Author Archives: Ryan Davidson

She-Hulk #3

Posted on April 22, 2011 | 13 comments

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.

13 Comments

Posted in criminal procedure, evidence

Accidental Superpowers and Assumption of Risk

Posted on April 18, 2011 | 20 comments

This post was inspired by Tim, who asked about liability for the transformations of Ben Grimm (The Thing) and Bruce Banner (The Hulk). We answer a lot of reader questions in our Mailbag posts, but this one was a big enough issue to need a post of its own.

The story of the two characters is similar in many respects. Both were involved in a scientific experiment that went awry, leaving the two changed in fundamental ways. Grimm’s skin was changed into a rock-like mass, rendering his appearance unusual, to say the least, and he struggled with this for years. Banner, on the other hand, found himself transformed into the Incredible Hulk, prone to almost incomprehensible savagery at the slightest provocation, leading to his exile from Earth and subsequent disastrous return. If any superhuman character might have a cause of action for bodily injury related to their powers, it would seem to be these two.

But there are key facts in their origin stories that change the liability situation significantly.

I. Ben Grimm, aka “The Thing”

The origin of the Fantastic Four‘s powers is told in Fantastic Four #1, November 1961. Dr. Reed Richards was planning a space mission and felt a sense of urgency because the Communists were apparently on the verge of launching their own. The story was published at the height of the Cold war, and this issue came out mere months after Cosmonaut Yuri Gagarin became the first human being to leave the earth’s atmosphere, so the story makes sense in that context.  Richards was discussing the flight with his team when the following exchange occurred:

Grimm: If you want to fly to the stars then you pilot the ship! Count me out! You know we haven’t done enough research into the effect of cosmic rays! They might kill us all out in space!

Susan Storm: Ben, we’ve got to take that chance… unless we want the Commies to beat us to it! I– I never thought that you would be a coward!

Grimm: A coward!! Nobody calls me a coward! Get the ship! I’ll fly her no matter what happens!!

If Grimm were then to act as a plaintiff—presumably against Reed Richards for organizing the flight without adequately researching it first—this little conversation would come back to haunt him. Why? Because assumption of risk is a viable defense in tort law. The basic idea is that if a plaintiff is aware of a specific risk related to a particular activity and engages in that activity anyway, a defendant would be absolved of any duty to protect the plaintiff from that particular risk. This is not any kind of blanket protection, and the specific nature of the risk generally needs to be contemplated by the plaintiff, but in Grimm’s case, there’s a good argument to be made that he had assumed the risk of flying Richards’ ship.

First, the comic indicates that in addition to being a test pilot and thus familiar with the risks associated with piloting experimental craft, he specifically knew about the risk of cosmic rays. Granted, he did not know that they would turn him into The Thing, but not only did no one else know this either, but everyone involved was consciously aware that they had no idea what the effects of these rays would be but that death was a distinct possibility. Besides, “I’ll fly her no matter what happens,” is a pretty broad statement.

Second, both Grimm and Richards seem to possess the same mens rea with respect to the accident. Assumption of risk will not protect a reckless defendant against a negligent plaintiff, but it may well protect a reckless defendant against a similarly reckless plaintiff. The idea here is that the law does not want to protect a party that acted with a lower degree of care over one who acted with a higher degree, and when the playing field is equal, the argument that everyone involved knew the risks of the activity and voluntarily engaged in it is a lot stronger.

Third, Grimm was not a mere passenger. He was a pilot. As such, he had a significant role in the planning and execution of the test flight, and was in fact the only person even potentially capable of steering the craft out of danger. So unlike a passive participant or even someone participating in an event organized by others, Grimm had ample opportunity to mitigate the risks involved both before and during the incident. It’s even theoretically possible that the Storm siblings might have a cause of action against Richards and Grimm as the joint organizers of the project! However, neither of them seems to have been affected negatively, so their “damages” may be nominal,

Ben Grimm knew as well as anyone what he was getting into. He knew that the trip involved the risk of cosmic rays, and he knew that exposure to those rays posed a risk of serious bodily injury or death. No one seems to have known more about the risks than he did, even Richards, though that’s more a matter of shared ignorance than anything else. What Richards did was arguably incredibly foolish, but another famous Ben had some choice words about following fools.

II. Bruce Manner, aka The Incredible Hulk

Bruce Banner’s story contains a significant difference. Banner is characterized as one of the world’s most brilliant scientists, rivaling if not surpassing Reed Richards and Tony Stark. Banner was involved with a Defense Department project to develop a gamma ray bomb or “G-bomb” when he was accidentally exposed to gamma rays, which due to a fluke in his genetic structure transforms him—periodically—into the rampaging Hulk.

Sounds pretty similar to Ben Grimm, right? So far, yes. But there’s a wrinkle which makes all the difference. In the case of the Fantastic Four, just about everyone involved was acting recklessly, and no one intended for anyone to get hurt. But Banner was actually a victim of attempted murder. The way the story is told, just before the test of the G-bomb, Banner noticed that a teenager had breached security and was inside the blast zone. He ordered the test to be delayed and ran to get the kid out of the way. Banner was able to get the kid to a protective trench when the bomb went off, exposing him to gamma rays. But the reason the bomb went off is because Igor Drenkov, a Russian agent, ordered the test to continue, hoping that Banner would die in the resulting explosion. Assumption of risk will protect a defendant against a reckless plaintiff, but it will not protect a defendant that intended for harm to befall the plaintiff. Indeed, Drenkov could be subject to civil and criminal liability, as attempted murder is a serious felony.

But Banner would probably not be able to sue the government, as he was the organizer of the project and the government is likely not liable for the actions of enemy infiltrators. Furthermore, depending on the nature of Banner’s employment, either the Federal Employee Compensation Act, the federal equivalent of workers’ compensation, or the Veterans Affairs Administration would provide compensation for his injuries, as he sustained them while executing his duties as a government employee. So he would theoretically be entitled to some money, though only in proportion to his medical bills (non-existent) and expenses related to mitigating his disability (good luck). In practice, he’s going to have trouble proving his damages, and as the FECA and/or VA would be an exclusive remedy, no other recovery would be available with respect to the government. He’s still free to sue Drenkov though.

