The Law of Superheroes

by James Daily

  Insanity

  A large percentage of Batman’s rogues gallery are characterized as insane: the Joker, the Riddler, Poison Ivy, Two-Face, etc. The list goes on, and this phenomenon isn’t limited to the DC Universe either. A frequent motivation for supervillains is that they’ve been driven mad by something in their past.

  The specifics of this madness are usually not worked out all that well, certainly not in any way that the psychological or psychiatric establishments would recognize as describing any particular pathology. Regardless, this does raise the issue of whether such characters could successfully raise the insanity defense.

  Insanity comes into play because it affects mens rea, the mental state with which acts are committed. Insanity and mental disturbances have been known to human society since ancient times, but in 1843, the English House of Lords—the English supreme court at the time—handed down what have become known as the M’Naghten Rules. 22 The M’Naghten test (or something like it) is still what many American courts use to decide whether a given defendant is insane or not. The scope of the insanity defense widened during the first half of the twentieth century, as psychology and psychiatry came into their own as disciplines, but the attempted assassination of President Ronald Reagan by John Hinckley, Jr.—who was found not guilty by reason of insanity—prompted Congress to tighten things up, largely restoring the status quo from the late nineteenth century. Many states followed the federal example.

  The core of the M’Naghten test is to determine whether “the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”

  In other words, if a defendant can prove that as a result of some mental condition either (1) he didn’t know what he was doing, or (2) he didn’t know what he was doing was wrong, then he should be found not guilty by reason of insanity.

  The “nature and quality” part of the test asks whether the defendant actually knew what was going on. The classic example is cutting a woman’s throat under the delusion that it was a loaf of bread. If a person truly were suffering from such a delusion (not an easy thing to prove!), then no conviction will lie, because there is no intent to kill. There isn’t even negligence, because a reasonable person exercising due care will not have any qualms about slicing himself some toast.

  Likewise, if people simply lack the capacity to string together actions and consequences, there are procedural problems with holding them accountable for their actions. The mental state of children is a useful analogy. Just as very young children are not held responsible for the acts they commit because they simply cannot understand the implications and consequences of what they do, 23 a mentally disabled adult might be found not guilty for the same reasons.

  Note that either prong of the test, if proved, will result in an acquittal guilty verdict, but both of the prongs require that the defendant be operating under a “disease of the mind” or a “defect of reason.” Being drunk won’t cut it, as the courts generally impute knowledge to voluntarily intoxicated people so as to avoid drunkenness becoming a complete defense to crimes. But similarly, simply being mistaken about what it was you were doing will not cut it either.

  Also note that while a clinical diagnosis can certainly help here, whether or not the defendant has been diagnosed as mentally disturbed is, in a sense, irrelevant. Legal insanity and clinical mental illness are only loosely related. A defendant with no psychiatric history, if he can make out either prong of the test, can be found not guilty, and a defendant with a schizophrenia diagnosis can be convicted.

  It is worth mentioning two other tests for insanity: the irresistible impulse test and the Model Penal Code’s substantial capacity test. 24 In short, the “irresistible impulse” test excuses a defendant acting under an irresistible impulse, and the substantial capacity test excuses a defendant if “as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” 25

  The irresistible impulse test has been rejected by most jurisdictions, often vigorously. As the Supreme Court of Pennsylvania put it: “Moreover, the ‘defense’ offered in this case is simply an attempt to once again foist the ‘irresistible impulse’ concept upon this Court under different nomenclature, an attempt which we have consistently rejected and will continue to resist.” 26 However, it is available in some jurisdictions, such as Virginia: “The irresistible impulse defense is available where the accused’s mind has become so impaired by disease that he is totally deprived of the mental power to control or restrain his act.” 27 It is possible that many comic book supervillains could be excused by the irresistible impulse test if it were available in Gotham, since many supervillains seem to labor under an irresistible compulsion to commit crimes, often in a specific way (e.g., the Riddler’s compulsive riddling).

