testify under his or her alias and refuse to answer questions about his or her secret identity.  In the US, these are important issues because of the Confrontation Clause, which is where our analysis will focus. We briefly discussed this issue as part of the alter ego post from Dec. 2010; this is a fuller treatment of the specific question of the legal issues related to testifying while disguised.

First off, though, we must note the DC Universe’s “Twelfth Amendment.” This fictional constitutional amendment allows members of the Federal Authority of Registered Meta-Humans to decline to answer questions about their secret identities.  The comics suggest that this operates similar to the Fifth Amendment protection against self-incrimination.  It’s not clear just how canon this amendment is, but we can at least consider how things would work in the Marvel universe and other comic book settings without such a law.

I. The Confrontation Clause

The Confrontation Clause is part of the Sixth Amendment, and it states that “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” U.S. Const. amend. VI.  There are a few different justifications for this right, but the two main purposes are cross-examination and credibility judgment.  Cross-examination is an essential part of the adversarial system, and requiring witnesses to be present allows the fact-finder (usually the jury) to better judge the witnesses’ credibility.  Because of the fundamental importance of cross-examination, the long history of the right to confront one’s accusers, and its value to criminal defendants, the Confrontation Clause enjoys strong support from both conservative and liberal judges–although that support is not universal.

The general rule of the Confrontation Clause is that “[a] witness’s testimony against a defendant is…inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.” Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009).  It is an important technical point that the clause only covers testimonial statements, but the details of that point are beyond the scope of this post.  Since we are primarily concerned with actual in-court testimony in criminal cases, suffice to say that the clause applies.

Given that the clause applies, the question is whether the unavailability exception applies.  What if, for example, Spiderman prepares a description of a villain’s activities and pins it to the villain, whom he has left hanging in a web for the police to find?  Spiderman is presumably unavailable unless he voluntarily shows up in court (good luck serving him with a subpoena), so could the document still be entered into evidence?  The answer hinges on whether the document was “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford v. Washington, 541 U.S. 36, 52 (2004).  In this case, it would seem objectively reasonable to believe that Spiderman’s description was intended for use at the villain’s trial.  But note that non-testimonial evidence, such as photographs, weapons, and other physical or forensic evidence, would not run afoul of the Confrontation Clause.  If superheroes stick to that kind of evidence, they can avoid a lot of headaches and tedious court appearances.

But let’s suppose that non-testimonial evidence is unavailable and the only way to put away, say, Kingpin is for Spiderman to show up in court and testify against him (and let’s also presume this is pre-Civil War Spiderman and that his identity is still secret).  Could Spiderman wear his mask?  And could he somehow dodge questions about his identity?

II. Wearing Masks in Court

Although costumed vigilantes rarely make court appearance, the scope of the Confrontation Clause has been considered in other contexts, particularly shielding child witnesses against accused abusers from face-to-face confrontation.  Although the Supreme Court has “never held, however, that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial….any exception to the right would surely be allowed only when necessary to further an important public policy.”  Maryland v. Craig, 497 U.S. 836, 844-45 (1990) (quoting Coy v. Iowa, 487 U.S. 1012, 1021 (1988)).  In Craig it held that “[s]o long as a trial court makes such a case-specific finding of necessity, the Confrontation Clause does not prohibit a State from using a one-way closed circuit television procedure for the receipt of testimony by a child witness in a child abuse case.”  Craig, 497 U.S. at 860.  But on the other hand, in Coy it held that a screen that obscured the child witness from the view of the defendant violated the Confrontation Clause.

An identity-concealing costume seems much closer to a screen than one-way closed circuit television, so it may be quite difficult to argue that a superhero should be allowed to testify in-costume.  However, a court could make a strong case-specific finding of necessity in instances where the superhero’s friends or family were particularly likely to be targeted for reprisal and where the defendant had a history of retaliating against accusers.  It is also possible that allowing superheroes to do their work and present testimony in court could be considered an important public policy.  It may also depend on the costume.  A full mask is much closer to a screen than a mask that only covers part of the face.  But the further one gets from these ideal facts the harder it will be to overcome the defendant’s strong rights under the Confrontation Clause.

