Calling all lawyers--Supers and unique legal issues

[Psylint]

Re: Calling all lawyers--Supers and unique legal issues

 

Comic:

 

The first part of your post was about passive telepathy, at the very end you had "super deduction" or "extreme observation of body language.

 

As far as the super-deductive reasoning is concerned, it's a credibility issue. It like a mechanical lie detector would, in general, be treated as a technology or scientific method which would have to gain generally recognized consensus within the applicable scientific field. Not sure what the applicable field would be, but if it's just one person or a limited number of persons, it's simply not likely. It's just too easy to explain anything away in social or psycho-social terms as a statistical outlier when you are dealing with small numbers. Furthermore, you would have difficulty establishing "truth indicators" in any kind of competitive setting. Super Detective says, "I know he was lying because I observed x,y, and z" Defense counsel, "To your knowledge is it possible to observe x,y, and z in someone and have them not be lying?" "Is it possible that a person might be attempting to be deceptive and exhibit x,y, and z and yet be factually incorrect, that is to say if I honestly believe that the Red Sox have never won the world series, and I attempt to lie and say "The Red Sox have won a world series" might I exhibit x,y and z even though the utterance itself is true?"

 

Telepathy, in the sense of directly overhearing one's thought, or actively pushing one's consciousness into another's and looking about, is torture. It is a violation of the basic human dignity. Torture need not cause lasting physical injury to be torture, e.g. water boarding. If you take away the terror, the humiliation, the injury, the extremis of torture, you're left with incarceration and asking questions. But then again, if you take away the gun and the bullets from Mr. Creely, you just have asking questions "Why won't you die?"

 

As to the likely effect of an awareness of actual telepathy even amongst world leaders, well that is entirely speculation. I do not think it is much of a stretch, that if say the government knew I was an actual telepath that they would, for example, allow me to emmigrate to Russia, or tour the White House or the Pentagon. And once you accept that, the rest tends to follow.

 

Megaplayboy:

 

1. A person has a Constitutional right to attend their own trail and "confront the witnesses against them." The most analogous cases are those involving child molestation and abuse, where the witness actual testifies via closed circuit T.V., that is to say that the witness is not present in the court room but the defendant is. There is some minor grumbling that a Constitutional violation occurs because the witness in such cases is often unable to view the defendant.

 

There are circumstances where a defendant can be removed from a courtroom, generally related to violence or continued disruption of the process by the defendant, but I believe the more frequent response is to chain and gag the defendant and leave them in the court.

 

In the case of super=pheromone boy/girl/thing a muzzle of some sort might be used, or alternatively the other occupants of the courtroom inoculated (though that presents its own issues, you can be compelled to serve jury duty, but compelled "health care" or "medical treatment" is rather dicey).

 

There are provisions for trying persons in absentia. I believe that Osama bin Laden has been tried and convicted in absentia, but I confess I do not know the procedures for that process.

 

Peace

[megaplayboy]

Re: Calling all lawyers--Supers and unique legal issues

 

Hypothetical no. 5--How would the courts have to redefine "personhood" in order to fit a world where extraterrestrials, gods, elves, robots and androids, vampires, zombies, and giant sentient lizards with thermonuclear halitosis exist?

[Clonus]

Re: Calling all lawyers--Supers and unique legal issues

 

Hypothetical no. 5--How would the courts have to redefine "personhood" in order to fit a world where extraterrestrials' date=' gods, elves, robots and androids, vampires, zombies, and giant sentient lizards with thermonuclear halitosis exist?[/quote']

 

On a case by case basis. As the NHCLU files briefs on behalf of Tisiphone or Godzilla it would be up to the superior court justices to make a precedent-making ruling with loads of expert testimony and a final decision that in the end will boil down to the judge saying "I knows it when I sees it". Once the precedent is established it will apply to all members of the species in question if it is a species. (In the case of artificial intelligences it would probably apply to everything with the same software specifications)

[Highwayman]

Re: Calling all lawyers--Supers and unique legal issues

 

