Category Archives: criminal procedure

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!


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).

X-Men: Days of Future Past and Thoughts on Due Process

This guest post was written by Joe Suhre, of Suhre & Associates, LLC, a firm with offices in Chicago, Illinois, Dayton, Ohio, and Columbus, Ohio. Joe previously wrote guest posts on Defending Loki and Captain America: The Winter Soldier.

The Most Important Movie of the Year?

Recently, US-authorized drone strikes killed several American citizens accused of being a threat to the country based on their terrorist affiliations and unapologetic rhetoric opposing US policy.

Oh, wait . . . that was the beginning of X-Men: Days of Future Past.

You probably already know that this article will have multiple spoilers, so if you haven’t yet seen the latest iteration of Marvel’s X-Men, you should go see it soon. Then come back and tell me in the comments whether you believe in my assessment of this film or not.

What’s the Big Deal?

If you have seen Days of Future Past already, did you see what I saw? I will admit it is somewhat hidden, but only because we are trained to ignore it, since it just gets in the way.

I am talking about due process—due process, as in the opposite of capricious verdicts and judgments based on prejudice, fear, and political expediency; as in that little right we inherited from our Founding Fathers, who had experienced the lack of due process first hand and decided the Constitution wasn’t complete until we included it in the Bill of Rights.

You might disagree with me when I say the framers of the Constitution had the events of X-Men: Days of Future Past in mind when they insisted that due process be inviolate, so let’s review the instances in the movie and then see if we face the same issues today.

First Class 

Everything really started at the end of X-Men: First Class when, in a mercurial moment, mutants went from heroes to goats on the beach in Cuba, incurring the wrath of the instantly allied US and Soviet fleets. The Soviets would obviously have no problem firing on a small contingent of Americans, but why did the generals calling the shots in Washington order the execution of US citizens without due process? And why were the American Sailors, so soon after World War II, willing to “just follow orders,” especially after hearing Agent MacTaggert screaming over the com that the situation was contained?

I guess their justification for such an attack was fear; fear based on ignorance and concern for safety. Which, by the way, is the same tactic currently exercised by law enforcement across the country. In fact, according to the Bureau of Justice Statistics, police kill 400 – 500 innocent people each year out of fear for their own safety, significantly more than the 33 officers killed by firearms each year in the line of duty.

A 2012 example of irrational fear in Cleveland, not unlike the attack levied against the mutants on the beach, involved a man and woman whose car backfired. The retaliation by police to the possible gunfire from the car resulted in a force of 60 police cars pursuing the now frightened couple and ended with 115 officers firing 140 bullets into the car in less than 30 seconds. The unarmed couple was pronounced dead on the scene.

Kennedy Assassination

Speaking of no due process, although the details were sketchy on how the US government accused Magneto of complicity in the JFK assassination, it is clear that government suspicion that Magneto manipulated the “magic bullet” was justification for his incarceration.

Of course, in 1963 Erik Lehnsherr’s incarceration was illegal, but now after several rounds in congress and many court challenges, the President on December 26, 2013 signed into law that the government can arrest anyone on suspicion only and detain them indefinitely without trial. Welcome to Magneto’s world.

Not that I subscribe to the rhetoric of Magneto, but you have to admit that being thrown in solitary without due process, tends to sap any loyalty one might have for King and country; whether you are a German Jew or a US Citizen of the wrong color, species, or ideology.

Vigilante Justice

One element of vigilante justice that makes it not only illegal but immoral as well is that the vigilante, lynch mob, or angry villagers with torches and pitch forks don’t feel bound by due process. Their aim is to dispense justice, quickly—right or wrong. What drives the vigilante is fear that justice won’t happen without them taking over.

Vigilante justice in Detroit occurred in April of this year when a man hit a 10-year old boy with his truck. The driver stopped to help but was immediately beaten into a coma in retaliation even though surveillance cameras would later show the boy ran in front of the oncoming truck leaving no time to stop. Concern for due process would have allowed the mob to see that the man was not at fault after a thorough investigation.

But in another universe, maybe the boy was a mutant, and his fellow mutants felt that there would be no justice unless they acted on their own. Thus was the mindset of Mystique as she set about finding and executing Trask. It all seemed clear what she had to do since nobody else was willing to stop Trask from continuing with his plans against mutants. Due process wasn’t on her mind, and as it usually does, her vigilante justice backfired.