III. Conclusion

We’ve seen here that, as in all cases, the facts are really important, and a single conversation, document, or other changed fact can result in a wildly different outcome, potentially saving—or costing—a party enormous amounts of money. Finding these facts and putting them in their proper context is a lot of what litigation attorneys do for a living, and the amount of money at risk is one reason many charge as much as they do.

20 Comments

Posted in criminal law, torts

She-Hulk # 2

Posted on April 11, 2011 | 17 comments

We looked at She-Hulk # 1 last week. Moving on to issue # 2, She-Hulk is plaintiff’s counsel for Dan “Danger-Man” Jermain, given atomic powers as part of an industrial accident. Mr. Jermain wants to sue his former employer for “bodily injury,” despite the fact that the only effects seem to be that he is “larger, stronger, and more powerful.” Okay, he’s also capable of causing small nuclear explosions, but hey, it’s not like it’s going to hurt him any. Defense counsel points out the fact that one needs to stretch the definition of bodily injury way past the bounds of credulity to include imbuing someone with superpowers. She-Hulk thinks she can get around it by arguing that “Danger-Man” and “Dan Jermain” are actually two separate entities, and that the latter ceased to exist when the former came into being. When asked “Do you really think this will work?” she responds “I think I can sell it to a jury.”

There are a number of problems here, so let’s take a look.

I. Workers Compensation

First, whatever happened to workers’ compensation? The rise of the Industrial Era was accompanied by the rise of workplace injuries, as people started working around machines more often, sometimes incredibly dangerous ones. In the nineteenth and early twentieth centuries, it was commonplace for factory workers to lose fingers, even limbs, to exposed machinery. Legal reforms favoring labor began in the late nineteenth century, and by 1949, every state and the federal government had instituted a workers’ compensation regime.

Workers’ compensation operates by creating a system for compensating workers for workplace injuries regardless of fault. What this means is that if you are injured while serving your employer, you get paid the vast majority of the time, even if your employer was completely without fault. This may seem very favorable to the workers, so to even things out, i.e. to make sure that employers weren’t bankrupted every time someone broke an arm, compensation was limited in three ways.

First, compensation for injuries is computed based on actuarial tables created by state agencies rather than by juries. This rationalizes and limits compensation. Whereas a jury can award a basically arbitrary amount of money, workers’ compensation payouts are known ahead of time and are thus a lot easier to plan for and insure. Second, compensation is limited to purely economic damages, i.e. medical bills, lost wages, lost future earnings, etc. There is very little provision for non-economic damages like “pain and suffering,” which really drive up verdicts in liability cases. Third, workers’ compensation is an exclusive remedy, i.e. employees cannot choose to forgo participation in the workers’ compensation program and sue their employers. Workers’ compensation is their only way to recover. So employees benefit because they almost always get paid, even if the accident was their fault, and they usually get paid in a fraction of the amount of time they’d have to wait if they sued. But employers benefit because their costs are controlled and employees can’t turn around and sue them. Workers’ compensation coverage is mandatory in just about every state for just about every employee. There are, of course, certain exceptions, but a worker in an industrial plant working with radioactive materials, e.g. Dan Jermain, would definitely be covered.

So what happened to Roxxon’s workers’ compensation carrier? How is Jermain able to sue at all? Sure, GLK&H might act as plaintiff’s counsel in the workers’ compensation case (coverage can be disputed, leading to litigation, but this is much simpler than suing in open court), but workers’ compensation is largely limited to economic damages. Danger-Man is basically uninjured, and even if we want to go with She-Hulk’s argument and say that Dan Jermain is “dead,” (more on that in a minute), workers’ compensation only pays out a couple of hundred grand—at best—for wrongful death. Not $85 million, which is the settlement reached at the end of the issue.

Of course, the whole issue goes away if Jermain wasn’t an employee. If the writers had him be some random schmo who happened to get in a wreck with a Roxxon tanker truck, covering him in radioactive goo, he would not be covered by the workers’ compensation regime and thus would be free to sue like he does in the comic. Oh well.

II. Questions of Law v. Questions of Fact

Now we’re going to get really nit-picky. She-Hulk says that she thinks she can “sell” Dan Jermain’s death to a jury. Unfortunately, whether or not “Dan Jermain” legally died during the accident is probably not a question of fact. Nor is whether giving someone superpowers counts as “bodily injury”. These would be questions of law. The difference is, in part, who gets to answer such questions and the basis for answering them.

Questions of fact are answered by the finder of fact, generally the jury, though judges are the finders of fact in bench trials. Questions of fact are answered on the basis of the evidence. The questions of fact here would be things like “What are the nature and extent of Dan Jermain’s injuries?” “What caused those injuries?” “Did Roxxon’s negligence lead to Jermain’s injuries?” “Did Jermain’s?” She-Hulk would try to get these questions answered in her favor by investigating the scene of the accident, having experts evaluate Jermain’s condition, deposing witnesses, etc.

Questions of law are answered by the judge on the basis of the law alone. The questions of law here include “Do Jermain’s symptoms constitute ‘bodily injury’ under the law?” “Is ‘Danger-Man’ legally the same entity as Dan Jermain?” “Is Dan Jermain legally dead?” These questions would be answered by looking at existing legal precedent to see what it says about the definitions of “bodily injury” and “death,” and seeing if the facts, when interpreted in the light most favorable to Roxxon, can be made to fit the legal definitions she needs.

Here we’ve got some problems. “Bodily injury” is generally understood to be a bad thing. Federal law defines it as

(A) a cut, abrasion, bruise, burn, or disfigurement;
(B) physical pain;
(C) illness;
(D) impairment of the function of a bodily member, organ, or mental faculty; or
(E) any other injury to the body, no matter how temporary.

