Category Archives: evidence

Legal Responsibility for Insane Robots

Insane robots that turn against their creators or try to destroy humanity are a pretty common theme in lots of media, not just comics.  Of course, this is a blog primarily about comic books, so we’ll take an example from there, as inspired by a question from TechyDad, who asks about Henry Pym (aka Ant-Man) and his potential liability for the creation of the robot Ultron, which in its various incarnations has done all kinds of terrible things, including attempting to destroy the world.

I. The Setup

The first thing to consider is whether an intelligent robot could be criminally or civilly liable for its own actions.  As with all other intelligent non-humans, the answer seems to be no unless Congress explicitly allows for it.  Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004).  Since Congress doesn’t seem to have done so in the comics, we must now consider whether any of the liability falls to Pym, and for that we need the facts of a particular case.

The example TechyDad wanted to know about comes from the TV series The Avengers: Earth’s Mightiest Heroes, specifically the episode The Ultron Imperative.  In the episode, Ultron nearly destroys the entire world by launching S.H.I.E.L.D.’s nuclear arsenal.  Ultimately, Pym stops Ultron at the last second, but Pym is blamed for the incident, since a) he created Ultron and b) infused it with his own mental patterns, although it may have been corrupted by Kang the Conqueror and was definitely weaponized by Stark Industries, albeit with Pym’s help.  Pym accepts the blame and admits that it was his fault.

So, then, who is liable here and for what?  We’ll start with torts.

II. Tort Liability

There are three major bases for tort liability: intentional misconduct, negligence (and its close cousin, recklessness), and strict liability.  We can definitely weed out intentional misconduct, since Pym neither intended nor had knowledge to a substantial certainty that Ultron would turn violent and try to destroy the world.

Next we consider negligence.  The key question (although not the only question) is whether Pym used reasonable care in the design and deployment of Ultron (i.e. whether the cost of avoiding the incident was more or less than the expected value of the harm caused by the incident).  This is a complicated question.  On the one hand, Pym is a genius and seems to have tried very hard to make Ultron a force for good.  And before Ultron 6 showed up Pym was in the process of destroying every last Ultron component he had previously created.  On the other hand, the potential for serious harm caused by a nigh-indestructible, highly intelligent, weaponized robot is so high that it’s possible that even that level of care was not enough.  In fact, the potential for harm is so high that it might even fall under strict liability.

Strict liability (i.e. liability without regard to the level of care or fault) is rare in torts.  There are two main cases where strict liability is applied: abnormally dangerous activities (aka ultrahazardous activities) and some kinds of products liability.  Since Ultron wasn’t a product, that leaves abnormally dangerous activities.  Examples of abnormally dangerous activities include transporting gasoline, dynamite blasting, and the ownership of wild animals.  The Restatement (Second) of Torts defines abnormally dangerous activities thus:

In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.

It seems that the creation and weaponization of Ultron meet all of these criteria.  There’s a high degree of risk of harm because robots are unpredictable.  The likelihood that the harm will be great because it was equipped with powerful weapons.  Pym couldn’t eliminate the risk despite (in the comics) decades of trying.  Such robots definitely aren’t common.  Ultron was meant to protect people, which necessarily means he would be close to bystanders, which doesn’t seem appropriate.  Ultron’s value to the community seems to have been pretty low since existing superheroes were capable of handling the threats Ultron was meant to help with.

So then, it may not matter whether Pym was blameworthy or not.  If strict liability applies then the rule is “you makes your insane robot and you takes your chances.”

III. Criminal Liability

Luckily for Pym, strict liability is even less common in the criminal law.  In fact, it’s usually only found when the stakes are very low (e.g. speeding), although there are exceptions (e.g. statutory rape).  It doesn’t apply to anything Ultron did, in any case.  Another thing we can say is that Pym wouldn’t be guilty of attempted murder (or attempted anything, for that matter) because attempt requires intent, and Pym clearly didn’t intend for Ultron to attempt to kill anybody.

That doesn’t clear Pym of wrongdoing, however.  There’s still criminal negligence (which is a higher standard than ordinary tort negligence).  For example, in New  York, criminal negligence is defined by N.Y. Penal Law § 15.05(4) this way:

A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

So, in New York criminal negligence requires a “gross deviation” from reasonable care.  Since Pym seemed to try very hard to avoid harm, he might escape criminal liability unless a reasonable person would say “there is no way to make this safe, so I won’t even try to make a robot like Ultron.”

