Category Archives: criminal law

Wonder Woman: Illegal Immigrant

A reader sent in a link to this Wonder Woman panel, asking “All joking aside, how illegal is this?”

The short answer is, unsurprisingly, “pretty illegal.”  The longer answer is “but maybe not as illegal as you might think.”  Although the linked post shows an excerpt from DC Special Series #19: Secret Origins of Super-Heroes (Fall 1979), the same basic story was first printed in Sensation Comics #1 (January 1942).

Under modern law, even though both Dianas Prince agreed to the transaction, it would still be identity theft.  The state in which this is occurred isn’t wasn’t clear to me*, but New York’s statute is typical:

A person is guilty of identity theft in the third degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby:
1. obtains goods, money, property or services

N.Y. Penal Code § 190.78.  Assuming Wonder Woman went on to make bank transactions, collect a paycheck, etc using the other Diana Prince’s identity, that’s sufficient.

However, the good news for Wonder Woman is that identity theft laws don’t go back very far.  New York’s was enacted in 2002, and the federal identity theft law was enacted in 1998.  An admittedly not-particularly-exhaustive search didn’t turn up any identity theft laws in force in 1979, much less 1942.

The bad news is that the relevant parts of 18 USC § 1546(a) were in force in 1979, making it a federal crime to:

sell[] or otherwise dispose[] of…such visa, permit, or other document [prescribed by statute or regulation as evidence of authorized stay or employment in the United States], to any person not authorized by law to receive such document

As the purchaser, 1979 Wonder Woman would be liable for the same crime as a co-conspirator or solicitor.  But 1942 Wonder Woman escapes that fate, since the original version of that law only goes back to 1948.  A similar story applies to 26 USC § 7206 (fraud and false statements, like on a tax return) and 18 U.S. Code § 371 (conspiracy to defraud the US).

However, even if there wasn’t a federal crime that could be pinned on Wonder Woman for buying someone’s identity in 1942 (and I’m not saying there definitely wasn’t), the state she was in would have had fraud and conspiracy laws that would have applied in a case like this.  But that would be small potatoes compared to the modern penalties for the same act.

* Somewhere outside of Washington, DC apparently.  Very likely in Washington, DC itself (thanks to TerryC for the correction!).  I (still) defend my use of New York as an example on the grounds of laziness.

Is Batman a Murderer?

Nerdist’s Jessica Chobot interviewed me about an interesting legal issue from Batman Begins: is Batman criminally responsible for Ra’s al Ghul’s death?  A similar question was asked in a comment to this post back in 2012, but the answer had to wait until now.  So is Batman a murderer? What about Jim Gordon?  Watch the interview to find out!

Daredevil Season 2, Part 2 – The Trial

Following my previous post about Daredevil Season 2, we now move to the main event, the trial of…

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Daredevil Season 2, Part 1

There is so much to discuss about Season 2 of Daredevil that I’m not going to follow the usual post format.  Spoilers ahead, naturally.

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Defending Kilgrave

(Spoilers for Jessica Jones ahead!  Trigger warning for discussion of rape.)

Jessica Jones features a private investigator, an attorney, accused criminals, and a killer on the loose.  There are so many legal issues it’s hard to know where to begin.  The Legal Geeks have written about the feasibility of Kilgrave’s victims raising an insanity defense, but I’m interested in a related but trickier question: what defense could Kilgrave offer if he were hauled into court (and prevented from influencing the case using his powers)?  At first glance it might seem like Kilgrave is guilty of numerous instances of murder, rape, theft, and countless lesser offenses.  But as Kilgrave claims, he isn’t a murderer himself, he just tells other people to do it.  I will consider three possible crimes: Hope Shlottman killing her parents, Kilgrave’s rapes, and Kilgrave taking money from the poker players.  The show is set in New York City, so I’ll be using New York law for the analysis.

I. Intent

Before looking at each crime, I should first talk about intent.  Not all crimes require intent; there are strict liability crimes such as driving over the speed limit.  But most crimes require some form of intent, which can be divided into two classes: specific intent and general intent.