III. Keeping a Secret Identity Secret

Winning the right to wear a mask in court may be moot if the first question on cross examination is “What is your real name?”  And indeed this also applies to un-masked superheroes whose real identity is nonetheless unknown (e.g. Superman, though he has the ’12th Amendment’ to rely on).  Here the only option may be for the superhero to plead the Fifth Amendment (i.e., refuse to answer the question on the grounds that doing so may incriminate him or her).  Naturally this depends on the possibility that something the superhero has done could subject his or her alter ego to criminal liability, but as we’ve seen on this blog, this may well be the case.

Furthermore, it’s not a requirement that answering a question actually directly implicate the witness in a crime, only that one could reasonably believe that it could. “[T]he privilege’s protection extends only to witnesses who have reasonable cause to apprehend danger from a direct answer….Truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.”  Ohio v. Reiner, 532 U.S. 17, 21 (2001).  As long as the judge is satisfied that the danger of self-incrimination is not of an “imaginary and unsubstantial character,” then the superhero may decline to answer questions about his or her secret identity.  Id.

Of course, it’s always possible for the prosecution to force immunity upon a witness, which removes the Fifth Amendment protection against self-incrimination.  But one presumes that the superhero would generally be a witness for the prosecution, so the prosecutor would have no reason to pry into the superhero’s secret identity and thus no reason to impose immunity.

(By the way, the Fifth Amendment doesn’t allow a superhero to wear a costume because it only protects a person from making self-incriminating statements, and wearing (or rather not wearing) a mask is probably not a statement for Fifth Amendment purposes.)

IV. Conclusion

The best way for a superhero to avoid this problem is to present non-testimonial evidence or to lead the police to catch the villain red-handed.  If testimony must be presented in court, a very strong case-specific argument for remaining in costume must be made.  Pleading the Fifth may be a good way to avoid answering questions about one’s secret identity.  Finally, although criminal cases are probably much more important for superheroes than civil cases, bear in mind that this analysis is limited to criminal cases.  A superhero would have a much harder time maintaining his or her secret identity in a civil case, but that’s another post.

26 Responses to Costumes and the Confrontation Clause

  1. I’m short of legal terminology here, but my initial thought is that if I, criminal that I am, am captured by Spiderman, then my right to confront a witness against me surely doesn’t require me to know that witness’s real name? I mean, from my perspective, the witness against me is Spiderman — I don’t care that it’s actually Peter Parker, right? This seems a little like a corporate officer representing her company when the company is tried for, say, pollution offences: it doesn’t really matter precisely who she is, what matters is that she’s CEO of Polluters Inc.

    Also, can you really be asked anything at all under cross-examination? Again, that Spiderman is really Peter Parker doesn’t seem to be massively relevant to whether Spiderman witnessed me committing a crime. If I’m cross-examining a witness, can I ask them questions that have little-to-nothing to do with their witnessing of my crime? Can I ask a witness what they had for breakfast that morning, or whether they’ve had an affair, or whether they’ve ever cheated on their taxes?

    • These are reasonable questions, and I think it may help to answer the second question first, actually.

      In theory you can be asked anything, but the other side is likely to object to anything that isn’t relevant and admissible, and if an attorney keeps asking inappropriate questions then sanctions are likely.

      In practice, though, knowing the true identity of a superhero witness could be tremendously relevant. A big part of cross examination is impeachment (i.e., destroying the witness’s credibility), and while Superhero X may be an unimpeachable upstanding member of the community, his or her secret identity might be a sleazy fraudster with a history of perjury and false accusations. So that’s one reason why the question would be asked, and (coming back ’round to your first question) that’s why knowing the real identity matters, as opposed to just knowing “it’s Spiderman” or “it’s the CEO of Polluters Inc.”

