Category Archives: mailbag

The Flash and Property Rights

More mailbag questions today, this one inspired by this scene in The Flash Vol. 3, #2.  Charles asks:

Now, what the Flash does here is pretty freaking cool, but as you can see in my tags… what happens afterwards? Who owns that building? Do the tenants have to pay rent? Is there going to have to be a contract worked out between the landowners and the Flash? Even if it passes code, will it still be approved for someone to live in because the Flash, from all appearances, isn’t a certified home builder?

There are a lot of questions here, but let’s start at the beginning.

I. Who Owns the Building?  And What About Rent?

Regardless of the prior ownership situation, it’s clear that The Flash is offering the building as a gift.  Acceptance of that gift won’t require a contract (indeed gratuitous transfers are a classic example of a situation in which a contract does not exist).  Whether the owner will accept that gift is the real question.

If the owner of the prior building is the same as the owner of the land it sat on, then they’re unlikely to turn down a nice new building (assuming we can handwave any building code issues).  But if the landowner is not the same as the building owner, then the landowner might have welcomed the opportunity to terminate their agreement with the building owner, perhaps to consolidate lots, rezone the property, redevelop, or simply to sell or lease to someone else.  They might not be so keen on the new building.

It is also possible that the building and land were owned by the tenants themselves, which would probably simplify matters.

In any event, the tenants would almost certainly have to continue to pay rent.  They might not have to renegotiate their leases.  Apartment lease agreements commonly refer to a unit at an address, not to a specific building.  They also typically have clauses dealing with the destruction of the building, but from what I’ve seen of lease agreements it’s entirely possible that the tenants would have a right to continue to lease a unit in the new building (assuming the building owner accepted the gift, etc).

II. Building Code and Permit Issues

Now we start getting into the real problems.  In addition to The Flash (presumably) not being a licensed contractor, he certainly didn’t pull the required permits for rebuilding.  There may not be much legal leeway for the building to be approved without those licenses and permits.  And there are good reasons for this: we’re given to understand that The Flash did a good job of rebuilding, but what if he missed something?  It might not be so easy for the injured party to haul him into court.

And moreover, although the tenants ask “where are we going to live now?”, unless there’s a housing shortage the answer is “another apartment, since you can terminate the lease for the now non-existent one.”  To the extent that their property was destroyed, well, that’s what renter’s insurance is for.  Now, they may not have had insurance, and finding and moving into a new place is costly.  But it seems to me that The Flash could have more easily (and legally) used his powers to quickly make a bunch of money and then just given that to the tenants.  That might be more realistic, but it wouldn’t be very fun.

III. Conclusion

More questions remain: where did he get the building materials?  How did he pay for them?  If he could buy a building’s worth of materials, why not just give the tenants the money?  But the bottom line seems to be that even if he could convince the landowner to accept the gift of the building and the city to approve its construction, it probably wasn’t the best way to handle the situation.  It did make for an awesome comic book scene, though.

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.


Citizenship and Jurisdiction in Ame-Comi Girls

Lately I’ve been working through our backlog of mailbag questions.  Today’s post comes from this email from Jesse, who offers this background:

In issue six of [Ame-Comi Girls] after having saved the world from Brainiac, the heroes discuss their next move when Steve Rogers Trevor, representing the U.S government, informs them—with the exception of Wonder Woman (who possesses Themysciran citizenship)—that they are subject to US law as American citizens which does not allow for vigilantism. He goes on to say that they are warned not to commit any more acts of vigilantism until legislation can be set in motion which would recognize them as acting under the United Nations.

Power Girl (who is of Kryptonian origin and the analogue of superman in this universe) suggests that they could operate from the Fortress of Solitude (Which apparently serves as a Kryptonian embassy located in Metropolis). However Steve Trevor informs them that the United States could ask the embassy to leave and insist that the heroes answer to American authority. (Particularly over the matter of the Batgirl and Robin in this universe being in high school. Something that the government frowns upon as they are still recognized as minors.)