Specific intent means the state must “prove that the defendant has intended to commit some further act, or has intended some additional consequence, or has intended to achieve some additional purpose, beyond the prohibited conduct itself.” 35 N.Y. Jur. 2d Criminal Law: Principles and Offenses § 26.  Murder is the classic example of a specific intent crime.  The degree of guilt depends on the additional consequence or purpose intended by the defendant.  If the defendant intended to kill the victim, that’s intentional homicide.  If the defendant did not, then that may only be manslaughter.

General intent means that the state only has to prove that the defendant intended to commit the prohibited conduct.  Rape is the typical example of a general intent crime.  What matters is that the defendant engaged in sexual intercourse with the victim and the victim did not consent.  It does not matter whether the defendant was aware of the lack of consent or intended for the intercourse to be nonconsensual.

II. The Killing of Hope Shlottman’s Parents

In this case, Kilgrave instructed Hope Shlottman to shoot her parents, which she then did, resulting in their deaths.  This was done under the influence of result of a virus that Kilgrave produces, which causes others to obey Kilgrave’s commands literally and unflinchingly.  Hope herself has a few solid defenses: involuntary action, legal insanity, duress, and involuntary intoxication.  But what about Kilgrave?  Is he culpable?  After all, he just told Hope to kill her parents.  He didn’t pull the trigger himself.

Alas for Kilgrave, this argument is more effective as a delusional rationalization than a legal defense.  What Kilgrave did is a solid, though unusual, example of solicitation, the basic form of which is this:

A person is guilty of criminal solicitation in the fifth degree when, with intent that another person engage in conduct constituting a crime, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.

N.Y. Penal Law § 100.00.  The higher degrees of solicitation depend on the defendant’s age and the seriousness of the offense solicited (in this case, very serious).  Kilgrave both commanded and “otherwise attempt[ed] to cause” Hope to engage in conduct constituting a crime, which she then did.  Once the crime was carried out, Kilgrave became fully liable for the murder. N.Y. Penal Law § 20.00.

But wait!  Isn’t the whole point that Hope isn’t guilty?  How can Kilgrave be guilty of something that wasn’t a crime for Hope?  The New York legislature thought of that, and both the general accessory liability statute § 20 and the solicitation statute § 100 have provisions covering this scenario:

In any prosecution for an offense in which the criminal liability of the defendant is based upon the conduct of another person pursuant to section 20.00, it is no defense that:
1. Such other person is not guilty of the offense in question owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the conduct in question or of the defendant’s criminal purpose or to other factors precluding the mental state required for the commission of the offense in question; or
2. Such other person has not been prosecuted for or convicted of any offense based upon the conduct in question, or has previously been acquitted thereof, or has legal immunity from prosecution therefor

§ 20.05.  Similarly:

It is no defense to a prosecution for criminal solicitation that the person solicited could not be guilty of the crime solicited owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the conduct solicited or of the defendant’s criminal purpose or to other factors precluding the mental state required for the commission of the crime in question.

§ 100.15.

So Kilgrave is criminally liable for the intentional murder of Hope Shlottman’s parents, even though he only “asked” Hope to do it and she herself is likely not guilty of murder (and in any case was not convicted of it).

III. Rape

This is an even clearer case than the murder of Hope’s parents.  New York criminal law is clear that “A person is deemed incapable of consent when he or she is … mentally incapacitated.”  Penal Law § 130.05(3)(c).  Mentally incapacitated is defined as when “a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.” § 130.00(6).

In this case, Kilgrave rendered his victims temporarily incapable of controlling their conduct owing to a) the influence of an intoxicating substance (the virus) administered to them without their consent or b) the intentional viral infection, again without their consent.

Notably, the prosecution does not have to prove the exact nature of the intoxicant.  People v. Di Noia, 481 N.Y.S.2d 738, 740 (1984).  The considerable circumstantial evidence (Hope lying in bed for hours, refusing to leave, shooting her parents for no reason) is sufficient to show that her mind had been incapacitated.  Similarly evidence exists for Jessica (e.g. the injury to her ear).