    • TimothyAWiseman

      I do not know enough about criminal law to comment on what the ability to ask seemingly irrelevant questions, but I can see how a true identity might be relevant.

      It could easily go to motivation for providing the testimony, which could call it into question. Imagine that Spiderman caught a villain who just happened to be a rival for Mary Jane’s affections (or even just worked for a rival newspaper). Knowing that Spiderman’s alter ego would personally benefit from having this particular removed from the scene for a time might be highly interesting and significant to a defense attorney or a jury, but the only way to figure that out is to know who is behind that mask.

      So, while there may be overriding reasons to shield the superheros identity, there at least is a chance that the information may be highly significant at the trial.

      • Morethan you might think. After Civil War (where Spiderman publically unmasked), J. Jonah Jamison sued Peter Parker. Why? Because all the pictures he’d bought from parker of Spiderman in action and used in stories were arguably tainted. That is, the integrety of the Daily Bugle was called into question once it was learned that the person taking the pictures was also the person IN the pictures (and no disclaimer had been posted.

        And this is actually true. Parker would sometimes even intentionally try and pose shots so they would look better. Things certainly would seem more questionable to some if you know that the picture of Spiderman rescuing kids from a runaway car was taken by Spiderman. Then you start wondering if he had anything to do with it.

        Same is certainly relevant in court. Did Spiderman arrest Vulture because he robbed the bank? Or because Peter Parker is short on cash this week and needs pictures?

  2. One precedent that may make things difficult for superheroes with secret IDs: those participating in the witness protection system have very real reasons to fear reprisals, yet still have to give their real names in open court.

    As far as the need to give a name, there’s a bigger problem yet (which I think may have been addressed in the earlier blog) — so long as this person remains masked and under an alias, how do you know this is the *same* superhero that made the bust in the first place? Spidey is not the only one capable of wearing a red and blue costume. He’s not even the only being capable of walking up walls and shooting webs. For a brief (and hopefully someday forgotten) period in the ’90s, there was even the possibility that you were dealing with a clone behnd the mask. If I’m on the defense, one of the first things I’m going to try to do is keep this witness from testifying until we can be sure the accused is actually confronting his accuser and not an impostor.

    Curiously, with Superman it may be simpler. To most of the world, Superman doesn’t have a secret identity. Granted, his true name is (publically) known to be Kal-El, but that’s no more of an issue than having a pop star testify under the name Madonna.

    • Unlike a superhero, most people in the witness protection program have no basis for pleading the Fifth when asked their real name. Also, the whole point of witness protection is that they can testify in court and then they and their family can retreat to the safety of a secret identity. In some sense that’s actually an argument for letting a superhero use their superhero name in court and then retreat to the safety of their alter ego afterward. Alternatively it’s an argument for putting superhero alter egos in the witness protection program, but then they would have three identities to juggle, which seems needlessly complicated.

      In any case, taking off a mask and giving a real name would not actually do much to prove that a superhero witness was the same superhero that made the bust or witnessed the crime because the superhero was wearing a mask at the time and presumably did not give his or her real name. Now, there is a narrow case where it could be relevant. If a fake superhero is on the stand and gives his or her real name, and then the defense proves that the person on the stand could not be the real superhero because, e.g., he or she was at his or her day job at the time the crime was committed and he or she was seen by dozens of witnesses, then that would be relevant. But again I think that question could be neatly avoided by pleading the Fifth.

  3. “The best way for a superhero to avoid this problem is to present non-testimonial evidence or to lead the police to catch the villain red-handed.”

