Category Archives: criminal procedure

Shapeshifting and Trial Testimony

Posted on December 15, 2010 by | 21 comments

A number of superheros and supervillains–Mystique, Amalgam, Everyman, etc.–have the ability to change shape into the appearance of other people. This is used variously for heroic purposes or nefarious deception, but what would the legal system need to do to account for the possibility of a shapeshifter impersonating a witness in a legal proceeding?

The implications are startling. A key witness could be replaced with a shapeshifter to introduce or conceal critical evidence at trial. Heck, one can imagine a supervillain making a decent living impersonating witnesses for a fee!

But surprisingly enough, this is something that the legal system is already pretty well equipped to deal with.

I. Verification

One can perhaps think of technical means that a court could impose to verify the identity of witnesses given the possibility of a changeling impersonating them. Certain superheros might even find some side work this way, and enterprising inventors could too. But even aside from the potential cost and inconvenience, this is not something the court system would probably impose.

Why? Because juries are already tasked with evaluating the credibility of witnesses. No special care is taken to make sure that witnesses aren’t lying, so why should special care be taken to ensure that they are who they appear to be? Indeed, witnesses must already identify themselves, and we trust juries to tell if a witness is lying about their identity.  Perjury is also already a crime–and impersonating another to give testimony under oath is certainly perjury. So if we already trust juries to weigh the credibility of testimony, including the witness’s claimed identity, it would seem that the problem of shapechangers is an issue of degree rather than kind.

II. Cross-examination

The reason that the legal system puts such faith in juries and takes so few preventive steps to prevent perjury is the system’s reliance on cross-examination.

Cross-examination is the part in a trial where a witness is questioned by the opposing attorney, a process which witnesses universally report is No Fun At All. The attorney is deliberately attempting to catch and exploit inconsistencies, however minor, in the witness’s testimony, and even an entirely truthful, honest witness can be made to appear pretty silly by a skilled trial lawyer. A good discussion of how this works and the ways in which a cross-examiner can accomplish his or her objectives can be found in the Ten Commandments of Cross-Examination.

The reliance placed upon cross-examination is so great that it underpins one of the most fundamental rights in criminal procedure: the right to be confront witnesses. If an attorney is not able to convince a jury through cross-examination that a witness is either lying or unreliable, that’s basically just too damn bad.

This is because testifying in court is different from having a discussion with friends over a few beers; there are stringent rules for what can be said and what cannot be said, and the attorney not doing the questioning has every interest in seeing that they are enforced. Remember how in all those law shows attorneys are always yelling “Objection!” That’s because they’re trying to draw the judge’s attention to what they believe (or would like the judge to believe) is a violation of the rules of evidence (although in the real world the reason for the objection also has to be given).

And again, even an honest witness can be tripped up by a skilled attorney. How much more a witness who does not actually have first-hand knowledge of the testimony being offered? Even a shapeshifting telepath is going to have a really hard time slipping one past an attorney who knows what he’s about. By the time a witness appears on the stand, particularly in a case of any significance, both attorneys pretty much know what their respective witnesses have to say. They will all have given extensive depositions, and the trial process is less a revelation of new evidence than it is a formal way of entering that evidence into the record. Any deviation from a deposition is likely to be noticed by the examining attorney and immediately pounced on. It will quickly become clear to the judge and the jury that something fishy is going on, and at that point the gig is up: either the doppelgänger will be revealed, or the damage to the case intended by the shapeshifter will be avoided.

At this point, other laws come in to play. Subornation of perjury is itself a crime, so a party or attorney that solicited the shapeshifter to replace a witness is in big trouble, and tampering with evidence in this way could well be a violation of discovery rules. Rule 37 permits a judge to impose a variety of sanctions on a party that does not cooperate with the discovery process, up to and including both contempt of court and ruling that the record treat the issue in question as conclusively established for the opposing party.  The attorney may also be sanctioned directly under Rule 11.

III. Conclusion

So here it would seem that the legal system is already pretty well set up to deal with the possibility of shapeshifters in court.

21 Comments

Posted in civil procedure, criminal procedure, evidence

Superheros and alter-egos

Posted on December 1, 2010 by | 38 comments

Bruce Wayne is Batman. Clark Kent is Superman. Tony Stark is Ironman. Peter Parker is Spiderman.

