Category Archives: mailbag

Batman and the Unavailable Declarant

Posted on May 3, 2013 by | 6 comments

Today we have a post based on a question from David, who asks:

I just watched Batman: Year One on Netflix, and there was an interesting issue presented that I thought I’d share. Toward the end of the movie, the corrupt Detective Flass is under indictment for involvement in a big drug scheme. Commissioner Gordon (through Batman’s intimidation) gets one of the crooks involved in the scheme, Jefferson Skeevers, to agree to testify against Flass.

Upon hearing this, Flass tells Gordon something along the lines of “he won’t testify if I have something to say about it…” The scene cuts to Skeevers unconscious in a hospital bed. Assuming Skeevers has confessed in a police statement out of court, wouldn’t this still be admissible against Flass under the forfeiture exception to hearsay as long as the prosecutor can show Flass had something to do with Skeevers hospitalization?

The Batman: Year One movie David mentions is a faithful adaptation of the classic Frank Miller graphic novel of the same name, several elements of which were integrated into the Christopher Nolan Batman films.  The book or animated version are well worth checking out.  We even gave away five copies of the book to celebrate our own year one.

Anyway, back to David’s question.  Before we worry about whether any hearsay exceptions or exemptions apply we have to decide whether Skeevers’s statement would be hearsay in the first place.  We don’t know what rules of evidence apply in a local criminal case in Gotham, but we’ll use the Federal Rules of Evidence, since many state rules are based on or are very similar to the FRE.

I. Is It Hearsay?

Under FRE 801, hearsay is an out of court statement (i.e. an oral, written, or nonverbal assertion) offered to prove the truth of the matter asserted in the statement.  In this case, we’re supposing that Skeevers made an oral or written assertion that Flass was involved in the scheme, Skeevers did so out of court, and the prosecution would offer Skeevers’s statement in order to prove that Flass was, in fact, involved in the Scheme (i.e. as proof that what Skeevers said was actually true).  It doesn’t matter whether the prosecution did this by offering a recording, a signed statement, or the testimony of a police officer who interviewed Skeevers.  All of that would be hearsay.

You might think about the exemption for statements “made by the party’s coconspirator during and in furtherance of the conspiracy”, but although Skeevers and Flass may have been coconspirators at one time, these statements were not made during or in furtherance of the conspiracy.  Indeed, they were probably made as part of some kind of plea bargain or immunity deal.  Without any applicable exemptions, the statements are indeed hearsay, which is ordinarily inadmissible.

Normally this could be overcome by having Skeevers simply testify in person, which would give the jury a better opportunity to judge the truthfulness of his statements, and it would give the defense an opportunity to cross-examine him.  But Skeevers is lying unconscious in the hospital, apparently because Flass or someone acting at his behest put him there.  So now what?

Now we turn to the hearsay exceptions, of which there are several.  Some of them apply whether the declarant is unavailable or not and some of them only apply if the declarant is unavailable.  That said, it appears that only the latter will apply in this case.

II. FRE 803 and Recorded Recollections

You might think that if Skeevers had made a written statement for the police that his statement could be introduced as evidence under the recorded recollection exception of FRE 803(5).  After all, FRE 803 states that “The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness” (emphasis added).  And such a written statement would seem to fit the bill for 803(5):

A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.

Skeevers clearly once knew about Flass’s involvement but also clearly cannot now recall it well enough to testify fully and accurately: he is unconscious.  The statement was made when the matter was fresh in his memory, before the incident that caused his injuries.  And we’ll assume that it is an accurate statement.

But despite the phrase “regardless of whether the declarant is available as a witness“, the courts have been uniform in holding that 803(5) only applies when there is a witness available to testify that they can’t recall the matter reflected in the record.  See, e.g., Steinberg v. Obstetrics-Gynecological & Infertility Group, P.C., 260 F.Supp.2d 492 (D.Conn. 2003) (the argument that 803(5) applies to an unavailable declarant “borders on frivolous”); Jacobson v. Deutsche Bank, A.G., 206 F.Supp.2d 590 (S.D.N.Y. 2002).

None of the other 803 exceptions are likely to apply in this case, so let’s move on to the heart of the matter: exceptions that apply only when the declarant is unavailable.

III. FRE 804 and the Unavailable Declarant

Declarants can be unavailable for a lot of reasons, one of which is when they “cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness”.  FRE 804(a)(4).  That definitely describes Skeevers.

Once a declarant is unavailable, there are some special exceptions that can apply to statement they made before they became unavailable.  Two might apply in this case.  David alluded to one of them (804(b)(6)) in the question:

The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: … A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

If the prosecution can prove that Flass caused (and that includes indirectly causing via an agent or conspirator) Skeevers’s injuries, then it’s pretty much a slam dunk to introduce Skeevers’s statements against Flass.  After all, we already have Flass indicating his intent: “he won’t testify if I have something to say about it…”

Another possibility is 804(b)(3), statements against interest:

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it … had so great a tendency … to expose the declarant to civil or criminal liability

This exception might apply if Skeevers made the statement before he struck an immunity deal.  If he spilled the beans about his role in a criminal conspiracy in which Flass also played a part, confessing to multiple crimes in the process, then that would definitely be a statement against interest.  But if he signed an immunity deal first and then talked, then his statements wouldn’t actually be exposing him to criminal liability and so the exception wouldn’t apply.  If this did apply, however, it could be a useful backup in case the prosecution couldn’t prove Flass’s involvement in Skeevers’s unavailability.

IV. Conclusion

Apart from the issue of proof, this is a classic example of 804(b)(6), which is a rule that meshes very well with most people’s intuition about fairness—and gives criminals a disincentive to intimidate or kill witnesses.