IV. What About Other Defendants?

So that’s Pym’s potential liability, but what about the other people involved?  After all, it was Tony Stark and his company that weaponized Ultron in the first place, and Stark says that he is “just as responsible.”  That probably doesn’t take Pym off the hook, however, since Pym was involved with that work.  It might make Stark and Stark Industries liable, however.

V. Evidentiary Issues

Finally, we’ll note that Pym’s admission of responsibility could be used against him in court.  Ordinarily one cannot testify as to something someone else said out of court—that’s basically the definition of hearsay.  But a statement offered against the opposing party (i.e. Pym, as the defendant) that was made by that party is specifically excluded from the definition of hearsay in the Federal Rules of Evidence, specifically Rule 801(d)(2)(A), and many states have similar rules.  So Pym probably should have kept quiet until he talked to a lawyer; his invention did nearly destroy the entire world, after all.

VI. Conclusion

Creators and owners of robots, even intelligent autonomous ones, are (generally) responsible for injuries caused by those robots.  Between that legal rule and robots’ terrible track record of violent rebellion, it’s kind of surprising that so many comic book inventors keep making them.  Maybe Matt Murdock can lead a class action suit against Stark Industries for all the trouble Ultron has caused over the years, although the statute of limitations has probably run on some of the older stuff, since he first appeared in the late 1960s.

All-Star Superman II: The Trial of Lex Luthor

As we previously discussed, Lex Luthor is arrested and put on trial for his actions which result in the death of Superman. In the first issue of All-Star Superman, the arresting officer says that the warrant is for “attempted murder and crimes against humanity.” In issue 5, we see the conclusion of the actual trial, and it seems that at some point the attempted murder charge was seemingly dropped, as when the judge hands down the verdict, he says “Guilty on all counts, of crimes against humanity.”

This is interesting, because there isn’t actually indication of what court we’re in, and “crimes against humanity” aren’t actually crimes in most jurisdictions, in part because the term is at least as much a political term as it is an actual offense. Be that as it may, you will not find “crimes against humanity” listed in any criminal code in the US, state or federal (Well, technically it’s a crime in Puerto Rico (a first degree felony!), so maybe Luthor got busted while returning to his vacation home in San Juan, but we doubt it.). So right off the bat, there’s something we need to talk about. More than that, there’s also the question of what court, if any, would have jurisdiction over such charges. Lastly, we’ll look more generally at the issue of prosecuting supervillains, which as we’ll see is far from simple. Continue reading

Batman’s Medical Records

Russel Saunders over at The League of Ordinary Gentlemen has mocked up a hospital record for Bruce Wayne. It reads remarkably like an actual medical history, which shouldn’t be surprising given that Saunders is a physician. But it winds up getting at a few legal issues about which some comment is merited.

First of all, reading this document should demonstrate, in part, just how hard it would be for a superhero or supervillain to maintain a secret identity. We talked about the difficulties inherent in alter egos about a year ago, but actually looking at what a medical record for a superhero might actually look like just drives the point home. If you go to the hospital, people do ask questions, and health care professionals are trained to ask uncomfortable questions about unexplained injuries. This is partly for the safety of the patient, as a lot of domestic abuse goes unreported until someone shows up at the hospital, and even then it can take some real prodding before the truth comes out. But it’s also partly for public safety reasons, as many people who wind up with unexplained injuries, especially things like gunshots or knife wounds, are involved in something slightly less than legal a lot of the time. While the doctors and nurses who actually provide medical care don’t usually care about whether someone was injured while breaking the law, police departments routinely call emergency departments and hospitals to see if suspects likely to have been injured have turned up.

Second, even though medical records are protected by privacy laws like HIPAA, once this information is out there it doesn’t just go away. If an enterprising Gotham City DA ever suspects that Wayne is up to something untoward, he can get a warrant for Wayne’s health records. All of this information—including the little speculative note at the end of the record—will come out, all of which will put a DA that much closer to putting the pieces together. Wayne may be able to account for his whereabouts in some cases where Batman is known to have been involved, but if he shows up at the hospital every time Batman does his thing, that gets harder to explain. Similarly, a person who sues Wayne for unrelated reasons may well be able to get access to Wayne’s medical history, assuming it’s within the realm of permissible discovery. This could, in turn, lead to other connections being made and investigations started.  Hacking and other unintentional leaks are another way the information could become public. And like with WikiLeaks, once information is out there it’s hard to make it go away.