And so it goes. Throughout the various multiverses, numerous superheroes have maintained alter-egos, either to protect their “normal” lives and loved ones or to disguise their true natures. Sometimes both.

Either way, the idea of an alter-ego comes with certain legal complications, as has been recognized long before the publication of the first comic book. In Robert Louis Stevenson’s Strange Case of Dr. Jekyll and Mr. Hyde, first published in 1886, one of the main plot drivers is Jekyll’s pains to ensure that he maintains access to his property when he changes into Hyde. This largely took the form of instructing his servants to pay heed to Hyde and executing a will leaving everything to Hyde should Jekyll disappear.

Legally, there is no reason Jekyll could not do this. The fee simple gives a property owner the right to dispose of his property in any legal way that he sees fit. The problem is not that Jekyll’s design was illegal, but that it was unusual, to the point that people noticed something was up. Indeed, it was the very attempt to create and maintain this alter-ego which led to the discovery of his dual identity. If Jekyll/Hyde had been content to live two entirely different identities with no overlapping property or affairs, i.e. if Hyde had been willing to forego all of Jekyll’s advantages, the story could have ended quite differently.

So the problem is not only in the creation of an alter-ego, but doing so within the bounds of the law in ways that will maintain the integrity of the illusion. Both of these will cause problems on a number of levels.

I. Legal Status

The relationship between one’s “mundane” and “masked” identities is significant. If one starts life as a mundane person and then acquires a masked identity, e.g. Bruce Wayne becoming Batman, things are fairly straightforward, as one already has a full-fledged legal identity. But simply creating a new person out of whole cloth, as one would need to do if one were creating a new cover identity or faking one’s own death, is more difficult. Governments do this for people on a regular basis for things like witness protection programs, espionage, undercover operations, etc., but there are two main facts about this which present problems for our superheros. First, government-created identities are obviously created with government approval, so no laws are being broken. Second, these identities are rarely intended to be used either for significant transactional purposes or for very long, i.e. they are not intended to fully or permanently replace the original identity.

The basic problem then is that to create a new identity without government authorization requires the commission of a number of felonies, potentially including making false immigration statements (18 U.S.C. 1015), identification document fraud (18 U.S.C. 1028), perjury (18 U.S.C. 1621) and numerous related offenses under state law. And trying to live in contemporary society without such documents will be very, very difficult. One cannot buy a car, rent an apartment, get a checking account, or engage in a host of transactions essential to the logistics of mundane life without some form of government identification, identification which a superhero wanting to create a new mundane identity for his masked persona would need to forge. Creating successive false identities all but requires one to engage in illegal activities. So much for being a law abiding citizen.

All of these may seem trivial, but Al Capone was eventually brought down, not for racketeering or the St. Valentine’s Day Massacre, but for simple tax evasion. And if the illegality is not problem enough in its own right, these sorts of illegalities do tend to attract enough attention to make maintaining a secret identity pretty difficult, particularly if one wishes to maintain some kind of base-level commitment to law and order.

II. Money Laundering

Speaking of taxes, transferring large sums of money without a paper trail is difficult to do legally. Money laundering is a federal offense, and suggestions of financial shadiness tend to attract the attention of prosecutors. Jumping through offshore banks is no guarantee of secrecy: the discipline of forensic accounting exists almost solely to analyze patterns of financial transactions for irregularities. Even cash transactions are no solution, as transactions over $10,000 must be reported to regulators and paying for anything more than $500 with cash will be reported as suspicious. So while the money being “dirty” in some sense, i.e. representing the proceeds of or being used for some unlawful activity (18 U.S.C. 1956) for disguising the origin and ownership of funds to be a felony, simply the attempt to disguise it is likely to raise red flags all over the place, because most of the people engaged in that sort of activity are doing so for nefarious reasons. If our superhero or an artificial “mundane” persona is going to need to spend any money, this poses problems of the sort which could easily trigger an IRS audit. As the Joker observed at one point, “I’m crazy enough to take on Batman, but the IRS? No, thank you!” So again, it seems that our some of our heroes are faced with a difficult choice: maintain their secret identity or live within the bounds of the law, but even breaking the law in this way is no guarantee of success.