6 Comments

Posted in Batman, evidence, mailbag

WonderCon Follow-Up Questions

Posted on April 3, 2013 by | 24 comments

After our WonderCon panel discussion and mock trial we had the obligatory Q&A session.  Unfortunately we ran out of time.  I wanted to take this opportunity to address one question we didn’t have time for and a question that we later received via email.  If you were at the panel and had a question for us, please email us at james@lawandthemultiverse.com and ryan@lawandthemultiverse.com.

I. The First Thing We Do, Let’s Eat All the Lawyers

The last question we got from the audience was, in essence, “If all the lawyers die in the zombie apocalypse and then humans regain control, how can the courts function?”

This is a fair question, but the courts aren’t—strictly speaking—as dependent on lawyers as it might seem at first glance.  In the federal system, for example, there’s no requirement that judges be lawyers or have any legal education.  Historically federal judges have all been lawyers or at least been legally trained, but it’s not technically a requirement of the job.  So vacant judgeships could be filled from the ranks of non-attorneys.

That’s the judges out of the way.  What about the parties and their attorneys?

In a civil case the parties can represent themselves, if they are competent individuals.  Since there is no right to an attorney in a civil case, however, the incompetent, corporations, and governments are out of luck.  But there may be a solution, as we shall see in a moment.

In a criminal case there is a right to an attorney, and although that right is not absolute (e.g. the state can require proof of indigence), it does exist.  And of course the state itself must be represented by an attorney.  So something has to give.  And the answer is that the states would simply repeal, modify, or ignore their unauthorized practice of law statutes until new lawyers could be trained.  At the very least the prosecutor isn’t going to prosecute himself or herself for unauthorized practice of law, and presumably he or she would extend the same courtesy to the public defender’s office.

Without the institutional knowledge of a professional class of attorneys, the post-apocalyptic legal system would probably be pretty rough around the edges, but it would be functional.  Goodness knows enough books have been written about the law to reconstitute the U.S. legal system a hundred times over, and as any third year law student will tell you, it really only takes two years (i.e. 8-10 classes) to get the basic idea.

II. Zombie Hunting Preserves

During the panel we noted that even if zombies were considered legally dead, it might not always be legal to kill them.  For example, gratuitous mutilation of a zombie might fall under abuse of a corpse, depending on state law.  And shooting an unthreatening zombie might run afoul of laws against hunting out of season or unlawful discharge of a firearm.  We mentioned, however, that these last two might not apply if zombies had been declared a pest species.  That led to this question that we received by email from Lance after the panel:

You mentioned in the panel discussion that the state could deem zombies as pests. If so would there be ramifications to an individual for “hoarding” them for sport to let hunters hunt them on a private reserve granted that they signed a waiver of liability?

This is a good question with some hidden complexities.  Ordinarily, designating an animal a pest species would only be an exception to laws prohibiting hunting out of season, hunting in city limits, etc.  It wouldn’t typically affect abuse of a corpse, which would be the major issue with rounding up (admittedly reanimated) dead bodies and shooting them for sport.  But on the other hand, states make abuse of corpse laws and so they could, theoretically, pass exceptions creating permits for zombie hunting preserves.

But would that be enough?  The next of kin have what is often described as a “quasi-property” right in the dead body, in order to see to its proper disposition.  It is an interesting question whether that interest is a constitutional right (at some level) or whether it is an interest created by the state.  If it is an interest created by the state, then the state can take it away.  But if it is a constitutional right, then it is an inherent right.

It turns out that there are conflicting cases on this question.  In Whaley v. County of Tuscola, the Sixth Circuit held that “the next of kin may bring a constitutional claim under the Due Process Clause” of the Fourteenth Amendment because the County had removed the eyeballs of the deceased without permission of the next of kin.  58 F.3d 1111 (6th Cir. 1995).  But the court’s holding that there was a constitutionally protected right to possess and prevent the mutilation of the deceased’s body rested on the fact that the state had created a property right in the body.  Presumably without that underlying right there would be no constitutional cause of action.

Other courts have rejected any constitutional dimension to the issue at all.  For example, in Dampier v. Wayne County, the Michigan Court of Appeals held that “the common-law right of burial of a deceased person without mutilation, discussed earlier, is not of constitutional dimension.” 233 Mich. App. 714 (1999).

So in theory it might be possible for the government to strip away any right for the next of kin to take possession of an unmutilated body and see to its disposition. A challenge to this might be made on First Amendment grounds, since so many religions have burial or funeral requirements, but unlike the Establishment Clause, it is difficult to strike down a law under the Free Exercise Clause: “[a] law that is [religiously] neutral and of general applicability need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice”. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).  A law stripping away any rights that the next of kin have in dead bodies as a way of dealing with the spread of a zombie plague would probably be religiously neutral and of general applicability.

So, what started out as a question about declaring zombies a pest ended up at the First Amendment and religious freedom. The short version is: just calling zombies a pest species probably wouldn’t be enough, but a state could probably theoretically legalize zombie hunting preserves if a) zombies were considered legally dead b) the state was willing to rewrite a lot of laws in the process.

24 Comments

Posted in constitutional law, conventions and talks, criminal law, mailbag

Quick Questions from the Mailbag

Posted on March 22, 2013 by | 36 comments

In today’s mailbag we have a couple of quick questions from a couple of Christophers.

I. Batman and Bats

The first Christopher had two questions about Batman and actual bats:

In Batman: Year One, and in the film Batman Begins, Bruce has that little gadget that essentially summons swarms of bats, which always looks really cool. But is he responsible for any of those bats dying? Because you just -know- some of them got smushed, or died somehow in the confusion. Also, if someone gets rabies or otherwise gets seriously injured by said bats, is that Bruce’s responsibility?

A. Injuries to the Bats

With regard to the bats themselves: it depends on the kind of bats and the laws of the state.  There are some federally protected bat species, and messing with an endangered species in that way would almost certainly run afoul of the Endangered Species Act, which  makes it a crime to “harass, harm, pursue, … trap, capture, or collect [an endangered species], or attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).

