Category Archives: criminal law

She-Hulk: Was Wong in the Wrong?

(This guest post was written by Scott Maravilla. Thanks Scott! NB: This post includes minor spoilers for She-Hulk episode 3! And in case you’re wondering, I have been keeping up with the series, and I give it overall good marks for legal accuracy so far. The mistrial was exactly what would have happened, and large law firm partner’s Holden Holliway’s response to Jen’s request to pick her own assistant was pitch-perfect.)

In the She-Hulk: Attorney-at-Law episode “The People v. Emil Blonsky” (S1:E3), after testifying on behalf of Emil Blonsky at his parole hearing, Wong is called out by the chair of the California Parole Board for “admitt[ing] to facilitating a prisoner escape which is a crime.” At which Wong quickly escapes through one of his magic portals.  The chair is referring to California Penal Code 4550 which makes it a criminal offense punishable by imprisonment up to four years to “rescue any prisoner from any prison.”  The case appears cut and dry.  Wong used his portal power to break The Abomination out of his cell for an underground fight club tournament (See Shang-Chi and the Legend of the Ten Rings). 

            Not so fast, California recognizes necessity as an affirmative defense to helping someone, here The Abomination, break out of jail.  Necessity is where the conduct in question is undertaken to prevent a greater harm.  In the context of a prison break, while viable, it “is extremely limited in its application . . . because of the rule that upon attaining a position of safety from the immediate threat, the prisoner must promptly report to the proper authorities.”  People v. Lovercamp.  In Lovercamp, two women prisoners who were convicted of attempting to escape offered as their defense that they were being threatened by a group of fellow inmates.  The threats were described as “f**k or fight” which resulted in a fight followed by more threats.  Prison officials did nothing for the women’s protection.  As a consequence, they attempted to escape because they “felt they had no choice but to leave the institution in order to save themselves.”  On appeal, the court remanded the case back to trial to consider this defense. 

            While this case illustrates the defense, it is only from the point of view of the prisoner as opposed to an outside third party like Wong.  But, with superhuman law, comes superhuman defenses.  Let’s examine some of the key elements of necessity in the context of the work of the Sorcerer Supreme.  To prevail on a necessity defense, the person must have acted out of an objective actual knowledge that they were preventing some form of harm.  The objective aspect is determined by whether a reasonable person would also have acted in the same way under similar circumstances.  In this case, would an aspiring Sorcerer Supreme have broken The Abomination out of jail to guard our dimension.

            First, we must examine the importance of the Sorcerer Supreme.  As Screen Rant defines the job: “The Sorcerer Supreme carries the intimidating weight of protecting the world by maintaining a mystical barrier that guards against invasions from other realms.”  Scott Silson, What Does Sorcerer Supreme Even Mean & Why It Matters To Doctor Strange.   As Stephen Strange was snapped out of existence by Thanos, it was up to Wong to become the next Sorcerer Supreme to protect our world from, as we saw in Doctor Strange, very real mystical threats.  As Wong tells Jennifer Walters (who hopefully will be representing him), he “extracted [The Abomination] from the prison against his own wishes” because he “required a worthy opponent as part of [his] training to become Sorcerer Supreme.”  So if Wong does not break Blonsky out of prison to complete his training, the Earth would be in danger of imminent invasion from other realms like we saw in Doctor Strange with Dormamu.  

            But again, not so fast, necessity requires no reasonable alternatives.  Yet that may be the case here as well.  When She-Hulk takes place, other powerful beings are unavailable.  As we see in the post-credits scene in Shang-Chi and the Legend of the Ten Rings and episode one of She-Hulk: Attorney-at-Law, Bruce Banner is incapacitated from his own snap at the conclusion of Avengers: Endgame.  Similarly, Thor is off world having left with The Guardians of the Galaxy at the conclusion of Endgame. That reasonably leaves The Abomination as the remaining superhuman equivalent to test Wong’s powers.  Thus, Jennifer Walters can make a good case to a jury that Wong was just saving us from mystical threats by training to fill the role left vacant by Dr. Strange.  You be the jury.

Wanda’s Liabilities for the Westview Anomaly

(This guest post was written by Law and the Multiverse contributor Scott Maravilla. Significant spoilers in the main body of the post!)

The Marvel Cinematic Universe (MCU) does a good job of contemplating the ramifications on the civilian population from the actions of superpower beings.  After the Hulk and Iron Man laid waste to Sokovia in Avengers: Age of Ultron, the United Nations stepped in.  The Sokovia Accords became a (literally) divisive moment among the Marvel heroes.  The Accords were an attempt by the governments of the world to reign in superheroes and place them under their control. 