  The Model Penal Code’s substantial capacity test has been adopted by a few jurisdictions, including Illinois, Massachusetts, and Rhode Island. It, too, is broader than the M’Naghten rule, and it might excuse supervillains where M’Naghten does not. But it is definitely a minority position; the majority of United States jurisdictions, including federal courts, use the M’Naghten test.

  Since we don’t know what test the comic book worlds use for insanity, we will focus on the M’Naghten test, as it is the majority position. Under the M’Naghten test, a lot of so-called criminally insane supervillains are not actually insane, or at least not insane in such a way as would render them not guilty.

  Take the Joker for example. In addition to occasionally denying that he is crazy—as he does at several points in the 2009 film The Dark Knight—the Joker does not actually display any likelihood, in most continuities anyway, of being eligible for an insanity defense. He almost always knows exactly what he is doing, and almost always knows that what he is doing is illegal. That, right there, means that he cannot successfully assert an insanity defense.

  Perhaps the most detailed examination into the Joker’s “insanity” can be found in Alan Moore’s story Batman: The Killing Joke: “When you’re loo-oo-oony, then you just don’t give a fig. Man’s so pu-uu-uny, and the universe so big! If you hurt inside, get certified, and if life should treat you bad, don’t get ee-ee-even, get mad!” 28 Disturbed? Certainly. Evil even. But actually insane? It sounds as if the Joker has been reading too much Foucault and Nietzsche, but not as if he’s actually disoriented. And since it is that which the law is interested in when assessing mental culpability, simply adopting an abhorrent coping mechanism will not excuse the Joker from criminal guilt. It is this very line of reasoning that Heath Ledger’s Joker adopts when he confronts Harvey Dent in the hospital: “Introduce a little anarchy.” This is awful, but it isn’t actually unhinged.

  Scary? Yes. Crazy? No. Alan Moore et al., THE KILLING JOKE (1988).

  The same can likely be said of almost all the characters in Arkham Asylum. Very few if any of them are under the illusion that blowing up buildings is anything other than blowing up buildings. The Riddler commits crimes, knowing they are crimes, as a demonstration of his alleged intellectual superiority. 29 Black Mask is motivated by revenge. So, arguably, is Poison Ivy (at least in certain continuities). All of them know exactly what they’re doing, and most of them display extraordinary planning and strategic capabilities. They certainly are capable of forming the requisite mental state to be guilty of a crime. Many of them might be found not guilty under an irresistible impulse doctrine, but again, that doctrine has proved to be both judicially and politically disfavored, only operating in a small minority of jurisdictions.

  But there are at least two characters that can probably never be found guilty of a crime even under the M’Naghten test: the Hulk and Doomsday.

  The Hulk is going to be mostly immune from criminal prosecution, as when Bruce Banner goes into Hulk mode in most stories, he loses a
ll ability to reason or plan. In those stories where the Hulk is a mindless ravaging beast, holding him criminally liable for his rampages will prove difficult, because he simply can’t form the mental state necessary for criminal culpability. In those stories where Banner remains more or less in control during his Hulk phases, the insanity defense should be unavailable, or at least a lot harder to prove. Of course, if Banner commits a crime while himself, his situation would be no different than any other criminal defendant.

  Doomsday, on the other hand, is an almost elemental destroyer, possessing neither language nor reason, bent only on destruction. Exactly how that’s supposed to work is left as an exercise for the imagination, but it’s pretty clear from all of his appearances in comics that Doomsday isn’t really capable of forming any mental state, and not having a mind to speak of would certainly count as a “defect of reason.” In the story where Doomsday gains some modicum of awareness, the insanity defense would be unavailable, but he lost that awareness pretty quickly. 30

  Then again, that would go for any of those villains who lack a sentient mind. Animals, machines, and other non-sentients would never be tried in open court. It does not require a court order for the dogcatcher to put down a rabid dog. Neither would it require a court order for a truly mindless enemy to be “punished” or otherwise dealt with. Whether or not rogue artificial intelligences would count is a discussion for another chapter, but to the extent that they are not considered persons, they would not be tried in court.