18 U.S.C. § 1365(h)(4)

Whether or not Danger-Man’s condition counts as any of those is going to be a question of law for the court. And it’s not entirely clear that it does. He hasn’t been cut, abraded, bruised, burned, or disfigured, at least not in any way shown in the comics. He doesn’t appear to be in any pain, nor to have experienced any as part of the process. Superpowers probably don’t constitute an “illness,” though there may be something there, especially if the powers can’t be controlled. He does not appear to be suffering any impairment of his bodily functions or mental faculties. And calling superpowers “injuries,” when they don’t fit into any of the other definitions, is a stretch, to say the least. Given that Jermain can do just about everything he could before the accident, and can do a lot more now, this is going to be a tough sell.

Though there is another claim that the authors seem to have forgotten: loss of consortium. This is a claim for loss of the affection and companionship of a family member, typically a spouse, and typically a particular kind of companionship, if you catch our meaning. Jermain seems to have been affected in a substantial way, here. Even sharing a bed with his wife is physically dangerous for her. That’s the kind of change in a relationship that a jury might well be willing to award damages for.

III: Conclusion

There was more legal meat in this one. Missing the difference between questions of law and questions of fact is understandable, though. That one even trips up experienced attorneys from time to time, as the two can blend into each other pretty easily (so-called ‘mixed questions of law and fact’). So we’ll give them a pass on that one. But missing the workers’ compensation angle was a pretty big mistake. Even most laymen are at least aware of workers’ compensation, even if they aren’t entirely aware of how it works.  Maybe we can chalk this one up to most comic book authors and illustrators rarely making use of workers’ compensation; comic book publishers are not exactly hotbeds of industrial accidents. Still, all they’d need to do is change a single panel, making the plaintiff a bystander instead of an employee, and the rest of the story is more-or-less okay.

17 Comments

Posted in labor law, torts

Mailbag for April 8, 2011

Posted on April 8, 2011 | 10 comments

This week we’re taking a look at reader questions about the legitimacy of certain kinds of punishment and whether doctors or veterinarians would be legally licensed to treat extraterrestrials.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Modification/Mutilation of Supervillains as Punishment

Joe asks about the punishment meted out to Sabbac, basically an evil version of Captain Marvel who, like his counterpart, could transform into a superbeing by uttering a word of power. When Sabbac was apprehended, he was sentenced to having his larynx removed to prevent him from speaking this word. Joe’s question is whether this would be a constitutional punishment, given the 8th Amendment prohibitions against “cruel and unusual punishment.”

The most obvious parallel is to chemical castration, where convicted sex offenders, usually pedophiles, are treated with what amounts to Depo Provera, a hormone drug usually used as a contraceptive. In women, that’s basically its only use, but in men, the drug generally results in a massively reduced sex-drive. Which, for pedophiles, is no bad thing.

About a dozen states use chemical castration in at least some cases, and there does not appear to have been a successful challenge on constitutional grounds. This may in part be due to the fact that a significant percentage of the offenders who are given the treatment volunteer for it, as it offers a way of controlling their urges. If the person being sentenced does not object, it’s hard to come up with standing. Either way, despite health and civil rights concerns, this appears to be a viable sentence in the US legal system.

Fair enough. But it should not be hard to see that physically and permanently removing someone’s ability to speak is not exactly the same as putting a reversible chemical damper on their sex drive. It’s entirely possible to live an otherwise normal life with a low sex drive, but being mute is a little harder both to deal with and to hide. So while the idea of physical modification to the human body is not unconstitutional on its face, it remains to be seen whether this degree of modification would be permitted. For example, while chemical castration appears to be constitutional, it’s pretty likely that physical castration would not be.  We can only say “pretty likely” because Buck v. Bell, a 1927 Supreme Court case that upheld (8 to 1!) a Virginia statute instituting compulsory sterilization of “mental defectives,” has never been expressly overturned, and tens of thousands of compulsory sterilizations occurred in the US after Buck, most recently in 1981.

On the other hand, Sabbac isn’t your run-of-the-mill offender here. He’s possessed by six demonic entities and capable of wreaking an immense amount of destruction. Part of the analysis in determining whether or not a punishment is “cruel and unusual” is whether or not the punishment is grossly disproportionate proportional to the severity of the crime.  Ewing v. California, 538 U.S. 11, 21 (2003).  This is, in part, why the Supreme Court has outlawed the death penalty for rape cases, i.e. if no one is dead, execution seems to be a disproportionate response. Coker v. Georgia, 433 U.S. 584 (1977).

The 8th Amendment also prohibits “the unnecessary and wanton infliction of pain,” including those “totally without penological justification.” Hope v. Pelzer, 536 U.S. 730, 737-38 (2002).  Here, though, there is a clear penological justification, namely the prevention of future crimes, and the laryngectomy could be carried out in a humane manner without the infliction of unnecessary pain.

There are other criteria by which a punishment is judged, including whether it accords with human dignity and whether it is shocking or violative of fundamental fairness, but in a case like this necessity goes a long way, especially because the purpose of the operation is not retributive punishment.

So then, if the only way to prevent Sabbac from assuming his demonic form is to render him mute, then it’s possible that the courts would go along with that, particularly if it proved impossible to contain him otherwise and the operation was carried out in a humane manner.

II. Medical Treatment for Aliens

Jona asks whether it would be more proper for an alien to seek treatment from a physician or a veterinarian. This question revolves around the extent of the license under which each profession operates. Like law, the medical professions are all fairly well regulated and require practitioners to be licensed by the state. This serves both to ensure that professionals are competent, but it also permits the state to keep at least minimal tabs on those professionals in the event one of them should do something bad. It also permits the state to prohibit a professional who has engaged in egregious misconduct or is otherwise unfit to practice from doing so. There’s a lot in this, and we’ll probably return to it for a full post down the road a ways, but here’s some preliminary thoughts.

The question here is which license would provide the authority to treat an extraterrestrial. Whether or not the alien is intelligent is not actually part of the analysis, because that isn’t how the MD and DVM licenses are distinguished. Physicians are licensed to treat homo sapiens, and veterinarians are licensed to treat pretty much everything else. So at first glance, it would seem that vets would be better positioned to treat aliens than physicians, particularly aliens of the non-rubber forehead variety.

