Costumes and the Confrontation Clause

One question that we get frequently here on Law and the Multiverse is whether superheroes that wear identity-concealing costumes could wear them in court.  A closely related question is whether a superhero could testify under his or her alias and refuse to answer questions about his or her secret identity.  In the US, these are important issues because of the Confrontation Clause, which is where our analysis will focus. We briefly discussed this issue as part of the alter ego post from Dec. 2010; this is a fuller treatment of the specific question of the legal issues related to testifying while disguised.

First off, though, we must note the DC Universe’s “Twelfth Amendment.” This fictional constitutional amendment allows members of the Federal Authority of Registered Meta-Humans to decline to answer questions about their secret identities.  The comics suggest that this operates similar to the Fifth Amendment protection against self-incrimination.  It’s not clear just how canon this amendment is, but we can at least consider how things would work in the Marvel universe and other comic book settings without such a law.

I. The Confrontation Clause

The Confrontation Clause is part of the Sixth Amendment, and it states that “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” U.S. Const. amend. VI.  There are a few different justifications for this right, but the two main purposes are cross-examination and credibility judgment.  Cross-examination is an essential part of the adversarial system, and requiring witnesses to be present allows the fact-finder (usually the jury) to better judge the witnesses’ credibility.  Because of the fundamental importance of cross-examination, the long history of the right to confront one’s accusers, and its value to criminal defendants, the Confrontation Clause enjoys strong support from both conservative and liberal judges–although that support is not universal.

The general rule of the Confrontation Clause is that “[a] witness’s testimony against a defendant is…inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.” Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009).  It is an important technical point that the clause only covers testimonial statements, but the details of that point are beyond the scope of this post.  Since we are primarily concerned with actual in-court testimony in criminal cases, suffice to say that the clause applies.

Given that the clause applies, the question is whether the unavailability exception applies.  What if, for example, Spiderman prepares a description of a villain’s activities and pins it to the villain, whom he has left hanging in a web for the police to find?  Spiderman is presumably unavailable unless he voluntarily shows up in court (good luck serving him with a subpoena), so could the document still be entered into evidence?  The answer hinges on whether the document was “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford v. Washington, 541 U.S. 36, 52 (2004).  In this case, it would seem objectively reasonable to believe that Spiderman’s description was intended for use at the villain’s trial.  But note that non-testimonial evidence, such as photographs, weapons, and other physical or forensic evidence, would not run afoul of the Confrontation Clause.  If superheroes stick to that kind of evidence, they can avoid a lot of headaches and tedious court appearances.

But let’s suppose that non-testimonial evidence is unavailable and the only way to put away, say, Kingpin is for Spiderman to show up in court and testify against him (and let’s also presume this is pre-Civil War Spiderman and that his identity is still secret).  Could Spiderman wear his mask?  And could he somehow dodge questions about his identity?

II. Wearing Masks in Court

Although costumed vigilantes rarely make court appearance, the scope of the Confrontation Clause has been considered in other contexts, particularly shielding child witnesses against accused abusers from face-to-face confrontation.  Although the Supreme Court has “never held, however, that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial….any exception to the right would surely be allowed only when necessary to further an important public policy.”  Maryland v. Craig, 497 U.S. 836, 844-45 (1990) (quoting Coy v. Iowa, 487 U.S. 1012, 1021 (1988)).  In Craig it held that “[s]o long as a trial court makes such a case-specific finding of necessity, the Confrontation Clause does not prohibit a State from using a one-way closed circuit television procedure for the receipt of testimony by a child witness in a child abuse case.”  Craig, 497 U.S. at 860.  But on the other hand, in Coy it held that a screen that obscured the child witness from the view of the defendant violated the Confrontation Clause.

An identity-concealing costume seems much closer to a screen than one-way closed circuit television, so it may be quite difficult to argue that a superhero should be allowed to testify in-costume.  However, a court could make a strong case-specific finding of necessity in instances where the superhero’s friends or family were particularly likely to be targeted for reprisal and where the defendant had a history of retaliating against accusers.  It is also possible that allowing superheroes to do their work and present testimony in court could be considered an important public policy.  It may also depend on the costume.  A full mask is much closer to a screen than a mask that only covers part of the face.  But the further one gets from these ideal facts the harder it will be to overcome the defendant’s strong rights under the Confrontation Clause.

III. Keeping a Secret Identity Secret

Winning the right to wear a mask in court may be moot if the first question on cross examination is “What is your real name?”  And indeed this also applies to un-masked superheroes whose real identity is nonetheless unknown (e.g. Superman, though he has the ’12th Amendment’ to rely on).  Here the only option may be for the superhero to plead the Fifth Amendment (i.e., refuse to answer the question on the grounds that doing so may incriminate him or her).  Naturally this depends on the possibility that something the superhero has done could subject his or her alter ego to criminal liability, but as we’ve seen on this blog, this may well be the case.

Furthermore, it’s not a requirement that answering a question actually directly implicate the witness in a crime, only that one could reasonably believe that it could. “[T]he privilege’s protection extends only to witnesses who have reasonable cause to apprehend danger from a direct answer….Truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.”  Ohio v. Reiner, 532 U.S. 17, 21 (2001).  As long as the judge is satisfied that the danger of self-incrimination is not of an “imaginary and unsubstantial character,” then the superhero may decline to answer questions about his or her secret identity.  Id.

Of course, it’s always possible for the prosecution to force immunity upon a witness, which removes the Fifth Amendment protection against self-incrimination.  But one presumes that the superhero would generally be a witness for the prosecution, so the prosecutor would have no reason to pry into the superhero’s secret identity and thus no reason to impose immunity.

(By the way, the Fifth Amendment doesn’t allow a superhero to wear a costume because it only protects a person from making self-incriminating statements, and wearing (or rather not wearing) a mask is probably not a statement for Fifth Amendment purposes.)

IV. Conclusion

The best way for a superhero to avoid this problem is to present non-testimonial evidence or to lead the police to catch the villain red-handed.  If testimony must be presented in court, a very strong case-specific argument for remaining in costume must be made.  Pleading the Fifth may be a good way to avoid answering questions about one’s secret identity.  Finally, although criminal cases are probably much more important for superheroes than civil cases, bear in mind that this analysis is limited to criminal cases.  A superhero would have a much harder time maintaining his or her secret identity in a civil case, but that’s another post.