She-Hulk #3

Slight change of plans from Friday’s usual Mailbag—today we’re looking at She-Hulk #3.

This issue raises one main legal question, plus a sort of “meta” issue which is interesting in its own right. The main story is that Jen Walters’ firm has been hired to defend a man accused of murder. The reason this is a superhuman case is that the alleged victim happens to be the main witness. Which is a little bit weird, we think you’ll agree.

I. Testimony From Beyond the Grave

We’re going to just ignore the fact that the evidentiary issues are being tried in open court instead of being fought out via motions in limine, the way they would in a real court case. That aside, the prosecutor objects to the admission of the victim’s testimony arguing that “as a dead man he has no rights in a court of law.”  This is more or less true: legal claims survive the death of the claimants and become the property of the estate (this is how a claim for wrongful death works, for example). Similarly, in New York the next of kin of the deceased have several rights with regard to the autopsy and disposition of the body.  So what we might intuitively think of as the rights of dead people are actually held by the living, usually the next of kin or heirs.

But this is beside the point.  The ghost of the deceased victim doesn’t need any rights to testify as a witness, rather the living defendant has a right to call any competent witness to give relevant testimony.  The testimony the ghost offers is plainly relevant (he’s the victim, after all), and “[a]ll adults are presumed competent to testify” under New York law.  Brown v. Ristich, 36 N.Y.2d 183, 188 (Ct. App. 1975).  It takes a lot to show that a witness is so incompetent that they shouldn’t be allowed on the stand:

A witness is said to be capable when he has the ability to observe, recall and narrate, i.e., events that he sees must be impressed in his mind; they must be retained in his memory; and he must be able to recount them with sufficient ability such that the presiding official is satisfied that the witness understands the nature of the questions put to him and can respond accordingly, and that he understands his moral responsibility to speak the truth.

Brown, 36 N.Y.2d at 189.  The victim meets this standard just fine, so the prosecutor is left with trying to attack the witness’s identity (i.e. is he really the victim’s ghost?) and impeach his credibility (more on that in a moment).

The witness’s identity is a problem of authentication, i.e. exactly who and/or what is this thing that is attempting to testify? We’ve got Dr. Strange kind of doing his thing and then… I mean, if you tried that in a court of law today the judge would probably sanction the attorney, the person standing next to the attorney, and everyone in a ten foot radius. Judges don’t like being played for fools.

But that’s just the thing: the defense’s argument goes not only to the authenticity of the witness specifically, but the idea that people cease to exist when they are dead. To this effect, they call The Thing to the stand as an expert witness. What is his expertise? The fact that he’d recently come back from the dead. So, as it turns out, had about half of the people in the room, including the deputy prosecutor (much to the lead prosecutor’s annoyance). So the judge was forced to take note of the fact that in the Marvel Universe, coming back from the dead is something that happens, and happens relatively frequently. So frequently, in fact, that the legal system is forced to come up with some way of dealing with it.

At this point, putting a ghost on the stand becomes like any other witness. Every single time testimony is offered the jury needs to decide, and the attorneys need to establish (or attack!) the credibility of the witness. In a world where ghosts are a verifiable fact of life, having a ghost as a witness simply adds another layer to that story, and the opposing side will have its chance to discredit the testimony just like they would attempt to discredit any other witness. More time might be spent on the identity and mental integrity of a ghost than would for a living witness, but ultimately, that’s something the jury is going to have to decide for themselves. Remember, just because you get testimony admitted does not put the jury under any obligation to believe a word of it. Sure, it’s always good to try to keep out testimony which could be bad for your side, and many cases turn on motions in limine, but just because one side can get something admitted does not guarantee anything.

II. The Normalization of the Supernatural

Which brings us to the second issue: this is actually a pretty decent look at how the law might actually develop if faced with an issue like this—allowing for the acceptable departures from reality to which all depictions of the legal system are prone. A lot at what we do on this blog is look at how existing law, without modification, might handle supernatural issues. But really, the way it would handle these things is by establishing precedent and ultimately probably legislation intended to cover these issues. This issue looks at how one might go about trying to establish that precedent. Essentially, one would need to convince the court that the fantastic claim one is advancing, whether it be that one’s client can walk through walls or that the defendant can control people’s minds, is, in fact, true. And one could plausibly do this by bringing in a bunch of people to testify, unrelated to the factual issues at hand, about similar experiences they’ve had, as such would be relevant to establishing a key element of one side’s case. So when the defense in this issue asks for a show of hands about how many people in the room have been brought back from the dead, well, they’d all probably have to be sworn in, meaning this would take all damn week, but that’s not all that far off. Besides, defense counsel get paid by the hour anyway.

III. Conclusion

This issue shows a rather interesting possibility, one which criminal attorneys on both sides might salivate over, as well as getting at some of the issues about how one might get such testimony admitted into evidence. Basically, the question is whether one can convince the judge that what is being proffered is sufficiently part of everyday experience—or supported by adequate expert testimony. In the case of ghosts, the question really becomes one of verification. In our world… yeah, good luck with that. But in the Marvel Universe? Or in ours, should ghosts suddenly become common? If counsel can come up with something plausible enough to convince the judge, there’s no law that says such testimony could not be admitted.