Lack of consent could also be proven by Hope and Jessica’s physical helplessness.  § 130.05(3)(d).  Physical helplessness is defined as when a person is “unconscious or for any other reason is physically unable to communicate unwillingness to an act.” § 130.00(7).  Hope and Jessica were conscious, but they were physically unable to communicate their unwillingness to engage in sexual intercourse (as a result of Kilgrave’s compulsion).

Kilgrave can offer no defense to charges of rape.

IV. Theft

Here there is a glimmer of hope for Kilgrave’s defense team (though even this is illusory, as we shall see).  Kilgrave took hundreds of thousands of dollars from a group of wealthy men at a poker game by commanding them to go all in and then promptly fold.  However, at least under New York law, that may not have been theft (technically larceny).

Unlike murder, the end result was not inherently illegal.  Killing a person is generally a crime unless some exception applies.  But it is generally legal for one person to give another a large sum of money.

Unlike rape, the larceny statutes and case law are primarily concerned with the perpetrator’s evil intent, not the victim’s lack of consent or true knowledge.  Larceny most encompasses taking by fraud, embezzlement, extortion, false promises, and keeping lost property.  But Kilgrave didn’t do any of that.  He didn’t make any false representations or promises, he did not embezzle the money, he did not extort it on pain of some injury, nor was the money lost.

So here is one crime that Kilgrave may not be guilty of, at least arguably.  But there’s a catch: rather than simply tell the men to give him the money, Kilgrave nominally played along with the poker game.  This is not a crime in itself: New York appears to allow private, social gambling (although contracts for wagers are unenforceable).  But there is a catch:

Every person who shall, by playing at any game … lose at any time or sitting, the sum or value of twenty-five dollars or upwards … may … sue for and recover the money or value of the things so lost and paid or delivered, from the winner thereof.

NY Gen. Obligations Law § 5-421.  In other words, the men can sue to recover the money from Kilgrave because, technically, it was lost in a poker game.

V. Conclusion

Although perhaps unsurprising, it is reassuring to know that the nature of Kilgrave’s powers does not put him outside the reach of the criminal law.  And even in cases where it does, he might not be able to keep his ill-gotten gains.

Batman and the Constitution: How can the Gotham D.A. convict criminals captured by Batman?

(This guest post was written by Kevin Lelonek as a response to a comment on this post from way back in January, 2012.  In his own words, “Kevin is a dual degree student pursuing his J.D. and M.B.A. in Buffalo, New York. He’s in his last year of the program and looks forward to starting his career. And of course, he’s a total nerd.”)

 

Batman and the Constitution: How can the Gotham D.A. convict criminals captured by Batman?

In the comments to a previous article about Batman’s relationship to the “State,” Crazy Jay raised some serious questions about how the Gotham District Attorney is able to prosecute Gotham’s criminals when Batman is involved in the apprehension of those criminals. Crazy Jay asked “how can the District Atty. Prosecute a criminal if the Batman had his mitts all over the evidence?” Crazy Jay asked about how Due Process, Miranda Rights, Cross Examinations, the “Fruit of the Poisonous Tree” doctrine, confessions, and Search Warrants, the staples of criminal law, work in a world with Batman.  How indeed? So let’s get started.

  1. Another Night on Patrol

The simplest case in which Batman stops crime infringes on no Constitutional protections. Consider the following: two masked men armed with shotguns enter a bank. One of the tellers quickly signals the silent alarm. The two armed men wave their shotguns around and demand the bank’s patrons lie face down on the floor. They turn their shotguns to the tellers and demand that the tellers empty their drawers. The armed men take the money from the tellers’ drawers and threaten the bank manager to open the safe. Before the armed men can leave with the money Batman intervenes, disarms the robbers, ties them up, and leaves them for the police. The police arrive as Batman disappears in the shadows.