Even if the bats weren’t endangered, state animal welfare laws may prohibit what Batman was doing.  If any of the bats were “unjustifiably injured”, for example, then under New York law that would constitute “overdriving, torturing, and injuring animals.”  N.Y. Agriculture & Markets Law § 353. Whether summoning a swarm of bats to confuse or evade criminals makes any resulting bat injuries unjustifiable is a difficult question to answer, but one has to wonder if someone has smart and well-connected as Bruce Wayne couldn’t have come up with a less risky alternative.

B. Injuries to Others

By ‘others’ I mean innocent bystanders.  We’ll assume self-defense, defense of others, or some other justification applied to any injuries inflicted on the criminals.

Ordinarily the owners of wild animals (such as bats) are strictly liable for injuries caused by those animals, assuming the injury is a result of the kind of danger that the animal poses.  Bites and rabies transmission from bats certainly fall into that category.  The trick is that Batman isn’t necessarily the owner of these bats.  There is a bat cave on the Wayne Manor property, but I don’t remember if it’s clear that these particular bats came from there.  Merely exercising some degree of control over the wild animal may not be enough to result in strict liability.

However, even if a more typical negligence standard were applied, Batman could still lose out.  He may be justified in using force against his attackers, self-defense will not necessarily prevent a negligence claim.  Would a reasonable person exercising ordinary care summon a swarm of wild bats in a crowded city?  I think a reasonable person might have opted for a less risky method.

II. Animal Transformations

The second Christopher had a question about the magician Zatanna turning people into animals:

I was reading Zatanna and she has a habit of turning people into animals (briefly, in one case, just to get rid of annoying guests.).  Later her father transforms someone into an inanimate doll?  This seems like assault … Can she be arrested and/or sued?

I think the answer is yes, such a transformation would be both a tort and a crime.  If the transformation were effectively permanent—it could not be treated and the responsible magician refused to undo it—it would be murder, particularly if the animal form was truly an ordinary animal and not the person’s mind trapped in an animal’s body.  From a legal point of view, the person would be dead.  Their cardiopulmonary and brain functions would have permanently ceased, since their body had been effectively destroyed.

In the case of a temporary transformation, that would be a very serious injury, albeit one that the victim recovered from.  That would affect the sentencing or damages, but it would still be a crime.  You might think: hey, she changed the victim back, no (permanent) harm, no foul, right?  But what if Zatanna had performed the transformation and then been killed or incapacitated?  Or if Zatanna and the victim had been separated?  We don’t want to encourage her to take the risk that she might not be able to change someone back.  This is similar to why factual impossibility is not a defense to an attempted crime: the defendant could not actually have committed the crime they were trying to, but we don’t want to let them off the hook just because they got lucky.

And then there’s the psychological harm of being turned into an animal, even temporarily.  So even a temporary transformation would be a criminal assault or battery (depending on the term the particular state uses) and a tortious battery.

36 Comments

Posted in Batman, criminal law, mailbag, torts

Mind Control and Sexual Assault

Posted on March 19, 2013 by | 74 comments

This post was inspired by an email from Cameron, who asks whether vampires with the ability to glamour people could potentially be liable for rape or sexual assault. That is a really good question, and we’re going to take a look at it here.

But before we do, a few preliminaries. First, we understand that sexual assault is a really touchy subject, personally, emotionally, and even politically. Please do not think that by examining the fictional issue of mind control that we’re taking this lightly. We aren’t. Second, the way the criminal justice system deals with sexual assault charges is widely recognized to be problematic. We understand this too. Indeed, it’s perhaps the single most conspicuous area of dysfunction in the criminal legal system. It’s far from the only area in which injustice is routine, but in most of the rest of the legal system, the laws are basically doing what they were passed to do. Not so here. So when we conclude that something is/is not legal or will/will not lead to a conviction, understand that we are not thereby saying that this is a desirable outcome. But the fact is that in real life, sex crime cases rarely go well for anyone involved. If we’re going to look at the implications of something like mind control in this context, we need to be able to discuss things the way they are, even if we wish they were different.

Further, there really isn’t any way of talking about these issues without being fairly graphic. We will attempt to be sensitive and circumspect about this where possible, but this is necessarily going to be one of our more family-unfriendly posts. We think this is an important enough subject to be worth posting about, but those who don’t want to read about this sort of thing should feel free to come back on Wednesday, when we’ll return to our usual fare.

With those things in mind, let’s think about this. Continue reading →

74 Comments

Posted in criminal law, mailbag

Santa and Restraining Orders

Posted on December 26, 2012 by | 18 comments

Today we got a very interesting question in the comments on our classic post on Santa Claus and the law.  We decided that the question was still fair game for this year since for many people it’s technically still the Christmas season.  Heck, if you’re Russian Orthodox then Christmas is still 12 days away, and for the 14,000 adherents of the Armenian Patriarchate of Jerusalem it’s 24 days away.  But enough about non-Gregorian calendars.  Let’s talk about getting a restraining order against Santa.

Ann writes:

Could an individual get a restraining order against Santa for stalking them? He does, after all, watch people all the time (both when awake and asleep), and keeps notes on them in the form of a list determining if they are good or bad in his estimation. And what would happen if one parent in the house got the peace order, but the other was helping the kids write their letters to Santa?

Restraining orders—also called protective orders in this context—can be issued in many kinds of cases, most commonly stalking or domestic violence.  We’re assuming that Santa’s relationship with Mrs. Claus is a peaceful one, so we’ll limit the discussion to stalking.

I. Criminal Stalking

A protective order is a civil remedy, but it’s often tied to criminal behavior.  New York law defines stalking in the fourth degree this way:

A person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct:
1. is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person’s immediate family or a third party with whom such person is acquainted; or
2. causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person, a member of such person’s immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct; or
3. is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person’s place of employment or business, and the actor was previously clearly informed to cease that conduct.