    However, if the police could catch (I.E. subdue and take into custody) such villains without the aid of a superhero – then there wouldn’t be a need for superheroes in the first place…

    So we circle back to the whole question of “state actors” (if I recall the term correctly) and “fruit of the poisoned tree”. If the NYPD is handed Dr Doom on a silver platter – his defense attorney is going to have a field day on both counts. Not to mention the question of the legality of hauling his iron clad butt from Latveria to New York sans the proper extradition procedure… Heck, if he plots to destroy New York from Latveria, absent an overt action *in* New York, does the NYPD even have jurisdiction?

    • “if the police could catch (I.E. subdue and take into custody) such villains without the aid of a superhero – then there wouldn’t be a need for superheroes in the first place”

      By that I meant things like Spiderman leaving a villain tied up in a web for police to find or Superman dropping villains off at police headquarters. That kind of thing is very distant from the state actor doctrine because it doesn’t involve coordination with the police or taking orders from them.

      Dr. Doom is a bit of a special case. We’ll probably talk about him in detail some other time. Most of the garden-variety thugs and supervillains that superheroes catch don’t present complicated jurisdictional issues.

      The fruit of the poisoned tree can be avoided pretty neatly as well. Evidence collected by a non-state-actor doesn’t trigger the doctrine, and if the evidence is left out in public for the police to find then they don’t need a warrant for it

  4. Brucewaynegretzky

    Hey Guys,

    Great Site! I’m a law student and huge comic nerd so I’m sure I’ll be wasting a ton of time on your site in the future. You guys have got to try a post on negligence and superheroes. I’d love to hear about the “reasonable superhero.” Should superpowers be considered on a subjective standard like physical injuries or an objective standard like metal illness? There’s a lot of potential there!

    • Brucewaynegretzky

      Sorry for double post! Just occurred to me! Is Superman negligent for not stopping any injury within a 30 mile radius? Let’s be serious he could get there and he regularly prevents such injuries. Does that create a duty he ignores? It’s all interesting….

      • David Johnston

        Even cops don’t have a legal responsibility to save people so I doubt private citizens with unconventional fashion sense and some special talents would.

  5. DerekL: If the NYPD is handed Dr Doom on a silver platter – his defense attorney is going to have a field day on both counts. Not to mention the question of the legality of hauling his iron clad butt from Latveria to New York sans the proper extradition procedure.

    I would like to refer to the case of City of Gotham v. Lau from “The Dark Knight”. Extradition procedures don’t particularly seem to matter in such instances because there was no state action involved.

    DerekL: “The best way for a superhero to avoid this problem is to present non-testimonial evidence or to lead the police to catch the villain red-handed.” However, if the police could catch (I.E. subdue and take into custody) such villains without the aid of a superhero – then there wouldn’t be a need for superheroes in the first place…

    We see an example of this in the opening of “The Incredibles” in which the police were already in hot pursuit of the criminals and Mr. Incredible chases them down and stops their getaway car with an uprooted tree.

  6. “The best way for a superhero to avoid this problem is to present non-testimonial evidence or to lead the police to catch the villain red-handed. ”

    There is a third way, where the villain’s crimes are carried out in full view of the public (e.g., a bank robbery with many patrons, a rampage through city streets, a hostage scene on top of a major landmark, an announced attempt to take over the entire country or extort billions from its government), and the hero subdues the villain and turns the culprit over to the authorities. In such a case, there are so many other potential witnesses for the defendant’s crimes so as to render any testimonial evidence from the heroes themselves superfluous.

  7. In a 2009 Spider-Man story, “The Spartacus Gambit,” a person who had a lawsuit against Spider-Man filed a motion to force him to unmask. His lawyer Matt Murdock (aka Daredevil) had several other heroes with similar abilities don Spider-Man costumes and show up in court in order to demonstrate that there was no way to prove that the person who’d committed the tort against the plaintiff was the same Spider-Man who was currently in court. A summary of the story can be read here:
    http://www.spiderfan.org/comics/reviews/spiderman_extra/001-c.html

    • Interesting that the comics addressed the issue, but in the real world that wouldn’t work out quite that smoothly. Remember, it isn’t necessary to “prove” something in court beyond all possible doubt, especially not in a civil case like that one. The general standard for admissibility is mere relevance (i.e. does it make some material issue more likely or less likely to be the case), and the usual standard of proof in a civil case is a preponderance of the evidence (i.e. is it more likely than not aka “50% + 1″).