As far as the super-deductive reasoning is concerned' date=' it's a credibility issue. It like a mechanical lie detector would, in general, be treated as a technology or scientific method which would have to gain generally recognized consensus within the applicable scientific field. Not sure what the applicable field would be, but if it's just one person or a limited number of persons, it's simply not likely. It's just too easy to explain anything away in social or psycho-social terms as a statistical outlier when you are dealing with small numbers. Furthermore, you would have difficulty establishing "truth indicators" in any kind of competitive setting. Super Detective says, "I know he was lying because I observed x,y, and z" Defense counsel, "To your knowledge is it possible to observe x,y, and z in someone and have them not be lying?" "Is it possible that a person might be attempting to be deceptive and exhibit x,y, and z and yet be factually incorrect, that is to say if I honestly believe that the Red Sox have never won the world series, and I attempt to lie and say "The Red Sox have won a world series" might I exhibit x,y and z even though the utterance itself is true?"[/quote']

 

I may be mistaken here, but I believe police can use their observations of a person’s behavior to establish probable cause to stop and search them, so I would assume super-deduction and body language reading could be used in a similar way. Still, I think when testifying how they established cause they would have to be limited to saying “X was acting suspiciously” rather than coming out and saying “X was planning to kill Y.”

[Psylint]

Re: Calling all lawyers--Supers and unique legal issues

 

Highwayman,

 

Yes police can use observations to establish probable cause, after all what else can they use?

 

But what Comic I think Comic was talking about was Super Detective asserting as FACT that x is lying because Super Detective can through the use of observation infallibly tell whether someone is lying. It's just not likely to happen. In the American system, the jury resolves all questions of credibility (for the most part, there are almost always exceptions in law). Counsel could, however, establish Super Detective as an expert and then Super Detective can assert, I am an expert, and in my expert opinion x is lying, but he could not assert that x was lying as a fact. Similarly, the opposing counsel could establish a counter expert, who could testify that their expert opinion was x is telling the truth. And in any event, the "battle of dueling experts" is resolved by the jury as almost all credibility issues are.

 

What constitutes direct evidence as opposed to expert opinion gets a little fuzzy, and honestly evidence isn't my strong suit, but "lying" or "truth-telling" aren't facts in the way that liver temperature being 14 degrees Celsius is a fact. Even "death" is often a matter of expert opinion rather than fact.

 

peace

[Highwayman]

Re: Calling all lawyers--Supers and unique legal issues

 

Hypothetical no. 5--How would the courts have to redefine "personhood" in order to fit a world where extraterrestrials' date=' gods, elves, robots and androids, vampires, zombies, and giant sentient lizards with thermonuclear halitosis exist?[/quote']

 

I imagine with your run-of-the-mill alien, AI, supernatural creature, or giant monster you could go with some variation on the Turing test administered by court-appointed psychologists. If you pass, congratulations! You’re a legal human.

 

Undead would be trickier because of the whole dead thing. Here in the real world, what’s your recourse if there’s some major screwup and you get declared legally dead while you’re still up and walking around?

[Psylint]

Re: Calling all lawyers--Supers and unique legal issues

 

The legally undead:

 

Folks can be declared dead even when a body isn't produced, but it is a court judgment, and can be set aside in the interest of justice if new evidence arises, like when someone is missing for 10 years or more and suddenly shows up back at home with wild stories about being Shanghai'ed by gorgeous Neo-Nazis with rainbow colored mohawks and a penchant for quoting Scripture.

 

The undead create some serious issues, particularly the "intelligent undead." I mean should a person really be able to discharge their criminal and civil liabilities through death, if as in the case of vampires they come back with, generally, full awareness of their previous actions and such measure of will power as they possessed in life (admittedly often compromised slightly by a new addiction, but that can happen to anybody).

 

The "stupid undead" like zombies, given their, traditional, limited free will would generally not be considered legal adults, would evade most criminal prosecution for failure of the mens rea or "intent" or "malice" requirements. But would they be considered legal persons? I'm not sure, I could readily see how a jury would refuse to convict someone accused of murdering a zombie of the moaning "Brianzzzzz" type.