WandaVision continues to dwell on the harm a super human can wreck on regular people.  In this instance, the people of Westview, New Jersey.  WandaVision opens as an homage to the golden age of television.  The show references such luminaries as The Dick Van Dyke Show, Bewitched, The Brady Bunch, Family Ties, and Malcolm in the Middle.  Wanda and Vision, now married, settle into life in the suburbs over a multitude of television epochs.  Along for the ride is nosy neighbor Agnes and her ever absent husband, Ralph.  Ralph is reference to such sitcom characters as Buddy’s wife “Pickles” in Dick Van Dyke who is never seen.

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Law and the Multiverse Retcon #11

Way back in 2012 I wrote a post about an episode of the NBC Series Grimm, a show set in the state of Oregon, and the US Supreme Court has just handed down an opinion that reverses my legal analysis. First, a recap of the setup:

The villain of the episode is, unsurprisingly, an ogre.  [Police officer] Nick’s partner Hank helped put [the ogre] in prison 5 years before the episode, and after escaping from prison the ogre comes after Hank.  In the episode, Hank admits that he “misplaced” a faked security camera tape that might have established an alibi for the ogre.  Hank’s reasoning was that the ogre had a really good lawyer, and if only a single juror felt that the tape established reasonable doubt, then the ogre would have walked.

I went on to conclude that, although a charge of aggravated murder would require a unanimous verdict under Oregon law, it would be possible for the jury to convict the ogre of a lesser included offense, such as manslaughter or aggravated assault, on a less-than-unanimous verdict of 11-1 or even 10-2. Thus, even if 1 or 2 jurors believed the alibi, the other 10 or 11 could have still convicted the ogre of a pretty serious charge. Oregon, where the show is set, was very unusual in this regard. It and Louisiana were the only states where that would be possible. (I apologize that my initial analysis missed Louisiana. I honestly don’t recall if I missed it entirely or if I had some reason for thinking that the lesser included offense trick wouldn’t work there.)

In any event, the U.S. Supreme Court has just ruled in Ramos v. Louisiana that the U.S. Constitution requires a unanimous verdict to convict a defendant of “a serious offense”, overruling the law in Oregon and Louisiana. The Court did not explain what a serious crime is, and it is not a well-defined legal term as far as I know, but I would guess that it would certainly include manslaughter or aggravated assault. Now basically any conviction the jury decided on would require a unanimous verdict, even in Oregon or Louisiana.

Conflicts of Interest in the Representation by Matt Murdock of Alleged Criminals Apprehended by Daredevil

(This guest post was written by Scott Maravilla.  Scott writes at the Contract Law Profs Blog and is an alumnus at the PrawfsBlawg.  By day, Scott is an Administrative Judge at the Federal Aviation Administration, although all of the opinions expressed in this post are Scott’s own, and do not represent those of the FAA.  Thank you to Scott for this great post!)

Daredevil is the fictional alter ego of lawyer Matt Murdock in the Marvel Universe encompassing both comics and film.  As a boy, he was blinded by radioactive chemicals, which also left him with his remaining senses functioning at superhuman levels.  This also included a sort of “radar sense” that allows him to perceive his environment in a 360º manner, thus giving our hero an advantage in any fight.

Murdock continues to live in the Hell’s Kitchen neighborhood of New York City (now Clinton but we tend to overlook that fact) where, by night, he fights various nefarious supervillains (his arch-nemesis being Wilson Fisk, a.k.a, The Kingpin).  By day, Matt is an attorney.  He has his own law firm located right in Hell’s Kitchen with his partner, Foggy Nelson (Nelson & Murdock).  One of the emerging themes of the story is that Matt Murdock often finds himself representing the very villains he’s captured.  Thus, the issue arises whether is ethical for Matt Murdock to represent the alleged criminals he brought to justice as Daredevil.

Illuminating that question is a New Jersey Advisory Committee on Professional Ethics opinion:  Opinion 709 – Conflict of Interest: Municipal Police Officer Who Is an Attorney Engaging in Private Practice of Criminal Law, 185 N.J.L.J. 1202 (September 25, 2006), 15 N.J.L. 2166 (October 16, 2006).  The full text of the Opinion can be found here  and here.

