by James Daily
The DC Universe handles this a little differently. In The Flash (Vol. 2) #135, an attorney mentions the “Twelfth Amendment,” which permits “registered meta-humans” to testify while masked. 5 The real Twelfth Amendment was passed in 1803 and changed the procedure about the way we elect the President and Vice-President, but whatever. Note two things here. First, a constitutional amendment really might be necessary here, given the problems with masked testimony interacting with the Sixth Amendment, 6 but second, DC seems to have sneaked in superhuman registration, the very thing that sparked the Marvel Civil War in 2006! So while the DC workaround would be effective in the courts, it does not seem as if that universe has fully dealt with the implications of that solution. 7
Sometimes making up fictional constitutional amendments is just the way to go. Mark Millar, Grant Morrison et al., Death at the Top of the World Part 3, in FLASH (VOL. 2) 135 (DC Comics March 1998).
Hearsay and Telepathy
At first glance, a psychic would seem like the perfect solution to many evidentiary problems such as lying on the stand or failing to tell the whole truth. But would using a mind reader to verify a witness’s testimony actually stand up in court?
Relevance
First we must ask “is the evidence relevant?” Only relevant evidence is admissible, and Federal Rule of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” This is a very low bar, and Federal Rule of Evidence 402 provides that relevant evidence presumptively admissible. But the question must still be asked, “Is a psychic’s claim about the contents of another person’s head relevant?”
We think the answer is yes. The psychic could be lying, but that’s true of any witness, and the jury must judge the psychic’s credibility just like any other witness’s. The psychic could be a fraud, but the judge could require that the psychic’s powers be proved prior to offering the substantive evidence. Federal Rule of Evidence 901(a) provides “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” By way of example, Federal Rule of Evidence 901(b)(9) gives “Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.” The accuracy and reliability of a psychic’s power fits that example.
Exclusion under Federal Rule of Evidence 403
Relevance is only the beginning of the analysis, however. Relevant evidence may be excluded under Federal Rule of Evidence 403 “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Of these, unfair prejudice is the greatest risk here.
The notes on Federal Rule of Evidence 403 state that “‘unfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” A fact finder might unfairly prejudice a party by giving undue weight to the testimony of a psychic, possibly completely ignoring the testimony of the original witness. Psychics, after all, have supranormal abilities, and juries might be somewhat awed by them to the detriment of other testimony. However, “in reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction.” It may suffice for the judge to remind the jury that it should also consider the testimony of the original witness.
Personal Knowledge
As discussed, Federal Rule of Evidence 602 requires that a witness have personal knowledge of the matter being testified about. This means that a fine but important distinction should be made. The psychic would not be testifying as to the actual events the original witness had personal knowledge of. Instead, a psychic would testify about his or her personal knowledge of what he or she read in the original witness’s mind. It’s the difference between Professor X’s saying “Magneto killed Jean Grey” and his saying “I believe the original witness remembers seeing Magneto kill Jean Grey.” This is a great example of why a psychic verification of a witness’s testimony does not mean that the witness’s testimony is necessarily accurate. Everything the psychic testifies about is ultimately coming through the lens of the original witness’s senses, understanding, and memory.
In fact, Magneto was once suspected of killing Jean Grey, but the killer was actually an imposter, Xorn, who was killed by Wolverine for his trouble. 8 This is a great example of why a psychic’s verification of a witness’s testimony does not necessarily mean that the witness’s testimony is accurate.
Hearsay
Now we come to one of the biggies. The general rule under Federal Rule of Evidence 801 is that “‘hearsay’ is [an oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion], other than one made by [the person who made the statement] while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
It’s a complicated definition, to be sure, but maybe we don’t have to address it. A person’s thoughts are not an oral or written assertion, nor are they a nonverbal action intended as an assertion. Of course, it is likely that in a universe with psychics and telepaths the Federal Rules of Evidence would be amended to include such things. Given that, let’s complete the hearsay analysis.