Generally, criminal Constitutional protections only operate against the government. Due process, depending on which theory of it we are talking about, is a broad concept. We can conceptualize it as a series of steps and attendant procedures that the government must take to obtain a conviction.[1] For example, a police officer needs probable cause before he can arrest someone, and the government must prove each element of the crime beyond a reasonable doubt to obtain a conviction.[2]

Certainly in the above example the police that first arrive at the bank have probable cause to arrest the two armed men that Batman tied up.[3] At this point the two suspects are still masked and tied up, the two shotguns are presumably on the bank floor somewhere out of reach, and the police were summoned to the bank by the silent alarm. Statements by the patrons and employees provide further evidence of crime against the two men, making for a lawful arrest. Upon arresting the suspects, the police must read the suspects their Miranda rights. If the officers fail to do this, they risk having the suspects’ subsequent statements or confessions excluded at trial.[4]

In this situation there is nothing stopping Harvey Dent (pre-acid) from prosecuting the armed men. The fact that Batman thwarted the robbery does nothing to alter the fact that the two men forcibly stole property. To commit third degree robbery in New York, a person must: (1) wrongfully take, obtain, or withhold property; (2) with the intent to deprive the owner of such property or to appropriate the same for himself; and, (3) threaten another with the use of immediate physical force to prevent resistance to the taking of property or to compel the owner of the property or another person to deliver the property. [5]

Even if there were no surveillance cameras, the patrons of the bank and the bank’s employees can present evidence against the robbers sufficient to establish the elements of the crime.  Testimony to the facts above establishes that the armed men: (1) wrongfully took and obtained property that did not belong to them, the bank’s money; (2) intended to deprive the bank of its money and to appropriate the money for themselves when they demanded it from the tellers and bank manager; (3) used their shotguns to threaten the immediate use of force to prevent resistance to their demands. Further testimony to the effect that Batman intervened, disarmed the masked men, incapacitated them, tied them up, and left them for the police, who arrived shortly thereafter to unmask the armed men in front of the patrons and employees, establishes the identities of the defendants as those of the two armed men. The sum of all of this testimony seems to carry the prosecution’s burden of proof.

Of course the defendants are still entitled to their Sixth Amendment rights to put on a defense and to confront witnesses.[6] But Batman’s intervention does not alter these rights in any way: he is not preventing the defendants from presenting their own evidence in court or from cross examining the government’s witnesses against them. Assuming the defendants do not rat each other out for plea deals, we can imagine them putting on a common defense that attacks the credibility, perception, and memory of the witnesses with the intent to cast doubt on whether the defendants were in fact the robbers unmasked by the police. Lacking a population of witnesses that has sudden memory loss or that was lacking its required corrective eyewear (think My Cousin Vinny) it’s safe to say Dent gets his conviction on this one.

  1. Fruit of the Poisonous Tree

The “Fruit of the Poisonous Tree” doctrine only applies to evidence that is discovered as a result of a violation of the Fourth Amendment.[7] The doctrine is an exclusionary rule that operates to preclude the introduction of evidence that was obtained as a result of a bad “search” or “seizure” (i.e. a search not based on a warrant or an arrest without probable cause).[8] Since the Constitution only restricts government action, it seems that the “Fruit of the Poisonous Tree” doctrine would never apply to Batman. But this raises the question of how evidence procured by Batman, which he then turns over to the police, would be handled. Consider Batman: The Long Halloween when Batman leaves Carmine Falcone’s ledger on the GCPD HQ’s rooftop after meeting with Commissioner Gordon and Harvey Dent there.[9] Seemingly, the issue the government would face is establishing the ledger’s authenticity, that the ledger is in fact Carmine Falcone’s and that it details his illegal operations.[10] Assuming Batman is not testifying, the government would need to produce a witness who could identify the ledger as the ledger Carmine Falcone used to document his criminal enterprises.

  1. Confessions

Under the Federal Rules of Evidence, hearsay is generally not permissible testimony.[11] Hearsay is defined as a statement that the declarant makes while not testifying at the current trial or hearing.[12] However, a statement made by an opposing party is not considered hearsay. [13] Thus, a criminal defendant’s statement is not hearsay because the defendant is the opposing party to the prosecution in its case against the defendant. Accordingly, the confession Batman obtains from a suspect is admissible evidence at court. Getting the confession into evidence is another matter. Likely, Batman will not be testifying at the criminal trial. Unless Batman obtained the confession in the presence of another, who can testify to its substance, it probably won’t be used as evidence. Even if admitted, there is a credibility issue with the confession: if Batman “beat” the confession out of the defendant, the defense can attack its credibility by arguing that the confession was coerced.