Wonder Woman asserts that she will simply grant them Themysciran citizenship which would make them all subject to Amazonian law which would allow them to continue their acts of vigilantism without answering to American law.

Steve Trevor asserts that this would apparently work for a time but that there would be a number of legal issues if one of them was killed in action.

To counter this, Power Girl asserts that she has the authority to grant them all Kryptonian Diplomatic status as well as the Themysciran citizenship, making them not subject to American authority. Steve Trevor protests this, particularly regarding the fact that half of the team is under 21 but apparently, these actions cannot be countered and he leaves.

This all led to the following questions:

*Could a legislation making allowances for superheroes actually be made? Specifically one that recognizes superheroes as serving under the United Nations.

*Can a nation ask an embassy to leave? I know that this can apply to an ambassador but….

*Could another nation simply grant an American citizen citizenship/diplomatic status? Would something like that even be recognized or is there a process for relinquishing one’s American status?

*Finally, would the whole process even work from a legal stand point as a means for the heroes to continue doing what they were doing?

I’m going to address each of these questions in turn.

I. UN Superheroes

This part seems fairly straightforward.  The US could pass a law or resolution declaring that the US superheroes are acting as UN Peacekeepers, and the UN could pass an appropriate resolution accepting and deploying the superhero forces.  This approach would limit the heroes’ actions to countries that accepted the presence of the Peacekeepers, though.  It would probably also require Security Council approval, but we can ignore that political reality.

II. Kicking Out an Embassy

The short answer here is “yes.”  Contrary to popular belief, embassies are not actually little pieces of the guest country’s sovereign territory.  It would raise a tremendous diplomatic ruckus to do so, but a host country could evict an entire embassy.  Apparently the UK considered doing so in order to get at Julian Assange, for example.  But this is tantamount to completely cutting off diplomatic relations and would not be undertaken lightly.

III. Granting Foreign Citizenship

Sovereign countries can be as promiscuous with their citizenship as they like, and citizenship can be granted outside the normal naturalization process.  The US does it from time to time via private acts of Congress, for example.  The recipient of the foreign citizenship would not even necessarily have to relinquish their US citizenship first, nor would accepting the new citizenship necessarily result in loss of the US citizenship.  8 U.S.C. § 1481, the statute covering loss of citizenship, would not seem to apply if the foreign citizenship were voluntarily offered by the foreign government and did not require an oath of allegiance.  Care would have to be taken that the superheroes were not considered officers in the foreign military, though.

IV. Would This Even Work?

And this is where it all comes crashing down.  If the superheroes are operating in US territory, then the US has jurisdiction over them even if they aren’t US citizens.  And if they try to become foreign diplomats (via Themyscira or Krypton, say), then the US can simply kick them out.  If they refuse to leave then the US can exercise jurisdiction over them in the usual way.

If the superheroes decide to operate exclusively outside the US, then renouncing US citizenship would really get them very few benefits.  Eventually (after the usual penalty period) they would get to stop paying US income tax on income earned in foreign countries, and a few laws affecting actions abroad by US citizens like the Foreign Corrupt Practices Act wouldn’t apply.  But that’s about it.  Waiting for formal legal approval from the US (or whatever country they want to operate in) is probably the better approach.

As an aside: “vigilantism” isn’t a crime as such, at least not in any jurisdiction I’ve looked into.  Vigilantes certainly often commit crimes, to be sure, but it’s possible for a superhero to stay on the right side of the law (e.g. proper use of self-defense, no trespassing to find evidence).

She-Hulk v. Paparazzi

Today’s post was inspired by a question from the enigmatically-named Master182000, who recently reminded me that I hadn’t gotten around to it.  The question points to a 1985 John Byrne-era She-Hulk story (in Fantastic Four #275) in which She-Hulk is photographed while sunbathing on the roof of a tall building (maybe the Baxter Building).  The paparazzi used a helicopter to take the photos, the propellor wash of which blew away the towel she was covering herself with.  As Master18200 summarizes:

Later that day [She-Hulk] (in alter-ego form) and her friend track down the chopper, intimidate the pilot, and confront the photographer, who owns a tabloid called “The Naked Truth”. She confronts him, telling him since She-Hulk is a member of the SAG [as well as other show business unions] and images of her require her release before going to print. The photographer balks, claiming that She-Hulk is a ‘public figure’ and thus images of her are in the public domain and thusly don’t require She-Hulk’s release to print. He carries this argument forward until She-Hulk appears and crunches the photographer’s safe.

