During the average night for the Caped Crusader, when he’s not fighting super villains, stopping world ending crises, or hanging out with a starfish in a jar, he spends his time stopping crimes around Gotham City. In almost all of the iterations of Batman, we see him working alone or with the GCPD to stop various muggings, robberies, and terrorist acts by (relatively) normal citizens. But after the Bat ropes them to a lamp post and Commissioner Gordon arrests them, what happens then? Assuming that the Gotham legal system works similarly to our legal system (and there is ample evidence that it does), then the next step after the arrest would be the criminal charge brought by the District Attorney, then the Defense investigation, then the plea bargaining or trial. But where does Batman fit into all that legal stuff?
Can Batman be called as a witness?
Sure, why not? In order to prove their case the DA will likely have to call Batman as a witness to testify that the Defendant was indeed robbing the store, snatching the purse, or what have you. Since all the cops usually see is a suspect tied to a tree, connecting that guy to the crime can get a bit sticky without the testimony of the Caped Crusader to fill in the blanks. Take the trial of King Tut/Professor McElroy from Batman vs. Two Face for example. (As an aside, there is so much wrong with this trial scene it almost deserves its own post to go over, but we’ll stick to Batman’s part here.)
At the trial Assistant District Attorney Harvey Dent calls Batman to testify about how he solved the caper of the stolen biplane and to help prove that Professor McElroy is responsible for the crimes of his alter ego King Tut (since they are your classic Hollywood split personality). Batman takes the witness stand in full costume to testify and, although he tries to help explain that the Professor personality has no idea what the Tut personality is doing, Harvey twists his words and the Jury convicts poor Professor McElroy. All everyday run of the mill stuff for the Gotham City Courtroom I’m sure.
However, Harvey has made the classic prosecutor blunder and forgotten about the US Constitution. Cue Robin: “Golly Batman of course (punches his palm), it’s the Sixth Amendment1 which guarantees (among other things) the right to face all the witnesses against you.” This means more than just getting the opportunity to see the person for the first time on the witness stand. Combined with the Prosecution’s burden of disclosure it means the Defense has a right to know all the witnesses that the Government will call and to see all the evidence that the Government will offer in advance of trial so that they can properly prepare to cross examine those witnesses. The Prosecutor isn’t allowed any surprises. (There’s a really good scene in My Cousin Vinny that covers this surprisingly accurately. If you haven’t seen it go watch it, it’s a fantastic legal movie.)
So, before trial Harvey Dent would have had to disclose his witness list to Professor McElroy’s attorney, including that he would call Batman. However, since Batman isn’t a real person, Dent would need to turn over Batman’s real name, which runs into an issue. Harvey doesn’t know Batman’s real name. Luckily for all of us, the Constitution doesn’t care. Since McElroy has a right to face his accuser and since he has a right to be able to put on a defense, he has a right to Batman’s true identity if Batman is going to testify and if Bats wants on the stand he’s got to do it without the mask, placing him in a Courtroom Conundrum. Think about it this way, what qualifies Batman to talk about split personalities to begin with? Does he have a doctorate? From where? Has he performed research in the field prior to positing that if you pummel King Tut on the head he switches personalities? These are all questions that the Defense gets to investigate so they can question the veracity of Batman’s conclusions (seriously, go watch My Cousin Vinny). The defense also gets to dig into Batman’s history for anything that gives him a bias in the case or any ways to impeach his testimony. So, if Batman wants to testify he’s got to do it as Billionaire Bruce Wayne. Funny to think of how much money Joker and the dastardly fiends of Gotham’s underground were going to pay Two-Face when all they needed was one moderately competent public defender. Makes you think.
So, how does the GCPD rely on Batman to do their job for them… I mean… help them do their job? In theory, the Bat could be a confidential reliable informant (or CRI). For a long time police have relied on informants to provide tips or to help them investigate crimes. One very common example of how police use CRIs is what’s called a controlled drug buy. It goes something like this: the CRI tells the officer that s/he knows about a drug dealer and can buy drugs from them. The police set the CRI up with a set amount of money, search them to make sure they don’t have any illicit substances, and send them off to the drug dealer’s place to make a purchase. The officers watch the CRI as much as possible to make sure that they limit as many variables as they can, and once the CRI gets back the police search them again, take the drugs and use the CRI’s information to get a warrant from a judge for a search of the drug dealer. Now, if the police can’t actually observe the drug transaction itself then they’re relying on circumstantial evidence and the statements of the CRI to make their case.
As you might imagine, this comes with some problems for all parties. Without editorializing (at least trying really hard no to editorialize): for the Government, they want to protect their CRI from reprisals should their identity be made known and perhaps disguise or minimize the potential problems with their source, and for the Defendant dealing with information from a source you don’t get to know can cause all kinds of issues, including those described above like base of knowledge and reputation. Courts have tried to balance these two competing interests and have largely allowed the use of CRIs with few restrictions[1] (ok, I editorialized a little there). Among the requirements are that the Government must inform the defense of a CRI’s basis of knowledge (i.e. how do they know what they say they know) and information on their reliability (i.e. do we know anything like that they have prior convictions, are they providing information in exchange for some consideration, have they provided reliable information in the past, etc.). However, Courts have made it extremely difficult for the Defendant to compel the Government to turn over the actual identity of the CRI.
There’s nothing in real life that quite matches up with Batman, but doing our best to apply the rules associated with CRIs to the Caped Crusader it doesn’t look good. The requirements that the Government provide some basic information to Defendants means that the police officers need to know whether Batman has any prior convictions or other information which might reflect on his credibility (which while the Batman of ’66 probably doesn’t, other versions of Bruce/Batman have a bit rougher history and relationship with law enforcement and might have convictions or at least warrants) and to disclose the basis of Batman’s knowledge, which is typically a bit more complicated than I knocked on someone’s door and asked them to sell me drugs, and is often not something the police themselves understand. To boil it down, in order to run a CRI the officer has to know who that person is. There’s a very fine line between allowing the police to keep a source a secret and the police using an unknown vigilante (yes, I know the ’66 Batman was once deputized but let’s overlook that for now) to do their work for them. Imagine a Judge ordering the District Attorney to disclose their source and the DA says “It’s Batman your honor”, it wouldn’t work out well there would probably be some laughter in the Courtroom. Of course, the DA always has the option to dismiss the case rather than disclose the name of the CRI but that’s just embarrassing (I editorialized a little there too).
The other issue with the GCPD using batman as a CRI is that it makes him a state-actor, subject to all the constitutional limits that brings with it. Imagine if people could sue Batman for unreasonable force, or if Batman had to take time out of an investigation to get a warrant before he searches the Joker’s hideout: that’s how you lose a Robin (sorry, is that too soon?). Batman is able to do what he does because he can operate outside of the law and in a lot of ways Batman exists to do just that, act outside the normal rules and do things the police can’t. While that makes for good comic books, it doesn’t work well in real life.
1 The Sixth Amendment reads “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” https://www.law.cornell.edu/constitution/sixth_amendment
[1] In Oregon we have these rules written into a statute, ORS 133.545 (6): … If an affidavit is based in whole or in part on hearsay, the affiant shall set forth facts bearing on any unnamed informant’s reliability and shall disclose, as far as possible, the means by which the information was obtained.