  1. Search warrants

Now, the best (most interesting) for last: search warrants. In the ordinary case, police need a search warrant based on probable cause to search for and seize evidence.[14] Although inapplicable to the bank example above, we can imagine a situation in which Batman infiltrates a warehouse and identifies a large hidden cache of Penguin’s weapons. Batman alerts Commissioner Gordon to the location of the weapons. Before the GCPD can search the warehouse and seize the weapons it must first obtain a search warrant from a magistrate judge. In the usual case, a police officer who has witnessed what she suspects to be evidence of crime appears applies to a magistrate for a warrant based on what she witnessed. In the present case, Commissioner Gordon has not personally witnessed the weapons cache.[15] Being an honest cop, the Commissioner will not lie under oath to obtain a warrant. Luckily, under the Constitution the police, and our Commissioner, can obtain a warrant based on a tip from a reliable informant!

A search warrant based on an informant’s tip (hearsay) requires that the totality of the circumstances indicate to the magistrate judge that there is a fair probability that contraband or evidence of crime will be found at a particular place. [16] The totality of the circumstances test takes into account the truthfulness and accuracy of the informant, as well as the basis of the informant’s knowledge.[17] Since this test is not rigid, probable cause could be found on facts provided by an informant either because the informant has been reliable in the past or because evidence of the informant’s basis of knowledge of those facts is strong.[18]

Lacking independent police obtained evidence of crime[19] (i.e. Harvey Bullock sees the cache of weapons himself), Gordon can appear before the magistrate judge (or provide an affidavit) to testify that: (1) he received a tip that there is a large cache of weapons in a warehouse in Gotham; (2) the warehouse is owned by Penguin; (3) the tip was provided by an informant with the alias “Matches,” (a named informant because Commissioner Gordon regularly relies on tips received from Batman); (4) “Matches” has supplied truthful and accurate tips in the past (meaning he has given tips in the past that resulted in the GCPD finding what “Matches” said it would find); and, (5) “Matches” personally gained access to the warehouse and saw the weapons cache. The more specific Commissioner Gordon can describe the weapons cache and the warehouse, the more likely the warrant issued on Batman’s tip is likely to withstand its subsequent challenge by Penguin after he is arrested. Thus, the tip is more reliable when Batman takes an inventory of the weapons and informs Gordon that Penguin has 20 cases of fully automatic Uzi’s and 10 cases of RPG’s. Likewise, the more the GCPD uses “Matches” as an informant who leads it to evidence of crime, the more reliable “Matches” becomes as an informant!

Conclusion

Now, this is not to say that Batman himself is not potentially criminally and civilly liable for his actions. If he crashes through the skylight window of the bank in the first example, in appropriately dramatic fashion, he would likely be liable for property damages. Also, his use of physical force against the two armed bank robbers likely constitutes assault.[20]

All of the foregoing indicates that Batman’s aid in stopping crime should not hinder the successful prosecution of criminal defendants by the Gotham DA. This of course makes the “revolving door” in Gotham all the more inexplicable. If Batman’s participation in law enforcement is legal, why are the super villains never successfully incarcerated?

We might consider the insanity defense to criminal charges. In New York, the defense is not called the insanity defense; instead it’s the mental defect or disease defense.[21] It requires that the defendant, at the time of the offense, lacked substantial capacity to know or appreciate the nature or consequences of his conduct, or that his conduct was wrong. But one study found that the insanity defense was only raised in 0.85% of cases, and was only successful in 26% of those cases.[22] Perhaps we can imagine that the 0.22% (0.85% * 26%) of successful insanity cases are those made by the likes of Joker, Two-Face, the Ventriloquist, and the more colorful members of Batman’s Rogues Gallery. In any event it seems Batman’s involvement in law enforcement does not prevent the successful prosecution of criminal cases.