This led to the following questions:

1) Which party’s interpretation of the law is more accurate?
2) At what level of celebrity does a person lose 100% of their ‘media rights’ or become ‘public domain’ as the photographer suggests? Is this issue a settled matter at Federal law level or State law level?
3) Aren’t there issues with the way the pictures were taken? I don’t know much about aviation laws, but that chopper was pretty close to the building, close enough for She-Hulk’s clothes and stuff to be blown around.

I’ll take them one at a time.

I. So Who’s Right?

Well, technically neither of them.  There’s nothing special about being a member of SAG that would grant someone more rights than usual with regard to their image, unless SAG has negotiated an agreement with the other party (e.g. a movie studio).  Presumably the tabloid has no agreement with SAG or any other union.

On the other hand, public figures can still have an expectation of privacy, and the roof of a 30 story building, while somewhat exposed, is still a place where most people would have a reasonable expectation of privacy.  Furthermore, She-Hulk was covered up initially and only became exposed because of the close approach of the helicopter, which was intentionally done to blow away her towel.  The First Amendment wouldn’t protect that kind of action.

So She-Hulk is right in that the photographs can’t be published, but not for the reason she offers.

II. Public Figures, Invasion of Privacy, and the Right of Publicity

The notion of a person being a “public figure” mostly has to do with slander and libel, the standard for which for statements about a public figure is higher than for statements made about ordinary people.  Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).  As Chief Justice Warren described it in his concurrence, public figures are those who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.”  Curtis Publishing, 388 U.S. at 164.  As between federal and state law, this is a federal First Amendment issue.

Is She-Hulk a public figure?  Maybe.  It’s hard to get a sense of just how famous any particular comic book character is within their own universe (with a few exceptions such as Superman).  But even if she were, that would only matter for purposes of libel and slander.  And as the sleazy tabloid owner said, the pictures are accurate depictions of what happened, so truth might well be a defense to any libel or slander claim anyway.

But that’s not the claim She-Hulk should be bringing.  What she should be claiming is invasion of privacy (which, when it involves nudity, is a crime in many states) and violation of her right of publicity.  These would be state law claims.  All of this would be sufficient to claim significant damages if not prevent publication of the photos outright (although the courts are pretty loathe to engage in censorship).

III. Aviation Laws

Nowadays the regulations regarding helicopter flights in and around Manhattan are fairly strict.  There are no-flight corridors, weekend bans, and other rules.  But these are mostly new developments, often in response to noise concerns.  Thirty years ago things were a little more free-wheeling, as far as I can tell, and private helicopters may well have been free to more or less buzz buildings.  Of course, had been an accident it would likely have been very easy to establish the tabloid’s negligence or recklessness.

IV. Conclusion

In the US the paparazzi can get away with a lot because of the stringent protections of the First Amendment.  But (perhaps unsurprisingly) ambushing someone with a helicopter in a private space and forcibly removing their clothing is beyond the pale.  She-Hulk (as attorney Jennifer Walters) could probably have succeeded in court where She-Hulk (as She-Hulk) failed using traditional Hulk methods.  In the end, the pictures were published anyway, but the developer messed up the skin color so that the pictures didn’t look like She-Hulk.  A court case might have meant a more satisfying result.  At the very least the damages award (and possible criminal sanctions) might have driven the tabloid out of business.

