She-Hulk #3

Slight change of plans from Friday’s usual Mailbag—today we’re looking at She-Hulk #3.

This issue raises one main legal question, plus a sort of “meta” issue which is interesting in its own right. The main story is that Jen Walters’ firm has been hired to defend a man accused of murder. The reason this is a superhuman case is that the alleged victim happens to be the main witness. Which is a little bit weird, we think you’ll agree.

I. Testimony From Beyond the Grave

We’re going to just ignore the fact that the evidentiary issues are being tried in open court instead of being fought out via motions in limine, the way they would in a real court case. That aside, the prosecutor objects to the admission of the victim’s testimony arguing that “as a dead man he has no rights in a court of law.”  This is more or less true: legal claims survive the death of the claimants and become the property of the estate (this is how a claim for wrongful death works, for example). Similarly, in New York the next of kin of the deceased have several rights with regard to the autopsy and disposition of the body.  So what we might intuitively think of as the rights of dead people are actually held by the living, usually the next of kin or heirs.

But this is beside the point.  The ghost of the deceased victim doesn’t need any rights to testify as a witness, rather the living defendant has a right to call any competent witness to give relevant testimony.  The testimony the ghost offers is plainly relevant (he’s the victim, after all), and “[a]ll adults are presumed competent to testify” under New York law.  Brown v. Ristich, 36 N.Y.2d 183, 188 (Ct. App. 1975).  It takes a lot to show that a witness is so incompetent that they shouldn’t be allowed on the stand:

A witness is said to be capable when he has the ability to observe, recall and narrate, i.e., events that he sees must be impressed in his mind; they must be retained in his memory; and he must be able to recount them with sufficient ability such that the presiding official is satisfied that the witness understands the nature of the questions put to him and can respond accordingly, and that he understands his moral responsibility to speak the truth.

Brown, 36 N.Y.2d at 189.  The victim meets this standard just fine, so the prosecutor is left with trying to attack the witness’s identity (i.e. is he really the victim’s ghost?) and impeach his credibility (more on that in a moment).

The witness’s identity is a problem of authentication, i.e. exactly who and/or what is this thing that is attempting to testify? We’ve got Dr. Strange kind of doing his thing and then… I mean, if you tried that in a court of law today the judge would probably sanction the attorney, the person standing next to the attorney, and everyone in a ten foot radius. Judges don’t like being played for fools.

But that’s just the thing: the defense’s argument goes not only to the authenticity of the witness specifically, but the idea that people cease to exist when they are dead. To this effect, they call The Thing to the stand as an expert witness. What is his expertise? The fact that he’d recently come back from the dead. So, as it turns out, had about half of the people in the room, including the deputy prosecutor (much to the lead prosecutor’s annoyance). So the judge was forced to take note of the fact that in the Marvel Universe, coming back from the dead is something that happens, and happens relatively frequently. So frequently, in fact, that the legal system is forced to come up with some way of dealing with it.

At this point, putting a ghost on the stand becomes like any other witness. Every single time testimony is offered the jury needs to decide, and the attorneys need to establish (or attack!) the credibility of the witness. In a world where ghosts are a verifiable fact of life, having a ghost as a witness simply adds another layer to that story, and the opposing side will have its chance to discredit the testimony just like they would attempt to discredit any other witness. More time might be spent on the identity and mental integrity of a ghost than would for a living witness, but ultimately, that’s something the jury is going to have to decide for themselves. Remember, just because you get testimony admitted does not put the jury under any obligation to believe a word of it. Sure, it’s always good to try to keep out testimony which could be bad for your side, and many cases turn on motions in limine, but just because one side can get something admitted does not guarantee anything.

II. The Normalization of the Supernatural

Which brings us to the second issue: this is actually a pretty decent look at how the law might actually develop if faced with an issue like this—allowing for the acceptable departures from reality to which all depictions of the legal system are prone. A lot at what we do on this blog is look at how existing law, without modification, might handle supernatural issues. But really, the way it would handle these things is by establishing precedent and ultimately probably legislation intended to cover these issues. This issue looks at how one might go about trying to establish that precedent. Essentially, one would need to convince the court that the fantastic claim one is advancing, whether it be that one’s client can walk through walls or that the defendant can control people’s minds, is, in fact, true. And one could plausibly do this by bringing in a bunch of people to testify, unrelated to the factual issues at hand, about similar experiences they’ve had, as such would be relevant to establishing a key element of one side’s case. So when the defense in this issue asks for a show of hands about how many people in the room have been brought back from the dead, well, they’d all probably have to be sworn in, meaning this would take all damn week, but that’s not all that far off. Besides, defense counsel get paid by the hour anyway.

III. Conclusion

This issue shows a rather interesting possibility, one which criminal attorneys on both sides might salivate over, as well as getting at some of the issues about how one might get such testimony admitted into evidence. Basically, the question is whether one can convince the judge that what is being proffered is sufficiently part of everyday experience—or supported by adequate expert testimony. In the case of ghosts, the question really becomes one of verification. In our world… yeah, good luck with that. But in the Marvel Universe? Or in ours, should ghosts suddenly become common? If counsel can come up with something plausible enough to convince the judge, there’s no law that says such testimony could not be admitted.