Arrow: “Honor Thy Father”

This is the second episode of Arrow, and it contains two excellent legal issues for your consideration. First, the legal procedure of coming back from the dead. Second, whether the “evidence” Queen provides against Martin Sohmers would be admissible.

I. Legal Resurrection

We talked about coming back from the dead in some detail quite a ways back in a series of posts. The basics can be found there. There’s really only one thing we might quibble with here, and that’s whether Oliver even could have been presumed dead. He’d only been gone for five years. Presumption of death, or “death in absentia“, is the legal declaration that a person is deceased in the absence of remains. It works different ways in different states. The basic rule is that if you are absent for a sufficient period of time—and by “sufficient” we mean four to seven years depending on the state—than your relatives may petition the court for a death certificate. “Absent” means really, really absent, not just “missing,” but with steps taken to convince the court that the person is, in fact, dead, or is more likely to be dead than not. These could include things like publication, notices sent to last known addresses and acquaintances, etc.

But most states recognize an exception to the time requirement, i.e., exposure to a deadly peril. Such as shipwreck. Here, Queen was presumed to have been lost at sea. In such circumstances, where it’s reasonable to believe both that the person has died and that we’ll never find the body, courts are much more willing to issue death certificates earlier. This is also true for situations like soldiers MIA in firefights, victims at the World Trade Center on September 2001, people in boating accidents, etc.

And for that rare person for whom the reports of his death have been exaggerated, getting the declaration of death rescinded would be done pretty much like it’s done in the episode: show up to court, have a hearing, and explain to the judge what your deal is. That’s basically what happens.

A lot of the thornier issues surrounding this sort of thing aren’t going to be in play here, especially that of getting one’s stuff back after it’s gone through probate.  The show indicates that pretty much all of Oliver’s possessions were kept at home after his presumed death, and the big stuff (e.g. the house itself) is likely either held by a trust or now owned by Oliver’s mother following his father’s (actual, for real) death.

II. “Left” Evidence and Foundation

Then there’s the question of whether the “evidence” Oliver leaves about this week’s villain, Martin Sohmers, would do anyone any good. We’re tempted to say “Yes,” despite what are likely to be the strenuous objections of defense counsel. Recordings are presumptively admissible, and Fed. R. Evid. 901(b)(5) permits anyone to testify that a particular recording is a particular person’s voice, provided the person making the identification has heard the voice before. The objections are going to be that the confession was coerced.

But it turns out that coercing a confession out of someone may not actually be a bar to the admissibility of the confession as long as it isn’t law enforcement doing the coercion. If it’s law enforcement, we’re in a criminal matter and we’ve just violated the Fifth Amendment right against self-incrimination. But if the evidence is obtained by a random, uninvolved third party, one whom the police are actively and legitimately trying to arrest, that recording might well be admissible. Even if it weren’t, inadmissible evidence like anonymous tips can be the foundation of probable cause for a search warrant. That would let the cops get all up in Sohmers’ business, and they’d almost certainly find some truly tasty bits of evidence there. So even if the confession as such never made it into evidence, it could easily serve as a big break in a case which ultimately lead to Sohmers’ conviction.

This question may come up again in a slightly different context, i.e., instead of a criminal trial, we’re talking about a civil suit. The facts would be as follows. Someone sues someone else, and Green Arrow coerces a confession out of one of the parties and turns the confession over to the other party. We think that would be admissible. If the coerced party thinks it’s unfair, they can tell their version of events to the jury. The confession would be admissible, but that doesn’t mean the jury has to buy it. Here’s how that story might go down.

Plaintiff: I have a recording of Defendant admitting he did it!
Defendant: I was being beaten up at the time! And I lied to make them stop! I’d have said anything!

Yeah, that’s gonna play well with the jury.

But just like in the criminal context, the tape doesn’t even necessarily need to get played to be useful. That could serve as the basis for a series of discovery requests which would otherwise have been quashed as a fishing expedition or unduly burdensome. Playing the tape for the judge might convince him that there really is something funny going on, permitting a line of inquiry that might otherwise have been unavailable.

