Smallville I: Discovery and Foundation

Smallville is one of the more recent television shows to feature superhero characters, and one of the few to feature comic book characters, at least in prime time. There are plenty of legal issues raised in the series, and this is the first post in a series examining them.

Needless to say, there are going to be spoilers here, so you have been warned.

I. Discovery

In the season 2 episode “Precipice,” Clark stands up to a guy who had assaulted Lana at the Talon. This winds up heading into the back alley, where the guy and his entourage attack Clark. This works about as well as one might expect, and the main offender winds up thrown on top of a sheriff’s cruiser. This also works about as well as one might expect. Clark is sentenced to community service, and the Kents are served with a lawsuit alleging bodily injury and emotional damages—the standard plaintiff’s attorney laundry list—asking for $1 million.

The core of the complaint is that the plaintiff was seriously injured, and later in the episode we see him leaving a store in a neck brace and using a cane. Clark attempts to apologize only to be rebuffed, as the guy claims that he’s been seriously injured and is coming after them for real. But when he gets in the back seat of his SUV, Clark uses his x-ray vision to see him take off his brace and high five his buddies. He’s faking the injuries.

Getting proof of this winds up being a fairly significant plot point. Clark can’t do it himself because of a restraining order, the Kents can’t afford a private investigator, and even if Clark could get close without breaking the law, the implication is that there wouldn’t be any way of getting that into evidence without revealing Clark’s abilities. Clark and Lana wind up cooking up a way of getting the plaintiff to expose himself. This makes for a decent amount of drama and serves as a useful point in the will-they-won’t-they subplot that constitutes a decent amount of the show’s appeal. But legally, it’s basically bogus, or at least completely unnecessary.

The reason can be expressed in one word: discovery. Discovery is the phase in litigation where the parties gather and exchange evidence, attempting to figure out exactly what the facts are and where they stand as a result. Civil procedure was radically changed in the 1930s when the Supreme Court adopted the Federal Rules of Civil Procedure in what proved to be one of the most significant, far-reaching, and successful legal reforms in history. Many states followed suit in the next few decades, adopting rules essentially copied from the federal rules. Rule 35 provides for physical and mental evaluations of significant persons, usually plaintiffs, but potentially anyone. In essence, if one of the parties makes the physical or mental condition of a person an issue in the case, the other party is entitled to require that person to submit to a medical examination.

This makes it really hard to fake injuries. Playing up injuries for dramatic effect is one thing—this is one way plaintiff’s attorneys earn their fees, after all—but actually fabricating them in the way this character did is pretty difficult to get away with, given that one would need to fool a medical professional hired by the party that wants to poke holes in one’s story. So instead of sneaking around and finding some way of getting the plaintiff to give himself away, all the Kents really needed to do was get their attorney to request a Rule 35 examination, which is something he would have done anyway.

Oh, and about the Kents not being able to afford an attorney or investigator? They didn’t have to. Unless the Kents are in way more financial trouble than they seem to be, they’ve got liability insurance, which means that the carrier will provide defense—including investigation as necessary—for free. It’s one of the benefits of insurance. So here’s a situation where the writers seem to have basically punted on the law to serve the story, which is fine.  Smallville is far from the first show to do that, and it’s much better to overlook part of the law for the sake of the story than to misstate it.

II. Foundation

But elsewhere the Smallville writers get it right. At the end of season 2 and beginning of season 3, Lionel Luther is arrested and tried for the murder of his parents. The key piece of evidence is said to be a recording that Chloe made of Lionel confessing to the crime. Her life is obviously threatened, which makes for some significant drama over about three episodes, but the real question here is why they needed her to testify at all.  Couldn’t they simply play the recording for the jury?  Here, the writers get things right.

To admit the recording into evidence there must be sufficient foundation. “Foundation,” in the legal sense, is preliminary evidence used to establish the origin and nature of other evidence, usually documents, recordings, objects, and the like. To get the recording into evidence, someone is going to need to testify under oath that they were involved in its creation, know when it was made, and whose voices it represents. So Chloe can testify that the recording she made is genuine. That will be sufficient to get a judge to permit the prosecutor to present it to the jury. The recording being as damning as it was, it’s unsurprising that he was convicted.

There’s one other matter that bears mentioning: the recording itself. The Fourth Amendment generally prohibits the government from using covert recordings in criminal proceedings without a warrant. Why, then, was Chloe’s recording admissible? There certainly wasn’t a warrant for that (though whether or not there was one for the investigation spearheaded by Lex is unaddressed). It turns out that this isn’t really an issue because while the Fourth Amendment does prohibit the government from using recordings, it does not prohibit the government from using recordings made by civilians on their own. People are entirely free to record their own conversations, and many states do not require a person recording their own conversations to notify the other party that a recording is being made. In other words: watch what you say, especially these days.

III. Conclusion

That’s all for now. So far the Smallville writers are 1-1. More to come!

10 responses to “Smallville I: Discovery and Foundation

  1. Dale Sheldon-Hess

    “People are entirely free to record their own conversations, and many states do not require a person recording their own conversations to notify the other party that a recording is being made.”

    When a comic takes place in New York, you’re quick to take a look at exactly what New York law has to say. But not poor Kansas? 😉

    • I didn’t write this one, but I was curious about it myself, so I looked it up: Kansas is indeed a one-party recording state (i.e. only the consent of one party to the conversation is required). State v. Roudybush, 235 Kan. 834 (1984). So Chloe was okay here.

      I should further clarify that even if Chloe had committed eavesdropping by illegally recording Lionel, the recording would still be admissible. The punishment would be charging Chloe with a crime, not excluding the evidence from admissibility. The exclusionary rule only applies to 4th Amendment violations, and only the government can violate the 4th Amendment.

  2. As a huge law and Smallville fan, I am so happy for this segment! Can’t wait to read more!

  3. The Clarks should have liability insurance… huh? If the farm had insurance as a business, I doubt it would cover non farm related activities like getting into a rumble in town.

    • Having grown up on a small farm in Kansas, (graduating class of 9, take that “Smallville”) I can say for sure that while liability insurance would have covered someone getting injured on the Kents farm, Clark injuring someone in town would not be covered. At least not on the policy my dad could afford.

      • Ryan Davidson

        You’d be surprised. If there wasn’t coverage, it would be because of the intentional acts exclusion, not because of where it happened. Either way, the insurance company would still provide defense.

    • They also own a home. Homeowners’ policies come with liability policies that cover the actions of insureds both on and off the property.

  4. That episode with the fake injuries reminds me of an incident I heard of second-hand. (From the defendant) The plaintiff showed up to court with various braces and in a wheelchair when everyone knew he just had a tendon injury from twisting his foot while falling. (during an assault on the defendant) During the discovery, it turned out the plaintiff hadn’t even bothered to forge his hospital release form, which said he was only discharged with crutches.
    Both the judge and the plaintiff’s lawyer were pissed, because even the poor lawyer wasn’t in on the deception.

  5. I like very of the smallville

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