Third, there’s the issue of payment. Wayne is listed as self-pay, which is entirely plausible given his particular position. But what about Dick Grayson and Jason Todd? Or Selina Kyle? Or Frank Castle? Or basically any other more-or-less normal guy with a dangerous sideline, no healing factor, and a masked identity? How are they paying for their medical care? Insurance? Certainly not from their employers, and even if they were, that means that some claims adjuster out there is getting regular reports of outrageous physical trauma. Phone calls are going to be made. Self pay? Do these people even have jobs? If not, where are they getting the money for all of this? If they’re paying, someone is going to start asking how, and if they’re not, the hospital is going to start getting pissed. Again, attention, which is bad news for anyone trying to maintain a successful, secret alter ego. Field-medic-style first aid isn’t really a solution here, as even if our heroes never go to the hospital for the traumas they suffer, they’ll still probably wind up stopping in for something eventually, at which point even a minimal probing of their medical history or a cursory imaging study is going to reveal unexplained past injuries. Questions will be asked.

So good on Saunders for a plausible take on what a document like this would look like. It’s a valuable bit of added realism that comic book writers would do well to consider.

Grimm Round-Up

Grimm is a new TV series inspired by Grimm’s fairy tales (which have also been adapted into an unrelated comic book series).  The premise is that Nick Burkhardt, a Portland homicide detective, is a descendant of the Grimms, a line of monster hunters who fight the various monsters that inspired the original fairy tales.  The show’s intersection of police procedural and the supernatural is a good fit for us, and some readers have asked about it, too.  Since Grimm is a procedural, there aren’t too many legal issues on any given show, but we’ve picked up a few to discuss from the first three episodes.  Spoilers ahead for anyone who hasn’t seen them.

Continue reading

Law and the Multiverse Retcon #2

This is the second post in our Law and the Multiverse Retcons series, in which we discuss changes in the law (or corrections to our analysis) that affect older posts.  Today we’re revisiting one of our earliest posts, Hearsay and Professor X, from way back in December of last year.  Although that post focuses on hearsay issues, this retcon is actually about the Fifth Amendment aspect.  After further research, we think that the original post was incorrect, and that the Fifth Amendment rights to silence and non-self-incrimination would protect against having one’s thoughts read by a psychic.

The Supreme Court has held that “the privilege protects a person only against being incriminated by his own compelled testimonial communications.”  Fisher v. United States, 425 U.S. 391, 409 (1976) (emphasis added).  So what is a testimonial communication?  The Court explained in a later case that “in order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.”  Doe v. United States, 487 U.S. 201, 210 (1988).  There are many kinds of evidence that are non-testimonial and may be demanded without running afoul of the Fifth Amendment, including blood, handwriting, and even voice samples. Doe, 487 U.S. at 210.  Perhaps the best example of the distinction between testimonial and non-testimonial communication is that requiring a witness to turn over a key to a lockbox is non-testimonial, while requiring a witness to divulge the combination to a safe is testimonial.  Id.

(This distinction is of vital importance in the era of password-based encryption, and it is not entirely clear whether the Fifth Amendment protects passwords.  One court decided the issue by holding that the defendant need not give up the password but rather only produce the contents of the encrypted drive.  In re Boucher, No. 2:06-mj-91, 2009 WL 424718 (Feb. 19, 2009).  Thus, the protected evidence (the contents of the defendant’s mind) remained secret while the unprotected evidence (the contents of the drive) were discovered.)

We need not wonder whether reading someone’s thoughts counts as testimonial communication, however.  As the Court explained “[t]he expression of the contents of an individual’s mind is testimonial communication for purposes of the Fifth Amendment.”  Doe, 487 U.S. at 210 n. 9.

One might be tempted to argue that the Fifth Amendment shouldn’t apply because the testimony is the psychic’s rather than the witness’s (i.e. the difference between the witness saying “I saw Magneto kill Jean Grey” and the psychic saying “The witness remembers seeing Magneto kill Jean Grey”).  However, the Supreme Court actually addressed this issue in Estelle v. Smith, 451 U.S. 454 (1981).  In that case, a defendant was subjected to a psychiatric evaluation, and the psychiatrist’s expert testimony was offered against the defendant.  The Court held that the expert testimony violated the right against self-incrimination because the expert testimony was based in part on the defendant’s own statements (and omissions).  Thus, using an intermediary expert witness to interpret a witness’s statements will not evade the Fifth Amendment.