This isn’t really a matter of competence mind you: both a physician and a vet would presumably be equally out of their depth if faced with truly alien biology, if only because neither would actually have any idea what’s going on in there. Even analogizing to known species’ physiology would be impossible without a significant amount of study, and depending on the circumstances under which treatment was necessary, there might not be time for that. So if, for example, aliens crash-land and injured survivors are located, time may well be of the essence. In that case, it would probably wind up being a measure of which kind of professional could be located first.

On the other hand, physicians have two things going for them that vets tend not to. First, military and government agencies (outside departments of agriculture) are more likely to have institutional ties with physicians than with vets, and such agencies are likely to be first on the scene.  Second, physicians work in hospitals, while vets work mostly in the field or in their own clinics. Most veterinary clinics don’t have anything resembling an ICU, as when it comes right down to it, animals aren’t really worth the expense. There aren’t many people who can afford to have their dog put on a ventilator, let alone livestock, the latter of which are raised for explicitly economic purposes. There’s just no odds in it. So as a matter of practice, physicians may well be more likely to be involved, licensing issues aside.

Ultimately, the question is probably moot. If we are operating under the assumption that this is an unexpected and potentially one-off occasion, licensing matters aren’t likely to even come up. They usually only do in malpractice situations, and most stories involving emergency treatment of extraterrestrials don’t seem to permit the aliens a sufficient degree of integration with human society to file lawsuits. And if aliens are that common and integrated, the medical professions would adapt to figure out which professions would wind up being licensed to treat them. Depending on their physiology, it could go either way.  There’s more to consider about this, though, so look forward to a follow-up post in the future.

That’s all for this week. Keep sending in your questions!

10 Comments

Posted in administrative law, constitutional law, mailbag

She-Hulk # 1

Posted on April 4, 2011 | 15 comments

She-Hulk, also known as “Jennifer Susan Walters,” is the cousin of Bruce Banner (aka The Incredible Hulk) and has served as a member of the Fantastic Four, the Avengers, S.H.I.E.L.D, and… an associate at Goodman, Lieber, Kurtzberg & Holliway, a firm which, in the Marvel Universe, is one of the most prestigious on the East Coast.  Naturally, there’s a lot of material for Law and the Multiverse here.  In fact, we’ve written a bit about She-Hulk’s issues with legal ethics before.

In issue # 1 of her third solo-series (starting in 2004), She-Hulk was working as an assistant district attorney for New York City. At this point in her life, she was basically living as She-Hulk full-time, only reverting to her Walters form when sleeping (and even then only involuntarily). During closing arguments of a trial, she was called away to help the Avengers save the world from A.I.M. The judge let her do this, because, well, it kind of needed to be done, but he then declared a mistrial when the defense pointed out that the jury could very easily be said to be improperly influenced by the prosecuting attorney saving their collective butts from imminent death. It must be said that defense counsel has a point here, and judges do, in fact, declare mistrials when it seems likely that there is some undue influence going on, something to indicate that the jury is predisposed to favor one side or the other on the basis of anything other than what they’ve seen at trial. So as far as that goes, the writer is correct.

But he’s probably missed something: if a mistrial can be granted because She-Hulk saving the world during trial would improperly influence the jury, then why wouldn’t the jury’s knowledge that she’d done the same thing on countless prior occasions be an issue? One of the things that attorneys ask during voir dire is whether the jurors know basically anyone involved in either side of the case. Having any kind of personal relationship with either attorney would easily constitute grounds to strike for cause, and there would be a good argument for striking jurors whose lives had been saved by the prosecutor. This means that empaneling a jury with She-Hulk as one of the attorneys is going to be almost impossible.

Which, unfortunately, calls into question She-Hulk’s ability to be a litigator at all. This goes beyond just an attorney being a newsworthy figure. Even those attorneys that have attained some kind of media attention for their practice don’t have all that much trouble finding jurors who have never heard of them. Kenneth Starr, the head of the legal team that investigated President Clinton, attained some measure of fame/notoriety, but he’s hardly a household name. But She-Hulk is another matter entirely. She’d be nationally and even internationally known, and she’s definitely portrayed as a celebrity. Everyone knows who she is and what she’s done, though admittedly being seven feet tall and green doesn’t help much there. Showing up as Walters doesn’t necessarily help either, as her mundane identity isn’t secret. So it’s really a question as to whether she could really practice law the way she’s shown to practice it. This is something we’ll probably need to ignore if we want to let the story go on, which is definitely worth doing, because there’s a lot of other stuff in here.

So that’s the first issues of the latest She-Hulk run. The authors get some things right, but so far the presentation of legal issues is only okay.  But to be fair the same can be said of most fictional portrayals of the legal system. We’ll continue to look at this series down the road.

15 Comments

Posted in criminal procedure

Smallville II: “Dawson Casting” and Minors

Posted on March 28, 2011 | 12 comments

The first season of Smallville is set during Clark Kent’s freshman year in high school. It premiered in October 2001, when Tom Welling (Clark) was 24, Kristen Kreuk (Lana) was 18, and Allison Mack was 19, making them between four and ten years older than the characters they were portraying. Casting adults as high school kids is not that uncommon and has become known as “Dawson Casting” after one of the more egregious examples, though it’s been going on almost as long as film has existed.

There are a variety of reasons for this, and the previous link discusses a lot of them, but in short, young adults are just a lot more suitable for the actual acting job than teenagers, partly for logistical and partly for legal reasons. As to the former, young adults tend to be better able to memorize, recall, and deliver lines believably than teenagers. Some of this is intellectual development, some of this is a broader depth of experience, and some of it is just getting past the emotional whirlwind that is adolescence. There are real world legal issues too: teenagers have limited work hours, and it’s frequently illegal to show them doing things that kids actually do (e.g. make out).

But this blog is about real world legal issues in comic book stories, not the legalities of Hollywood. Suffice it to say that this sort of thing is actually an issue within the series. As always, spoilers follow.

I. The Talon

Perhaps the most glaring example of a teenage character doing things that would be problematic for someone their age is Lana coming to be a partner and manager at the Talon. This implicates both minors’ capacity to contract and child labor laws.