The Man of Steel Confesses

I know I said the post on Lois Lane’s employment contract would probably be our last post on Man of Steel, but we got a great question from Neal that I couldn’t resist writing up.  Neal—who is a rabbi in New York—writes:

You may remember that Clark Kent goes into a church and confesses to the priest (let’s assume he’s a Catholic priest, for the sake of argument, though to be clear different religions handle “confession” and counseling relationships differently) that he’s the guy everybody is looking for. Now, in NY, that priest can’t be compelled to testify or reveal information obtained while performing the duties of a clergy- penitent or clergy-congregant relationship (as I broadly understand it) but there ARE mandated reporting laws, e.g. regarding child and elder abuse.

So could the Feds or the state government have compelled the priest to testify given that:

1) An alien might not be presumed to be a member of the church, especially if he just showed up and had no prior relationship to this denomination or its clergy,


2) the stakes are just so damn high, like planetary destruction. If there is a mandated reporting law for child abuse- and to be clear I am not 100 percent sure even that overrides the legal protection of the clergy relationship in all instances- wouldn’t it apply on a vastly larger scale with something like this?

These questions raise several issues related to the confessional privilege.

I. The Confessional Privilege in Kansas

At common law there was little or no legal protection for statements made to a member of the clergy in confession or otherwise while seeking religious advice or counsel.  Instead, the privilege is largely derived from statutes.  Generally speaking it is weaker than, for example, the attorney-client privilege, but in some states the confessional privilege can be pretty broad.

I believe that the confessional scene takes place in Smallville, which is located in Kansas.  In Kansas the privilege is defined in the Kansas Rules of Evidence, specifically K.S.A. 60-429(b):

A person, whether or not a party, has a privilege to refuse to disclose, and to prevent a witness from disclosing a communication if he or she claims the privilege and the judge finds that (1) the communication was a penitential communication and (2) the witness is the penitent or the minister, and (3) the claimant is the penitent, or the minister making the claim on behalf of an absent penitent.

So in other words, Clark (if he’s present) or the priest (if Clark is absent) could claim the privilege (become the claimant) in order to prevent the priest from disclosing what Clark told the priest, or in order to prevent Clark from disclosing the same.

Now, there are a lot of specialized terms in that definition, including “penitent” and “penitential communication” (we’ll assume the priest is a regular or duly ordained minister).  Those terms are defined in 60-429(a):

“penitent” means a person who recognizes the existence and the authority of God and who seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging his or her moral obligations, or in obtaining God’s mercy or forgiveness for past culpable conduct

“penitential communication” means any communication between a penitent and a regular or duly ordained minister of religion which the penitent intends shall be kept secret and confidential and which pertains to advice or assistance in determining or discharging the penitent’s moral obligations, or to obtaining God’s mercy or forgiveness for past culpable conduct.

So right off the bat we can see the answer to one of the issues: there’s no requirement that Clark have been a member of the church in question or otherwise have had a pre-existing confessional relationship with the priest.  As long as he “recognizes the existence and the authority of God and … seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging [his] moral obligations”, that’s sufficient.  And honestly I’m not too sure about the “recognizes the existence and the authority of God” part, but it doesn’t appear to have been put to the First Amendment test, at least in Kansas.

In this case, Clark is at least seeking advice or assistance in determining his moral obligations (i.e. whether to reveal himself as Superman and try to do good in the world with his powers).  And it appears that he intended the communication to be confidential.  He and the priest were alone in the church, and I don’t recall him telling the priest it was okay to tell anyone else.  There was a strong implication that it was a confidential conversation, and that Clark told the priest what he did precisely because he believed it was confidential.

II. Any Exceptions?

The Kansas statute, like many such statutes, does not contain much in the way of exceptions.  It sets a relatively high bar to accessing the privilege in the first place, but once it’s reached, that’s pretty much it.  Many states do provide an exception for child abuse reporting, particularly if members of the clergy are mandatory reporters, but the issue does not appear to have come up in Kansas.  Certainly there is no broad exception for the public good or public safety.  And that makes a certain amount of policy sense.  The confessional privilege would be largely pointless if those confessing the possibility of endangering themselves or others (e.g. by committing a violent crime) were not protected by it.