We don’t think Santa’s behavior would meet this standard.  People couldn’t have a reasonable fear of material harm because Santa has an unbroken record of hundreds of years of peaceful activity.  It could be enough that he has actually caused material emotional harm to someone, except that the harm would have to be caused by contact or communication initiated by Santa.  The problem here is that Santa doesn’t initiate communication; instead people write letters to him.  Arguably he initiates indirect contact by entering people’s homes, but there’s no evidence that he enters homes where he is unwanted.  In fact, staying up late to ‘catch’ Santa is traditionally considered to cause him not to visit.  And of course visits from Santa Claus have rarely, if ever, caused someone to lose their job.

We won’t go into the details of the higher degrees of stalking, but suffice to say that if Santa doesn’t meet this standard then he wouldn’t meet the higher ones.

All is not lost for our hypothetical plaintiff, however.  As mentioned, a protective order is a civil remedy.  So what about a pure civil case with no underlying criminal behavior?

II. Civil Suits

As discussed in our prior post, Santa probably couldn’t be sued for trespass, but could he be sued for invasion of privacy?  When we say invasion of privacy what we really mean is the tort of intrusion.  The Restatement (Second) of Torts, gives three elements for intrusion: (1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff’s solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person.  See Mauri v. Smith, 324 Or. 476, 483 (1996) (applying the Restatement definition).  Santa definitely meets the first two elements: he intentionally intrudes, physically or otherwise, into a person’s private affairs or concerns.  It’s questionable whether this would be highly offensive to a reasonable person, however, since Santa’s been doing it for hundreds of years without too many complaints.

But let’s suppose the plaintiff was successful or that the plaintiff was able to get a preliminary injunction against Santa while the suit proceeded.  Such an injunction could include an order for Santa not to enter the plaintiff’s property or keep the plaintiff under observation.  If Santa violated the order then he could be found in contempt.

According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006).  The standard for a preliminary injunction is similar but requires that the party seeking the injunction have a substantial likelihood of success in the case.  As mentioned, we don’t think our hypothetical plaintiff has much chance of success, but let’s assume they pull it off somehow (maybe Santa fails to show up and they get a default judgment).

The first two factors are closely related.  An injury can be irreparable if retrospective relief (e.g. a payment of money damages) is inadequate and instead the injury requires ongoing, prospective relief.  In this case the plaintiff may have no monetary damages but still needs to prevent a recurrence of the injury.

The balance of the hardships could also weigh in the plaintiff’s favor.  Since Santa gives toys away for free, it’s very easy for him to give toys to one less person.  Heck, since suing Santa would probably be a one way ticket to the naughty list anyway, he probably wouldn’t have much of a complaint against an injunction, apart from the negative publicity.

The public interest is generally favored by enforcing privacy rights.  Arguably the public has an interest in policing morality (see, e.g., various stories about converting Scrooge-type characters to the Christmas spirit), but we doubt the courts would favor Santa’s “self-appointed arbiter of right and wrong” approach. So all four factors argue in favor of an injunction.

However, this four-factor analysis changes if, as Ann asks, “if one parent in the house got the peace order, but the other was helping the kids write their letters to Santa.”  In that case, where one parent (and presumably the child) wanted Santa to monitor the child’s behavior.  In that case there’s a significant hardship for Santa: if the child is good then he can’t toys to a child that wants them (and according to Santa, deserves them) .  And now the public (in the form of these third parties) has a strong, well-defined interest in allowing Santa to monitor the child’s behavior and give those gifts.  The first two factors still weigh in the plaintiff’s favor, but now they must be balanced against the other two.

III. Conclusion

Although Santa probably isn’t breaking any criminal laws, he could potentially be enjoined from monitoring someone who didn’t want to be (NB: children whose parents want Santa to keep tabs on their kid probably wouldn’t be able to bring a suit against Santa, since their parents can consent to the observation).  Of course, we doubt Santa would ever do that, which may explain why it remains a hypothetical question even in this litigious age.

18 Comments

Posted in criminal law, mailbag, torts

Captain America and Social Security

Posted on November 16, 2012 by | 36 comments

Today’s post was inspired by a question from David, who asked:

Wouldn’t [Captain America] be able to collect Social Security? After all, he must be in his nineties by now!

I. Age

Collecting Social Security benefits has a few different requirements, some of which vary according to the age of the beneficiary.  Earth-616 Steve Rogers was born on July 4, 1922, which would make him 90 now.  Most importantly, he was born before 1937, so his full-benefits retirement age is 65 (as opposed to 67 for someone born in 1960 or later).

We’re assuming that his age would be calculated according to the calendar rather than his biological age, but it isn’t 100% clear from the law which is correct.  The main part of the Social Security law (42 U.S.C. § 401 et seq) refers to people having “attained the age of X” rather than referring directly to their date of birth.  Luckily, comic book Cap has been unfrozen long enough that it doesn’t matter.  Rogers was frozen, at the latest, on April 18, 1945 (i.e. at the age of 22) and then thawed out in 1964 (i.e. at the calendar age of 42).  That would give him a biological age of 70 and a calendar age of 90.  So however his age is calculated, he’s eligible to collect benefits.  The only question is: how much would he get?

II. Earnings

Although the Social Security program had started by the time Rogers enlisted, members of the military did not pay Social Security tax.  However, military service from September 16, 1940 through December 31, 1956 is credited at $160/month in earnings, if the service member meets one of the following:

  • They were honorably discharged after 90 or more days of service, or they were released because of a disability or injury received in the line of duty; or
  • They are still on active duty; or
  • They veteran died while on active duty and someone is applying for survivors benefits.

Rogers’s special circumstances don’t quite fit any of these, but let’s assume he was either honorably discharged or has returned to active duty.  Since we have no idea how much Captain America earned during his post-thaw years, let’s assume that $160/month was his only eligible earnings.