A. Capacity

Children are not adults, and their ability to perceive the consequences of their actions are less than an adult’s would be. This is why the law generally recognizes that minors’ capacity to contract is different than adults. In general, a minor who agrees to a contract for something other than “necessaries,” i.e. food, clothing, goods necessary for the maintenance of a household, can “disaffirm” that contract at any time before they reach majority age. So a minor who walks into a restaurant and orders dinner would be required to pay, but a minor who enters into a business contract could theoretically get out of that contract simply by asking. They are then required to give back whatever it is they got, but this is why most businesses and organizations require that a minor’s parent sign relevant contracts and will generally refuse to deal directly with minors: they do not want to go through the hassle of having to take back whatever it is the minor contracted for.

So Lex Luthor offering Lana partial ownership in the Talon, aside from being incredibly generous, would definitely be something his lawyers would have had an absolute cow over. When this happened, Lana was either 14 or 15 (time is kind of… squishy, and her birthday is never stated), and Kan. Rev. Stat. § 38-101 provides that majority age for contracts is 16. Unless her legal guardian signed off on the deal, and there’s no evidence in the show that this happened, Lex would have almost certainly been acting against all legal advice. Granted, this probably wouldn’t be the first time, but it’s still a problem.

There is a way around this though: emancipation. Kan. Rev. Stat. § 38-108 grants district courts the ability to declare a minor to have all the rights of majority, including capacity to contract and to sue and be sued. This was mentioned in passing during the first season, before Lana’s guardian moved to Metropolis, and though it was never actually established that this happened, given both her involvement in the Talon and rather conspicuous independence thereafter, it seems likely that it did.

B. Labor Laws

And the reason is that even if it is technically legal to transfer ownership to Lana, establishing a partnership, it was probably illegal for her to run the place. We talked about child labor a little while ago, and Kan. Rev. Stat. § 38-603 prohibits anyone under the age of 16 from working before 7AM or after 10 PM on a school night, for more than 8 hours at a time, or for more than 40 hours in a week. Anyone who’s run a coffee shop that was open late can tell you that you basically have to do all three of those things. The place would have had to close no later than 8PM for Lana to be finished closing up before she turned into a pumpkin. But the show pretty clearly indicates that she was responsible for all of those things, including showing up to accept pastry deliveries at 5AM. Lana is, to all appearances, a remarkably mature and responsible girl (though perhaps not the best judge of character), who might actually have been capable of handling that kind of responsibility. But it isn’t clear that the law would have let her.

Emancipation wouldn’t work here either. The emancipation statute permits minors to contract and dispose of their own property, but it does not grant any exceptions to the child labor statutes. So there’s a problem there.

Now if Lana had been as old as Kreuk was when the season was shot, there wouldn’t have been any problems, which is probably why this is a little less noticeable in the show. It’s unusual, but not unheard of, for someone in their late teens or early twenties to be running a business like the Talon, particularly if they’ve got a benefactor (read “parent”) in the background somewhere. So seeing Lana run the Talon doesn’t look wrong. Just like Clark and Lana walking into a bar at the beginning of season three and not getting carded doesn’t look wrong either: Welling was 26 and Kreuk 21. But in-universe, this really is a problem.

II. Various Relationships

Then there’s the issue of Lana’s relationship with Jason. They met during the summer of Lana’s junior year, when she is presumably 17. Jason, on the other hand, is in college, making him probably 19. This looks kind of like a statutory rape situation waiting to happen, doesn’t it? Which is probably why Jason gets fired when the school learns about their relationship. So why doesn’t he go to jail?

Because the relationship, while arguably sketchy, is not actually illegal, at least not in Kansas (and certainly not in France, where it started). Kansas defines “indecent liberties with a child” as sexual contact with a person who is under 16 but more than 14 (Kan. Rev. Stat. § 21-3503). Other statutes for more serious crimes have similar definitions. Basically, Lana was legal. This is something a lot of people don’t understand, and it’s a common feature of television for talk of statutory rape to emerge whenever a girl is under 18. A character actually attempts to justify the relationship by pointing out that both of them are 18. Which, while true, is not strictly relevant, as the relationship was legal even before Lana’s birthday. The fact of the matter is less than a dozen jurisdictions still have the age of consent pegged at 18, though the fact that California is one of them may explain some of this.

Either way, the age of consent in Kansas is 16, so starting in season three, the entire class is basically fair game. This is actually not that uncommon. It’s that way in at least half of the US, and many states even have “Romeo and Juliet” laws which create an exception for couples who are no more than two years apart, so a pair of high school sweethearts don’t get carted off to jail as soon as one of them turns 16. Most of Europe has this limit set at 14 or 15, though it’s as high as 17 in Ireland and 18 in Malta, of all places.

III. Conclusion

Casting actors older than the characters they portray is fairly common, especially where teenage characters are involved. This can make certain things legally possible on screen, but it also increases the audience’s willingness to suspend our disbelief when high school kids are shown doing stuff that there’s no way they would be able to do in real life. I don’t care if you are Superman, most bouncers aren’t letting you in the door and most bartenders aren’t serving you booze unless you can produce some sort of ID, fake or otherwise. There’s more to talk about in this show, so stick with us.

12 Comments

Posted in contracts, criminal law

Law and the Multiverse Mailbag XIII

Posted on March 25, 2011 | 34 comments

Lots of good questions this week. Today we’re looking at two issues: extra-planetary jurisdiction and conscription of specific superpowered individuals.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Extra-planetary jurisdiction

Bob asks “Do the laws of a country apply in space?  Perhaps if they are on a NASA spaceship then the laws of the USA would apply.  But how about if a crime is committed on the Moon (and not in any country’s Moon-base)?”

As mentioned in our interview earlier this week, Earth-bound legal systems don’t normally extend beyond the Earth’s atmosphere. Indeed, individual nations’ legal systems don’t extend much beyond their borders, but we’ve already got a terrestrial example: the high seas.