  1. For criminal procedure, see chapter 4.

  2. See, e.g., Muscarello v. United States, 524 U.S. 125 (1998).

  3. There are certain traditions ethical, philosophical, and religious, which view any and all killing as impermissible, but we are concerned here not with ultimate moral significance but the current state of the legal system. A pacifist may think that killing in warfare or even self-defense is wrong, but that doesn’t make it illegal.

  4. This will come up again when we talk about the status of non-human intelligences in chapter 13. For now, the law only recognizes the killing of a human being as murder, but that would likely change if genuine non-human intelligence, particularly in the form of a non-human civilization, were ever encountered.

  5. OLIVER WENDELL HOLMES, THE COMMON LAW 3 (1909).

  6. Though these distinctions were latent in the common law for centuries, they were only formalized in this spectrum in the 1960s with the introduction of the Model Penal Code, one of the most successful legal reforms in history.

  7. See, e.g., Southern Farm. Bureau Life Ins. Co. v. Burney, 590 F. Supp. 1016 (E.D. Ark. 1984). See discussion in chapter 12.

  8. For example, Madrox’s ability manifested from birth, unlike most mutants. If Madrox creates a duplicate while a minor, is he essentially foisting another child upon his parents or is he legally and financially responsible for the dupe himself? If Madrox typically has at least one dupe around at all times but not necessarily continuously, can he (or his parents) claim the dupe as a dependent?

  9. Note that while suicide is generally legal, assisting, aiding, and counseling suicide generally are not.

  10. Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 296 (1990) (quoting Blackburn v. State, 23 Ohio St. 146, 163 (1873)).

  11. Pa. Cons. Stat. §901.

  12. Model Penal Code § 211.1; See also, e.g., N.Y. Penal Law §§ 120.00, 120.05 (distinguishing between third degree and second degree assault).

  13. Which raises the Second Amendment concerns discussed in chapter 1.

  14. See, e.g., Adams v. Com., 534 S.E.2d 347 (Ct. App. Va. 2000).

  15. See, e.g., Moore v. Regents of the University of California, 793 P.3d 479 (Cal. 1990) (en banc) (holding that a patient does not have a property right in his cells).

  16. Of course, if the driver knew he was prone to seizures, the result is very different.

  17. No relation to the master magician from later Marvel stories!

  18. Stan Lee, Jack Kirby et al., The Stronghold of Doctor Strange!, in TALES OF SUSPENSE (VOL. 1) 41 (Marvel Comics May 1963).

  19. People v. Bland, 48 P.3d 1107 (Cal. 2002) (“[T]he doctrine of transferred intent applies when the defendant intends to kill one person but mistakenly kills another. The intent to kill the intended target is deemed to transfer to the unintended victim so that the defendant is guilty of murder.”).

  20. MODEL PENAL CODE §§ 2.08(5)(a) and 2.08(4).

  21. Technically some jurisdictions recognize a limited defense of voluntary intoxication in that it may defeat the specific intent required for some crimes. For example, a drunken person may not be capable of forming the level of intent required for premeditated murder but could still be charged with involuntary manslaughter. If, however, the person became drunk knowing they would lose control, then they could be found guilty of premeditated murder.

  22. M’Naghten’s Case, 8 Eng. Rep. 718 (H.L. 1843).

  23. For example, at common law, children below the age of seven are conclusively presumed to be incapable of committing a crime, children between seven and fourteen are rebuttably deemed incapable of committing a crime, and those fourteen or over are presumed capable. 21 AM. JUR. 2d Crim. Law § 34. Some states have statutory minimum ages rather than following the common law rule.

