by James Daily
As to the first part of the test, Batman sometimes acts on the suggestion of the GCPD, though he is rarely (if ever) actually ordered to do something. The Supreme Court has held that “mere approval of or acquiescence in the initiatives of a private party is not sufficient,” but state action may be found when the State “has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.”4 In many cases it seems that Batman does what he does because he has the approval of the police. And in the other direction, it seems that the police often make decisions based on Batman’s plans (e.g., the police may wait for Batman to act before attempting an arrest).
The Supreme Court has elaborated on the second part of the test. Two relevant factors that the Court has described are (1) the extent to which the actor relies on governmental assistance and benefits and (2) whether the actor is performing a traditional governmental function.5 Batman usually relies on the GCPD to formally arrest the villains after he has caught them implicating the first factor. The second factor, whether the actor is performing a traditional government function, also argues in favor of considering Batman to be a state actor. Policing and investigation are traditional governmental functions, so by engaging in the same kind of work that the GCPD does with their cooperation and approval, Batman may be fairly described as a state actor.
Overall, the more closely Batman and other superheroes work with the police, the more likely they are to be described as state actors, which makes a certain amount of intuitive sense. There wouldn’t be much value to the Constitution if the government could do an end run around it by having private parties break the law on its behalf.
But law in the real world aside, it’s clear that Batman is not actually considered to be a state actor in the DC Universe, because if he was, then the GCPD would likely be sued into the ground by villains alleging violations of their civil rights. So why the discrepancy? As Justice Sandra Day O’Connor once said, the state action cases “have not been a model of consistency.”6 These are highly fact-specific cases, and reasonable minds can disagree on the right outcome. It’s also possible that the courts in the DC Universe have weakened the state actor doctrine somewhat to give superheroes like Batman a free hand to address the threats that the regular police can’t handle.
Hawkman takes the stand in an identity-concealing costume. Frankly, we’re surprised the judge didn’t threaten him with contempt for showing up shirtless. Marc Andreyko et al., Trial by Fire, Part 2: Witness for the Prosecution, in MANHUNTER (VOL. 3) 7 (DC Comics April 2005).
The reason all of this is important is because the Constitution imposes important limits on the government’s law enforcement activities, but these limitations apply only to state actors. There are plenty of things that the government can’t do that private individuals can, but as soon as those individuals—superheroes, say—start getting involved in things like fighting crime, we need to start asking ourselves whether they might not be subject to some of these limitations just like traditional government employees. For example, there’s no constitutional problem with superheroes wearing costumes as they go about their daily activities, but as soon as a prosecutor wants to have a masked hero testify in court, we run into Sixth Amendment problems. The Constitution does limit the state’s ability to use anonymous witnesses. Similarly, there’s no constitutional problem with a telepath reading someone’s mind for private purposes, but the Fifth Amendment creates problems for using mind reading as a source of evidence in criminal trials. The rest of the chapter is going to be devoted to issues of constitutional law that are of particular interest to superheroes and supervillains, but keep in mind that these issues are only relevant where there is a state actor involved.
With that introduction in mind, let’s delve into some issues of constitutional law that are of particular interest to superheroes and supervillains.
Testifying in Costume
and the Confrontation Clause
Superheroes must often testify in court in order to ensure the conviction of villains. Superheroes who wear identity-concealing costumes must be able to testify in costume or else risk exposing their secret identity. And here we have a constitutional problem, specifically the Confrontation Clause of the Sixth Amendment, which states that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”7
The DC Universe has neatly solved this problem with its fictional version of the Twelfth Amendment.8 The DC version allows members of the Federal Authority of Registered Meta-Humans to decline to answer questions about their secret identities.9 The comics suggest that this operates similar to the Fifth Amendment protection against self-incrimination. In the Marvel Universe, a colleague of She-Hulk once sidestepped the issue by introducing a device purported to be able to establish that the person wearing Spider-Man’s costume is the “real” Spider-Man without revealing that Spider-Man is actually Peter Parker. The judge permits this, and Spider-Man takes the stand.10
The reason that particular stunt is unlikely to work is that it doesn’t address the contemporary justifications for the right to confront witnesses, primarily cross-examination and credibility judgment. Cross-examination is an essential part of the adversarial system, and requiring witnesses to be present allows the fact finder (usually the jury) to better judge the witnesses’ credibility. Further, most judges view the ability of the jury to see the witness’s face as an absolutely critical part of this process, and most would not permit any witness to testify while concealed, whether by being in a different room or wearing a mask. Because of the fundamental importance of cross-examination, the long history of the right to confront one’s accusers, and its value to criminal defendants, the Confrontation Clause enjoys strong support from both conservative and liberal judges—although that support is not universal.
