Category Archives: criminal procedure

We’ve made it to the last part of our series on Manhunter volume 4. This is also the penultimate entry in our larger series on Manhunter, since volume 5 is pretty light on legal issues. To celebrate wrapping up this series, we’re giving away a complete set of volumes 1-5 of the Marc Andreyko run of Manhunter. To enter, simply send an email with “Law and the Multiverse Manhunter Giveaway” in the subject to james@lawandthemultiverse.com.  Please note that you must be 13 or older to enter.  We’ll choose a winner at random from among all of the entries we receive and announce it with the final Manhunter post.  (In the future we’ll probably give away books before we start writing about them, but we only had the idea for this recently.)

Now on to today’s post.  The remaining issues to talk about in volume 4 are some evidentiary problems and the “elephant in the room” jurisdictional issue.  Spoilers ahead!

I. Evidence, Grand Jury Procedure, and More Legal Ethics

After Spencer obtains Superman’s agreement to testify and to allow the use of the videotape proving that Superman was acting under Lord’s psychic control, she arranges a meeting at the judge’s home with the judge, the prosecutor, Superman, and herself.  There she shows the judge and prosecutor the videotape.  As we’ve discussed, there would ordinarily be no judge involved at the grand jury stage of things.  Curiously, the comic gets several things right at this point that almost make up for things it got egregiously wrong earlier.

First, the judge correctly remarks that she can’t speak to Spencer without the prosecutor present.  California Rule of Professional Conduct 5-300(B) states that attorneys cannot communicate with a judge regarding the merits of a case except

(1) In open court; or
(2) With the consent of all other counsel in such matter; or
(3) In the presence of all other counsel in such matter; or
(4) In writing with a copy thereof furnished to such other counsel; or
(5) In ex parte matters.

So Spencer was right (so far as it goes) to call the prosecutor into the meeting.

Second, the comic correctly shows that both the judge and the prosecutor are not at court while the grand jury is deliberating.  As mentioned in the last post in this series, no one except the jurors and any necessary interpreters may be present for federal grand jury deliberations.

Third, the judge correctly tells Spencer that the evidence can only be offered at trial.  The prosecutor can choose what evidence to present to the grand jury, and once the grand jury has begun deliberating it is too late for the prosecutor to offer any new evidence.  Of course, it’s highly unlikely that the prosecutor would show such evidence to the grand jury anyway.  Although prosecutors may have an ethical duty to give the defendant any evidence tending to prove the defendant’s innocence (ABA Model Rule 3.8(d)), it’s up the defendant to actually use that evidence.  The prosecutor has no obligation to do the defense’s job for it.

Although the comic gets a lot correct there, there’s still a significant error here.  Specifically, a judge would look at the video or listen to what Superman had to say outside of the proper context (i.e. a trial or at least a pre-trial hearing).  For one thing, Superman wasn’t under oath, and for another the prosecutor wasn’t given an appropriate opportunity to contest the admissibility of the video (he made a lame show of opposition but the judge told him to shut up).  So we’ll have to give this part a mixed review: kudos for getting some of the ethical and procedural issues right but minus points for trying to present evidence outside of court.

II. Jurisdiction

We saved this issue for last because it actually makes almost everything else in this case moot: the United States has no jurisdiction over Maxwell Lord’s murder because Wonder Woman killed Lord at Checkmate’s headquarters in Switzerland, which is outside both the US’s territorial boundaries and the federal government’s special maritime and territorial jurisdiction.  The fact that Lord is a US citizen doesn’t change the result.

Of course, Wonder Woman could have been charged and tried in Switzerland.   It’s not entirely clear where Checkmate headquarters is located within Switzerland, so we’re not sure which canton’s laws would apply.  In some cantons, Spencer could represent Wonder Woman but it would require the permission of the local authorities and the assistance of a local attorney.  See, e.g., Article 23 of the Geneva Loi sur la profession d’avocat.  In cantons that allow non-lawyers to represent people in court she could certainly represent her.  See, e.g., §§ 2-3 of the Basel Advokaturgesetz.  But in other cantons there doesn’t seem to be any provision for a foreign, non-EU attorney to represent a client in court.  See, e.g., the Bern Kantonales Anwaltsgesetz.

However, even if she could represent Wonder Woman we don’t think it would be a good idea.  Spencer doesn’t appear to speak any of Switzerland’s official languages, and she presumably knows little or nothing about Swiss law, which is a civil law system and thus fundamentally different from US law.  Even if Wonder Woman requested her services, Spencer would have to consider whether she could competently represent Wonder Woman as required by the California Rules of Professional Conduct.  Those rules still apply even if Spencer is outside of the country.  Rule 1-100(D)(1).

Since we know about as much about Swiss law as Spencer, we will not speculate as to what the result might have been had Wonder Woman been tried in Switzerland.  If there are any Swiss lawyers in the audience we’d love to hear from you in the comments.

That’s all for this issue.  Be sure to enter the drawing!

The Trial of Captain America was a 5 issue Captain America story arc covering the trial of James Buchanan “Bucky” Barnes, who took over as Captain America following Steve Rogers’s apparent death.  There are a bunch of legal issues here—mostly handled pretty well—so let’s get right to it.  Spoilers ahoy.

I. The Charges

By way of background: In 1945 Bucky was found by the Russians after the plane he was in exploded, plunging him into the icy North Atlantic.  The Russians revive Bucky and take advantage of his amnesia to reprogram him as an assassin.  During his career as the Winter Soldier, Bucky kills numerous US citizens.  When word of this leaks out decades later, Bucky submits to a criminal trial in order to clear his name.