Assuming thoughts fit the first part of the definition (i.e., they are an assertion), then we know the second part fits as well, since the psychic is not the person who made the statement. The final part is whether the psychic’s testimony is offered to prove the matter asserted. For example, when Professor X says, “The witness remembers that Magneto killed Jean Grey,” is that being offered to prove that Magneto did, in fact, kill Jean Grey? We think the answer is no; rather than being offered to prove that Magneto killed Jean Grey, the psychic’s statement is only offered to prove that the witness is not lying. In lawyer-speak, we would say that the statement goes to the witness’s credibility, not the truth of the matter asserted.
The Fifth Amendment
So far we have assumed that the psychic was being used to verify a witness’s truthfulness. But what about using psychic powers to extract information from a witness who refuses to testify, such as a witness invoking the Fifth Amendment right against self-incrimination? For the answer to that, see chapter 1 on constitutional law.
Shape-shifters
Related to the issue of masked testimony, shape-shifters pose a potentially destabilizing effect on trial testimony, not to mention legal proceedings in general. The Marvel character Mystique can impersonate anyone, down to his or her voice. What’s to stop her from replacing a witness on the stand? Even worse, couldn’t she perfectly frame someone else for a crime by committing it while looking like them?
As to whether she might be able to frame people, whether or not it would work depends on how much forensics she’s able to fake, which probably depends on the imagination of the comic book writer. But shape-shifters in court are less of a problem than it might seem at first glance.
One can perhaps think of technical means, perhaps similar to the Avengers scanner mentioned earlier, that a court could impose to verify the identity of witnesses given the possibility of a changeling impersonating them. Certain superheroes might even find some side work this way, as could enterprising inventors. 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 shape changers is an issue of degree rather than kind.
Note that this is a slightly different issue from simply testifying with a mask on. In that case, the court knows for a fact that it cannot tell who is under there. But a true shape-shifter would be able to fool it completely, never giving rise to the issue that the person testifying might not be who he says he is.
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 in which a witness is questioned by the opposing attorney, a process that 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 Irving Younger’s “Ten Commandments of Cross-Examination.” 9
The reliance placed upon cross-examination is so great that it underpins one of the most fundamental rights in criminal procedure: the right to confront witnesses. If an attorney is not able to convince a jury through cross-examination that a witness is either lying or unreliable or is a changeling in disguise, 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.
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 shape-shifting telepath is going to have a really hard time slipping one past an attorney who knows what he or she is doing. 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, assuming the attorney is adequately prepared. It will quickly become clear to the judge and the jury that something fishy is going on, and at that point the jig is up; either the doppelgänger will be revealed, or the damage to the case intended by the shape-shifter will be avoided.
At this point, other laws come in to play. “Subornation of perjury” 10 is itself a crime, so a party or an attorney who solicited the shape-shifter to replace a witness is in big trouble, and tampering with evidence in this way could well be a violation of discovery rules. Federal Rule of Civil Procedure 37 and its state equivalents permit 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 could also be sanctioned directly under Federal Rule 11, particularly if he or she knew about the scheme.
1. For example, a forced confession.
2. See, e.g., Crane v. Kentucky, 476 U.S. 683 (1986).
3. Throughout this chapter we will be using the Federal Rules of Evidence and related cases as our guidelines. Although these rules only explicitly apply in federal cases, most states have adopted similar rules.
4. Dan Slott et al., Web of Lies, in SHE-HULK (VOL. 1) 4 (Marvel Comics August 2004).
5. Mark Millar, Grant Morrison et al., Death at the Top of the World Part 3, in FLASH (VOL. 2) 135 (DC Comics March 1998).
6. Again, see chapter 1.
7. Not that Civil War fully dealt with much of anything, when it comes down to it, but at least the authors realized that federal registration is kind of a big deal.
8. See Chuck Austen et al., Of Darkest Nights, in UNCANNY X-MEN (VOL. 1) 442–43 (Marvel Comics June–July 2004).
9. The commandments were published in IRVING YOUNGER, THE ART OF CROSS-EXAMINATION (1976), but they are also readily available online.