Rogers enlisted in 1941.  I’m not sure when, exactly, so let’s say March (when Captain America #1 was published).  That would give 48 months of service.  At $160/month that’s $7,680 in credited earnings.  Because Rogers was born before 1929, he only needs to have accumulated 6 credits in order to be eligible for retirement benefits.  Before 1978 credits were called “quarters of coverage” and required earning at least $50 in a 3 month calendar quarter.  Rogers’s $160/month earnings credit would easily cover that, so he would have no problem accumulating enough credits.

III. Benefits

Unfortunately, calculating Social Security benefits is complicated, and none of the calculators I’ve found know how to handle Rogers’s particular situation.  To get a rough idea of how much he might be eligible for, I calculated the benefits for someone born July 4, 1922 who made $11,086 in 1951 (i.e. $7680 in 1951 dollars) and then $200/year through 1959 (the minimum amount needed to become eligible for retirement benefits) and then retired at 65.  The result?  A whopping $73 per month, or $876 per year, and that’s in 2012 dollars!

Of course, Captain America almost certainly continued to earn money during his post-thaw years.  But because Social Security benefits are calculated based on your 35 highest-earning years, Rogers’s 20 frozen years (during which he presumably earned nothing) put a significant hole in his earnings history.  If he retired in 1987 (at calendar age 65) he would have only about 27 working years behind him.  Those missing 8 years could substantially reduce his benefits.  By delaying retirement until age 70 he could both add more working years and earn a delayed retirement benefit.

IV. Conclusion

Captain America is likely eligible to draw Social Security retirement benefits, regardless of how his age is calculated, but his limited wartime earnings and years spent frozen mean that his benefits might not be all that huge.  On the other hand, since he can continue working indefinitely due to the effects of the super soldier serum, he’s probably not dependent on those benefits.

36 Comments

Posted in administrative law, mailbag

Law and the Goonies

Posted on October 24, 2012 by | 8 comments

A while back we got a question from JD, who asked:

[In The Goonies], would they really have been able to keep the jewels Mikey got off the pirate ship? Or would the State have asserted ownership of the discovered “historical relics”?

If you haven’t seen The Goonies, you should.  It’s a classic 80s movie, and although it was directed by Richard Donner, the story was written by Stephen Spielberg, and the movie has his fingerprints all over it.  The Blu-Ray edition came out a couple of years ago, and we can recommend it.  For more nostalgia, check out the cast reunion video that Empire magazine put together.

Anyway, back to the question.  We’ve written about lost property before, including treasure troves.  In this case the issue is complicated by two facts: 1) the movie is set in Oregon, so we have to apply Oregon law and 2) the treasure is on a boat.

I. Oregon Law and Lost Property

As you might guess for a state high up on the west coast, there aren’t too many Oregon cases dealing with treasure (just what was a 17th century pirate doing in northwest Oregon anyway?).  But there are enough to get some basic definitions.

In Oregon, a treasure trove is the property of the finder and consists of “[m]oney or coin, gold, silver, plate, or bullion found hidden in the earth or other private place, the owner thereof being unknown.”  Bergeron v. Aero Sales, Inc., 134 P.3d 964, 969 (Or. Ct. App. 2006) (quoting Jackson v. Steinberg, 186 Or. 129 (1948)). “The treasure must have been hidden or concealed so long as to indicate that its owner, in all probability, is dead or unknown.”  Jackson v. Steinberg, 186 Or. at 140.

Notably, “the ownership or possession of the land upon which [treasure trove or abandoned property] was found is immaterial.”  Hill v. Schrunk, 292 P.2d 141, 142 (Or. 1956).  “It seems to be the principle respecting treasure trove, owing to its peculiar nature of being coin, that the present property is in the finder, as against every one but the true owner, provided that the true owner is unknown, and it matters not where or when the same is found, so that it is secreted in the earth or other private place.” Jackson at 144 (quoting Ferguson v. Ray, 44 Or. 557 (1904)).

One-Eyed Willie’s ship (and thus the treasure) was hidden in an underground lagoon, which seems to count as both hidden in the earth and a private place.  One-Eyed Willie is obviously dead, and I don’t recall any descendants being discussed in the movie, certainly not any known ones.  And it doesn’t matter that the Goonies found the treasure on somebody else’s land.  So the Goonies may have a legitimate claim to the jewels as part of a treasure trove.

II. Admiralty Law

Here’s where it gets sticky.  If the treasure is considered a treasure trove, then the answer is easy enough.  But the treasure wasn’t buried underground as such; it was on a boat floating on an underground lake.  This means it might actually be a salvage operation, and salvage and treasure trove are mutually exclusive.  Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 459 F. Supp. 507, 525 (S.D. Fla. 1978), aff’d, 621 F.2d 1340 (5th Cir. 1980), aff’d in part, rev’d in part on other grounds, 458 U.S. 670, (1982).  So what is salvage, exactly?

“Salvage” is the compensation or reward allowed to persons by whose voluntary assistance to a ship at sea or its cargo, or both, have been saved in whole or in part from impending sea peril or by which such property has been recovered from actual peril or loss, as in cases of shipwreck, dereliction, or recapture.

Am. Jur. 2d Salvage § 1.  Since the ship was still more-or-less seaworthy, this would seem to be a case of a derelict ship rather than a shipwreck.  If the Goonies had actually engaged in a salvage operation then they would not have any right to the ship or its contents but rather only to receive a salvage award.  That means no fair keeping the jewels, but the salvage award would be more than enough to compensate.  The problem is that the boat went sailing off into the ocean, and getting a salvage award can take years.  That’s cold comfort when the evil Astoria Country Club is breathing down your neck.