 

[1] Allen, Stuntz, Hoffmann, Livingston & Leipold, Comprehensive Criminal Procedure, 87-97 (3rd ed. 2011).

[2] Miles v. U.S., 103 U.S. 304 (1880).

[3] Dunaway v. New York, 442 U.S. 200 (1979).

[4] Miranda v. Arizona, 384 U.S. 436 (1966).

[5] NY Penal Law §§ 155.05, 160.0, 160.05 (McKinney 2015).

[6] See, e.g., In re Oliver, 333 U.S.  257 (1948); Washington v.Texas, 388 U.S. 14 (1967).

[7] Wong Sun v. U.S., 371 U.S. 471 (1963); Mapp v. Ohio, 367 U.S. 643 (1961).

[8] See, e.g.California v. Hodari D., 499 U.S. 621 (1991); Mincey v. Arizona, 437 U.S. 385 (1978); Katz v. U.S., 389 U.S. 347 (1967).

[9] Jeph Loeb & Tim Sale, Batman: The Long Halloween, (2011).

[10] Fed. R. Evid. 901(a).

[11] Fed. R. Evid. 802.

[12] Fed. R. Evid. 801(c).

[13] Fed. R. Evid. 801(d)(2).

[14] U.S. Const. amend IV; see, e.g., Johnson v. U.S., 333 U.S. 10 (1948).

[15] Presuming the weapons cache is hidden and would require entry into the warehouse to identify, Commissioner Gordon cannot go to the warehouse to corroborate Batman’s tip and provide independent evidence of crime: such action would be an unlawful search.

[16] Illinois v. Gates, 462 U.S. 213 (1983).

[17] Id.

[18] See id. As an aside, the “accurate and truthful” and “basis of knowledge” aspects of the test can, as a practical matter, be established by the same evidence. The events happen in the following sequence: (1) the police appear before the magistrate to present evidence based on a tip from an informant for a search warrant; (2) the magistrate issues the warrant; (3) the police execute the warrant, search, find evidence of crime,  and arrest the defendant; (4) the defendant is charged and challenges the basis of the warrant; (5) the trial court reviews the magistrate’s determination of probable cause taking into account whether the informant has provided accurate information in the past, and on whether the police found what the informant said it would find.  The fact that the police found what the informant said it would find establishes that the informant was “accurate and truthful,” and that the informant had a reliable basis for his knowledge (how else would the informant know what the police would find!).

[19] Illinois v. Gates, 462 U.S. 213 (1983).

[20] N.Y. Penal Law § 120.00 (McKinney 2015).

[21] N.Y. Penal Law § 40.15 (McKinney 2015).

[22] Michael Perlin, The Jurisprudence of the Insanity Defense, 108 (1993).

Jim Gordon and the Felony Murder Rule

Today’s post was inspired by a question from Christopher about the first episode of the new season of Gotham.  His question presents an interesting twist on felony murder.  Spoilers below:

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Super Heroines in the Pub

This Monday, September 28th, I will be giving a talk on Batman villains and the insanity defense as part of a Super Heroines, Etc. event here in St. Louis.  Super Heroines, Etc. (aka SHE) is a St. Louis-based 501c3 nonprofit focused on empowering women through educational events, classes, and workshops.  I’m looking forward to it and hope to see many of you there!

Ant-Man: Robbery vs Burglary vs Theft

I saw Ant-Man this weekend and thoroughly enjoyed it.  Appropriate to the title character, it’s a movie that deals in seemingly small things with larger implications.  Largely disconnected from the wider Marvel Cinematic Universe plot arc, Ant-Man is a pleasant break from the Dramatic Global Crisis or Dramatic Cosmic Crisis themes of the Avengers and their individual films.

But you didn’t come here to read a movie review.  So let’s take a closer look at a fine legal distinctions that the protagonist, Scott Lang, makes a few times in the movie: robbery versus burglary.  Some minor, early spoilers ahead.

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Age of Ultron, Part 3

(This post contains spoilers for Avengers: Age of Ultron.  You have been warned.)

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