Manhunter, Volume 3

This is the third post in our series on the Marc Andreyko run of Manhunter (prior posts one and two).  Volume Three is quite a bit lighter on the overt legal issues, so this will be a short post for the sake of completeness.  In fact, there’s really only one issue of note.  Spoilers follow, as always.

I. Murder by Psychic Possession

At this point Kate has resigned as a federal prosecutor and now works as a criminal defense attorney.  Her client in this volume is Doctor Psycho, on trial for telepathically commanding several civilians to kill a gang of villains who wouldn’t follow his orders.  It’s not made clear, but Psycho is apparently on trial for murder.  We’ve previously considered whether someone subject to mind control would be responsible for any crimes they are ordered to commit (short answer: no), but this cases raises a different question: is the mind controller himself criminally liable for acts committed by people under his control?

For clarity, we’ll refer to three people here: the telepath, the intermediary (i.e. the person being controlled), and the victim (i.e. the ultimate victim of the crime).

The answer here is a probably yes, under one of two theories.  If the intermediary is indeed under the control of the telepath, then that person is simply an instrument used to commit the crime, no different from a tool in the hands of the telepath.

If, on the other hand, the intermediary was not so thoroughly controlled by the telepath as to absolve them of legal responsibility (e.g. they were still fundamentally in control of themselves), then the telepath becomes a conspirator.  Effectively the telepath suggested a crime, the intermediary agreed, and (in jurisdictions where this is required) at least one step was taken in furtherance of the conspiracy.  This opens the door to conspirator liability for the telepath.  He or she would be liable for the separate crime of conspiracy as well as all crimes committed in furtherance of it.

We should note one possible loophole, however: in many jurisdictions, particularly those that have adopted the Model Penal Code, “[a] person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.”  MPC § 2.01(1) (emphasis added).  An “act” is defined as “bodily movement whether voluntary or involuntary.”  MPC § 1.13(2) (emphasis added).  So, literally speaking, a telepath who can control someone’s mind without voluntary bodily movement (which covers most telepaths) may not be criminally liable.

However, the MPC does not actually specify that the required bodily movement be the defendant’s.  One possible reading of § 2.01(1) would be “[a] person is not guilty of an offense unless his liability is based on [an action and its accompanying state of mind] which includes (a voluntary [bodily movement]) or (the omission to perform an act of which he is physically capable).”  Under that reading, a telepath would be guilty of any crimes involving voluntary bodily movements intended by the defendant but would only be guilty of a crime of omission if he or she was physically capable of the act himself or herself.  In other words, a telepath wouldn’t be liable for failing to command someone else to perform an act that the telepath wasn’t physically capable of.  But the telepath would be liable for causing someone else’s body to commit a crime.  This seems like a fair result to us.

II. Conclusion

Telepaths are probably guilty of crimes they command others to commit, even if it takes a little creative statutory interpretation to get there.  Stay tuned for the next post in this series: the next volume features Wonder Woman being charged with murder!

20 responses to “Manhunter, Volume 3

  1. What about a telepath who by telepathic suggestion or will causes a person who would otherwise be physically capable of omitting to perform an act not to?

    • To be clear: a situation where someone has a duty to act, is capable of performing that act, and is prevented from doing so by a telepath? That’s a little trickier.

      I’m afraid I don’t see a way around it without also making a telepath criminally liable for failing to command someone else to perform an act that they are capable of but the telepath is not (and has a duty to perform). One could do that by reading “of which he is physically capable” to include both the telepath’s own body and the bodies of anyone the telepath could control. But I’m afraid there’s no way to have one’s cake and eat it too.

      It wouldn’t affect the Doctor Psycho trial, but it is a bit of a loose end. Thanks for pointing it out!

  2. Couldn’t the act of mentally controlling someone at all be considered a bodily movement? It’s true that there are usually common sense distinctions between thoughts and bodily actions but that’s because usually you require to move more than your brain to commit a crime. In a world where it is possible to hurt others simply by thinking wouldn’t those thoughts potentially be a movement? Or if you like, wouldn’t the act of sending some kind of signal to the person be a movement?

    As for Wonder Woman, you could charge her with much more than that. At the least for a good deal of her early career she was serving in the military (as a secretary I think) without revealing her dual citizenship.

    What about Amazons Attack? Not getting into the blatantly obvious ones like the law to round up women in concentration camps aren’t there many others that multiple heroes could be charged with?

    • “Couldn’t the act of mentally controlling someone at all be considered a bodily movement?”

      That approach would probably require a statutory revision. Our approach takes advantage of an ambiguity in the text, whereas that approach runs right up against a clear distinction made in the text. But in reality there would probably be a statutory change that made the telepath’s liability completely clear.

      “As for Wonder Woman, you could charge her with much more than that.”

      Oh, no doubt, but this is about what she was charged with in the comic books (SPOILER: the murder of Maxwell Lord).

      • Hmm … consider something like this, for a trial argument on that point:

        Defense: “Bodily movement” cannot cover telepathic commands, as no motion was made. No sound, gesture, or any signal visible to an outsider, was created. So the element does not apply.

        Prosecution: “Bodily movement” may be inferred from the fact that a command was sent from telepath to target. Whatever the mechanism of that command, it has been established that it was made, and a command must have an action behind it. That action, no matter the specifics of how it was achieved, falls within the meaning of the phrase.

        I think the prosecution has the better argument there, though I can see the strict textual other side of it.