Oceans outside the territorial claims of any particular country are already pretty lawless. The UN Convention on the Law of the Sea has been ratified or at least signed by almost every country, but apart from addressing piracy it is mostly concerned with mundane issues like establishing territorial boundaries and exclusive economic zones. Admiralty law is a little more detailed (and one of the oldest continuously operating bodies of law in the world) but even that has mostly to do with the conduct of vessels, salvage rights, etc.

But even there, national courts are widely held to be able to exert jurisdiction over persons for actions they commit while at sea once the person is brought to shore. One of the most famous cases in every law student’s criminal law class is R. v. Dudley & Stephens, about some sailors who cannibalize the cabin boy. The defendants were brought to trial and convicted once they returned to their native country, and jurisdiction was not one of the real issues. But if they had been rescued by, say, an American ship, it’s possible they could have been brought to trial in an American court. Crimes committed on the high seas can generally be tried everywhere, e.g. Somalian pirates are being tried in New York City. The theory is that crimes committed outside national boundaries are, in a sense, crimes against civilization, and thus may be tried anywhere. The controversial doctrine of universal jurisdiction has some of its origins in this concept.

There is a limit here: the acts in question need to be obviously criminal by anyone’s standards. Murder is a pretty easy example. So is piracy. But what about things that are only illegal by statute, like gambling? Well the ferry that runs between Maine and Nova Scotia passes through international waters, and the on-board casino is only open when outside both the US and Canada’s territorial waters. There really hasn’t been all that much law here, but it’s unlikely that any given nation would be able to enforce its particular regulatory regime on the high seas over anything but a ship registered under that nation’s flag.

Outer space is quite similar. There is, in fact, a statute which extends federal jurisdiction to spacecraft flying the US flag (18 U.S.C. § 7(6)), which also discusses maritime jurisdiction with similar results. State laws do not apply, but federal laws do. But again, note that enforcement would require bringing a defendant back to US soil for trial, just like it would for crime on the high seas.

The same statute, specifically subsection 7, also grants US jurisdiction over “any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.”  This is kind of a catch-all clause.  If no one else has jurisdiction and a US national is either the suspect or the victim, then the US has jurisdiction.  So if a supervillain commits a federal crime against an American superhero on, say, Mars, then the supervillain can be hauled into federal court once he or she is brought back to Earth.

II. Conscription

Samuel asks “Given that an American superhero like Superman can be a tremendously valuable military asset, as both a frontline combat supersoldier and as a propaganda tool, is there any legal basis for the U.S. government to conscript Superman, specifically, into the Armed Forces?  What about drafting all superheroes in general?  Is there any legal way for Superman and other superheroes to ‘dodge the draft’?”

The law here is less clear than it is for law in outer space, only because it does not appear that the government has ever tried to draft a specific individual outside a wider draft program. As far as draft programs go, the courts have been exceptionally deferential to congressional power. The Supreme Court has held that “The constitutionality of the conscription of manpower for military service is beyond question. The constitutional power of Congress to support the armed forces with equipment and supplies is no less clear and sweeping.” Lichter v. United States, 344 U.S. 742 (1948).  As John Quincy Adams said in a speech before the House of Representatives, “[The war power] is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, property and of life.”

More recently, the D.C. Circuit has held that “the power of Congress to raise armies by conscription is not limited by either the Thirteenth Amendment or the absence of a military emergency.” United States v. Chandler, 403 F.2d 531 (D.C. Cir. 1968). The Thirteenth Amendment, prohibiting involuntary servitude, is perhaps the most obvious potential constitutional issue with the draft, and the federal courts have unanimously and consistently held that it does not limit the draft power at all.

Similarly the federal courts have held that the First Amendment is no barrier to the draft.  Conscientious objector status is the product of statute, not the Constitution.  “The conscientious objector is relieved from the obligation to bear arms in obedience to no constitutional provision, express or implied; but because, and only because, it has accorded with the policy of Congress thus to relieve him.”  United States v. Macintosh, 283 U.S. 605, 623 (1931).  If Congress wanted to, it could conscript everyone, regardless of any religious or moral objection.  It’s unlikely it would do so, given that it would likely lead to civil disobedience, but it’s a theoretical possibility.  In the same case the Court lists a whole host of constitutional rights that may be superseded by the war power, culminating in “other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war.”

However, this is still an untested area of law, because as far as we can tell Congress hasn’t actually tried to do this, there being no compelling reason to use the draft power this way. The only times a draft has been imposed have been in times of incredible demand for manpower—it is a pretty drastic step, after all—so going after a handful of specific individuals wouldn’t make sense in the real world. But if the draft of specific individuals or classes of individuals is to be attacked, it would have to be on some kind of due process argument, i.e. Congress can draft everyone in a certain age group, but it can’t draft specific people.

Should Congress go after a regular guy this way, the courts might be persuaded to intervene, but if the target is a superhero? It may well be that the courts would permit such an action, as the draft power is pretty sweeping, and the courts have not really displayed any willingness to limit that power before. If Congress thinks it needs the assistance of a uniquely capable citizen to fight a war, then that may well be something Congress is allowed to do.

III. Conclusion

Law in outer space would probably work pretty similarly to law on the high seas: a particular nation’s courts could probably enforce basic laws against things like murder, but only once the defendant was brought to Earth. And Congress may well be able to draft the services of specific people, particularly if there’s a reason for their unique services to be used.

Thanks for reading. There’ll be more next week!

34 Comments

Posted in constitutional law, criminal procedure, mailbag

All Things Considered

Posted on March 21, 2011 | 14 comments

An interview with James and Ryan was featured on All Things Considered today.  If you couldn’t catch it live, check the link to hear the full interview.

Welcome to all NPR listeners and readers!

14 Comments

Posted in interviews and podcasts

Limitless

Posted on March 21, 2011 | 10 comments

[amazon_link id=”B005DD7MH8″ target=”_blank” container=”” container_class=”” ]Limitless[/amazon_link] opened this weekend, and is the subject of Law and the Multiverse’s second look at a movie. Spoilers to follow, as always.

