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The New Champions

Superheroes and the American Legal System

A couple quickie definitions first:

• Probable Cause ("PC") means a reasonable person would conclude it is "more likely than not" that specific items will be in a specific place at a specific time.
• Reasonable suspicion means a reasonable person would conclude that the items might be there -- it is more than just a guess or a hunch, but less than PC.
• Hearsay: Second-hand information: "Joe told me�"
• Fruit of the Poisonous Tree: A legal concept that any actions stemming from an illegal action are inadmissible, even if on their own they might have been admissible. The classic example is the police search a house pursuant to a warrant, find drugs, and the suspect subsequently confesses; if the court later rules that the warrant did not have sufficient PC, then neither the drugs nor the confession can be admitted as evidence. (This may seem like a trivial concern, but the majority of criminal cases that get dismissed are over this exact point.)

Over the years since superheroes first appeared, Congress and the courts have made a number of modifications to the US legal system in order to recognize and accommodate their unique role in the Justice system, while still respecting suspects' rights to due process and a fair trial:

• Superheroes who are officially affiliated with the government, or have been granted police powers, must follow the same procedures as conventional law enforcement officers (warrants, probable cause, etc).
• Supers who are not government-affiliated (referred to in legalese as "non-governmental agents" or "NGAs") do not have to follow as strict standards as police do. However, courts have ruled that too cozy a relationship with the police can make heroes de-facto agents of the court. Above all else, all parties must avoid the appearance that the police are using heroes to get around formal procedures. As long as information flows from NGAs to police, this isn't much of a concern. When police provide information to NGAs things get trickier; such cases are generally resolved on a case-by-case basis considering the "totality of the circumstances."
• Most Federal & state vigilante laws have been repealed or drastically limited. Therefore, the fact that evidence was obtained by NGAs does not, in and of itself, mean that it was illegally obtained.
• In theory, NGAs can be prosecuted criminally or sued civilly for trespassing, breaking & entering, etc. In practice, however, it is nearly impossible to get a jury to convict a superhero for trespassing in the conduct of an investigation, so few people bother to try.
• NGAs can testify while concealing their identities, but only if their identities have been disclosed to the government. (Only a handful of superheroes choose this route.)
• To accommodate NGAs who do not wish to reveal their identities, the rules for hearsay evidence have been revised: witnesses may testify to information they have received second-hand from an NGA who is not available to testify, so long as the information has been independently verified. In other words: "Shadowhawk told us she heard the defendant conspire to blow up the city; our subsequent search of the premises and questioning of the defendant's accomplices confirmed this plan."
• Search & seizure: In general, NGAs must meet the "reasonableness" standard, rather than the more stringent "probable cause" standard police must meet. (see below)
• The concept of "reasonableness" includes not only the reason for the search, but also the manner in which it was conducted. In practice, the courts have given superheroes a fair amount of latitude as to what constitutes a reasonable search in the course of investigating a specific crime. Some things that have rendered searches unreasonable (and therefore rendered that evidence inadmissible) include:
  • Inability to articulate a decent reason why the search/seizure was needed (ie - no "fishing expeditions")
  • Excessive use of force or property damage
  • The search is conducted in a manner felt to be "unreasonable", such as turning someone's home invisible.
• Police still need probable cause to use any evidence gathered by NGAs, but can use the evidence itself to establish PC. So, say, if an NGA has some reason to believe that there may be drugs in a certain place he can search it; if he finds drugs and turns them over to police, the police can use the drugs themselves as part of their PC. [Note: this is probably the single biggest change to our "real" legal system, and would cause conniption fits among today's judiciary.]
• Testimony obtained by force (such as confessions obtained under duress) is still inadmissible.
• Evidence gained via telepathy or other mental powers are generally inadmissible, but may on occasion be admitted as hearsay evidence
• In general, NGAs are expected to use the "minimum force necessary" to subdue a suspect. This is another area where judges and juries have historically given superheroes a great deal of latitude, particularly against highly-powerful villains. However, use of killing attacks over subdual attacks, wanton and excessive property damage, injuring of innocent bystanders, and use of wildly indiscriminate means (such as leveling an entire city block to stop one individual) have all been cited as reasons for ruling NGA arrests to be "unreasonable."