So, contrary to our earlier conclusion, we think that psychic powers could likely not be used to produce admissible evidence from a witness who invoked the Fifth Amendment.  And believe it or not, this issue actually has modern resonance.  Although a far cry from the kind of mind-reading that Professor X is capable of, technologies like fMRI may someday see regular use in criminal investigation.  However, scholars and commentators are divided on whether fMRI-like tests fall under the scope of the Fifth Amendment (i.e. is it more like a blood sample or speech?).  See, e.g., Benjamin Holley, It’s All in Your Head: Neurotechnological Lie Detection and the Fourth and Fifth Amendments, 28 Dev. Mental Health L. 1 (2009); Matthew Baptiste Holloway, One Image, One Thousand Incriminating Words: Images of Brain Activity and the Privilege Against Self-incrimination, 27 Temp. J. Sci. Tech. & Envtl. L. 141 (2008); Dov Fox, The Right to Silence as Protecting Mental Control, 42 Akron L. Rev. 763 (2009).

Daredevil #1

Daredevil was recently relaunched with a new issue #1 (issue #2 comes out tomorrow).  The new series brings a more upbeat take on Matt Murdock, and importantly for us it also brings a new focus on Murdock and Foggy Nelson’s law practice.  Spoilers ahead:  Continue reading

Manhunter, Volume 4, Part 3

We’ve made it to the last part of our series on Manhunter volume 4. This is also the penultimate entry in our larger series on Manhunter, since volume 5 is pretty light on legal issues. To celebrate wrapping up this series, we’re giving away a complete set of volumes 1-5 of the Marc Andreyko run of Manhunter. To enter, simply send an email with “Law and the Multiverse Manhunter Giveaway” in the subject to  Please note that you must be 13 or older to enter.  We’ll choose a winner at random from among all of the entries we receive and announce it with the final Manhunter post.  (In the future we’ll probably give away books before we start writing about them, but we only had the idea for this recently.)

Now on to today’s post.  The remaining issues to talk about in volume 4 are some evidentiary problems and the “elephant in the room” jurisdictional issue.  Spoilers ahead!

I. Evidence, Grand Jury Procedure, and More Legal Ethics

After Spencer obtains Superman’s agreement to testify and to allow the use of the videotape proving that Superman was acting under Lord’s psychic control, she arranges a meeting at the judge’s home with the judge, the prosecutor, Superman, and herself.  There she shows the judge and prosecutor the videotape.  As we’ve discussed, there would ordinarily be no judge involved at the grand jury stage of things.  Curiously, the comic gets several things right at this point that almost make up for things it got egregiously wrong earlier.

First, the judge correctly remarks that she can’t speak to Spencer without the prosecutor present.  California Rule of Professional Conduct 5-300(B) states that attorneys cannot communicate with a judge regarding the merits of a case except

(1) In open court; or
(2) With the consent of all other counsel in such matter; or
(3) In the presence of all other counsel in such matter; or
(4) In writing with a copy thereof furnished to such other counsel; or
(5) In ex parte matters.

So Spencer was right (so far as it goes) to call the prosecutor into the meeting.

Second, the comic correctly shows that both the judge and the prosecutor are not at court while the grand jury is deliberating.  As mentioned in the last post in this series, no one except the jurors and any necessary interpreters may be present for federal grand jury deliberations.

Third, the judge correctly tells Spencer that the evidence can only be offered at trial.  The prosecutor can choose what evidence to present to the grand jury, and once the grand jury has begun deliberating it is too late for the prosecutor to offer any new evidence.  Of course, it’s highly unlikely that the prosecutor would show such evidence to the grand jury anyway.  Although prosecutors may have an ethical duty to give the defendant any evidence tending to prove the defendant’s innocence (ABA Model Rule 3.8(d)), it’s up the defendant to actually use that evidence.  The prosecutor has no obligation to do the defense’s job for it.

Although the comic gets a lot correct there, there’s still a significant error here.  Specifically, a judge would look at the video or listen to what Superman had to say outside of the proper context (i.e. a trial or at least a pre-trial hearing).  For one thing, Superman wasn’t under oath, and for another the prosecutor wasn’t given an appropriate opportunity to contest the admissibility of the video (he made a lame show of opposition but the judge told him to shut up).  So we’ll have to give this part a mixed review: kudos for getting some of the ethical and procedural issues right but minus points for trying to present evidence outside of court.

II. Jurisdiction

We saved this issue for last because it actually makes almost everything else in this case moot: the United States has no jurisdiction over Maxwell Lord’s murder because Wonder Woman killed Lord at Checkmate’s headquarters in Switzerland, which is outside both the US’s territorial boundaries and the federal government’s special maritime and territorial jurisdiction.  The fact that Lord is a US citizen doesn’t change the result.