The general rule of the Confrontation Clause is that “[a] witness’s testimony against a defendant is…inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.”11 It is an important technical point that the clause only covers testimonial statements, but for now let’s focus on actual in-court testimony in criminal cases, to which the clause definitely applies.
But what about that “unavailability” exception? One of the main exceptions to the cross-examination requirement is if the witness is somehow “unavailable,” either because they’re dead or otherwise can’t be present for trial. Does that provide an out for superheroes? What if, for example, Spider-Man prepares a description of a villain’s activities and pins it to the villain, whom he has left hanging in a web for the police to find? Spider-Man is presumably unavailable unless he voluntarily shows up in court (and good luck serving him with a subpoena!), so could the document still be entered into evidence? The answer hinges on whether the document was “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”12 In this case, it would seem objectively reasonable to believe that Spider-Man’s description was intended for use at the villain’s trial. But note that non-testimonial evidence, such as photographs, weapons, and other physical or forensic evidence, would not run afoul of the Confrontation Clause. If superheroes stick to that kind of evidence, they can avoid a lot of headaches and tedious court appearances.
But let’s suppose that non-testimonial evidence is unavailable and the only way to put away, say, Kingpin is for Spider-Man to show up in court and testify against him (and let’s also presume this is pre–Civil War or post–Brand New Day Spider-Man and that his identity is still secret). Could Spider-Man wear his mask? And could he somehow dodge questions about his identity?
Shielding Witnesses from Defendants
Although costumed vigilantes rarely make court appearances in the real world, the scope of the Confrontation Clause has been considered in other contexts, particularly shielding c
hild witnesses against accused abusers from face-to-face confrontation. The Supreme Court has only rarely made exceptions to a criminal defendant’s right to confront the witnesses against him. Although the Court has “never held…that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial.…[A]ny exception to the right would surely be allowed only when necessary to further an important public policy.”13 In another case the Court held that “[s]o long as a trial court makes such a case-specific finding of necessity, the Confrontation Clause does not prohibit a State from using a one-way closed circuit television procedure for the receipt of testimony by a child witness in a child abuse case.”14 But on the other hand, it has also held that a screen that obscured a child witness from the view of the defendant violated the Confrontation Clause.15
But it’s important to recognize that the main tool that courts typically use to deal with these sorts of issues isn’t necessarily going to help in the case of a superhero trying to keep his identity secret. When a party wants to shield a witness for whatever reason, the judge usually conducts what’s called an “in camera review,” i.e., he brings the lawyers and the witness into his chambers and lets the party that wants the protection explain what’s going on. If we were talking about a child witness whose identity was already known, this would serve to protect the child from the defendant while still permitting the judge to be appraised of all the relevant information. But with a masked superhero, the goal is to prevent anyone from knowing the hero’s secret identity, including the judge. This amounts to asking the judge to accept the superhero’s reasoning at face value without any opportunity to investigate whether the concerns are valid. So, for example, while we know that Spider-Man has compelling reasons for wanting to keep his identity secret, a judge faced with the request wouldn’t have any actual evidence beyond Spider-Man’s assertion that he even had family at all. This is going to be a really tough sell.
An identity-concealing costume seems much closer to a screen than one-way closed-circuit television, so it may be quite difficult to argue that a superhero should be allowed to testify in costume. However, a court could make a strong case-specific finding of necessity in instances in which the superhero’s friends or family were particularly likely to be targeted for reprisal and in which the defendant had a history of retaliating against accusers. Think of how much danger Aunt May would be in if all of New York’s supervillains knew that Peter Parker was her nephew. It is also possible that allowing superheroes to do their work and present testimony in court could be considered an important public policy. It may also depend on the costume. A full mask is much closer to a screen than a mask that only covers part of the face. But the further one gets from these ideal facts the harder it will be to overcome the defendant’s strong rights under the Confrontation Clause.
Questioning a Superhero’s Identity
Regardless, winning the right to wear a mask in court may be moot if the first question on cross-examination is “What is your real name?” And indeed this also applies to a non-masked superhero whose real identity is nonetheless unknown (e.g., Superman, though he has the “Twelfth Amendment” to rely on). Here the only option may be for the superhero to plead the Fifth Amendment, i.e., refuse to answer the question on the grounds that doing so may incriminate him or her.16 This can work for non-superhero witnesses too. Take, for example, accomplices in a bank robbery. They obviously can’t be forced to testify against themselves, but they can’t really be forced to testify against their partners either, because doing so would inherently expose them to criminal prosecution given the fact that they were involved in the crime.
This could easily be a problem for superheroes too. Batman may be able to testify that a perpetrator committed a certain crime, but by doing so he may be forced to admit that he himself was trespassing or committing various other crimes. One might understand why he might be reluctant to take the stand, and the Fifth Amendment would probably permit him to refuse to do so.