Due Process and Personhood

Without getting into a history lesson on civil rights in America, one doctrine that kept slaves and minority races under the boot of the majority was the belief that they didn’t fully qualify as human. The majority claimed belief in rule of law, due process, and justice, yet denied an equal share of this philosophy to those deemed as “less human.” This belief also fueled the Holocaust in Germany, where enslavement and execution of “untermenschen” or “subhumans” was ok, to the tune of eleven million dead.

Trask was quick to play on this flaw in humanity when he was able to convince the powers that were, that mutants, by virtue of their differences also didn’t deserve consideration as humans and should be targeted as enemies. His deep seated prejudice was made plain when, suspecting a Vietnamese general to be a mutant, he said to others in the room driven to panic, “Don’t shoot it.”

Denying Due Process 

I dare say, in a classroom most students would see the injustice and immorality of denying human rights to any individual based on race. Maybe racist attitudes are fading away in our culture. Let’s hope so. But my discussion has not been about the obvious ethnic lessons of X-Men: Days of Future Past. I have been talking about due process and why we should be aware of its importance.

To whom are we willing to deny due process today? Do you think we should afford all people the right of presumed innocence? Or are some crimes so heinous that it is hard to restrain us from rushing to judgment and bypassing due process? Unfortunately, I have seen instances where many people feel that for some crimes due process isn’t important and should be suspended. Let me toss around a few words. Let’s see what your emotional response is to arresting:

  • Drunk drivers;
  • Terrorists;
  • Child molesters;
  • Rapists;
  • Drug dealers

A police officer arrests and handcuffs a man.

You have the right to . . . oh never mind, just get in the car @$&hole.

The question is, are we willing to trust our system of justice when it comes to these types of crimes? Or do we treat these individuals as “mutants . . .” to be feared and condemned as guilty before they are even tried? In the case of a drunk driving arrest, you are presumed guilty. Your license is suspended and you are given a notice of suspension. Police officers in these cases are judge, jury, and executioner. It is a very efficient system.

However, putting justice in the hands of the people can be slow. It was a risky move by the founding fathers. Many feel that people show too much mercy and not enough justice. They fight for mandatory sentences, new laws, and regulations that take authority away from the judge and jury. They allow exceptions to every right we have in an attempt to control our “unruly” system.

I like what Charles Xavier said to Raven at the end of X-Men, “I have been trying to control you since the day we met and look where that’s got us . . . I have faith in you Raven.” Perhaps we should have faith in each other as well.

Due process isn’t perfect, but it is fair. It is foundational to our freedom. In light of the alternative, it is a pretty big deal. Is it significant enough to suggest that X-Men: Days of Future Past is the most important movie of the year?

Ask me again in ten years.

Captain America: The Winter Soldier

This guest post was written by Joe Suhre, of Suhre & Associates, LLC, a firm with offices in Chicago, Illinois, Dayton, Ohio, and Columbus, Ohio. Joe previously wrote a post on Defending Loki.

Introduction by James Daily: This post contains significant spoilers for Captain America: The Winter Soldier.  It’s a very good movie, and if you haven’t seen it you should definitely check it out!

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Elementary: “Child Predator”

I’m back after a brief hiatus! A whole bunch of reader questions have accumulated in the mailbag, and I’m going to try to work through the backlog. Today’s comes from Bob, a British reader who asked about the American show Elementary, specifically the first season episode “Child Predator” (spoiler alert!).  If you haven’t seen Elementary, I recommend it.  I actually prefer it to Sherlock.

Anyway, on to Bob’s questions (again, spoilers):

[In the episode,] a multiple child-killer initially tricked the police into believing he was an unwilling accomplice of the “real” killer. Believing this to be the truth the DA offered immunity from prosecution in return for his help in catching the “real” killer. Holmes subsequently discovered that the roles were really the other way round – he was the real killer and the man he claimed to be the accomplice of was, in fact, the unwilling accomplice. The deal is specifically immunity from any crimes committed in concert with the other man.
The deal is implied to still hold and he openly admits his crimes to Holmes, apparently certain that he is safe from prosecution.
One of the crimes is later discovered to be a solo endeavor as the other man was in hospital when it was committed.  [At the] end of the episode the police are about to arrest him for that one crime.

I’m British and pretty much everything I know about American law comes from your blog or the sources that inspired it, so I have three questions.