III. Evidence and the Sixth Amendment

Unfortunately, unless a hero plans to kill every villain with whom they come into conflict, bringing said villains to justice is actually made a lot more difficult the more a masked hero is involved in the case. It turns out that wearing a particular costume or uniform, which is how superheros and villains are normally identified in comic books, does not actually count as evidence that the person wearing them is, in fact, the same person all the time.

This is significant, because the Confrontation Clause of the Sixth Amendment reads “[I]n all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him.” The goal of the Confrontation Clause, as stated by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), is to “preserve reliability of evidence” by establishing procedures so that “reliability [may] be assessed in a particular manner: by testing in the crucible of cross-examination.”

A witness whose identity cannot be definitively established would likely be useless as a witness. Courts and legislatures have made exceptions to the Confrontation Clause for situations like child witnesses against their abusers, but these are mostly limited to permitting the child, visible to the court, to testify via closed-circuit TV so that they do not have to see the accuser. There is no precedent to suggest that an essentially anonymous person or a person operating under a known or obvious alias would be permitted to testify in court without revealing their actual legal identity. A clever defense attorney could easily point out that we don’t even let witnesses in the witness protection program testify in open court while disguised; why should we let a superhero?

The Sixth Amendment aside, it is not clear that the Federal Rules of Evidence would permit a masked person to testify at all. Federal Rule of Evidence 602 reads, in part, as follows:”A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” It will be much more difficult to prove that a masked person was a witness to a particular event when there may be no evidence that the masked person on the stand is the same masked person who allegedly saw what he claims to have seen. It is common practice for attorneys to ask a few simple questions such as name, address, age, etc. to establish a witness’ identity before proceeding to elicit testimony. Such questions would be impractical for a masked person to answer without revealing their identity, and a refusal to do that might well cause a judge to exclude their testimony entirely. Again, we don’t let traditional witnesses disguise themselves, and there isn’t any obvious legal reason that a superhero should be an exception to that rule. As the FRE apply to both criminal and civil cases, so this could be a problem even when the Sixth Amendment does not apply. Something like Peter Parker taking pictures of Spiderman’s exploits might help, but again, someone needs to be able to testify as to the veracity of those pictures, and that would mean testifying about their origin under oath.

This is a legal problem inherent to the maintenance of an alter-ego of any sort. Even a person who starts life as a mundane and then dons a mask to fight crime will run into this.

IV. Conclusion

So creating a superhero creating an alter-ego is a bit more legally complicated than it might seem. In addition to the problems of actually creating one in the first place, the logistics of maintaining the persona are significant, especially when trying to do so legally. But even the simplest alter-ego, the normal person who occasionally fights crime as a masked crusader, will run into legal problems if they are called to testify to what they have seen.

38 Comments

Posted in Batman, civil procedure, criminal law, criminal procedure, superheroes

Is Batman a State Actor?

Posted on November 30, 2010 by | 87 comments

Constitutional limitations on things like censorship, discrimination, and search and seizure do not apply to private individuals but rather to the federal government and, in some cases, to the states.  (The Thirteenth Amendment is a rare exception that applies to individuals).  As a result, evidence that a superhero obtains by breaking into a villain’s headquarters is admissible even though it was obtained illegally.  See, Burdeau v. McDowell, 256 U.S. 465 (1921).  And since it doesn’t invoke the fruit of the poisonous tree doctrine, any additional evidence obtained via the original evidence would also be admissible.

But what about superheroes like Batman who work in close cooperation with the police?  Could they fairly be described as state actors, thus triggering a whole spate of Constitutional protections?  I think the answer may be yes.

In Lugar v. Edmondson Oil Co. the Supreme Court gave a two-part test for whether the conduct of a private party could be fairly attributable to a state, thus implying state action:

First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible….Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

In Batman’s case, Commissioner Gordon is certainly a person for whom the State is responsible, and Batman often acts together with Gordon and obtains significant aid from Gordon in the form of information and evidence.  Batman’s conduct is also otherwise chargeable to the State because the Gotham Police Department has worked with Batman on numerous occasions (and thus knows his methods) and operates the Bat Signal, expressly invoking Batman’s assistance in a traditionally public function.  This suggests state action under the public function theory: “when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.”  Evans v. Newton, 382 U.S. 296, 299 (1966).