10. A fancy way of saying “asking someone else to commit perjury.”
CHAPTER 4
Criminal Procedure
“Look, I know what you’re here for. Think you gonna scare us out. Like we’re gonna start shakin’ and sayin’ ‘Oh, Superman, don’t hurt us! Don’t zap us with your eye-beams!’ You can’t do squat, S. You got to abide by the law same as everybody else. You can’t go inside any of our cribs, you can’t take anything, you can’t force us to move, you can’t do jack.”
So says the rather courageous drug dealer in the first issue of the Superman: Grounded story arc. 1 It turns out that the guy is probably wrong, but rather than correct him or simply move on, Superman makes the rather counterintuitive move of trading up from a misdemeanor trespass, what the thug says is off limits, to full-on felony arson. Way to go, Supes.
What Superman and this guy are fighting about is the body of law known as “criminal procedure.” This is distinct from what lawyers refer to as “criminal law,” the subject of chapter 2, in that “criminal law” has to do with the definitions and elements of various crimes, while “criminal procedure” has to do with the mechanics of prosecuting and defending criminal charges. Although the word “procedure” suggests tedious detail and arcane rules, criminal procedure is actually an important area of the law that you probably know more about than you might think. Criminal procedure encompasses such vital safeguards as the right to a jury trial, the right to remain silent, and the prohibition against double jeopardy. In fact, it’s such a fundamental part of the law that much of it comes from the Constitution, and the authors of the Constitution got many of the ideas from Magna Carta, the English feudal charter which dates all the way back to AD 1215. But while you may have heard about many of these topics in high school civics class (or while watching Law & Order episodes), the details—and limitations—of these rules may surprise you.
Stymied by an incorrect interpretation of criminal procedure, Superman decides to engage in a little harmless felony arson. J. Michael Straczynski et al., Grounded Prologue: The Slap Heard ’Round the World, in SUPERMAN (VOL. 1) 701 (DC Comics September 2010).
First, a Brief Word About State Action
A recurring theme in this chapter will be the difference between how the law treats the government and how it treats private actors. Most of criminal procedure is about limitations on what the government can do, and the flip side is that private actors generally aren’t subject to the same limitations. This is part of the “state action requirement,” and as we saw in chapter 1, this works in favor of freelance superheroes, but superheroes that work for the government will have to follow the same rules as regular police. This is really where the State Action section of chapter 1 comes into play in a big way.
Investigation and the Fourth Amendment
Let’s turn back to the confrontation between Superman and the drug dealer for a minute. The dealer is essentially asserting that Superman can’t do anything about the drug dealer’s activities without violating rules of civil procedure, specifically those having to do with criminal investigations. Investigations can occur while a crime is still being planned, while it’s in progress, or after it’s been committed. Most superheroes deal with the first two scenarios, although sometimes they investigate
crime scenes to figure out where a villain might strike next. But regardless of the circumstances of the investigation, the biggest issue is, as the drug dealer suggests, whether the evidence gathered during the investigation will be admissible in court after the villain is arrested. This brings us to the Fourth Amendment. 2 The text of the amendment is short and relatively straightforward:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 3
There are really two separate ideas here. First, there is the general rule that unreasonable searches and seizures are prohibited. Second, an otherwise unreasonable search or seizure can be made after obtaining a warrant, which in turn requires probable cause. The exact definition of probable cause is slippery, but “the substance of all the definitions of probable cause is a reasonable ground for belief of guilt.” 4 It is something “more than bare suspicion” but also “less than evidence that would justify…conviction.” 5
Finally, bear in mind that the limitations of the Fourth Amendment generally only apply to state actors. Superheroes who work closely with the police (e.g., Batman) and superpowered police officers (e.g., agents of S.H.I.E.L.D., certain versions of the Avengers) must abide by the Fourth Amendment, but superheroes acting as private citizens do not. However, we will discuss the rules for citizen’s arrest in this chapter, which of course do apply to private citizens, and all of the procedural rules for trials (such as pleading the Fifth) apply whether a cop or a superhero arrested the supervillain.