 

To the best of my knowledge, though, you are either a human being, a piece of property, a fictive or legal "person", or an entity who's legal identity is yet to be determined (chiefly these are those entities which in the normal course of evidents given time, resources and barring accident or other outside influence would be born and thus accounted as a human being everywhere within the United States).

 

Gods, extraterrestrials, elves etc. that appear human would likely be presumed to be human under proven otherwise. Though afterwards, I'm not sure, but they'll likely be accorded "human" status. (Especially if the extraterrestrial arrived by technological process).

 

Robots and androids and other created beings will be presumed to be property, and I can't think of a way that they'd shake that in practice. Even proof of independence and sentience isn't sufficient, in my expectation. Various apes have been demonstrated to have abstract reasoning skills, but they're still considered property.

 

Peace

[Comic]

Re: Calling all lawyers--Supers and unique legal issues

 

Telepathy is torture?

 

Buh?

 

Is this what they call the thin skull argument? That because there are some people who suffer anguish at the very notion of their minds being 'invaded' and their 'inner selves' being 'exposed', that telepathy causes anguish and torment, and therefore is torture?

 

Because being a layman, I have to admit, that doesn't scan for me.

 

To me, a person being arrested without just cause, a person's freedom of speech being limited without overwhelming justification, or a person's liberty to enjoy their own property being taken from them without strong reason, those are violations of rights. But are they torture, necessarily?

 

I think that produces a wishy-washy, diluted definition of torture that allows real wrongdoers to get away with too much under the cloud of obfuscation, and the genuinely innocent to always wonder if they are commiting atrocities.

 

And.. isn't waterboarding, per the Attorney General of the US and the Vice President, not considered only 'strong persuasion'? Or did I misunderstand that?

[Psylint]

Re: Calling all lawyers--Supers and unique legal issues

 

Comic,

 

I believe you are conflating telepathy and torture. My position is, to be clear, only that telepathy, as it is commonly described as some sort of psychic ability to overhear thoughts, read minds, etc. is an unlawful search. The Supreme Court has established that there are certain zones of privacy where the government just cannot go. One of these is "the marital bedroom" and whether you use the various contraception cases or go to Romer and various others, it is established law that there are matters into which the government cannot delve without extreme justification.

 

I also mentioned that telepathy in its common accepted sfx would cause issues versus the right against self-incrimination. While a person can choose not to speak, and indeed has an established and well known right to remain silent, it is not possible to choose not to think.

 

Not sure why you're hung up on torture, because I'm not. The issue with telepathy is that it runs afoul of both the 4th and 5th Amendments. I cannot now conceive of any circumstances under which it would be lawful to use telepathy on a person who did not consent. The court has all ready established that convicted and incarcerated prisoners who have about the least rights of persons in this country still may refuse "medical treatment" that the State wants for the purposes of gathering evidence if such treatment involves either significant risk or harm. So for example, the State cannot compel a convict to undergo an operation to remove a bullet from his body, because the risks associated with surgery are too grave and it is a basic right guaranteed under the Constitution that one be secure in one's own body. Given the added difficulty about the prohibition of compelled self-incrimination, I cannot see how any court could be at all faithful to the Constitution and admit telepathic evidence gained without the express consent of the subject of such telepathy.

 

As far as the specific example of waterboarding. Under certain international treaties to which the United States is a signatory waterboarding is a prohibited form of interrogation. You may recall that the Attorney General of the United States which authored that opinion also was of the opinion that the President was empowered to detain United States citizens without charge, outside the country, without access to an attorney; and he was wrong. The United States lost all of its cases on the issue all the way up to the Supreme Court. Similarly, this same Attorney General has resigned in disgrace, in no small due to his tendency to issue legal opinions that the majority of those in the legal profession find "aggressive" at best, and "completely insane" at worst. And the federal courts have consistently ruled against these opinions.