The basic premise is that Edward Morra (Bradley Cooper) stumbles across a drug, “NZT,” which massively boosts one’s memory and intelligence. This enables him to write his unstarted-and-overdue book in a matter of days, learn any language in a matter of hours, and become a concert-level pianist in a long weekend. So basically, what we’ve got here is every nerd’s fantasy: if I was only smart enough, I’d be able to get the money and the girl.

The movie has been described as “more interesting than it has any right to be,” which is about right. But there are a number of legal issues in the movie to talk about, mostly about the drug itself.

First, a high-level overview of how drugs are regulated in the US.  For a drug to be legally prescribed or distributed it must be approved by the Food and Drug Administration.  Clinical trials for new drugs must also have FDA approval.  Some drugs are further restricted by the Controlled Substances Act, which establishes a schedule of controlled substances, some of which can be prescribed by a doctor with a DEA number and some of which are banned outright (e.g. heroin).  Finally, individual states can add to (but not subtract from!) the federal controlled substances schedule.  Now we’ll look a little closer at how all of this affects NZT.

I. The Food and Drug Administration

It is illegal to sell, for human consumption, any pharmaceutical product which has not been approved by the FDA, which may be marketing approval or approval of a clinical trial. This is why pharmaceutical companies spend so much time and money on the approval process: one bad trial can mean millions in R&D going down the tubes. The FDA was (more or less) created by the Pure Food and Drug Act of 1906, later replaced by the Food, Drug, and Cosmetic Act of 1938. These and later acts make it a crime to market or distribute any drug (or medical device, food additive, or dietary supplement) without FDA authorization. The approval process for each category is different, which is why almost anybody can sell a dietary supplement, provided they do not make claims which would suggest that it is a drug and it isn’t drug-like enough to make the FDA want to categorize it there regardless of claims.

Still, as soon as the FDA got wind of this, you can bet that they’d take action, probably including bringing in the DEA, to see that the creation and distribution of this drug was brought under federal oversight. This isn’t entirely a bad thing, either. Sure, the War on Drugs is notoriously problematic from a civil liberty, social policy, and even race relations standpoint, but the real objection is that the government is misclassifying drugs, not that it shouldn’t be classifying drugs at all. In the nineteenth century, there really was no regulation on any of this stuff, so a drug containing heroin could not only be marketed freely, but without any indication that it contained heroin. A consumer could get addicted to a powerful narcotic without even realizing that they were using it. This, obviously, is not an ideal situation. Similarly, without regulating pharmaceutical manufacturing, companies could use unsanitary facilities or dangerous ingredients in their products without anyone knowing or being able to do anything about it. Again, not a good outcome. So even if we think that our approach to certain interesting substances needs to be re-evaluated, deregulating them entirely is probably not the best option.

So would the FDA ever approve something like NZT?  Probably not, though theoretically it could, and if it did it wouldn’t approve it for average people like Edward Morra.  The FDA most often approves drugs that treat, diagnose, or prevent diseases.  Since having average intelligence is not a disease, the FDA would be reluctant to approve NZT unless it had virtually no side effects.  Since it apparently kills people who stop taking it, approval is unlikely.  The FDA could limit NZT’s approval to use by people with development disabilities, but it’s also rare for the FDA to approve drugs that people have to take for the rest of their lives.  Usually such drugs are only approved for life-threatening conditions.  NZT would definitely struggle for regulatory approval.

II. The Controlled Substances Act

Many drugs, both approved and unapproved, are regulated under the Controlled Substances Act, which operates in two primary ways. The statute itself includes a list of scheduled substances, and it empowers the attorney general to modify the schedule, although in practice the schedule is modified by the Drug Enforcement Agency as informed by the FDA. The statute lays out the criteria by which substances are to be categorized into different schedules, but other than the drugs which Congress has scheduled by legislation, the statute basically lets the attorney general issue his or her own findings as to which drugs belong where.

Schedule I substances are basically illegal entirely, i.e. illegal to create, distribute, or possess. They have a high potential for abuse, no currently accepted medical use, and are unsafe to use even under medical supervision.  There are rare exemptions given for research, but that’s about it.  Schedule I includes things like heroin, marijuana, LSD, methaqualone (Quaalude), and a host of hallucinogens.

Schedule II includes drugs which have a potential for abuse which is less than those on Schedule I, and can be prescribed under certain circumstances. Cocaine, believe it or not, does fall here, as it is occasionally used as a topical anesthetic even today. Oxycodone, morphine, and most of the other narcotics fall in this schedule, as do amphetamines.

Schedule III is, again, less serious than Schedule II, etc., all the way down to Schedule V, which includes some substances (such as cough syrup with codeine) which are actually available over-the-counter in other countries.  It should be noted that most prescription drugs are not scheduled at all.

NZT is obviously something that would be scheduled by the appropriate federal agency—probably the FDA—and given its properties would be a good candidate for either Schedule I or II. It appears highly addictive, or at least the people who stop taking it tend to die, though it could potentially have a legitimate medical use. Giving it to developmentally disabled persons might enable them to live normal lives, for example, and as NZT is not said to have any adverse side effects other than dependency, the FDA might theoretically approve such a drug if a proposal were submitted. Either way, Eddie is taking it without a prescription. Is that illegal?

Maybe, maybe not.  It depends on how closely related NZT is to a known controlled substance. The federal government and many states have passed what are generally referred to as Analog Acts (e.g. the Federal Analog Act).  These laws attempt to regulate substances that are substantially similar to known controlled substances.  We say ‘attempt’ because the courts are not in uniform agreement as to whether such laws are valid or not.  In an effort to broaden the reach of the laws the legislatures tended to draft them very generally, to the point that some courts have held them void for vagueness, which is a rare but serious defect in a criminal law.  And this makes sense: for a criminal law to work people have to know what, exactly, is being criminalized.

But let’s assume that NZT is an entirely novel substance.  Certainly there’s nothing similar on the market, so that seems like a reasonable assumption.  New controlled substances need to be placed on the list via legislation or administrative procedures. A general rule of the US legal system is that if a given act is not prohibited, it is permissible. Inventing a new drug and deciding to take it is not illegal until the government says it is. Which is why you periodically see states and municipalities freaking out over whatever new substance the kids are using these days. Most recently it was spice, a kind of synthetic cannabis. Until that happens, new, unapproved drugs are basically fair game to create, possess, and consume.