Of course, Wonder Woman could have been charged and tried in Switzerland.   It’s not entirely clear where Checkmate headquarters is located within Switzerland, so we’re not sure which canton’s laws would apply.  In some cantons, Spencer could represent Wonder Woman but it would require the permission of the local authorities and the assistance of a local attorney.  See, e.g., Article 23 of the Geneva Loi sur la profession d’avocat.  In cantons that allow non-lawyers to represent people in court she could certainly represent her.  See, e.g., §§ 2-3 of the Basel Advokaturgesetz.  But in other cantons there doesn’t seem to be any provision for a foreign, non-EU attorney to represent a client in court.  See, e.g., the Bern Kantonales Anwaltsgesetz.

However, even if she could represent Wonder Woman we don’t think it would be a good idea.  Spencer doesn’t appear to speak any of Switzerland’s official languages, and she presumably knows little or nothing about Swiss law, which is a civil law system and thus fundamentally different from US law.  Even if Wonder Woman requested her services, Spencer would have to consider whether she could competently represent Wonder Woman as required by the California Rules of Professional Conduct.  Those rules still apply even if Spencer is outside of the country.  Rule 1-100(D)(1).

Since we know about as much about Swiss law as Spencer, we will not speculate as to what the result might have been had Wonder Woman been tried in Switzerland.  If there are any Swiss lawyers in the audience we’d love to hear from you in the comments.

That’s all for this issue.  Be sure to enter the drawing!

The Trial of Captain America

The Trial of Captain America was a 5 issue Captain America story arc covering the trial of James Buchanan “Bucky” Barnes, who took over as Captain America following Steve Rogers’s apparent death.  There are a bunch of legal issues here—mostly handled pretty well—so let’s get right to it.  Spoilers ahoy.

I. The Charges

By way of background: In 1945 Bucky was found by the Russians after the plane he was in exploded, plunging him into the icy North Atlantic.  The Russians revive Bucky and take advantage of his amnesia to reprogram him as an assassin.  During his career as the Winter Soldier, Bucky kills numerous US citizens.  When word of this leaks out decades later, Bucky submits to a criminal trial in order to clear his name.

So, are these charges appropriate?  There’s no statute of limitations for murder, so when they occurred is unimportant.  But what about where?  No doubt some of the murders occurred “within the special maritime and territorial jurisdiction of the United States” as required by the federal murder statute, 18 USC 1111.  But what if Bucky murdered a US citizen abroad?  Could he still be charged in a US court for that?  As it turns out, maybe.  18 USC 2332 criminalizes, among other things, the murder of US nationals abroad, but it was only enacted in 1986.  Bucky could potentially dodge being charged for a few early crimes that way, but it only takes one successful murder charge to make for a serious prison sentence.

II. Legal Ethics

Steve Rogers asks a friend (and former girlfriend) of his, Bernie Rosenthal, to act as Bucky’s defense attorney.  That’s not the problem.  The problem is that Steve not only sits in on Bucky’s first meeting with Bernie but actively participates in discussion of trial strategy.  We don’t see them discuss anything too sensitive, but this is a great way to waive attorney-client privilege.  Only the client can waive the privilege, but the simplest way to do it is to let a non-privileged person (like Steve) in on the confidential information.  To protect against this, Bernie probably should have asked Steve to leave the room lest he be called to testify about their discussion.  At the very least she should have informed Bucky that letting Steve stay in the room would risk waiving the privilege.

As Kate Spencer did in Manhunter vol. 2, Bernie goes on a Larry King Live-esque talk show to argue her case in the court of public opinion.  Unlike in  Manhunter, this comic doesn’t show her saying anything particularly problematic.  In fact, the host says “many would argue [Bucky] has already been tried in the media”, to which Bernie replies “And that’s why I’m here, Barry.  For weeks we’ve had a 24 hour-a-day bashing of my client with no balance whatsoever.”  This could be seen as an invocation of ABA Model Rule 3.6(c):

a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(A side note: Steve, Bernie, and Bucky discuss whether to put Bucky on the stand, with Bernie against it, Steve initially for it, and Bucky agreeing with Bernie.  While most issues of trial strategy are ultimately at the discretion of the attorney, whether or not a criminal defendant takes the stand is up to the defendant.  ABA Model Rule 1.2(a).  So while Bernie can (wisely) counsel Bucky not to take the stand, Bucky could have gone against that advise.  The same is true of the decision to waive the right to a jury trial, which Bucky does.)