 

I would be careful when citing Alberto Gonzales as an authority under such circumstances. And as far as the Vice President is concerned, he cannot decide whether or not he is part of the executive branch, the legislative branch or an entirely and heretofore unknown 4th branch of government subject to the laws or executive orders of either.

 

So no you didn't misunderstand the statements by the former Attorney General or the Vice President, it is just that according to the Supreme Court, the ultimate arbiter of all things Constitutional, the former Attorney General and the Vice President were wrong.

 

Peace

[assault]

Re: Calling all lawyers--Supers and unique legal issues

 

Hypothetical no. 3: Secret Identities

How could the law accomodate the concept of a "secret identity", not only with regard to superhumans and costumed adventurers acting in a law enforcement capacity,

 

(All answers are my opinion only, of course)

 

In some cases the superheroic ID might be legally established. (I think this is the case with some versions of Superman.) In this case, it's not a case of who the superhuman "really" is, because they "really" are their super ID. That they are "also" somebody else is irrelevant! So Superman can testify as Superman, because that's legally who he is.

 

Batman is another question. Obviously, at first, he couldn't testify, because he was a wanted criminal! Later on, though, he seems to have become "legally recognised" on a de facto basis. I shudder to think of the legal implications of that.

 

The best bet would be to try to gather enough evidence to achieve a conviction without the super's testimony. In most cases that shouldn't be too big a problem. Either the crooks' fingerprints are all over the money, or else hundreds of people saw the giant monsters, or...

 

There are cases where that won't be the case. In those situations, things can be difficult. Often there could be disputes about whether a crime even happened in the first place!

 

Of course, if the criminals in question are on the run, then they are guilty of that at least, for starters. It's just a case of convicting them the first time!

 

I guess the real answer is: it depends! A clever enough crook might be able to avoid a conviction, but that would limit the crimes they could commit.

 

but also with regard to conducting real estate transactions(buying land for a super lair and then contracting to build it) and such things as marketing and merchandising contracts?

 

The law doesn't allow for this. Supers launder their money through charities and trust funds.

 

YMMV, as always.

[McCoy]

Re: Calling all lawyers--Supers and unique legal issues

 

Hypothetical no. 4: Super-Charisma' date=' Mind/Emotion Control etc and the legal process. Should a person with mental powers be permitted to attend their own trial? What about someone with super-pheromones or some other form of "super-charisma/likability"? Are there any provisions of existing law which would justify excluding a defendant/plaintiff from the courtroom?[/quote']

Clear cut jury tampering. If there is any means of detecting their power in use, judge can order approperate measures be taken.

 

IRL, judges have had defendants shackled, gagged, or even watching the trial from another room via closed circuit TV.

[McCoy]

Re: Calling all lawyers--Supers and unique legal issues

 

Hypothetical no. 5--How would the courts have to redefine "personhood" in order to fit a world where extraterrestrials' date=' gods, elves, robots and androids, vampires, zombies, and giant sentient lizards with thermonuclear halitosis exist?[/quote']

My campagine went with L. Neil Smith on this one. If they ask for their rights to be respected, they're a person.

[Comic]

Re: Calling all lawyers--Supers and unique legal issues

 

Comic,

 

I believe you are conflating telepathy and torture.

Ah. My mistake. I saw a sentence that read, in part "Telepathy,... , is torture." and got confused.

My position is, to be clear, only that telepathy, as it is commonly described as some sort of psychic ability to overhear thoughts, read minds, etc. is an unlawful search. The Supreme Court has established that there are certain zones of privacy where the government just cannot go. One of these is "the marital bedroom" and whether you use the various contraception cases or go to Romer and various others, it is established law that there are matters into which the government cannot delve without extreme justification.

Well, since we've agreed telepathy isn't torture, can we also agree it isn't contraception, sex, or marriage?

If the mind is a zone of privacy -- which I'm not dismissing -- then the dimensions and parameters of the privacy would have to be something courts would rule on.

If your marital bedroom has windows on six sides, spotlights, and is hanging by wires above Times Square, you've likely given up the privacy of the bedroom. There must be some measure where the privacy of the mind likewise can be rendered void.