Hope is not yet lost, however.  Salvage only applies to ships that have not been abandoned by their owners.  Columbus–America Discovery v. Atlantic Mut. Ins., 974 F.2d 450, 459 (4th Cir.1992).  When a ship has been abandoned, then a different law applies, the law of finds.

Under the law of finds, the finder gets the ship and its contents, not a salvage award.  Helpfully for this case, abandonment can be inferred when neither the owner nor their heirs have attempted to reclaim the vessel for a considerable length of time.  See, e.g., Marex Intern., Inc. v. Unidentified, Wrecked and Abandoned Vessel, 952 F.Supp. 825, 828-29 (S.D. Ga.  1997) (holding that a vessel sunk in 1840 was properly considered abandoned).  Willie’s ship, The Inferno, is certainly old enough to qualify as abandoned, and again there are no signs of any heirs.  Under the law of finds, the Goonies could sue to establish title to the ship and its contents.  If no heirs showed up to contest it, it would be theirs.

Even under the law of finds there is a catch, however.  The Inferno may be an historic shipwreck.  If it is, then the court could impose an archaeological duty of care before handing over title.  Marex, 952 F.Supp. at 829.  The Goonies would also have to show some reasonable prospect of success at recovering the ship.  Given the Goonies’ fairly cavalier approach to treasure hunting (and the fact that the movie ends with the ship floating out to sea), bringing in some professional archaeologists and recovery experts might not be a bad idea.

III. Conclusion

Whether the law of lost property or admiralty applies, the Goonies just might have a good claim to the treasure.  The law of lost property would probably treat them better, however.

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Posted in mailbag, movies, property law

Daredevil: Redemption

Posted on October 17, 2012 by | 35 comments

Over on our Facebook page we got a request from Obidike to take a look at Daredevil: Redemption, a six issue series from 2005, also available in trade paperback:

Have you guys read David Hines’ Daredevil: Redemption? I met the author and he claims that a lawyer in the US claims he was spot on with the legal stuff in the story? Do you agree?

There are several legal issues in the story, but we’re going to focus on just a couple of the more overt ones.  There are a few minor spoilers ahead, but nothing too serious.  For those who haven’t read it, the basic setup of the story is that Murdock is hired to represent a teenager accused of murder in the (fictional) town of Redemption, Alabama.  Almost all of the action occurs in that small town,  Daredevil makes only a few appearances, and there are no other superheroes or supervillains.  The story gives up the broad strokes of capes and superpowers in favor of a well-told human drama.  It’s a pretty good read, and we recommend picking up a copy.

I. Pro Hac Vice

You may already be asking yourself “waitaminute: how can Murdock practice law in Alabama.  Isn’t he from New York?”  It’s true that the legal profession is regulated by the states, and ordinarily one must be licensed in a state in order to practice there.  However, in some cases, an attorney may be given special permission by a court to practice out of state.  This is called appearing pro hac vice and is typically done for one-off cases or in cases where the attorney has a history of representing the client in their home state and now needs to represent them in a different state.

The way this is described in the comic is quite accurate.  The local attorney says:

Here’s the situation. The judge has allowed for you to work in the state of Alabama under pro hac vice.  He wasn’t too happy, but you have a good rep and, with the press watching this one, he didn’t want anyone calling bias.  Under state regulation, I sign all the paperwork, I sit beside you in court, but otherwise it’s your case.

That’s pretty much how it works in the real world.  Local counsel can do more than just sign papers and sit in court, though.  Sometimes they are active parts of the legal team, and often they are valuable sources of information on local rules, unstated court customs, and the personalities of judges and court staff.  But fundamentally they are there to make sure that the out-of-state attorneys don’t screw up.

As a side note: what matters is where the attorney is physically located when he or she does the work, not where the client is.  If Murdock had stayed in New York and simply consulted over the phone or by email, he wouldn’t have needed to be admitted pro hac vice.  It wouldn’t matter that he would be advising a client about Alabama law, either.  Alabama doesn’t care what lawyers in New York do, and New York doesn’t care where the client is, only that the attorney in New York is licensed in New York.

II. The Guilty Client and the Not Guilty Plea

As Murdock often does, he asks his (prospective) client whether he committed the crime.  The client says, “Let’s say I am.  You have to defend me even if I say I killed the kid, right?”  Murdock responds:

Wrong.  My professional code of ethics would not allow me to enter a plea of not guilty on your behalf if you tell me you are guilty.  That information would be protected by the rules of client confidentiality, but I would be obliged to withdraw from representing you.

There are a couple of issues here.  First the good news: Murdock is correct that the confession would be confidential.  Now the bad news: there is nothing in the New York or Alabama Rules of Professional Conduct that would prevent an attorney—knowing his or her client is factually guilty of a crime—from entering a plea of not guilty on behalf of the client (although actually it’s the client who states the plea in most cases).

As you probably know, in the United States criminal defendants are presumed innocent until proven guilty.  The plea of “not guilty” is necessary in order to force the state to prove its case.  It’s not a claim of innocence made under oath.  Someone who pleads not guilty and is proven guilty is not also guilty of perjury, for example.  As Robert F. Cochran, Jr. explained:

But, of course, courts do not treat the plea inquiry seriously. Courts expect criminal defendants to plead “not guilty,” irrespective of their guilt. They have avoided what would likely be a constitutional problem by giving defendants what might be called a “right to lie” at the plea inquiry.

“How Do You Plead, Guilty or Not Guilty?”: Does the Plea Inquiry Violate the Defendant’s Right to Silence?, 26 Cardozo L. Rev. 1409, 1433 (2005).  Cochran describes several rationales for this right to lie, including one by Jack Sammons:

[In a criminal trial] there is only one truth which concerns us, and that is the truth of the government’s case. No other truth matters. We permit the defendant the dishonesty of the not guilty plea, and of the questioning of what he knows to be the truth, and, in doing so, we destroy the dishonesty of the plea and of the questioning. . . . It is not dishonest to lie to others when society removes the expectation of the truth for its own moral purposes . . . . [W]hen [the defendant] lies or [defense counsel lies] for him, to put the government to the test by a plea of not guilty or a questioning of what he knows to be the truth, that is not lying at all because only one truth matters—the truth of the government’s case.

