Law and the Multiverse CLE
On-demand CLE courses from Law and the Multiverse, presented by Thomson West:
- 2013 ABA Blawg 100
- Guest Post: Defending Loki
- Wolff & Byrd: Counselors of the Macabre
- The Law of Superheroes, Now in Paperback
- Great Pacific
- Ex Machina: NYC Politics and Police Unions
- Citizenship and Jurisdiction in Ame-Comi Girls
- She-Hulk v. Paparazzi
- The Wolverine: Grand Theft Superpower
- The Wolverine
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Category Archives: criminal procedure
Today’s post comes from an email from an anonymous reader, who pointed us to this fantastic bit of Golden Age Green Lantern weirdness. The blogger over at What Were They Thinking?! wonders if the Green Lantern’s antics wouldn’t be grounds for a mistrial, and our reader had a few questions of their own:
1: Would the witness’s confession be admissible in a court of law, considering it was compelled under threat? Basically, would the events of the last panel have happened the same in a court in today’s time?
2: Could the defendant’s threat to the witness be used against him in this trial (assuming it wasn’t declared a mistrial) or in a subsequent trial?
(Just in case the link goes dead, I’ll summarize the events of the comic. The Green Lantern, as his secret identity Alan Scott, is observing the trial of the alleged leader of a slavery ring. The prosecution’s main witness, one of the henchmen, proves uncooperative on the stand, so Scott changes into his Lantern outfit and returns to the courtroom, where he threatens to kill the henchman if he doesn’t tell the truth. The henchman then points the finger at the defendant, who gives the henchman a death threat of his own. This apparently leads to a guilty verdict for the defendant and the day is saved.)
I’m not going to try to figure out exactly what the relevant law was like in the 1940s. And like many DC heroes, Alan Scott didn’t operate in a well-defined location anyway (originally “Capitol City“). Instead I’ll approach this from the perspective of modern law and use our favorite generic big city stand-in, New York.
In New York, a mistrial can be declared at the discretion of the trial judge, either at the judge’s own direction or on a motion by one of the parties. However, the judge must declare a mistrial on a motion by the defendant if at any time during the trial there occurs “conduct inside … the courtroom, which is prejudicial to the defendant and deprives him of a fair trial.” N.Y. Crim. Proc. Law § 280.10(1). A disturbance in the courtroom (such as an outburst from a member of the public) will not ordinarily result in a mistrial unless it leads to such prejudice.
So what would be prejudicial against the defendant? Well, having a witness give inadmissible, coerced testimony might be one such thing, especially since the prosecution’s case evidently hinged on that testimony. It would be pretty hard to ask the jury to ignore what the witness said, especially after the defendant’s own threatening response. What’s worse, the judge didn’t even try to exclude the improper testimony or have the Green Lantern removed from the court room. So a mistrial would seem to be appropriate, either from the trial judge or on appeal.
It’s true that mistrials are rarely granted in the real world, but this is a really egregious case, far beyond the typical case of a witness making a minor remark, such as accidentally referring to a defendant’s parole status.
As indicated above, I don’t think that the witness’s statement would be admissible. There does not seem to be a specific rule in New York excluding coerced testimony or testimony given under duress, but New York does have its own common law version of FRE 403. People v Scarola, 71 N.Y.2d 769 (1988). That is, evidence that is more prejudicial than it is relevant should be excluded. I don’t know if there are any analogous cases to this one, but it seems pretty clear cut.
The admissibility of the defendant’s response, however, is another matter. Strictly speaking, such a statement would ordinarily be admissible. It wouldn’t run afoul of the hearsay rules (i.e. most of the people in the courtroom could testify as to what the defendant said in a future trial). But the trouble is that explaining why the defendant said that would require explaining the whole Green Lantern outburst, which is really just a backdoor way of introducing the inadmissible witness testimony. I suspect the defendant’s response would stay out as well.
The whole thing is shenanigans piled on top of shenanigans. How on Earth the Green Lantern thought death threats in open court were a good idea, I don’t know. Given its position on the last page of the comic, I suspect the writer found themselves painted into a corner and came up with a solution that is remarkable only for its inelegance. But it’s a good example of how a superhero could actually end up preventing real justice from being done.
We’re going to start our coverage of Iron Man 3 with some questions we received almost two weeks ago from Heiki, who saw the movie at a local premiere in Europe. We had to wait to see it this weekend, but it was well worth it. If you haven’t seen it yet, you should. It’s a great movie. There are some fairly serious spoilers below, though.
Earlier this month, I was fortunate enough to receive an advance copy of Silence & Co.: Money Is Power from its author, Gur Benschemesh. This is his first graphic novel, but the artist (Ron Randall) and letterer (John Workman) both have a long list of titles to their name, many with DC and Marvel. Silence is the story of Alexander Maranzano, the illegitimate but acknowledged youngest son of a major New York crime boss. After getting out of the Marines (for reasons which turn out to be important), he starts working as a hit man for the family. It’s a complete work in three acts, it avoids many of the common pitfalls in crime graphic novels, and it’s got one of the most realistic takes on the process of surveillance I’ve seen so far. Silence is scheduled to hit stores this May, but we’re taking an advance look at its handling of legal issues now. Continue reading
“Innocent Man” is the fourth episode of Arrow, and once again, Laurel Lance’s role as an attorney takes center stage. The plot this time centers on Peter Declan, a man convicted of the murder of his wife and daughter and scheduled for imminent execution. Oliver deduces that Declan is connected to one of the people on his list, so he does a little digging and figures out that Declan is probably innocent. So he goes to Laurel, hoping that she can intervene in Declan’s case. So we’re talking about post-conviction relief. Continue reading
Cory Doctorow’s novel Little Brother is a 2007 young adult bestseller that speculates about the effects of a second 9/11-scale terrorist attack on the United States, particularly with regard to civil liberties. Told from the perspective of teenage hacker Marcus Yallow, the story suggests that the government response would be to combine new technologies with new laws to frightening yet fruitless effect—at least when it comes to combating terrorism. The sequel to Little Brother, Homeland, comes out on February 5th, so we thought we’d talk a bit about the first book and then take a look at the sequel once people have had a chance to read it themselves.
Returning to Green Lantern/Green Arrow # 76, which we started looking at last month, we find two more issues to discuss. First, whether the tape recorder Green Arrow set up would have been admissible if it had worked, and relatedly, whether Green Arrow can testify to the contents of the tape even if it’s broken. Second, whether the arrest of the villain at the end of the story is legitimate. Continue reading
This episode of Arrow, entitled “Lone Gunmen”, aired back in October, but there’s some really good stuff in it. The main legal issue has to do with Oliver Queen’s little sister, Thea, getting picked up by the police for breaking into a store, while drunk, and trying on some outfits with her friends. Continue reading
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. Continue reading
I’m getting up to speed on the latest season of Castle, and there’s a quick pair of issues in episode two which aired back on October 1. The first issue was brought to our attention by Naomi, who writes:
In [the] episode, a suspect is arrested and immediately calls for his lawyer. While they’re waiting for the lawyer to arrive, Beckett and Castle remain in the interrogation room and ignore the suspect, but openly discuss the case in front of him in a (successful) effort to bait him into saying something incriminating. Legally, is this kosher? If it had turned out that the suspect was guilty of the murder, would his outburst have been admissible in court?
So is this okay? Also, what’s the deal with the suggestion that someone is going to jail for violating environmental regulations? Spoilers inside! Continue reading