I'm personally opposed to taking such privacy lightly in legislation. I can imagine no cause for finding a person guilty of any crime merely for an unenacted thought or idea. But then my beef would be with legislatures and not courts, for that question.

I also mentioned that telepathy in its common accepted sfx would cause issues versus the right against self-incrimination. While a person can choose not to speak, and indeed has an established and well known right to remain silent, it is not possible to choose not to think.

Huh? Anyone with a Y chromosome can go hours or days without being thoughtful. .. Oh. Sorry. Wrong digression.

Self-incrimination is protected against historically mainly because the methods used to induce speech against one's own interest were so abhorent. Threats against family and loved ones, religious incitement, medical procedures, and a myriad of others. Telepathy is none of those and is, by the commonly accepted sfx, not abhorent in the same way as these. Indeed, reliable telepathy would doubtlessly reduce the temptation of overzealous authorities to bend or break the rules and use such inhumane measures.

Not sure why you're hung up on torture, because I'm not.

Just eager to stamp out false comparisons that might prejudice otherwise reasonable audiences. I can debate the merits of telepathy. I'm never going to try to sell torture, its diametric opposite.

The issue with telepathy is that it runs afoul of both the 4th and 5th Amendments.

Er, how's that? Does, or can, or must, or may, or in the view of some?

I cannot now conceive of any circumstances under which it would be lawful to use telepathy on a person who did not consent.

Oh. Let me. I'm good at games of What-if.

 

What if a person, a witness to and victim of a crime, is completely paralyzed and likely to die? Would a telepathic dying declaration be a violation of their rights, or would it be a facilitation of the rights of the victim and of justice?

 

What if a person were paralyzed, and their family and doctors wished to know how that person wished to be treated? Would telepathic contact be anything but the right thing to do?

 

What if a person were already proven guilty by other means, and there was no debate that they would be found guilty, but they were concealing the location of their living kidnap victims? Would telepathy to find out where the victims were in time to save them be illegal, given that the kidnapper were unwilling to save their lives?

The court has all ready established that convicted and incarcerated prisoners who have about the least rights of persons in this country still may refuse "medical treatment" that the State wants for the purposes of gathering evidence if such treatment involves either significant risk or harm. So for example, the State cannot compel a convict to undergo an operation to remove a bullet from his body, because the risks associated with surgery are too grave and it is a basic right guaranteed under the Constitution that one be secure in one's own body.

And telepathy is medically dangerous how, again?

 

Security of the person was framed in your Constitution without reference to telepathy, but it was framed by your founding fathers with the belief structure of religious men who dabbled in mysticism and the occult. They knew of and believed in forms of divination and so on that were certainly equivalent to telepathy, and they at no point forbade their use. A wretchedly weak argument, but it at least is directly supported by the original document.

Given the added difficulty about the prohibition of compelled self-incrimination, I cannot see how any court could be at all faithful to the Constitution and admit telepathic evidence gained without the express consent of the subject of such telepathy.

If courts have ever admitted any other form of observation, forensic clues and conclusions, tracks or traces or behaviors the accused was unaware of or out of control of and claimed therefore was 'private' because it was his DNA -- what could be more private than the core of the living cell? -- or his blood or his fingerprint or his recorded voice, then you can choose to see how a court might accept such evidence.

As far as the specific example of waterboarding. Under certain international treaties to which the United States is a signatory waterboarding is a prohibited form of interrogation. You may recall that the Attorney General of the United States which authored that opinion also was of the opinion that the President was empowered to detain United States citizens without charge, outside the country, without access to an attorney; and he was wrong. The United States lost all of its cases on the issue all the way up to the Supreme Court. Similarly, this same Attorney General has resigned in disgrace, in no small due to his tendency to issue legal opinions that the majority of those in the legal profession find "aggressive" at best, and "completely insane" at worst. And the federal courts have consistently ruled against these opinions.