  24. The Model Penal Code is a model criminal law that has been adopted in many states. Although it is often modified by adopting states, it is nonetheless common to refer to the model law rather than individual state versions.

  25. MODEL PENAL CODE § 4.01 (1962).

  26. Com. v. Cain, 503 A.2d 959 (Pa. 1986).

  27. Morgan v. Com., 646 S.E.2d 899, 902 (Ct. App. Va. 2007).

  28. Alan Moore et al.,BATMAN: THE KILLING JOKE (1988).

  29. The Riddler might have an argument to make under the “irresistible impulse” test, but would fail the M’Naghten test.

  30. Jeph Loeb et al., Doomsday Rex, in SUPERMAN (VOL. 2) 175 (DC Comics December 2001).

  CHAPTER 3

  Evidence

  Can a superhero testify while masked? Could Professor X testify about what he learns via telepathy? What effect would Mystique or another shape-shifter have on trial testimony? More importantly, what do all of these questions have to do with one another?

  The answer is that they all touch on different aspects of the law of evidence. Evidence is a fairly complicated legal subject and has significant overlap with constitutional law: the reason a goodly number of potential kinds of evidence are inadmissible is because they are unconstitutional. 1 More generally speaking, admitting inadmissible evidence (or excluding admissible evidence) is a violation of the constitutional right to due process. 2 But here we’re going to focus on those aspects of evidence that do not directly implicate any specific constitutional provisions. And believe us, there’s a bunch. 3

  Masked Testimony

  In She-Hulk (Vol. 1) #4, a lawyer needs to put Spider-Man on the stand. 4 While masked. This, to put it mildly, is a problem. If it were a criminal case, there would be Sixth Amendment issues, which we discuss in chapter 1, but this is a civil trial. Even so, putting anyone on the stand while they’re wearing a mask would likely violate Fed. R. Evid. 602, which reads, in part,

  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. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.

  The thing is, if the person is masked, how is the judge or jury supposed to evaluate whether or not the person is telling the truth about possessing personal knowledge? It could be anyone under there, and there can’t be any witnesses who can confirm that the person here, in court, right now, is the same person who was at the scene of the incident. Indeed, the judge and jury can’t really even confirm that the person on the stand is the same before and after a court recess!

  The argument that this would be hard to do, or is unlikely, isn’t really enough here. The mere fact that th
e court simply has no way at all of verifying who’s under the mask would probably make masked testimony inadmissible.

  Interestingly enough, the few times that comic book writers have put a masked character on the stand, they seem to have gotten this. So in She-Hulk (Vol. 1) #4, the lawyer produces an “Avengers scanner,” borrowed from Stark Tower and part of the security system at Avengers’ Mansion. The scanner can identify any current or former Avengers, like Spider-Man, and compare them with a federal database.

  Even if he’s right, isn’t J. Jonah Jameson rich enough to afford a lawyer to make these objections for him? Dan Slott et al., Web of Lies, in SHE-HULK (VOL. 1) 4 (Marvel Comics August 2004).

  The comic book is wrong that this could just sort of be produced in court, on the spot, without any problems. We’re potentially looking at months, even years of legal battling to get that particular stunt admitted. But it probably is the right way to go about it, and it’s certainly possible for such a thing to satisfy the court that Spider-Man’s identity is verified, mask and all. The opposing attorney might still attack the idea that Spider-Man actually witnessed what he says he did—the scanner simply verifies that he’s Spider-Man, not that he was at the scene—but that’s true of any witness.

  Verifying a witness’s identity may still not be enough, however. A mask, particularly a full-face mask, makes it difficult for the judge and jury to read facial expressions and other nonverbal cues that are considered important for judging a witness’s credibility. Federal Rule of Evidence 403 permits a judge to exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” A witness testifying in a mask is potentially both unfair and misleading. Masked testimony is unfair because other witnesses must testify with their faces exposed, and it is misleading because the jury may find it difficult to judge the witness’s credibility or may even assume that the witness is lying.