  3. It’s not precisely mind control, but what would causing a person to commit a crime due to illusions/deception (i.e. warp a shooter’s perceptions to make somebody else look like a threat so they get shot and such) fall under? I’m assuming there has to be some legal precedent about fooling someone into committing a crime anyway.

    Also, in comic book land, telepathy (particularly mind control) is probably one of those things that would get its own spelled-out laws I expect. Given the obvious hot button nature of the topic, it would be likely to get a great deal of bipartisan and thorough attention the second its existence was confirmed. If anything, I expect the real issue would be if the legislature manages to violate constitutional requirements in their zeal and goes too far in regulating telepaths; the subject being non-theoretical probably would inspire more panic than sense.

    • In general, liability for deceiving someone else into committing a crime is pretty straightforward under our interpretation of the MPC. Taking your example: the required voluntary act is the shooter’s and the accompanying state of mind is the illusionist’s. In that case it is the illusionist’s “conscious object … to cause such a result” (i.e. the victim’s death), the death would not have occurred but for the illusionist’s deception, and the deception was the proximate cause of the death. The shooter’s actions are an intervening cause but not a superseding cause of the victim’s death because the shooter is not legally responsible for his or her actions (as discussed in our prior post); thus, the illusionist remains liable.

  4. How in the world would you go about proving that you either were mind controlling someone or that you were being mind controlled at some point in the past? “Yeah I did it, but I couldn’t help myself because I was being mind controlled” could then become everyone’s defense, but how would it work? I would guess it’s up to the defense in that case to prove that the intermediary was being controlled, and up to the prosecution to prove that the telepath was mind controlling, but I have no idea what sort of evidence could exist for either situation…

    • In the Manhunter book, Doctor Mid-Nite appears as an expert witness. He shows MRI scans of the two dozen mind-control victims that, according to him anyway, demonstrate that they were all mind-controlled and by the same person. So at least in the DC universe mind control seems to leave a physical trace.

      But yes, it would generally be a difficult defense to prove (for the intermediary) and a difficult charge for the prosecution to prove against the telepath. Absent some tell-tale trace evidence it would mostly depend on circumstantial evidence (e.g. the telepath had a known grudge against the victim, the intermediary had no reason to commit the crime, the telepath was ‘in range’ at the time of the crime, and the intermediary had a vacant, mechanical demeanor during the attack). Or perhaps another telepath might witness the attack and sense that the intermediary was being controlled. Still a tough argument to make.

      • It sounds like expert testimony and specialized witnesses with knowledge of this would become very important to everything related to mental control. I wonder if there are any applications of this for future cases involving people accused of using robots to commit crimes.

    • It depends on the form of the mind control. The Mad Hatter has used technology, sometimes placed in the victim’s hats. If found, his technology would be valuable in making a circumstantial case — if nothing else, it’d point the finger of suspicion pretty accurately.

  5. Suppose the telepath just alters attitude. If all he just instills extreme hatred against the victim, is it still his crime?

    • I think so. The telepath still intends for the crime to occur, and the crime apparently would not have occurred but for the telepath’s involvement. The only remaining question is whether the telepath is the legally responsible cause (i.e. the proximate cause), and I think a court would say that he or she was because it was intentional.

  6. I think that in a universe where telepathy was provably real and used for the commission of crimes, the laws would be rewritten to incorporate mental influence of other people or objects in the definition of an “act.”

  7. I’d like to suggest an alternative theory of liability for the telepath. Rather than just being a conspirator (which, at least in Oklahama, and at least for most crimes, carries a lesser sentence than say, murder), the telepath could be charged as a principal in the crime under an accomplice theory. In OK, and I believe in many other states:

    “One who does not actively commit the offense, but who aids, PROMOTES, OR ENCOURAGES the commission of a crime by another person, either by act or counsel or both, is deemed to be a principal to the crime if he/she knowingly did what he/she did either with criminal intent or with knowledge of the other person’s intent. To aid or abet another in the commission of a crime implies a consciousness of guilt in INSTIGATING, ENCOURAGING, PROMOTING, or aiding in the commission of that criminal offense.” Oklahoma Uniform Jury Instruction – Criminal 2-6, Stat. Auth.: 21 O.S. 1991, §§ 171, 172.

    This language seems to cut to the telepath’s act by straighter line than the conspirator theory, and also covers situations where the mind control was total or less-than-total, as agreement is not an issue.

  8. Pingback: Links for 2011-06-15 « Random Ramblings of Rude Reality

  9. Wait, does that mean that if someone in the real world hooks up some sort of fMRI (or somthing like the Emotiv EPOC) to a radio controlled robot, and then laid still and instructed the robot to kill someone (not a higher level AI, just simply a bunch of circuit boards and servo motors, not much different from your everyday RC toy), they could get away with murder since they didn’t move their bodies? Or do the electrons or neurotransmitters flowing in the brain count as bodily movement? Does it matter if they built the machinery or not? What if they were placed there while unconscious and then woke up and intentionally instructed the robot to kill with their minds? Does it matter if the person is restrained so to be unable to remove the brain-computer interface device (or move out of it if it’s a big thing you get inside) to prevent the robot from receiving the commands when they are thought?

    And back to comic book world, if flow of electrons and neurotransmitters isn’t taken in consideration, does that mean that people with telekinesis that isn’t dependent on body movements (no hand waving, no flinching, no pressing the temples etc) can use their powers to kill and get away with it even if it’s proved they did it? What if they have a “tell” for when they are using their telekinesis, would that count as a bodily movement?

    • Oh, regarding the real world thing, does it matter who owns the devices and whether they were aware of the intentions of the person operating the robot thru the device?

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