III. But Wait, What About the Feds?

It’s all well and good that the privilege would apply in state court in Kansas, but what about federal court?  After all, it’s not exactly the local sheriff that’s looking for Clark.  Would the priest still be able to keep quiet if there was some kind of federal proceeding?

Maybe, maybe not.  There is no federal confessional privilege statute.  One was proposed as part of the Federal Rules of Evidence, but it was not approved by Congress.  Over the years a federal common law privilege has developed, and it appears to be recognized in Kansas. U.S. v. Dillard, 2013 WL 875230 (D.Kan. Mar. 7, 2013) (“Plaintiff does not take issue in this case with the general existence of the [confessional] privilege. Neither does this Court.”).

I have yet to see a federal case that describes the contours of the privilege clearly, so I will take this summary from a treatise on the subject:

The communication by a spiritual communicant is privileged if it is made to an ordained or otherwise duly accredited functionary of a religious organization in his capacity as such. … The communication must have been made for the purpose of obtaining spiritual aid or religious or other counsel, advice, solace, absolution, or ministration. It must also have been made in confidence.

Paul F. Rothstein & Susan W. Crump, Federal Testimonial Privileges § 10:3.

In this case, the federal privilege would also appear to apply.

IV. Conclusion

The state law confessional privilege probably applied in this case and there probably wasn’t an exception.  The same is likely true of the federal privilege, bearing in mind that it exists on somewhat shaky ground, having never been formally approved by the Supreme Court or even (as far as I can tell) the 10th Circuit, in which Kansas is located.


Guest Blogging at the Volokh Conspiracy

This week we will be guest blogging at The Volokh Conspiracy, a fantastic legal blog co-founded by UCLA law professor Eugene Volokh and Emory law professor Alexander “Sasha” Volokh.  Over the years the Conspiracy has grown to include a number of contributors, most of whom are law professors.

We’ll be taking this opportunity to address some slightly more down to earth topics, particularly the show Elementary, which we’ve received a number of questions about.  Our first post is The Adventure of the Commandeered Snow Plow.

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: The Crimes of The Mandarin

This post was inspired by an email question from Wayne and a comment from Martin, both of whom asked what crimes The Mandarin could be charged with.  Beware: the answer requires massive spoilers.  If you haven’t seen the movie yet, go see it.

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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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Batman and the Unavailable Declarant

Today we have a post based on a question from David, who asks:

I just watched Batman: Year One on Netflix, and there was an interesting issue presented that I thought I’d share. Toward the end of the movie, the corrupt Detective Flass is under indictment for involvement in a big drug scheme. Commissioner Gordon (through Batman’s intimidation) gets one of the crooks involved in the scheme, Jefferson Skeevers, to agree to testify against Flass.

Upon hearing this, Flass tells Gordon something along the lines of “he won’t testify if I have something to say about it…” The scene cuts to Skeevers unconscious in a hospital bed. Assuming Skeevers has confessed in a police statement out of court, wouldn’t this still be admissible against Flass under the forfeiture exception to hearsay as long as the prosecutor can show Flass had something to do with Skeevers hospitalization?

The Batman: Year One movie David mentions is a faithful adaptation of the classic Frank Miller graphic novel of the same name, several elements of which were integrated into the Christopher Nolan Batman films.  The book or animated version are well worth checking out.  We even gave away five copies of the book to celebrate our own year one.

Anyway, back to David’s question.  Before we worry about whether any hearsay exceptions or exemptions apply we have to decide whether Skeevers’s statement would be hearsay in the first place.  We don’t know what rules of evidence apply in a local criminal case in Gotham, but we’ll use the Federal Rules of Evidence, since many state rules are based on or are very similar to the FRE.