But they aren’t legal to distribute, because that constitutes a commercial transaction over which the federal government has exerted pretty expansive jurisdiction. This power generally comes from the Commerce Clause, and the Supreme Court has been pretty generous in interpreting the Commerce Power where the regulation of drugs is concerned.  See, e.g., Gonzales v. Raich, 545 U.S. 1 (2005).  So while NZT is theoretically legal for Eddie to have and to use, the guy he got it from was definitely breaking the law.

We’ll keep these reviews coming as more interesting movies are released. A ton of great comic book movies are coming out this summer, including [amazon_link id=”B005H9B44A” target=”_blank” container=”” container_class=”” ]Thor[/amazon_link], [amazon_link id=”B004LWZW42″ target=”_blank” container=”” container_class=”” ]X-Men: First Class[/amazon_link], and [amazon_link id=”B005ZCXPP0″ target=”_blank” container=”” container_class=”” ]Captain America[/amazon_link], so stay tuned!

10 Comments

Posted in administrative law, criminal law, movies

Smallville I: Discovery and Foundation

Posted on March 16, 2011 | 10 comments

Smallville is one of the more recent television shows to feature superhero characters, and one of the few to feature comic book characters, at least in prime time. There are plenty of legal issues raised in the series, and this is the first post in a series examining them.

Needless to say, there are going to be spoilers here, so you have been warned.

I. Discovery

In the season 2 episode “Precipice,” Clark stands up to a guy who had assaulted Lana at the Talon. This winds up heading into the back alley, where the guy and his entourage attack Clark. This works about as well as one might expect, and the main offender winds up thrown on top of a sheriff’s cruiser. This also works about as well as one might expect. Clark is sentenced to community service, and the Kents are served with a lawsuit alleging bodily injury and emotional damages—the standard plaintiff’s attorney laundry list—asking for $1 million.

The core of the complaint is that the plaintiff was seriously injured, and later in the episode we see him leaving a store in a neck brace and using a cane. Clark attempts to apologize only to be rebuffed, as the guy claims that he’s been seriously injured and is coming after them for real. But when he gets in the back seat of his SUV, Clark uses his x-ray vision to see him take off his brace and high five his buddies. He’s faking the injuries.

Getting proof of this winds up being a fairly significant plot point. Clark can’t do it himself because of a restraining order, the Kents can’t afford a private investigator, and even if Clark could get close without breaking the law, the implication is that there wouldn’t be any way of getting that into evidence without revealing Clark’s abilities. Clark and Lana wind up cooking up a way of getting the plaintiff to expose himself. This makes for a decent amount of drama and serves as a useful point in the will-they-won’t-they subplot that constitutes a decent amount of the show’s appeal. But legally, it’s basically bogus, or at least completely unnecessary.

The reason can be expressed in one word: discovery. Discovery is the phase in litigation where the parties gather and exchange evidence, attempting to figure out exactly what the facts are and where they stand as a result. Civil procedure was radically changed in the 1930s when the Supreme Court adopted the Federal Rules of Civil Procedure in what proved to be one of the most significant, far-reaching, and successful legal reforms in history. Many states followed suit in the next few decades, adopting rules essentially copied from the federal rules. Rule 35 provides for physical and mental evaluations of significant persons, usually plaintiffs, but potentially anyone. In essence, if one of the parties makes the physical or mental condition of a person an issue in the case, the other party is entitled to require that person to submit to a medical examination.

This makes it really hard to fake injuries. Playing up injuries for dramatic effect is one thing—this is one way plaintiff’s attorneys earn their fees, after all—but actually fabricating them in the way this character did is pretty difficult to get away with, given that one would need to fool a medical professional hired by the party that wants to poke holes in one’s story. So instead of sneaking around and finding some way of getting the plaintiff to give himself away, all the Kents really needed to do was get their attorney to request a Rule 35 examination, which is something he would have done anyway.

Oh, and about the Kents not being able to afford an attorney or investigator? They didn’t have to. Unless the Kents are in way more financial trouble than they seem to be, they’ve got liability insurance, which means that the carrier will provide defense—including investigation as necessary—for free. It’s one of the benefits of insurance. So here’s a situation where the writers seem to have basically punted on the law to serve the story, which is fine.  Smallville is far from the first show to do that, and it’s much better to overlook part of the law for the sake of the story than to misstate it.

II. Foundation

But elsewhere the Smallville writers get it right. At the end of season 2 and beginning of season 3, Lionel Luther is arrested and tried for the murder of his parents. The key piece of evidence is said to be a recording that Chloe made of Lionel confessing to the crime. Her life is obviously threatened, which makes for some significant drama over about three episodes, but the real question here is why they needed her to testify at all.  Couldn’t they simply play the recording for the jury?  Here, the writers get things right.

To admit the recording into evidence there must be sufficient foundation. “Foundation,” in the legal sense, is preliminary evidence used to establish the origin and nature of other evidence, usually documents, recordings, objects, and the like. To get the recording into evidence, someone is going to need to testify under oath that they were involved in its creation, know when it was made, and whose voices it represents. So Chloe can testify that the recording she made is genuine. That will be sufficient to get a judge to permit the prosecutor to present it to the jury. The recording being as damning as it was, it’s unsurprising that he was convicted.

There’s one other matter that bears mentioning: the recording itself. The Fourth Amendment generally prohibits the government from using covert recordings in criminal proceedings without a warrant. Why, then, was Chloe’s recording admissible? There certainly wasn’t a warrant for that (though whether or not there was one for the investigation spearheaded by Lex is unaddressed). It turns out that this isn’t really an issue because while the Fourth Amendment does prohibit the government from using recordings, it does not prohibit the government from using recordings made by civilians on their own. People are entirely free to record their own conversations, and many states do not require a person recording their own conversations to notify the other party that a recording is being made. In other words: watch what you say, especially these days.

III. Conclusion

That’s all for now. So far the Smallville writers are 1-1. More to come!

10 Comments

Posted in evidence