III. Conclusion

So far, so good. The show has handled both coming back from the dead and the issue of surprise, coerced confessions fairly well. Unfortunately, things don’t go quite so well next time. Stay tuned!

10 Responses to Arrow: “Honor Thy Father”

  1. Christopher L. Bennett

    A surprising analysis. I was sure there was no way in hell a coerced confession like that would be admissible. I came to a similar conclusion to yours, that it would make most sense if it were just the basis for getting search warrants and conducting an investigation that turned up more solid evidence against the bad guy. But the episode gave the impression that the confession recording alone was all it took.

    • I’d take the presumption that the tape itself was used as evidence, rather than as a tool to obtain additional evidence, as dramatic license to avoid having a minor bad guy take up more than one episode. After all the show is about Oliver being Green Arrow and shooting people with a bow and arrows, not a gripping courtroom drama. The fact that they managed to get it as right as they did is a minor miracle :)

      • Strike “minor”. You meant “major”. We’re talking about Hollywood (OK, technically, Vancouver, B.C.) here…

  2. Terry Washington

    In “Dracula’s Daughter”, Van Helsing explains to a British policeman that legally he could not be guilty of murdering Dracula as he “legally” died four hundred years ago and at the film’s conclusion as Van Helsing and another man look at the dead body of Countess Marya Zaleska( played by Gloria Holden), one says ” The woman is beautiful”. to which Van Helsing replies “She was beautiful when she died- a hundred years ago!” Of course in most popular literature, vampires and mythological deities such as Thor or Hercules exist outside normal society and need not worry about the drawbacks of immortality such as claiming social security benefits ad infinitum!

    • Depends on which origin story you prefer. In the current formulation, Thor has never paid into the SS pool and thus would not be eligible for benefits. Originally, though, he was a doctor in his secret identity, and would probably be vested in that identity.

      • It was more complicated than that. In the original Journey Into Mystery story Don Blake picked up Thor’s hammer and was given the “power of Thor”. That Odin banished him to Earth and made him forget that he was Thor is itself a retcon. It used to be that Thor would change back to Don Blake whenever he put down the hammer. Was he really a doctor or just pretending to be a doctor and thus practicing medicine without a license?

      • Is practicing medicine without a license a strict liability offense, or is it a defense that he believed that he was a doctor and had a license?

      • I was referring to that origin story, yes. In fact, it’s the one I’m familiar with; I learned of the retcon long after it happened, and I’m only vaguely aware of how the new origin story works.

        However, depending upon just how long Thor was Donald Blake, he may actually have earned his M.D. and license to practice. Of course, a lot of people may only be familiar with the movie version, in which he was never Dr. Blake at all.

  3. According to wikipedia “Thor’s father Odin decided his son needed to be taught humility and consequently placed Thor (without memories of godhood) into the body and memories of an existing, partially disabled human medical student, Donald Blake.[23] After becoming a doctor and on vacation in Norway, Blake witnessed the arrival of an alien scouting party. Blake fled into a cave after they heard him and began to pursue him. After discovering Thor’s disguised hammer Mjolnir, and striking it against a rock, he transformed into the thunder god.[24]”

    23^ Revealed in flashback in Thor Annual #11 (Jan. 1983).
    24^ Journey into Mystery #83 (Aug. 1962)

    Martin

    • Indeed. As it currently stands, Donald Blake in a completely separate being from Thor, and Thor was placed within Blake’s consciousness just before Blake entered med school. Several years later, Blake (now a practicing doctor) found Thor’s hammer and freed Thor, who took Blake’s physical place, storing Blake wherever Thor’s body was stored while his consciousness was in Blake’s consciousness.

      This is similar to the explanation used for Rick Jones and several Captain Marvels share a physical space, with only one of them occupying it at a time.

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