A Minority Report on Criminal Law

Minority Report is a wonderful example of a science fiction adventure that embraces the future. The show has a creative vision of the year 2065, where police wear contact lens with virtual reality that can perform computer forensics by looking at a smart phone. There has not been anything this forward-thinking with future law enforcement and technology since Almost Human. I just hope to God it does not get canceled like Almost Human, Firefly, or Terra Nova.

There is no shortage of disturbing legal issues in Minority Report. The first is holding children in a vat of goo for a decade to use their precognitive abilities smacks of slavery. Yes, stopping murders from happening is a noble goal, but exploiting human beings in involuntary servitude is not legal under any circumstances. The “Procogs” violated no crime and there was no reason for them to be held against their will by the Federal Government. There is no way around the fact this would violate the Thirteenth Amendment.

You do not need to have the ability to see the future to know the Precogs would have a fantastic civil rights case against the Federal Government. Best part, they would know which law firm to retain, know the cost to litigate, and the substantial damages award for being held in slavery by the United States government. Truly dream clients.

The second major issue in Minority Report is arresting people BEFORE they commit a crime. This flips criminal law on its head, because a crime requires both Actus Reus, an action to commit a crime, and Mens Rea, the mental intent. Arresting a person before there has been action or intent puts the punishment before the crime. There would be a serious Due Process issue with punishing people who have not committed a crime, thus no probable cause for the arrest.

The legal bombshell was the fact that the Precogs were not always right about the future, because the future is not set. The idea of people being arrested for crimes that they not only had NOT committed, but also were NOT going to commit, adds a huge civil rights violation to arresting people for future crimes.

The actual investigation conducted in the show appeared to comply with our view of the 4th Amendment and criminal procedure today. Lara based her investigation on Dash’s future premonitions. No one was arrested on Dash’s visions. Moreover, Lara’s actions were consistent with a police investigation to find evidence and stop a crime. Granted, the genesis of the investigation originated with Dash’s visions, but there are cases where police have used psychics to find missing persons. State v. Sugar (N.J. 1987) 527 A.2d 1377, 1386. This appears “legal” by today’s standards.

What does the future hold for Minority Report? I suspect the Hawkeye System will be extremely Orwellian predictive analytics that conducts unlawful searches, but until then, keep those smart glasses that act as a teleprompter. That would be super handy for giving eDiscovery presentations.

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