      In Spiderman’s case, yes, it is true that it could have been a different superhero with a similar set of abilities who donned a Spiderman costume. But a reasonable jury could conclude that it is more likely than not that it was, in fact, the same Spiderman that usually wears a Spiderman costume and not one of the other superheroes that don’t normally wear such a costume. Occam’s razor and all that.

      So while I think there are ways to get out of unmasking a superhero in court, I’m not sure Murdock’s trick would actually work. He could well bring up the possibility that it was a different superhero in a Spiderman outfit, and perhaps even ask for witnesses to attempt to pick the real Spiderman out of a lineup of Spidermen (and presumably fail, proving his point), but I don’t think he could use that trick to prevent Spiderman from being unmasked.

  8. James Daily: He could well bring up the possibility that it was a different superhero in a Spiderman outfit, and perhaps even ask for witnesses to attempt to pick the real Spiderman out of a lineup of Spidermen…

    I can picture exactly how the lineup identification would go down:

    Matt Murdock: Can you pick out the perpetrating Spider-Man from the line up?
    Complaining Witness: I’m not sure…
    Police Officer: Everyone turn to your right.
    Matt Murdock: Does that help at all?
    Complaining Witness: You’re an asshole.

  9. In the daredevil plotline where his identity was revealed to the public and Matt Murdock was put in jail for the various crimes Daredevil was accused of, Iron Fist put on a Daredevil costume and went around acting like he was the real Daredevil for a while, doing the same acrobatic tricks and fighting crime in Hell’s Kitchen. To the average person without super senses it would be very hard to tell the difference between the two.

    And I believe superman testified before congress in “costume” during the impeachment trial of Lex Luthor as well, though that may just have been in one of the animated movies. Although with superman the problem for defense attorney’s is that he is willing to give his birth name, shows his face, and you can’t duplicate his powers easily. I am not too familiar with the actual superman comics, but its not even clear that the general public is aware that superman lives a secret life pretending to be a normal person.

    • I don’t think there’s been an animated movie showing the impeachment of Lex Luthor. He ran for president in the TV series Justice League Unlimited but was never elected, and in the DVD movie Superman/Batman: Public Enemies, he was president and was exposed as a villain at the end, but the impeachment process wasn’t shown.

      As for Superman testifying, I think if he appears in court as Kal-El, he’s arguably appearing in his true identity. However, his legal identity is Clark Kent. That’s the name he grew up with, the one that’s on his Social Security card and his school record and his employment paperwork and his tax forms. So unless he has a second set of paperwork identifying him as Mr. El, first name Kal, place of birth Kryptonopolis, then that isn’t a legally extant identity regardless of how true it is.

      • In fact, that may give Superman a good reason for invoking the Fifth when asked about his secret identity. By posing as Clark Kent, mild-mannered reporter, has he been perpetrating a fraud? Is his legal identity actually legal?

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  12. So, I came here after reading the book (everyone, it’s AWESOME!), and had a question.

    In the DCU, we have the 12th Amendment (apparently, passed between 1794 and 1865) that provides ‘registered metahumans’ the right to testify in court without revealing their true identities. Would being on such a registry, and thereby gaining official government sanction, be sufficient to arguably be a “State Actor” for purposes of this question?

    • It’s hard to say without knowing the details of the registration process. And of course after the New 52 reboot the fictional 12th Amendment may or may not even exist anymore. But my feeling is that being a registered metahuman would not make such a person a state actor any more than having, say, a driver’s license would. It has certain requirements and grants certain privileges, but it doesn’t make the person’s actions attributable to the state.

      Now, if being a registered metahuman required working for the government, that would be a different story.

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