Daredevil: The Trial of the Century Part II

For the first part of our series on this Daredevil storyline we discussed the charges against Daredevil’s client and evidentiary procedural issues.  This post will address a variety of issues and observations about the trial.  We’ll begin with evidence gathering.  As with the prior post, spoilers follow.

I. Evidence Gathering by the Defense

The defense team hires Heroes for Hire to track down and interrogate the gang that actually committed the murder.  Apart from entering the house by busting in the door, this isn’t particularly unusual.  Although the defense can use the criminal version of discovery to obtain a wealth of information from the police and prosecution (see, e.g., Fed. R. Crim. P. 16), a criminal defendant can’t direct the police investigation.  If the police don’t want to follow a particular lead or theory, that’s within their discretion.  As a result, it is common for criminal defendants to hire investigators, including expert witnesses and more traditional private investigators.

II. Legal Research

This storyline has the first conventional legal research scene we’ve encountered on the blog.  It’s true that the She-Hulk’s law firm (Goodman, Lieber, Kurtzberg & Holliway) maintains a law library, but in a bit of Fourth Wall-stretching, the library consists of comic books, which in the Marvel universe are a legally admissible record of the activities of Marvel superheroes and supervillains.

By contrast, the law library at the offices of Murdock and Nelson is pretty typical, if a bit old-fashioned even by 2002 standards.  Although there is a laptop in the scene, most of the work seems to have been done using printed sources.  There’s even the classic Wall O’ Case Reporters (here’s a real-life example), which you might recognize as a common background in law firm advertisements.

These days, most attorneys use electronic sources for the majority of their research.  The two main legal database companies are Westlaw (part of Thomson Reuters) and LexisNexis (part of Reed Elsevier).  Both are expensive, but they’re cheaper than maintaining an up-to-date print library.  Case reporter and statute book subscriptions aren’t cheap.  For example, a not-quite-complete set of federal case reporters costs about $44,000 plus another $2,400 per month to keep them up to date.  It would be much cheaper for Murdock and Nelson to switch to electronic databases.

One tiny nitpick: when listing potential cases to cite, Nelson offers Illinois v. Steve Rogers and Utah v. Banner as possibilities.  Those would actually be People v. Rogers and State v. Banner.  It’s possible that Nelson was indicating a particular case by giving the state name, but he also lists People v. Tony Stark, and we find it hard to believe that Stark has only been a defendant in one criminal case.

III. Witness Examination

There are two issues we’d like to address with regard to witness examination: objections and the examination procedure itself.

On multiple occasions during the trial the prosecution and the defense object to questions asked by the other side.  Like countless other fictional courtroom scenes, the attorneys simply say “objection,” the judge says “sustained,” and that’s that.  In reality, a party must give a brief reason for the objection (e.g. “objection, hearsay”).  A judge may allow an objection without an explanation, but if the judge overrules the objection then the party’s failure to state the basis for the objection may lead to the issue being waived on appeal.  At one point in the trial the prosecutor asks questions over Murdock’s repeated objections without any ruling from the judge.  Again, in reality trials are usually fairly calm affairs and the prosecutor would wait for a ruling from the bench before continuing.  But we’ll give the writers a pass on these, since almost everybody uses these tropes and for the most part they don’t affect the story.

The more important issue is that the writers shortened the examination process.  Most people are familiar with the first two stages, examination and cross-examination.  But the process can go further: redirect, recross, further redirect, and further recross.  At one point both Murdock and Ayala give pained expressions when the prosecutor seems to have trapped Reed Richards with a question without allowing Richards to explain his answer.  In reality, Murdock could have given Richards a chance to elaborate.  This is a bit less excusable than the other issues, but it can still be justified in the name of pacing and the length limitations of the medium.

IV. Putting the Defendant on the Stand

This case is a good illustration of the dangers of putting a criminal defendant on the stand.  Here the problem was that the defendant’s emotions got the better of him in the face of heated questioning from the prosecutor, and he said some things that didn’t reflect well on his character.  This is one of the many reasons why criminal defendants are rarely put on the stand.  The benefits rarely outweigh the risks.

V. Conclusion

All in all, Trial of the Century is a better courtroom storyline than The Trial of Marvel Boy, although that one isn’t too shabby itself.  We’ll analyze more comic book trials as we come across them, but if there’s one in particular you’d like to see us discuss, let us know!

20 responses to “Daredevil: The Trial of the Century Part II

  1. Just a note on the objections issue — it depends on the forum. The Eastern District of Texas has adopted rules for depo where the only allowed objections are “objection,” “objection, form” and “objection, leading;” any deviation from this automatically waives the objection. Not sure whether any court has gone quite this far for courtroom testimony in criminal cases, but the requirement of explanation has definitely gotten weaker.

  2. Re: objections. At a district court trial in Maryland, you could barely hear the witness testifying because the defense attorney and the judge were locked in an incessant “objection”/”overruled” cycle.

    • I was on the jury in a case once, and they did explain objections sometimes and didn’t explain sometimes. I was surprised that they did actually yell “Objection!” quite loudly, though–I thought that was only on TV. (Or Phoenix Wright.)

  3. Martin Phipps

    I know it’s an old storyline (and I didn’t read it myself) but there’s the long running Trial of the Flash storyline that stretched over about twenty issues of the pre-Crisis Flash series ending with #350. I hear it’s pretty bad though.