 

I would be careful when citing Alberto Gonzales as an authority under such circumstances. And as far as the Vice President is concerned, he cannot decide whether or not he is part of the executive branch, the legislative branch or an entirely and heretofore unknown 4th branch of government subject to the laws or executive orders of either.

 

So no you didn't misunderstand the statements by the former Attorney General or the Vice President, it is just that according to the Supreme Court, the ultimate arbiter of all things Constitutional, the former Attorney General and the Vice President were wrong.

Good, good. I'm with you all the way on this one, so far as any foreigner who strives to keep his nose out of the politics of neighbors may.

 

Glad to hear I can expect not to be waterboarded on my next trip to Disneyland.

 

And I'm excited to learn that all those people detained without charge and out of the country have been released and compensated.

 

Very civil of the Supreme Court to arrange that.

 

Not that I have any cause to like these freed prisoners very much as a group, there's good cause to believe some percentage of them were willing participants in unsavory practices.

Peace

Back atcha.

[Psylint]

Re: Calling all lawyers--Supers and unique legal issues

 

Comic,

 

Whatever. I could deconstruct your response, but it would merely generate a similar one including "But if the Supreme Court is the ultimate interpreter of the Constitution and they haven't ruled then how can you make these conclusions about the 4th and 5th." Viewed in a certain light the only certain law is that which applied after a case was disposed and before it was appealed, reviewed, legislated over etc. Has the Supreme Court reversed itself? Yes. Has the Supreme Court argued by analogy from preceding cases, All the frickin' time.

 

Due Process is complicated and requires a lot more depth than I can provide here. If you would like to discuss it further, send me a PM and I'll direct you to some basic materials, including for example the Federal Rules of Evidence, the Constitution, and about 2,000 pages of Supreme Court precedent, and then we can talk intelligently.

 

Peace

[Metaphysician]

Re: Calling all lawyers--Supers and unique legal issues

 

Um, most of those "alternate scenarios" re: telepathy don't involve civil violation of right to privacy or criminal violation of 4th and 5th amendment rights, anyway.

 

'Dying declaration' doesn't even occur in a courtroom, period, and could easily fall under the same "exigent circumstances" exceptions that apply to warrantless searches. Whether it'd be acceptable evidence in a courtroom would have to do solely with the credibility of the 'witness' and the telepath.

 

'Contact with the paralyzed,' again, doesn't deal with a legal proceeding. It'd be no different than the operating assumption that a incapacitated individual gives consent for medical treatment unless *explicit* instructions have been left otherwise. . . and given that even undesired telepathic contact at worst results in the guy thinking "Get out of my head, you bastard" with no actual harm done, I'd have a hard time seeing any kind of broad ruling against such contact.

 

'Already convicted kidnapper', convicts have only very limited expectations of privacy. The biggest is communications with their attorney. The thing is, even *before* conviction, lawyer/client confidentiality does not apply to actual criminal conspiracy, nor does it apply with regard to information about ongoing or intended crimes. Given that the kidnapper is already convicted, he's effectively engaged in a continuing crime, and there is the exigent circumstance of imminent danger to life, lawyer/client confidentiality would be inapplicable if he mentioned the locations to his lawyer. A suitably restricted telepathic examination should be similarly legal.

[Clonus]

Re: Calling all lawyers--Supers and unique legal issues

 

I would expect that the telepathy issue would be handled in North America as a form of privileged communication. Which is to say, it could not be used in court and not as a basis for a search warrant, but could be used to alert authorities (or super-heroes) to an imminent crime. Revealing someone's private thoughts for less than a situation like that would be grounds for a civil suit.

[Metaphysician]

Re: Calling all lawyers--Supers and unique legal issues

 

There is the bugaboo of voluntary telepathic examination during a trial, used to establish one's own innocence. On the face, there's no reason why a genuinely innocent person shouldn't be able to sign a whole bunch of waivers in order to get what amounts to a guaranteed acquittal.