13 Responses to She-Hulk #3

  1. Should ghosts be considered dead people for legal purposes?

    This particular ghost is sentient and capable of speech, so wouldn’t being turned to a ghost fall more under injury/disability? He can’t pick things up anymore; that would tend to limit one’s employment.

    • In general the definition of ‘ghost’ requires them to not be in a living body anymore, otherwise they would be called ‘alive’. Of course if we ever start getting into questions about artificial intelligences and extraterrestrials that might be more difficult to justify but for the time being I’d say that ghosts are definitely not living creatures.

  2. Although obviously we haven’t run into this specific problem yet, we’re increasingly entering a world of science (just as ghosts and magic in Marvel) where the legal experience and common knowledge of a judge or jury might simply not be enough. In the case of the Large Hadron Collider lawsuit* did the judge involved have any useful guidelines for how to handle the potential end of the world?

    *If I understand it correctly, a Mr. Wagner filed a lawsuit in 2008 seeking to stop the LHC from being activated because of his fears that it might create a black hole that would destroy the planet. So far it (obviously) hasn’t but that doesn’t change the question of how an ordinary judge is to know.

    • This has been true for about three centuries, and it’s basically the whole point of expert testimony. The legal system has a pretty sophisticated way of handling scientific expert testimony, though it’s not entirely clear how that would work in the context of metaphysical expert testimony. Certainly things like peer review wouldn’t necessarily apply.

      Daubert analysis for supernatural experts is something we’ll save for a different post.

  3. Dr. Strange would make a killing as an trial expert if questions of spectral evidence were being entertained in Marvel Universe courts.

  4. How could one handle someone like Deadman? Or Gentleman Ghost? These are both true ghosts that exist the DC universe. Also how could one incarcirate these two?

    • Call the Ghostbusters? Though on reflection if the question of the dead having rights comes up, maybe their casual abduction and imprisonment of ghosts on a routine basis could get them in trouble. Possibly why they got sued into oblivion between the two movies I suppose.

      • David Johnston

        The kind of ghosts the Ghostbusters caught weren’t actually people. The model being used by Ackroyd was that the actual intelligence of the departed went on to a final reckoning as per religion. Ghosts were created by “emotional energy” left behind. Violent death produced ghosts only because being murdered involves strong emotions. So Ghostbuster ghosts couldn’t be reasoned with.

  5. Can a juror be dismissed based on religious or philosophical beliefs? If I’m an Atheist who does not believe in a “soul” it stands to reason that I also don’t believe in “ghosts.” Whether or not they exist in reality seems almost moot because as a juror I probably won’t be able to accept the testimony of a thing that I don’t believe is real. I imagine that if I were in that position I would dismiss it as trickery.

    I imagine that if I lived in the Marvel or DC Universe I’d probably be pretty paranoid of someone using mind-powers to trick me.

    • David Johnston

      Well take a situation where a juror firmly believes that DNA is bunk. I don’t think that would be grounds for dismissing him for cause, but certainly one side or the other would want to use a preemptory if their case relied on DNA.

  6. The question becomes far more relevant to our own benighted universe when one uses the definition of “Ghost” from the manga/anime “Ghost in the Shell.” Or as the great C.S. Lewis put it when asked how he knew if a person had a soul:

    “You do not have a soul. You are a soul. You have a body.”

    Anecdotal evidence aside as of now science has no firm foundation for establishing that a soul can continue to exist when the body it occupies stops functioning. But that does not always need to be the case. The soul – or, for the non-romantics among us, the current cumulative state of the biological computer in one’s head – could quite feasibly be replicated. I metaphorically refer to this as the “song of consciousness.” There are only three problems to be solved:

    1) Read the song. I.E. obtain a large enough sample of all the individual states in the brain that one has a sufficiently fidelitous copy of its current overall state. Very difficult but not impossible.

    2) Store the song. Trivial. We already have storage mechanisms that could handle an individual brain’s worth of data which don’t take up that much more room, practically speaking, than the brain.

    3) Play the song. Provide the storage mechanism with sufficient processing power that the song can continue from the recorded state. Extraordinarily difficult, especially since we don’t know how the song plays in the analog computer it runs on now, let alone how to port it to a digital computer. But again, not impossible.

    All that bloviation completed, it is entirely possible that within the lives of those now living we may figure out how to read, record, and play the song. (I hope so: I do not want them devoting endless resources to figuring out how to patch up this meatsuit. I want them to get me out of it.) And when that happens, we won’t have ectoplasmic phantasms standing in the dock of a graphic novel: we will have computer screens (or holographic projections?) bedecked in the armor of Science. It is no stretch at all to imagine a “ghost” testifying as to the identity of his own murderer, assuming we can record his song in time.

    The legal questions here are quite mindblowing (ALL the questions are quite mindblowing, but this is a legal blog.) Is a ghost’s testimony physical evidence (as the output of a computer program) or witness testimony? How do we authenticate ghosts? How do we ensure their memories and/or thought patterns haven’t been tampered with by third parties? Do ghosts have a right to continue processing? Do they have rights over the assets of their former bodies? Is it ethical to make ghosts of people now living, or to make multiple ghosts? Etc, etc.

  7. This is tangential, and possibly old territory, but I’ve always wondered whether a super hero (or super villain) of lowered intelligence is still considered responsible for their actions?

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