In any case, there are many reasons why a client “admitting guilt” to his or her attorney is not the same as the client being legally guilty.  Legal guilt requires that the state prove its case, which doesn’t always happen even when the client is factually guilty.  And the client could be confused, insane, have a faulty memory, or be lying to his or her attorney in order to protect someone else.  So there is no reason for the attorney to feel ethically compelled not to allow the client to enter a plea of not guilty even if the client confesses to the attorney.

III. Perjury

Now, what a lawyer can’t do is knowingly assist a client in committing perjury.  This usually isn’t a problem in a criminal case, since most criminal defendants don’t take the stand.  But if they do (and that’s ultimately the client’s choice, not the attorney’s), the attorney can’t ask questions knowing that the client is going to lie.  There are a few approaches here:

1. The attorney can withdraw.  This is difficult to do in the middle of a trial, but it’s usually not necessary because of option 2.

2. The attorney can simply invite the client to give an open-ended narrative.  For example: “Tell us what you remember from that night.”  Usually this story will get destroyed on cross-examination, but that’s why criminal defense attorneys usually advise their clients not to take the stand.  This approach is approved by Model Rule 3.3 and its New York and Alabama equivalents.

3. In some states the attorney can let the client perjure themselves and then inform the court of the perjury.  Obviously this is not a very satisfying approach for the attorney or the client.

4. Some commentators, such as Monroe Freedman, have argued that the attorney should simply question the client in the usual way, perjury or no.   Freedman would say that the attorney can’t coach the client on how to lie most persuasively or rehearse the false testimony, but there’s no need to dance around the issue with open-ended narrative questions, either.  This is a controversial position, to say the least.  See, e.g, Stephen Gillers, Monroe Freedman’s Solution to the Criminal Defense Lawyer’s Trilemma is Wrong as a Matter of Policy and Constitutional Law, 34 Hofstra L. Rev. 821 (2006).  It is also universally rejected by ethical codes in the US, but I include it for completeness.

IV. Conclusion

The rest of the book is pretty accurate, and it actually hits a lot of key points regarding withdrawing a confession and cross-examining witnesses.  The one major error is irrelevant to the plot anyway.  It’s always nice to see a book that gets the legal details right and also tells a good story.

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Posted in criminal procedure, legal ethics, mailbag

I Married a Skrull!

Posted on October 5, 2012 by | 36 comments

Today’s post is about Johnny Storm (aka the Human Torch) and his marriage to Alicia Masters (actually the Skrull Lyja posing as Masters).  Ken wrote in to ask “Was Johnny Storm’s marriage to Lyja valid?”

This isn’t the only time that this scenario has occurred in comics.  Ken also asked about the marriage between Namor the Sub-Mariner and Dorma (actually Llyra in disguise).  In that case a quirk of Atlantean law came to the rescue: because Namor thought he was marrying Dorma, his marriage was to her and not Llyra, even though Dorma was not present at the ceremony.  I’m not sure what that says about the nature of consent in Atlantean law, but we’ll stick with the Johnny Storm/Lyja case, since New York law is a bit easier to research.

I. Void and Voidable Marriages

Perhaps unsurprisingly, the answer is that their marriage would be voidable.  N.Y. Domestic Relations Law § 7 states

A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto: … 4. Consent[ed] to such marriage by reason of force, duress or fraud

There’s a distinction between a marriage (or other contract) that is voidable and one that is void.  A void marriage (defined in §§ 5-6) is one that never exists at all, typically in cases if incest or bigamy.  A voidable marriage is a marriage until a court declares it void, and so can theoretically remain a legitimate marriage if the parties want it to be.  So in this case if Johnny Storm and Lyja agreed that they really did love each other after all (certainly Lyja claims to), then they could stay married, though there would be a lot of paperwork to correct.

Alas, love does not conquer all here, and Johnny wants none of it.  So could he prove a case of fraud?

II. Fraud

New York law treats the kind of fraud sufficient to void a marriage as similar to that which would void a contract.  “Marriage is a civil contract, and the courts will annul such a marriage like other contracts, where the consent of a party to it has been procured by fraud or the misrepresentation of a material fact.”  Lembo v. Lembo, 193 Misc. 1055, 1057 (Sup. Ct. 1949).  Further:

Where the ground relied upon for dissolution is fraud, the fraud contemplated by the statute must be of a nature and import so serious that it destroys the essence of the marriage contract and of a magnitude that the person asserting the fraud as a ground for dissolution would not have entered the marriage contract, if, in advance thereof, the misrepresentations had been revealed.

Di Pillo v. Di Pillo, 17 Misc.2d 673, 675 (Sup. Ct. 1959).  It seems pretty clear that lying about one’s identity as an alien at war with the human race and impersonating another person already known to the other party are sufficient.  Johnny would not have married Lyja had she been honest about her identity.  Indeed, he likely would have attacked her on sight.

III. An Alternate Approach

Another approach would be to argue that the marriage was void from the beginning (as opposed to voidable) because human/Skrull marriage is not legally recognized in New York.  Our prior post about this was a bit controversial, but our conclusion there was that interspecies marriages (e.g. Clark Kent and Lois Lane) may not be legal under current law.  Since the Storm/Lyja marriage occurred in 1987, long before even same sex marriage was legalized anywhere in the United States, we feel even more comfortable asserting that a human/Skrull marriage would not be legal (again, assuming that the marriage laws on Earth 616 were the same in 1987 as they were in the real world).

