Arrow: “Honor Thy Father”

This is the second episode of Arrow, and it contains two excellent legal issues for your consideration. First, the legal procedure of coming back from the dead. Second, whether the “evidence” Queen provides against Martin Sohmers would be admissible.

I. Legal Resurrection

We talked about coming back from the dead in some detail quite a ways back in a series of posts. The basics can be found there. There’s really only one thing we might quibble with here, and that’s whether Oliver even could have been presumed dead. He’d only been gone for five years. Presumption of death, or “death in absentia“, is the legal declaration that a person is deceased in the absence of remains. It works different ways in different states. The basic rule is that if you are absent for a sufficient period of time—and by “sufficient” we mean four to seven years depending on the state—than your relatives may petition the court for a death certificate. “Absent” means really, really absent, not just “missing,” but with steps taken to convince the court that the person is, in fact, dead, or is more likely to be dead than not. These could include things like publication, notices sent to last known addresses and acquaintances, etc.

But most states recognize an exception to the time requirement, i.e., exposure to a deadly peril. Such as shipwreck. Here, Queen was presumed to have been lost at sea. In such circumstances, where it’s reasonable to believe both that the person has died and that we’ll never find the body, courts are much more willing to issue death certificates earlier. This is also true for situations like soldiers MIA in firefights, victims at the World Trade Center on September 2001, people in boating accidents, etc.

And for that rare person for whom the reports of his death have been exaggerated, getting the declaration of death rescinded would be done pretty much like it’s done in the episode: show up to court, have a hearing, and explain to the judge what your deal is. That’s basically what happens.

A lot of the thornier issues surrounding this sort of thing aren’t going to be in play here, especially that of getting one’s stuff back after it’s gone through probate.  The show indicates that pretty much all of Oliver’s possessions were kept at home after his presumed death, and the big stuff (e.g. the house itself) is likely either held by a trust or now owned by Oliver’s mother following his father’s (actual, for real) death.

II. “Left” Evidence and Foundation

Then there’s the question of whether the “evidence” Oliver leaves about this week’s villain, Martin Sohmers, would do anyone any good. We’re tempted to say “Yes,” despite what are likely to be the strenuous objections of defense counsel. Recordings are presumptively admissible, and Fed. R. Evid. 901(b)(5) permits anyone to testify that a particular recording is a particular person’s voice, provided the person making the identification has heard the voice before. The objections are going to be that the confession was coerced.

But it turns out that coercing a confession out of someone may not actually be a bar to the admissibility of the confession as long as it isn’t law enforcement doing the coercion. If it’s law enforcement, we’re in a criminal matter and we’ve just violated the Fifth Amendment right against self-incrimination. But if the evidence is obtained by a random, uninvolved third party, one whom the police are actively and legitimately trying to arrest, that recording might well be admissible. Even if it weren’t, inadmissible evidence like anonymous tips can be the foundation of probable cause for a search warrant. That would let the cops get all up in Sohmers’ business, and they’d almost certainly find some truly tasty bits of evidence there. So even if the confession as such never made it into evidence, it could easily serve as a big break in a case which ultimately lead to Sohmers’ conviction.

This question may come up again in a slightly different context, i.e., instead of a criminal trial, we’re talking about a civil suit. The facts would be as follows. Someone sues someone else, and Green Arrow coerces a confession out of one of the parties and turns the confession over to the other party. We think that would be admissible. If the coerced party thinks it’s unfair, they can tell their version of events to the jury. The confession would be admissible, but that doesn’t mean the jury has to buy it. Here’s how that story might go down.

Plaintiff: I have a recording of Defendant admitting he did it!
Defendant: I was being beaten up at the time! And I lied to make them stop! I’d have said anything!

Yeah, that’s gonna play well with the jury.

But just like in the criminal context, the tape doesn’t even necessarily need to get played to be useful. That could serve as the basis for a series of discovery requests which would otherwise have been quashed as a fishing expedition or unduly burdensome. Playing the tape for the judge might convince him that there really is something funny going on, permitting a line of inquiry that might otherwise have been unavailable.

III. Conclusion

So far, so good. The show has handled both coming back from the dead and the issue of surprise, coerced confessions fairly well. Unfortunately, things don’t go quite so well next time. Stay tuned!