  4. Love your analysis of trials–always a truly fascinating read.

    I’ve always kind of wondered about the “comic books as evidence” thing. (I get that it’s partially intended as a source of humor, of course.) I get that the idea is that in this world, they’re documentation of actual activities instead of pure fiction, but I still kind of wonder about it. Is there ever any establishment of how closely comic book writers in the Marvel universe have to hold to actual events? If something’s just “based on a true story” I can’t imagine it holding up in evidence, but if it requires good research and adherence to the facts of the events, maybe it could be. I can’t imagine a judge letting someone use an obviously fictionalized version of events (like, say, a Law and Order episode that was “ripped from the headlines”) as evidence.

    • Chakat Firepaw

      The last time I came across a canon reference to Marvel Comics in the Marvel Universe the impression I got was that they strove for a near Hansard level of accuracy.

      • Ken Arromdee

        In 2001 Marvel had a fifth week event called “Marvels Comics” which showed what comics were like within the Marvel Universe. The Fantastic Four comic was officially licensed by the Fantastic Four and was accurate, but written for children. Spider-Man contained fictionalized accounts of real events, Daredevil was less accurate than that, and X-Men read as though it was written by someone who was racist against mutants and pretending he wasn’t.

      • Chakat Firepaw

        OK, it seems that the standard rule for Marvel canon applies and Ken’s data is more recent than mine.

  5. BTW, it’s likely that Matt’s law firm keeps a large printed law library just for Matt’s benefit. He can read printed documents (using his ability to feel the ink on the page) while he’d probably have a real problem reading a computer screen. Of course doing research is what associates are for, except Matt and Froggy apparently don’t have any.

    • Actually, he’d probably use a screen reader, either text-to-speech or a Braille output device. Westlaw offers a frameless version of its site for people using screen readers (or slow internet connetions). I don’t know about Lexis.

    • Is Daredevil’s secret identity known at this point? If not, he can’t feel the ink on the page without revealing his ID.

      • The trial coincides with a storyline in which Daredevil’s identity has been announced by a newspaper, but Daredevil is still denying it at this point. His identity is known to Foggy, though, and he could read books in the firm’s law library without giving anything away. Presumably he uses some form of assistive technology in the court room.

  6. Quick question- WHY are the cases cited like that? Why is it “People vs. Rogers” or “State v. Banner”- is it just standardized nomenclatures. And if Stark had been sued “By the People” more than once, what would be the correct names for other cases?

    • In a criminal case the ‘plaintiff’ is not a private entity but rather the sovereign. In the UK criminal cases are styled “R. v. Defendant,” where the R stands for Rex or Regina, depending on whether the monarch is a king or queen (fun tidbit: during the Protectorate under Cromwell the cases were styled “The Protector v. Defendant.”). In the US the sovereign is either the state or the people, depending on how literally you take “government of the people,” so the cases are variously styled [State Name] v. Defendant, The State of [State Name] v. Defendant, The People of the State of [State Name] v. Defendant, or (for federal criminal cases) United States v. Defendant. The long ones are typically shortened to just [State Name] v. Defendant or People v. Defendant.

      The point about Stark is that he’s probably been a criminal defendant in more than one state. So “People v. Stark” is likely ambiguous since several states use that style (including New York and California). If Foggy was trying to be precise by using state names, then he should have been specific with all three cases.

      • Chakat Firepaw

        Well, it could be that there is one particular case that always gets cited so it is assumed when someone uses just “People v. Stark”.

        Similar to how everyone knows what you are talking about when you say “Treaty of Versailles” even though you haven’t named which of the 10 Treaties of Versailles you mean, (or even which of the two from 1919).

  7. How about doing a column on “America vs. the Justice Society” (1985)? The trial is mostly a framing story to give a history of the JSA but there should be enough material in the trial itself to use.

  8. James Daily,

    in fact, the idea that the plaintiff of the criminal proceeding must be a sovereign is not universal. Some Nordic countries, at least Finland and Sweden, allow private criminal prosecutions. If the public prosecutor decides not to raise charges, the private victims may decide to prosecute. However, if they lose, they are liable for the defence’s attorneys fees.

    In a famous murder case, the prosecutor raised charges for assault and manslaughter, but the victim’s mother, a private citizen, raised a murder charge. The case went all the way to the Supreme Court of Finland, with the mother prevailing.

    • I should have specified that I was speaking only about common law jurisdictions. I suspected that things might be different in some civil law jurisdictions, but I did not take the time to research the issue. Thank you for the clarification and examples.

  9. To further muddy the waters, private criminal prosecutions are theoretically possible here in Canada — s. 504 of the Criminal Code. We are a common law jurisdiction.

    In actual practice, if the charges have merit, prosecution of the matter will be assumed by the Crown. If they have no merit, then the Crown will move to have the proceedings stayed — s. 579 of the Criminal Code.

    Private prosecutions are usually brought by someone who has an axe to grind and/or is a bit of a nutter. They are very much on the fringes of the legal system and are quite uncommon.

    Note that here in Canada, as in the UK, sovereignty flows from HRM Queen Elizabeth II.

    • Things are more complicated than I realized, then. Thanks for the further clarification.

      I think the closest thing we have in the US is a private party seeking a contempt judgment against a party that violates a court order. It’s technically a civil action but the defendant can be jailed.

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