“What one man can invent another can discover.” Sherlock Holmes, The Adventure of the Dancing Man
Normally I don’t write negative pieces about shows, but I have been stewing since the Sherlock Holmes-but-updated show Elementary aired “Uncanny Valley of the Dolls” last month. Ever since I spent a summer reading through the Sir Arthur Conan Doyle’s collected works, I have loved Sherlock Holmes. Elementary is meant to be a new take on the cocaine-addicted sleuth, managing some decent story lines but not adding to the character much beyond what we’ve already seen in the BBC and Guy Ritchie versions. My biggest complaint regarding Elementary, however, is Sherlock and Joan Watson’s consistent disregard for due process. Whether it’s accusing literally everyone of murder (attorney request be damned) or picking locks to illegally break into private property multiple times, the show focuses less on intellectual investigative skills and more on clean, east-to-digest stories.
But what does that have to do with sci-fi you might ask? Well, in “Uncanny Valley of the Dolls,” Sherlock and Co. set out to solve the murder of a sex robot designer who previously headed secret research into real-life teleportation. Gasp! After finding out that last fact, a minor character announces that he was offered (and paid a whole $1000 for) copies of the top secret research. Throwing around some law regarding the Invention Secrecy Act, the detectives surmise that (1) the information was leaked so that the perpetrator could cash in on the research and avoid the Act and a non-disclosure agreement, and (2) the victim was murdered in the presence of his sex robot.
Following the deus ex machina discovery of a song recorded by the sex robot that is somehow perceived (correctly!) to be the perpetrator’s cell phone ringtone, see Anita Ward, Ring My Bell (Juana Records 1979), the detectives trot in three minor characters for “interviewing.” Proceeding to call the first suspect’s phone, which plays the song, they announce the killer and everyone is satisfied that the murder has been solved and a conviction is all but guaranteed. Hold up, what? Not even the mildly appeasing “Ya got me this time, copper!” full-blown confession after being shown some absolutely circumstantial evidence? Well, while CBS and Elementary may not take their time researching the legal issues actually underlying the episode, we will.
The Exclusionary Rule
As previously mentioned, Elementary’s Sherlock and Dr. Watson love to pick locks and break into buildings. While Captain Gregson meagerly explains away these violations as “creative” and usually buttressed by a claim that someone was heard yelling inside, could they actually do this? The answer is no, they totally cannot. Sherlock and Joan are consultants for the NYPD’s Major Crimes Unit. As such, they are acting on behalf of the government when they conduct investigations. So while they don’t have badges, guns, or arresting authority, they do have a responsibility to, you know, abide by the Constitution and proper police investigative procedures.
“The Fourth Amendment assures the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’” Stone v. Powell, 428 U.S. 465, 482 (1976). Because such a provision protects individuals from the government illegally entering and searching one’s home, “[e]vidence obtained by police officers in violation of the Fourth Amendment is excluded at trial[.]” Id. at 492. The Fourth Amendment, however, generally does not protect against unreasonable intrusions by private individuals. Walter v. United States, 447 U.S. 649, 656 (1980). But when the private individual “acted as an ‘instrument’ or agent of the state,” Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971), the exclusionary rule applies and the evidence can be suppressed as “fruit of the poisonous tree.” Nardone v. United States, 308 U.S. 338, 341 (1939). See also United States v. Hardin, 539 F.3d 404 (6th Cir. 2008); United States v. Reed, 15 F.3d 928 (9th Cir. 1994). Because Sherlock and Joan are definitely government agents, anything they find after illegally breaking into private property would be suppressed.
Invention Secrecy Act
In the episode, the perpetrator kills the victim after classified research on real-life teleportation technology (organic-to-digital information transmitter) is leaked. Showing off her obscure federal statute knowledge, Joan makes all sorts of assertions about the effect of the Invention Secrecy Act, 35 U.S.C. § 181 et seq., on the case. So can the government take away your invention and force you to keep quiet? Yea, pretty much. But can you get around the Act by leaking the information? No, definitely not.
After submitting a patent application to the government, if certain federal officers determine that the invention “would be detrimental to the national security, . . . the invention [shall] be kept secret and [the patent office] shall withhold the publication of the application or the grant of a patent for such period as the national interest requires[.]” 35 U.S.C. § 181. But do you agree with Joan and the killer that leaking the research or application would remove the gag order and open the flood gates of profit? Think again. If the invention, application, or applicable research is ever disclosed “by the inventor, his successors, assigns, or legal representatives, or anyone in privity with him or them,” the patent application is held abandoned and the potential windfall is lost. 35 U.S.C. § 182. Furthermore, anyone convicted of leaking said information can “be fined not more than $10,000 or imprisoned for not more than two years, or both.” 35 U.S.C. § 186. See also 18 U.S.C. § 798(a), 793(d). So no, leaking suppressed research does not give one free reign to ignore an order under the Act.
On a related note, the journalist and technology enthusiast featured in the show that attempted to buy the research might also be in choppy waters as well. Under 18 U.S.C. § 793(c), “[w]hoever . . . receives or obtains . . . from any source whatever, any document . . . connected with the national defense,” can be convicted of a felony and “fined under this title or imprisoned not more than ten years.” So while purchasing the secret teleportation research might have seemed like a good idea at the time, I would definitely not risk ten years in federal prison for purportedly secret documents that cost only $1000.
Sherlock Holmes is meant to be an investigative genius, discerning the small forensic details and using logical reasoning to solve crimes. In Elementary, however, we have a shady Sherlock willing to break the law and ignore a suspect’s due process rights. Additionally, this particularly episode hinged its entire theory of motive on a misreading of the Invention Secrecy Act. Sir Arthur Conan Doyle, the father of Sherlock Holmes and “fervent advocate of justice,” would not be pleased. Simply put, Sherlock should follow the law and Elementary should do it’s homework.
- Captain Gregson even called Sherlock and Joan out for constantly breaking the law in this episode, but shrugged it off as “creative” detective work. It’s not “creative,” it’s criminal.
- In the recent episode “Fit to be Tied,” an FBI agent actually told Sherlock to not even joke about “extrajudicial activity,” but Sherlock simply snorted [effectively], “Well, while you’re wasting time, my methods [of illegally breaking and entering] will be getting us real evidence to use.” Sigh.
- “Elementary, my dear Watson” is commonly attributed to Sherlock Holmes, however, he never actually said those words. The actual quote (from “The Crooked Man”) is “‘Excellent!’ I cried. ‘Elementary,’ said he.”
- In 2014, the Sherlock Holmes character came off copyright, which may account for CBS’s “creative” changes to the character. How about we stick to a version of Sherlock that doesn’t break the law at ever turn?