 

The problem arises in that, if telepathic examination to prove innocence is available, than to *not* choose to be so examined might produce a nigh intolerable burden of assumed guilt on anyone who so chooses. Of course, to utterly forbid such as an option works against the underlying principle of US criminal law, which is that it is more important to acquit the innocent than convict the guilty, so. . .

[Psylint]

Re: Calling all lawyers--Supers and unique legal issues

 

Metaphysician,

 

We all ready see that effect in civil cases all the time. In many instances, jurors have found defendants guilty or liable on the extremely spurious reasoning of "Well, if it'd've been me, I'd've taken the stand in my own defense, but that thar yella' bellied feller, well he just sat there, and that's enough for me to convict/find liable, etc."

 

Under the law, of course, the jury isn't entitled to take notice of whether or not the defendant takes the stand, but they do. Sometimes to the extreme prejudice of what would otherwise legally be determined to be an innocent person.

 

"Realistically" however, even a telepathic interrogation wouldn't be a "guaranteed acquittal." The subject might not remember that the committed the crime (particularly, as is so often the case, they were under the influence of drugs, alcohol, extreme emotion disturbance, have "reality" issues such as hallucinations, and other various forms of psychosis). One of the things that unfortunately happens in child molestation cases is the cops bring Dad into the station and interrogate him, and he says, "I'm guilty." And this gets used at trial, when what he meant was "It's my fault, I was supposed to protect my child from all things and I failed, even though there wasn't any possible way for me to know and even if I did I couldn't have stopped it."

 

Testimony/evidence, all that is not Truth. Folks hold completely incorrect beliefs all the time, and they are quite prepared to swear under oath that it's the truth and the whole truth. It's a GIGO problem. Even if you know the content of another's mind, if it's in error, it doesn't help much.

 

Peace

[Clonus]

Re: Calling all lawyers--Supers and unique legal issues

 

There is the bugaboo of voluntary telepathic examination during a trial' date=' used to establish one's own innocence. On the face, there's no reason why a genuinely innocent person shouldn't be able to sign a whole bunch of waivers in order to get what amounts to a guaranteed acquittal.[/quote']

 

Or for that matter a guilty person who has pulled the President Luthor manuever. However, telepathy has the same problem that "lie detectors" do. Telepaths can be fooled by the deluded and exceptionally well disciplined and would vary wildly in their capabilities and reliability. It's more likely that telepathy would be used before trial to eliminate suspects than during one except in the case of someone invoking the "Devil Made Me Do It" defense, where telepaths could be brought in as expert witnesses to confirm that the perpetrator was legally insane at the time.

[Comic]

Re: Calling all lawyers--Supers and unique legal issues

 

Ooh, ooh.

 

I have a question from the Federal Rules of Evidence.

 

Does rule 703, the one about Expert witnesses giving testimony based on evidence that might not be admissible mean that the expert's opinion can still be given even if the evidence they're an expert on can't be shown to the jury?

 

So, to hark back to an old topic, a telepath could give all sorts of expert opinion on issues, even if for some reason the telepathy itself couldn't be used as direct evidence?

 

Or a superhero could testify about the reputation of a supervillain, as an expert, even if they used Clairsentience to gain the info, so they can't give direct testimony?

 

I know this would require understanding precedence, but I really have no time to review all those old episodes of Perry Mason, LA Law, Night Court, and Law & Order.

[Psylint]

Re: Calling all lawyers--Supers and unique legal issues

 

Contain yourself Comic,

 

1. You're generally misreading Rule 703. The Rule states "If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted." Meaning that if telepathic information was reasonably relied upon by experts in the particular field, then the use of otherwise inadmissible information by the expert to form their expert opinion is fair game. However, the Rule continues " Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect."

 

So first you have to establish your telepathic expert as an expert in his or her field, then you have to establish that the use of information gained by telepathy is of a type reasonably relied upon by experts in that field in closed session. Such telepathic expert could then testify as to their opinion, in part informed by telepathic information, but in general being barred from disclosing any such information to the jury to shore up their credibility.