IV. Conclusion

Whether because a human/Skrull marriage is legally impossible or simply because Storm was tricked into marrying Lyja, Johnny would have no trouble getting out of the marriage.  There might still be legal consequences, however.  A question for any tax attorneys or accountants in the audience: if Johnny had filed his tax return as married/filing jointly and claimed the standard deduction, would he have to repay any tax if the marriage was later declared void?  If so, could he seek compensation from Lyja?

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Posted in family law, Fantastic Four, mailbag, tax law

Hancock and Defense of Others

Posted on September 13, 2012 by | 6 comments

Today we have a follow up to our post about the movie Hancock.  (Moderate spoilers below!)

In one scene, Hancock foils a bank robbery.  The lead robber was holding a dead man’s switch that would set off explosives, killing bystanders, so naturally Hancock solved the problem by amputating the robber’s hand.  After our review, Heiki watched the film and wrote in with a question about that scene:

How do the facts of Hancock being a state actor (he was called in by the police), his ability to retreat, and his seeming ability to simply move so fast that the robber would not be able to act and being able to squeeze his hand shut without amputating it bear on the legality of the amputation manoeuvre?

As Heiki indicates, there are a few different issues here, but we’re going to focus on whether the amputation was possibly legal under the circumstances.  Hancock is set in Los Angeles, so we can refer to California law.

I. Defense of Others and the Reasonable Person

Presumably Hancock himself would not have been harmed by the blast (or he could have left the scene), so we’ll assume Hancock was acting in defense of the bystanders and police.  California defines self-defense and defense of others by statute, Cal. Penal Code § 197:

Homicide is also justifiable when committed by any person in any of the following cases: …  1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or … 3. When committed in the lawful defense of such person … when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished

NB: the “commit a felony” part has been constrained by the courts to refer to the kinds of felonies that allowed lethal self-defense at common law, not all felonies.  People v. Ceballos, 12 Cal.3d 470, 478 (1974).  The felony must be “some atrocious crime attempted to be committed by force.”  Id.  But threatening to blow up a bank with people inside it seems to qualify in any case.  It would also likely count as “a design to … do some great bodily injury,” and there was imminent danger of the design being accomplished.

So, Hancock may have been justified in killing the robber outright.  Does that include cutting off his hand?  Yes.  “Since a homicide is justifiable under the circumstances specified in section 197, a fortiori an attempt to commit a violent injury upon another under those circumstances is justifiable.” Ceballos, 12 Cal.3d at 477.

But the analysis does not stop there.  Although it is not directly apparent from the statute, California requires that the use of deadly force must have been reasonably necessary under the circumstances.

For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend.  If the belief subjectively exists but is objectively unreasonable, there is “imperfect self-defense,” i.e., “the defendant is deemed to have acted without malice and cannot be convicted of murder,” but can be convicted of manslaughter.  To constitute “perfect self-defense,” i.e., to exonerate the person completely, the belief must also be objectively reasonable.

People v. Humphrey, 13 Cal.4th 1073, 1082 (1996).  As is often the case, the “objectively reasonable” standard is determined by the ordinary person.  “California law expresses the criterion for this evaluation in the objective terms of whether a reasonable person, as opposed to the defendant, would have believed and acted as the defendant did.” People v. Aris, 215 Cal.App.3d 1178, 1196 (4th Dist. 1989) (emphasis in original).  Specifically:

a jury must consider what would appear to be necessary to a reasonable person in a similar situation and with similar knowledge. It judges reasonableness from the point of view of a reasonable person in the position of defendant. To do this, it must consider all the facts and circumstances … in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.

Humphrey, 13 Cal.4th at 1082-83.

Unfortunately, it is not completely clear whether this objective standard also takes into account the defendant’s physical abilities, but I think it does.  Those abilities are part of the “situation” and “all the facts and circumstances.”  So, would a reasonable person, knowing what Hancock knew and with Hancock’s abilities, have done what Hancock did in that situation?  I don’t know.  I think a reasonable person might have chosen the amputation route.  It did avoid killing the robber, and it was successful.  Maybe Hancock was unsure if, fast as he was, he could disable the robber in time any other way.

2. Imperfect Defense of Others and Mayhem

But what if Hancock didn’t act reasonably? Could he claim imperfect self-defense and try for a reduced charge, perhaps some kind of battery or even a mere assault?  Alas, no.  The crime Hancock may have committed is not murder (since the robber didn’t die) but rather mayhem:

Every person who unlawfully and maliciously deprives a human being of a member of his body … is guilty of mayhem.

Cal. Penal Code § 203.  The California courts have held that imperfect self-defense is not a general-purpose defense and applies only to murder. “Imperfect self-defense is not an affirmative defense, but a description of one type of voluntary manslaughter.”  People v. Michaels, 28 Cal.4th 486, 529 (2002).  Further, they have also held that it does not apply to mayhem.  People v. Quintero, 37 Cal. Rptr.3d 884, 894-97 (4th Dist. 2006).  It is also unclear whether California even recognizes “imperfect defense of others” as opposed to imperfect self-defense.  People v. Michaels, 28 Cal.4th 486 (2002).

Now, you might be thinking, how can it be fair that Hancock is stuck with mayhem if he was acting unreasonably, but he would have gotten a reduced charge if he outright killed the robber?  The answer is that mayhem is already a less serious crime than voluntary manslaughter (the typical result of imperfect self-defense).  It carries a sentence of 2-8 years, whereas voluntary manslaughter is 3-11 years.  That’s a pretty slim difference in punishment for a pretty huge difference in outcome for the victim, if you ask me, but that’s the wisdom of the legislature for you.

III. Conclusion

It’s hard to say for certain whether Hancock acted reasonably and so was justified in doing what he did, but it’s certainly possible.  Since nobody (other than the robber) seemed to complain, I guess the LA district attorney’s office felt it was reasonable, or at least close enough.

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Posted in criminal law, mailbag, movies