III. Cameras in the Court Room

The judge in the case bars cameras from the courtroom in order to avoid a media circus.  This is a curious thing to mention because it’s a federal case, and cameras are forbidden in federal courts, outside of a very recent pilot program.  Still, a judge has pretty much complete control over the court room, and even if cameras were potentially allowed he could easily prohibit them instead.

IV. “Doctor-Patient Confidentiality”

Sin, daughter of the Red Skull, leaks a video of a interview from a psychiatric hospital in which she accuses Bucky of being the Red Skull’s willing accomplice (and not, as Bucky claimed, mind controlled).  It’s strongly hinted that Sin made up the accusations on the tape knowing that they would be used in the trial.  In any case, the prosecution submits the video as evidence.  While Steve and Bernie are discussing the tape (another ethically shaky move), Steve asks “is it even admissible?”  Bernie replies “I don’t know.  Leaking your own psych interviews to the press probably invalidates doctor-patient confidentiality.”  This is a pretty serious misstatement of the physician-patient privilege for two reasons.

First, doctor-patient confidentiality refers to a doctor’s ethical obligation to keep what a patient tells them confidential.  The physician-patient privilege is the evidentiary privilege that allows a patient to prevent a physician from testifying as to certain things in certain circumstances.

Second, yes, leaking the tape to the press would waive the privilege, but as the holder of the privilege Sin was always free to do so.  The privilege prevents no problems with regard to the tape’s admissibility as long as it is clear that Sin was responsible for the leak.

It’s also worth noting that the federal courts do not recognize the physician-patient privilege.  See, e.g., United States v. Bek, 493 F.3d 790, 801-02 (7th Cir. 2007) (“we can find no circuit authority in support of a physician-patient privilege … and we can find no reason to create one now”).  However, they do recognize the psychotherapist-patient privilege.  See Jaffee v. Redmond, 518 U.S. 1 (1996).  So depending on who Sin was talking to in the interview, a privilege might or might not have existed in the first place, at least as far as the federal courts are concerned.

However, all of this misses the real reason the tape is very likely inadmissible: it’s hearsay because the tapes are Sin’s out of court statements offered to prove the truth of what she’s saying (i.e. that Bucky was a willing accomplice of the Red Skull).  Further, none of the hearsay exemptions or exceptions apply.  Sin isn’t discussing the details of a conspiracy with Bucky that she was a part of while she was a part of it, so Federal Rule of Evidence 801(d)(2)(E) doesn’t apply.  Although it’s a quasi-medical interview these particular statements don’t seem like they were made “for purposes of medical diagnosis or treatment,” so 803(4) doesn’t apply.  Sin is unavailable to testify, but her testimony doesn’t meet any of the 804(b) exceptions.  The 807 / 804(b)(5) catchall exception could apply, but we find it extremely hard to believe that Sin’s interview has the necessary “equivalent circumstantial guarantees of trustworthiness.”  She is, after all, a delusional psychopath with a known vendetta against Captain America.  It’s hard to get less trustworthy.

There are more legal issues  in this storyline to talk about.  Check out part 2 here!

Manhunter, Volume 2

(Note: We’ll have a review of the new X-Men movie up soon.)

This is the second post in our series on the Marc Andreyko run of Manhunter (here is the first).  The second volume contains some interesting legal issues, including prosecutorial ethics and subpoenaing a superhero.  Spoilers follow.

I. Prosecutorial Ethics

Kate Spencer (aka Manhunter) is a federal prosecutor.  In advance of the trial of Shadow Thief for the murder of Firestorm, Kate appears on a Larry King Live-esque TV show to talk about the trial, which she is litigating.  A caller asks Spencer if she thinks Shadow Thief will plead out or offer to turn state’s evidence against other supervillains.  Spencer responds “Well, I can’t get into specifics about the prosecution’s plans, but Mr. Carl Sands has many connections in the supervillain community, so I would, theoretically, be interested in hearing what information he would have to offer” (emphasis in original).

This is a somewhat problematic statement.  California Rule 5-120—California’s version of ABA Model Rule 3.6—governs trial publicity, and it specifically applies to prosecutors and defense attorneys.  The general rule is that

A member who is participating … in the … litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

Here, Spencer is participating in the litigation of a matter and has made an extrajudicial statement (i.e. out of court) that will definitely be disseminated by means of public communication (she’s on a live national TV show).  The question is, does the statement have a substantial likelihood of materially prejudicing the trial?  That’s hard to know.  Certainly the statement could be prejudicial because it suggests the defendant’s guilt by association.  However, if it can be proved in court by admissible evidence, then that’s less of a problem.  Unfortunately, we never see such evidence introduced, so it’s hard to say.  This kind of statement is indicative of the careful line prosecutors and other litigators must walk when talking about a case, and Spencer’s other public comments (at least the ones we see) are carefully measured.