1. Would the DA really offer such an all-encompassing deal.
2. When it’s discovered that he really is the prime instigator would the deal still hold.
3. Would the “solo” murder be covered by the deal  or not.

I. Immunity in Exchange for Cooperation

As I told Bob when he sent in the question (way back at the end of 2012, embarrassingly enough), I don’t have enough criminal law experience to say whether the deal was realistic.  My gut says yes.  In theory the “accomplice” had a good defense (duress, since he was originally kidnapped by the actual accomplice), he was a minor for most of the crimes, and the police and prosecution needed his help to put away the person they thought was the actual mastermind.  Granting immunity in order to allow one member of a conspiracy to roll over on another is a common tactic, and I could see it being used here.

II. Just How Strong are Immunity Deals Anyway?

It has been recognized for some time that plea bargains can be enforced against the government. Santobello v. New York, 404 U.S. 257 (1971).  But what about deals in which the defendant is offering something else, such as agreeing to testify as a witness against other participants in the crime?  It turns out that such agreements are not always enforceable.

The Second Circuit (which includes New York) has held that “the government may in its discretion make agreements in which it exchanges various levels of immunity from prosecution for the defendant’s cooperation” and that such agreements are subject to ordinary contract law principles.  U.S. v. Aleman, 286 F.3d 86, 89 (2d Cir. 2002).  These principles include construing any such deal strictly against the government (because, after all, the government wrote the deal). Id. at 90.

However, all the strict-construing in the world won’t save a defendant who fails to uphold their end of the bargain.  A common feature of immunity deals is that the defendant-witness has to agree to testify truthfully.  As the Aleman case held, “truthful” can include a sincere but incorrect belief, but it doesn’t include lying. Id.  On the other hand, while the government has the discretion to decide if a defendant has adequately cooperated, “the government’s discretion does not grant it power to turn its back on its promises to the defendant under the cooperation agreement or to ignore a defendant’s cooperation efforts simply because the defendant is supplying information that the government does not want to hear.”  Id. at 91.

Aleman was a federal case, however, and the case in Elementary was a state case.  So what do the New York courts say about this?  It turns out that there’s a fairly similar New York case, People v. Curdgel, in which the defendant was given a reduced sentence in exchange for testifying against his accomplices.  83 N.Y.2d 862 (1994).  After he testified, however, the defendant went on television and said that he had lied to the grand jury.  The prosecution refused to honor the plea agreement, and the highest court in New York upheld that refusal.  The court held that the “defendant failed to uphold his end of the plea agreement and rendered the agreement valueless to the People…We cannot say that essential fairness compels enforcement of the original agreement.”  Id. at 864.

So the answer will almost certainly depend on how exactly the immunity deal was written.  If it included a requirement that the defendant testify truthfully, or if the deal itself included a statement of facts that the defendant swore to, then the prosecution would not be bound by the deal because the defendant breached it by lying.  But if the deal was sloppily written and simply gave the defendant immunity in exchange for agreeing to testify (regardless of the content of his testimony), then the government may not have much of a leg to stand on.

III. The Scope of Immunity

Whether or not the “solo” murder would be covered by the deal depends again on how exactly it was written.  The language we get from the episode is “in concert with.”  We know that the real accomplice was in the hospital recovering from a major surgery at the time of the solo crime, so he certainly wasn’t actively involved in the commission of the crime.  However, the defendant likely used the accomplice’s vehicle and other, indirect, forms of assistance.  It could be argued that the deal should be strictly construed against the government to include not just conspiracy but also accessory or accomplice conduct.

That all assumes that the deal holds at all, however.  As discussed above, it’s very likely that the deal would fall apart completely once it came out that the defendant was lying about his role in the murders.


More Guest Blogging

The guest blogging at The Volokh Conspiracy continues with The Adventure of the Fruit of the Poisonous Tree, which is sort of like Is Batman a State Actor? except for Sherlock Holmes in Elementary.

The Courtroom Antics of Golden Age Green Lantern

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.

I. Mistrials

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.

II. Admissibility

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.

III. Conclusion

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.

Iron Man 3 Questions

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.

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Silence & Co.: Money Is Power

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

Arrow: “Innocent Man”

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

Little Brother, Part 1

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 BrotherHomeland, 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.

Spoilers below for those who haven’t read Little Brother.  If you haven’t, go buy it.  Or download it for free.

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