The Advisory Committee was concerned with “the propriety of a municipal police officer who is an attorney affiliating with a law firm located in a municipality bordering that in which he serves as police officer” representing criminal defendants.  The Committee concluded that the representation of a criminal defendant by an officer within his or her municipality is prohibited under RPC 1.8(k).  While Daredevil is practicing in New York, not New Jersey, we’ll view the Advisory Opinion as persuasive (which it is).

Opinion 709 observes that the Rules of Professional Conduct (RPC) for New Jersey do not have a sanction for an appearance of impropriety.  Thus, the most obvious reason to dissuade Murdock’s practice is not available in the Garden State.  However, the appearance prohibition is included in many other jurisdictions including New York.

RPC 1.8(k) states that:

 A lawyer employed by a public entity, either as a lawyer or in some other role, shall not undertake the representation of another client if the representation presents a substantial risk that the lawyer’s responsibilities to the public entity would limit the lawyer’s ability to provide independent advice or diligent and competent representation to either the public entity or the client.

I recognize that Daredevil is not “employed by a public entity.”  However, for purposes of this post, we are assuming that Daredevil’s actions are sanctioned by the authorities (in the comics and television series, this is not always the case).  The public support for his endeavors helps to make the case more persuasive (it also opens up for some interesting debate in the comments section).

RPC 1.8(k) further provides that an “attorney who is employed by a municipality as a police officer shall not undertake representation of a client if there is a substantial risk that the attorney’s responsibilities to the municipality would limit the attorney’s ability to provide independent advice or diligent and competent representation to the client.”  RPC 1.7(a)(2) also prohibits representation where there is a “significant risk” that the lawyer’s ability to advise the client is “materially limited” by their responsibility to a third party.

The Opinion provides that “[m]unicipal police officers exercise full law enforcement powers within the territorial limits of their municipality.”  They have a duty, within their municipalities to enforce the law, “to take other steps to detect and apprehend violators of the law,” and assist with the prosecution.  The latter is very important because the work involved with the prosecutors may affect the ability of the lawyer to provide legal advice in another matter.

For further support in analyzing the conflict between lawyer and assisting the prosecution, the Advisory Committee relied upon the New Jersey Supreme Court holding in State v. Clark, 162 N.J. 201 (2000).  The Court “held that a municipal prosecutor may not represent a defendant in a criminal matter in the Superior Court of the county in which he or she serves as municipal prosecutor.”  The Court’s rationale was “that the integrity of the criminal justice system could be impaired when an attorney serves a dual role of municipal prosecutor and criminal defense attorney in the same county.”  Based on this line of reasoning, the Opinion notes that “the police officer witness [could give] direct testimony for the prosecutor one day in Superior Court, then appear as opposing counsel to the same prosecutor the next day in his role as defense attorney.”  Like Opinion 709, the Supreme Court declined to extend the ban beyond the jurisdiction at issue.

While not prosecuting, Matt Murdock is serving as the attorney for the alleged criminals in the very jurisdiction in which he apprehended them.  In Daredevil # 174, he represented Melvin Potter, a.k.a., Gladiator asserting an insanity defense.  In the recent Netflix series, the firm represented Frank Castle, a.k.a., The Punisher, who was also defeated by Daredevil.

Murdock’s representation does pose a “significant risk” of being “materially limited” by his obligations to a third party, i.e. Daredevil.  Can he really allow Melvin Potter to walk only to later combat him when he assumes his alter persona, Gladiator?  The same goes for the unremorseful Punisher who is himself an anti-hero.  Further, as in Clark, “the integrity of the criminal justice system could be impaired when an attorney serves a dual role of” a superhero.

Following the logic of Opinion 709 and Clark, the case against Daredevil is even stronger because the officers in question there do not purport to represent the perpetrator they themselves arrested.  It is not as if he is the defense attorney for supervillains captured by the Fantastic Four or Spiderman.

Interestingly, according to Opinion 709, RPC 1.8(k) and Clark may also prohibit representing criminal defendants in other jurisdictions.  It depends on the particular facts of the case.  So, Murdock is not completely off the hook when it comes to super-team ups (sorry, Defenders).

The one ray of hope for the firm of Nelson & Murdock is that Daredevil’s conflicts are not automatically imputed to Foggy Nelson.  The “conflicted lawyer must be screened completely from any representation by other lawyers in the firm.”  As Foggy Nelson knows the secret identity of Daredevil (at least in the Netflix show), this arrangement can be made.

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).