So, are these charges appropriate?  There’s no statute of limitations for murder, so when they occurred is unimportant.  But what about where?  No doubt some of the murders occurred “within the special maritime and territorial jurisdiction of the United States” as required by the federal murder statute, 18 USC 1111.  But what if Bucky murdered a US citizen abroad?  Could he still be charged in a US court for that?  As it turns out, maybe.  18 USC 2332 criminalizes, among other things, the murder of US nationals abroad, but it was only enacted in 1986.  Bucky could potentially dodge being charged for a few early crimes that way, but it only takes one successful murder charge to make for a serious prison sentence.

II. Legal Ethics

Steve Rogers asks a friend (and former girlfriend) of his, Bernie Rosenthal, to act as Bucky’s defense attorney.  That’s not the problem.  The problem is that Steve not only sits in on Bucky’s first meeting with Bernie but actively participates in discussion of trial strategy.  We don’t see them discuss anything too sensitive, but this is a great way to waive attorney-client privilege.  Only the client can waive the privilege, but the simplest way to do it is to let a non-privileged person (like Steve) in on the confidential information.  To protect against this, Bernie probably should have asked Steve to leave the room lest he be called to testify about their discussion.  At the very least she should have informed Bucky that letting Steve stay in the room would risk waiving the privilege.

As Kate Spencer did in Manhunter vol. 2, Bernie goes on a Larry King Live-esque talk show to argue her case in the court of public opinion.  Unlike in  Manhunter, this comic doesn’t show her saying anything particularly problematic.  In fact, the host says “many would argue [Bucky] has already been tried in the media”, to which Bernie replies “And that’s why I’m here, Barry.  For weeks we’ve had a 24 hour-a-day bashing of my client with no balance whatsoever.”  This could be seen as an invocation of ABA Model Rule 3.6(c):

a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(A side note: Steve, Bernie, and Bucky discuss whether to put Bucky on the stand, with Bernie against it, Steve initially for it, and Bucky agreeing with Bernie.  While most issues of trial strategy are ultimately at the discretion of the attorney, whether or not a criminal defendant takes the stand is up to the defendant.  ABA Model Rule 1.2(a).  So while Bernie can (wisely) counsel Bucky not to take the stand, Bucky could have gone against that advise.  The same is true of the decision to waive the right to a jury trial, which Bucky does.)

III. Cameras in the Court Room

The judge in the case bars cameras from the courtroom in order to avoid a media circus.  This is a curious thing to mention because it’s a federal case, and cameras are forbidden in federal courts, outside of a very recent pilot program.  Still, a judge has pretty much complete control over the court room, and even if cameras were potentially allowed he could easily prohibit them instead.

IV. “Doctor-Patient Confidentiality”

Sin, daughter of the Red Skull, leaks a video of a interview from a psychiatric hospital in which she accuses Bucky of being the Red Skull’s willing accomplice (and not, as Bucky claimed, mind controlled).  It’s strongly hinted that Sin made up the accusations on the tape knowing that they would be used in the trial.  In any case, the prosecution submits the video as evidence.  While Steve and Bernie are discussing the tape (another ethically shaky move), Steve asks “is it even admissible?”  Bernie replies “I don’t know.  Leaking your own psych interviews to the press probably invalidates doctor-patient confidentiality.”  This is a pretty serious misstatement of the physician-patient privilege for two reasons.

First, doctor-patient confidentiality refers to a doctor’s ethical obligation to keep what a patient tells them confidential.  The physician-patient privilege is the evidentiary privilege that allows a patient to prevent a physician from testifying as to certain things in certain circumstances.

Second, yes, leaking the tape to the press would waive the privilege, but as the holder of the privilege Sin was always free to do so.  The privilege prevents no problems with regard to the tape’s admissibility as long as it is clear that Sin was responsible for the leak.

It’s also worth noting that the federal courts do not recognize the physician-patient privilege.  See, e.g., United States v. Bek, 493 F.3d 790, 801-02 (7th Cir. 2007) (“we can find no circuit authority in support of a physician-patient privilege … and we can find no reason to create one now”).  However, they do recognize the psychotherapist-patient privilege.  See Jaffee v. Redmond, 518 U.S. 1 (1996).  So depending on who Sin was talking to in the interview, a privilege might or might not have existed in the first place, at least as far as the federal courts are concerned.

However, all of this misses the real reason the tape is very likely inadmissible: it’s hearsay because the tapes are Sin’s out of court statements offered to prove the truth of what she’s saying (i.e. that Bucky was a willing accomplice of the Red Skull).  Further, none of the hearsay exemptions or exceptions apply.  Sin isn’t discussing the details of a conspiracy with Bucky that she was a part of while she was a part of it, so Federal Rule of Evidence 801(d)(2)(E) doesn’t apply.  Although it’s a quasi-medical interview these particular statements don’t seem like they were made “for purposes of medical diagnosis or treatment,” so 803(4) doesn’t apply.  Sin is unavailable to testify, but her testimony doesn’t meet any of the 804(b) exceptions.  The 807 / 804(b)(5) catchall exception could apply, but we find it extremely hard to believe that Sin’s interview has the necessary “equivalent circumstantial guarantees of trustworthiness.”  She is, after all, a delusional psychopath with a known vendetta against Captain America.  It’s hard to get less trustworthy.

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There are more legal issues  in this storyline to talk about.  Check out part 2 here!