II. Serving Superman a Subpoena

Actually, Superman, Hawkman, and Batman are served, although we only see Superman and Hawkman testify.  The interesting thing is, they are served at Justice League headquarters on the Moon.  Naturally this raises a question: is such service of process effective?  After all, it’s for a federal court case, but the Moon is explicitly not the territory of any nation.

Federal Rule of Criminal Procedure 17 states:

A marshal, a deputy marshal, or any nonparty who is at least 18 years old may serve a subpoena.  The server must deliver a copy of the subpoena to the witness….If the witness is in a foreign country, 28 U.S.C. § 1783 governs the subpoena’s service.

The process server delivers the subpoenas in person the three recipients.  But what about this “foreign country” business?  We think a court would consider this to include the Moon, despite its non-territorial status.  The Rules make a distinction between the United States and “foreign countries,” and a court could easily read this to mean “the rest of the universe.”

As the Supreme Court has said “Nor can it be doubted that the United States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal. … It is also beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned.”  Blackmer v. United States, 284 U.S. 421, 437-38 (1932).  It is unlikely that the courts would allow a witness to escape this duty simply by fleeing to unclaimed territory, especially when service of process was otherwise carried out properly.

So on to 28 USC 1783:

(a) A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it … of a national or resident of the United States who is in a foreign country … if the court finds that particular testimony … by him is necessary in the interest of justice

(b) The subpoena shall designate the time and place for the appearance …. Service of the subpoena … shall be effected in accordance with the provisions of the Federal Rules of Civil Procedure relating to service of process on a person in a foreign country. The person serving the subpoena shall tender to the person to whom the subpoena is addressed his estimated necessary travel and attendance expenses, the amount of which shall be determined by the court and stated in the order directing the issuance of the subpoena.

Superman, Hawkman, and Batman are all identified as nationals or residents of the United States (“Superman of Metropolis, Hawkman of St. Roch, Batman of Gotham”), and presumably the court is satisfied that their testimony is necessary.  And since the JLA has a teleporter, Superman and Hawkman can fly, and Batman owns his own plane, we’ll assume that either travel and attendance expenses were waived by the witnesses or that the court found them to be zero.

In sum: if you can find them, you can subpoena a superhero pretty much anywhere.  And if they don’t show up, then the court can find them in contempt, fine them up to $100,000, and sell their stuff to pay the fine under 28 USC 1784.

III. Superheroes on the Stand

Hawkman and Superman both testify at the trial as witnesses for the prosecution.  Hawkman testifies about the defendant, Shadow Thief, and Superman testifies about Firestorm, the victim.  We want to address two issues raised by their testimony.  First, Hawkman gives a good example of common hearsay issues, and Superman gives a good example of the practical reality of asking a superhero about their identity on the stand.

Spencer asks Hawkman “And did you, in your many confrontations with [the defendant], ever warn him of the dangers of prolonged use of the device [that gave the defendant his powers]?”  Hawkman answers “When he wasn’t trying to kill me, yes, but [the defendant] wouldn’t hear of it.  He believed that he was stronger than the belt and ignored my multiple warnings.”

There are two issues here.  First, Hawkman is recounting his own out of court statements to the Shadow Thief (i.e. the warnings).  This is not hearsay, however, because the statement is not offered to prove that the belt was, in fact, dangerous (Hawkman’s own expert testimony regarding the belt is sufficient for that).  Instead, the statement is offered to prove only that Shadow Thief was on notice.  This is a classic non-hearsay use of an out of court statement.

Second, Hawkman says “[the defendant] wouldn’t hear of it.  He believed that he was stronger than the belt.”  This is problematic.  If Shadow Thief had made some statements to that effect (e.g. “I’m strong enough, Hawkman”), then Hawkman’s testimony as to those statements would be admissible under FRE 803(3) as “a statement of the declarant’s then existing state of mind.”  As it was, though, the defense really should have objected to that answer.

Finally, the defense asks Superman point blank “what is your legal identity?”  Naturally, Superman refuses to answer.  Then the defense does the smart thing and simply notes that the witness is refusing to answer a direct question under oath, thus impeaching Superman’s credibility as a witness.  Theoretically the defense could press the issue, and the court could even find Superman in contempt, but everybody knows that would be a pointless distraction.  This is probably how things like this would actually play out in court.