I. Is It Hearsay?

Under FRE 801, hearsay is an out of court statement (i.e. an oral, written, or nonverbal assertion) offered to prove the truth of the matter asserted in the statement.  In this case, we’re supposing that Skeevers made an oral or written assertion that Flass was involved in the scheme, Skeevers did so out of court, and the prosecution would offer Skeevers’s statement in order to prove that Flass was, in fact, involved in the Scheme (i.e. as proof that what Skeevers said was actually true).  It doesn’t matter whether the prosecution did this by offering a recording, a signed statement, or the testimony of a police officer who interviewed Skeevers.  All of that would be hearsay.

You might think about the exemption for statements “made by the party’s coconspirator during and in furtherance of the conspiracy”, but although Skeevers and Flass may have been coconspirators at one time, these statements were not made during or in furtherance of the conspiracy.  Indeed, they were probably made as part of some kind of plea bargain or immunity deal.  Without any applicable exemptions, the statements are indeed hearsay, which is ordinarily inadmissible.

Normally this could be overcome by having Skeevers simply testify in person, which would give the jury a better opportunity to judge the truthfulness of his statements, and it would give the defense an opportunity to cross-examine him.  But Skeevers is lying unconscious in the hospital, apparently because Flass or someone acting at his behest put him there.  So now what?

Now we turn to the hearsay exceptions, of which there are several.  Some of them apply whether the declarant is unavailable or not and some of them only apply if the declarant is unavailable.  That said, it appears that only the latter will apply in this case.

II. FRE 803 and Recorded Recollections

You might think that if Skeevers had made a written statement for the police that his statement could be introduced as evidence under the recorded recollection exception of FRE 803(5).  After all, FRE 803 states that “The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness” (emphasis added).  And such a written statement would seem to fit the bill for 803(5):

A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.

Skeevers clearly once knew about Flass’s involvement but also clearly cannot now recall it well enough to testify fully and accurately: he is unconscious.  The statement was made when the matter was fresh in his memory, before the incident that caused his injuries.  And we’ll assume that it is an accurate statement.

But despite the phrase “regardless of whether the declarant is available as a witness“, the courts have been uniform in holding that 803(5) only applies when there is a witness available to testify that they can’t recall the matter reflected in the record.  See, e.g., Steinberg v. Obstetrics-Gynecological & Infertility Group, P.C., 260 F.Supp.2d 492 (D.Conn. 2003) (the argument that 803(5) applies to an unavailable declarant “borders on frivolous”); Jacobson v. Deutsche Bank, A.G., 206 F.Supp.2d 590 (S.D.N.Y. 2002).

None of the other 803 exceptions are likely to apply in this case, so let’s move on to the heart of the matter: exceptions that apply only when the declarant is unavailable.

III. FRE 804 and the Unavailable Declarant

Declarants can be unavailable for a lot of reasons, one of which is when they “cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness”.  FRE 804(a)(4).  That definitely describes Skeevers.

Once a declarant is unavailable, there are some special exceptions that can apply to statement they made before they became unavailable.  Two might apply in this case.  David alluded to one of them (804(b)(6)) in the question:

The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: … A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

If the prosecution can prove that Flass caused (and that includes indirectly causing via an agent or conspirator) Skeevers’s injuries, then it’s pretty much a slam dunk to introduce Skeevers’s statements against Flass.  After all, we already have Flass indicating his intent: “he won’t testify if I have something to say about it…”

Another possibility is 804(b)(3), statements against interest:

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it … had so great a tendency … to expose the declarant to civil or criminal liability

This exception might apply if Skeevers made the statement before he struck an immunity deal.  If he spilled the beans about his role in a criminal conspiracy in which Flass also played a part, confessing to multiple crimes in the process, then that would definitely be a statement against interest.  But if he signed an immunity deal first and then talked, then his statements wouldn’t actually be exposing him to criminal liability and so the exception wouldn’t apply.  If this did apply, however, it could be a useful backup in case the prosecution couldn’t prove Flass’s involvement in Skeevers’s unavailability.

IV. Conclusion

Apart from the issue of proof, this is a classic example of 804(b)(6), which is a rule that meshes very well with most people’s intuition about fairness—and gives criminals a disincentive to intimidate or kill witnesses.