 

As far as your Clairsentience hypothetical, you're completely wrong. A hero using Clairsentience can give direct testimony because they did directly observe whatever it was they observed. Such a hero would have credibility issues until they established their ability to perceive in that way. However, the reputation of a defendant is generally inadmissible as "character evidence" unless and until the defendant has "put character in issue." So, legally speaking, testimony concerning a supervillain's reputation would only be admissible after the defendant opened the character issue either by putting forth character witness, Dear Old Henchman, "I been with Dr. Destroyer for thirty years, and he ain't killed nobody what didn't need killing!" or by testifying himself, "I Dr. Destroyer, never kill but when it is justified by law."

 

And once again you are choosing poor sources for your "legal education" Perry Mason, LA Law, Night Court and Law & Order are generally massively off-base in the ways they present legal issues, particularly evidence. Though to be fair, trials actually complying with the Rules of Evidence tend to be rather boring, stop and go affairs and make bad television. And I think you mean "precedents" not "precedence." "Precedents" refer to the body of case law informing the current rule of law, "precedence" generally refers to who is prior in right.

 

Peace

[Kevin Schultz]

Re: Calling all lawyers--Supers and unique legal issues

 

Hm...I may have mentioned this before: In other superhero books, I've seen used the "Three telepath" system; if a defendant wants to use telepathy to show evidence for their innocence, it requires 3 (licensed and bonded) telepaths: one for the prosecution, one for the defense, and one for the judge. They ALL get into the subjects mind and analyze the memories. If their three reports match up, then the evidence is presented; if any of the three are off in anything other than insignificant details, then the evidence is inadmissible.

[Kevin Schultz]

Re: Calling all lawyers--Supers and unique legal issues

 

Oh - and on the "is it a person?" question. We actually had this as a question for a report in one of my philosophy classes: we had to argue whether or not HAL, from 2001, was a human in the moral sense. The general consensus was that he was a 'limited person', as he had free will, but was required to perform certain actions as due his programming. Thus, in a legal sense, he would be treated in many ways like a child: while he had legal protections as a thinking being, he wouldn't get certain rights, as he was in many ways still under the control of his parents/programmers.

[Clonus]

Re: Calling all lawyers--Supers and unique legal issues

 

Hm...I may have mentioned this before: In other superhero books' date=' I've seen used the "Three telepath" system; if a defendant wants to use telepathy to show evidence for their innocence, it requires 3 (licensed and bonded) telepaths: one for the prosecution, one for the defense, and one for the judge. They ALL get into the subjects mind and analyze the memories. If their three reports match up, then the evidence is presented; if any of the three are off in anything other than insignificant details, then the evidence is inadmissible.[/quote']

 

GURPS IST. Such a system is dependant on having a lot of telepaths handy, which isn't likely in most universes.

[Whitewings]

Re: Calling all lawyers--Supers and unique legal issues

 

In the Lensman novels, telepathy is routinely used in trials involving serious crimes. But the Lensmen are, without exception, both uncorrupt and incorruptible, and what's most interesting to me is this statement by Kimball Kinnison, who is the most respected and admired of the Grey Lensmen, the most respected and admired (and in some quarters feared) of all the Lensmen, themselves the most prestigious of police and military forces in their universe. He's just been informed that two suspects are on trial for a murder, "a real sick-making one," and both have refused to be examined by Lens, which is entirely within their rights. His response is "Not surprising. A lot of perfectly innocent people can't stand the thought of being Lensed." The same attitude generally applies to thought-screens and similar protective devices: Yes, criminals can and do use them, but so do lots of legitimate people, and for perfectly good reasons. Lensmen aren't the only telepaths around, after all.

 

In case you're wondering, he does examine both men telepathically, but he uses some showmanship to bypass the innocent man's fears (and he has Invisible Power Effects on his Telepathy) and as a Grey Lensman he's answerable only to his own sense of responsibility and personal morals, ethics and conscience. That's actually the main purpose of the Grey Lensmen, so far as I can tell: To do whatever is needed to serve Civilization, even if it's not legally permissible, and no Grey Lensman is ever given that rank who is even arguably unworthy of it.