In the real world, this would cause significant problems for Batman and Gotham.  Batman’s rough and tumble style would lead to a rash of Section 1983 claims for damages and probably also for an injunction against Batman’s future cooperation in police investigations.  As discussed earlier, most evidence that Batman collects would be inadmissible, and police use of that evidence might bar the use of additional evidence collected during a subsequent police investigation.

Now, clearly none of this is the case, so there are three possibilities.  Either all of the criminals in Gotham have incompetent attorneys, the state action doctrine in the DC universe is weaker than it is in the real world, or Gordon has actually managed to keep his reliance on Batman a secret.  I’m going to opt for the second explanation.  Superheroes like Batman are simply too effective for a court to shackle them with the Constitutional limitations of the state, especially with supervillains running around.  Perhaps the DC universe courts have developed a public emergency or necessity exception to the state action doctrine whereby private individuals pressed into public service in an emergency are not held to the same standards as ordinary state actors.

87 Comments

Posted in Batman, civil rights, criminal procedure, superheroes

The Multiverse and Res Judicata

Posted on November 16, 2010 by | 34 comments

In an infinite number of parallel universes, parallel versions of a supervillain will commit or attempt the same crime simultaneously only to be foiled by parallel versions of the same superhero.  Is there a good argument for trying the villain once and applying the verdict interdimensionally?  I think so, and in this post we consider the application of the res judicata doctrines of issue preclusion and claim preclusion to the Multiverse.

Many comic book series do not occur in a single, isolated universe but rather in a host of parallel universes, alternate dimensions, and Bizarro Worlds collectively referred to as the Multiverse.  Crossovers aside, both DC and Marvel series occur within their own respective multiverses.  For the sake of reference, the various parallel universes in these multiverses are numbered.  For example, the ‘normal’ world is Earth-616 in the Marvel Multiverse and Earth-0 or New Earth in the DC Multiverse.  There are an infinite number of such parallel worlds, most differing only in comparatively slight respects (e.g. the victory of the Axis powers in Earth-10; all of history up until that point was essentially the same).  So that’s the Multiverse.  On to the law.

Ordinarily, courts only like to consider a given issue or claim once.  This is done out of consideration of judicial efficiency, cost reduction, and finality.  The Supreme Court recently summarized issue preclusion thusly: “once a court has decided an issue of fact or law necessary to its judgment, that decision…preclude[s] relitigation of the issue in a suit on a different cause of action involving a party to the first case.” San Remo Hotel v. San Francisco, 545 U.S. 323, 336 n.16 (2005).

The Court summarized the distinction between the two doctrines in another case: “Claim preclusion generally refers to the effect of a prior judgment in foreclosing successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit. Issue preclusion generally refers to the effect of a prior judgment in foreclosing successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, whether or not the issue arises on the same or a different claim.” New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001).  The Court has also applied claim preclusion to criminal cases. United States v. Oppenheimer, 242 U.S. 85 (1916).

So what does this have to do with the Multiverse?  Consider Lex Luthor, plotting a dastardly scheme to stop Superman’s meddling once and for all.  As is so often the case, his plot will be foiled, and he will be brought to justice.  But Lex would have attempted the same plot in an infinite number of parallel worlds which differed only in ways that were immaterial to the plot and its prevention.  In the interests of cost savings, judicial efficiency, and finality, should the various Lex Luthors not be tried once, simultaneously, for all of them, both for criminal charges and civil claims brought against them?

The intuitive answer would seem to be yes, but there is a complication.  Which jurisdiction should be favored?  Or perhaps the better question is which jurisdiction should be forced into it, since that jurisdiction alone will bear the cost of the proceedings; it is not in any jurisdiction’s interest to volunteer.  But given the potentially infinite number of candidate jurisdictions, a random choice doesn’t make sense either: how can you fairly pick a number between 0 and infinity?

I think the solution is an Interdimensional Court of Justice, which would hear significant cases that would be too onerous for any one world to bear the cost of hosting or in which there would be a large efficiency gain in hearing the case only once.  A world that wished to have its version of a supervillain included in a case would chip in to help fund the IdCJ.  Since there could theoretically be an infinite number of such worlds, each world would only need to contribute an infinitesimally small amount.  Of course, coordination might be a problem.  In practice however, there only seem to be a few dozen parallel universes of any significance in the DC and Marvel multiverses, which makes the coordination problem much more manageable.

34 Comments

Posted in civil procedure, criminal procedure, Lex Luthor, supervillains