IV. Conclusion

There are more legal issues to cover in the next three volumes, so stay tuned for the rest of this series!

Daredevil: The Trial of the Century Part II

For the first part of our series on this Daredevil storyline we discussed the charges against Daredevil’s client and evidentiary procedural issues.  This post will address a variety of issues and observations about the trial.  We’ll begin with evidence gathering.  As with the prior post, spoilers follow.

I. Evidence Gathering by the Defense

The defense team hires Heroes for Hire to track down and interrogate the gang that actually committed the murder.  Apart from entering the house by busting in the door, this isn’t particularly unusual.  Although the defense can use the criminal version of discovery to obtain a wealth of information from the police and prosecution (see, e.g., Fed. R. Crim. P. 16), a criminal defendant can’t direct the police investigation.  If the police don’t want to follow a particular lead or theory, that’s within their discretion.  As a result, it is common for criminal defendants to hire investigators, including expert witnesses and more traditional private investigators.

II. Legal Research

This storyline has the first conventional legal research scene we’ve encountered on the blog.  It’s true that the She-Hulk’s law firm (Goodman, Lieber, Kurtzberg & Holliway) maintains a law library, but in a bit of Fourth Wall-stretching, the library consists of comic books, which in the Marvel universe are a legally admissible record of the activities of Marvel superheroes and supervillains.

By contrast, the law library at the offices of Murdock and Nelson is pretty typical, if a bit old-fashioned even by 2002 standards.  Although there is a laptop in the scene, most of the work seems to have been done using printed sources.  There’s even the classic Wall O’ Case Reporters (here’s a real-life example), which you might recognize as a common background in law firm advertisements.

These days, most attorneys use electronic sources for the majority of their research.  The two main legal database companies are Westlaw (part of Thomson Reuters) and LexisNexis (part of Reed Elsevier).  Both are expensive, but they’re cheaper than maintaining an up-to-date print library.  Case reporter and statute book subscriptions aren’t cheap.  For example, a not-quite-complete set of federal case reporters costs about $44,000 plus another $2,400 per month to keep them up to date.  It would be much cheaper for Murdock and Nelson to switch to electronic databases.

One tiny nitpick: when listing potential cases to cite, Nelson offers Illinois v. Steve Rogers and Utah v. Banner as possibilities.  Those would actually be People v. Rogers and State v. Banner.  It’s possible that Nelson was indicating a particular case by giving the state name, but he also lists People v. Tony Stark, and we find it hard to believe that Stark has only been a defendant in one criminal case.

III. Witness Examination

There are two issues we’d like to address with regard to witness examination: objections and the examination procedure itself.

On multiple occasions during the trial the prosecution and the defense object to questions asked by the other side.  Like countless other fictional courtroom scenes, the attorneys simply say “objection,” the judge says “sustained,” and that’s that.  In reality, a party must give a brief reason for the objection (e.g. “objection, hearsay”).  A judge may allow an objection without an explanation, but if the judge overrules the objection then the party’s failure to state the basis for the objection may lead to the issue being waived on appeal.  At one point in the trial the prosecutor asks questions over Murdock’s repeated objections without any ruling from the judge.  Again, in reality trials are usually fairly calm affairs and the prosecutor would wait for a ruling from the bench before continuing.  But we’ll give the writers a pass on these, since almost everybody uses these tropes and for the most part they don’t affect the story.

The more important issue is that the writers shortened the examination process.  Most people are familiar with the first two stages, examination and cross-examination.  But the process can go further: redirect, recross, further redirect, and further recross.  At one point both Murdock and Ayala give pained expressions when the prosecutor seems to have trapped Reed Richards with a question without allowing Richards to explain his answer.  In reality, Murdock could have given Richards a chance to elaborate.  This is a bit less excusable than the other issues, but it can still be justified in the name of pacing and the length limitations of the medium.

IV. Putting the Defendant on the Stand

This case is a good illustration of the dangers of putting a criminal defendant on the stand.  Here the problem was that the defendant’s emotions got the better of him in the face of heated questioning from the prosecutor, and he said some things that didn’t reflect well on his character.  This is one of the many reasons why criminal defendants are rarely put on the stand.  The benefits rarely outweigh the risks.

V. Conclusion

All in all, Trial of the Century is a better courtroom storyline than The Trial of Marvel Boy, although that one isn’t too shabby itself.  We’ll analyze more comic book trials as we come across them, but if there’s one in particular you’d like to see us discuss, let us know!