The Fifth Amendment does not require that answering a question actually directly implicate the witness in a crime, only that one could reasonably believe that it could. “[T]he privilege’s protection extends only to witnesses who have reasonable cause to apprehend danger from a direct answer.…Truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.”17 As long as the judge is satisfied that the danger of self-incrimination is not of an “imaginary and unsubstantial character,” then the superhero may decline to answer questions about his or her secret identity.18
Of course, it’s always possible for the prosecution to force immunity upon a witness, which removes the Fifth Amendment protection against self-incrimination. This would involve the district attorney’s signing an affidavit to the effect that no prosecutions would result from anything the superhero said in a given deposition or court case. Immunity cannot be refused, and once someone is immune from prosecution, the Fifth Amendment no longer applies.19 Superheroes are generally witnesses for the prosecution, so the prosecutor would have no reason to pry into the superhero’s secret identity and thus no reason to worry about imposing immunity.
It’s tempting to argue that the Fifth Amendment provides a solution to the Confrontation Clause problem. Why can’t a superhero simply assert that requiring him to reveal his identity would incriminate him, thus violating his Fifth Amendment rights? Unfortunately, the Fifth Amendment only protects a person from making self-incriminating statements, and wearing (or rather not wearing) a mask is probably not a statement for Fifth Amendment purposes. It might, however, be a form of speech for First Amendment purposes, which we discuss later in this chapter.
Psychic Powers and the Fifth Amendment
As we discuss in chapter 3 on evidence, using psychics (such as Professor X, the telepathic leader of the X-Men) to verify that a witness is being truthful is a complicated legal issue. In addition to the law of evidence, however, constitutional law is also relevant here, specifically the Fifth Amendment rights to be silent and not to incriminate oneself. Could the government use a psychic to extract evidence from a witness who pleads the Fifth? In order to answer that question we must first ask what the Fifth Amendment actually protects.
The Supreme Court has held that “the privilege protects a person only against being incriminated by his own compelled testimonial communications.”20 So what is a testimonial communication? The Court explained in a later case that “in order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.”21 There are many kinds of evidence that are non-testimonial and may be demanded without running afoul of the Fifth Amendment, including blood, handwriting, and even voice samples.22 Perhaps the best example of the distinction between testimonial and non-testimonial communication is that requiring a witness to turn over a key to a lockbox is non-testimonial, while requiring a witness to divulge the combination to a safe is testimonial.23
We need not wonder whether reading someone’s thoughts counts as testimonial communication, however. As the Court explained, “The expression of the contents of an individual’s mind is testimonial communication for purposes of the Fifth Amendment.”24
One might be tempted to argue that the Fifth Amendment shouldn’t apply because the testimony is the psychic’s rather than the witness’s (i.e., the difference between the witness’s saying “I saw Magneto kill Jean Grey,” and the psychic’s saying “The witness remembers seeing Magneto kill Jean Grey”). However, the Supreme Court actually addressed this issue in Estelle v. Smith.25 In that case, a defendant was subjected to a psychiatric evaluation, and the psychiatrist’s expert testimony was offered against the defendant. The Court held that the expert testimony violated the right against self-incrimination because the expert testimony was based in part on the defendant’s own statements (and omissions). Thus, using
an intermediary expert witness to interpret a witness’s statements will not evade the Fifth Amendment.
So psychic powers could likely not be used to produce evidence from a witness who invoked the Fifth Amendment. And, believe it or not, this issue actually has contemporary resonance. Although a far cry from the kind of psychic powers that Professor X is capable of, technologies like functional MRI (fMRI) may someday see regular use in criminal investigation. However, scholars and commentators are divided on whether fMRI-like tests fall under the scope of the Fifth Amendment (i.e., is it more like a blood sample or like speech?).26 Time will tell whether the Fifth Amendment protects people from unwanted mind reading or not.
The Keene Act, Federalism,
and the First Amendment
The Keene Act was the fictional federal law passed in the Watchmen Universe27 that prohibited “costumed adventuring” (i.e., being a superhero), with a few exceptions for superheroes that worked for the government. Would such a law be constitutional in the real-world United States? A similar analysis could be applied to similar fictional laws such as the Marvel Universe’s Superhuman Registration Act (more on that law later).
Unlike state governments, the United States Congress does not have what is called a “general police power.” Instead, its powers are specified in the Constitution, 28 and anything not specifically listed is reserved to the states and the people by the Tenth Amendment. This allocation of power between the federal and state governments is called “federalism.” The basic idea here is that while state governments can do anything the Constitution doesn’t specifically say they can’t, Congress can only do things the Constitution specifically says it can. For the Keene Act to be constitutional, there must be some justification for it in the Constitution. First, let’s consider two powers that might seem appealing but don’t quite make the cut.
