She-Hulk and Daredevil Do Not Know California Trial Procedure

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November 2, 2014

She-Hulk #9 is a courtroom drama with Daredevil facing off against She-Hulk in Los Angeles Superior Court over the wrongful death case of Sam Fogler in 1940, as accused by Sam Fogler’s brother Harold Fogler on his death bed in 2014.

Matt “Daredevil” Murdock would have to prove that Steve Rogers’s actions in 1940 were “wrongful acts” or “negligent” in causing the gunman to murder Sam Fogler under Cal Code Civ Proc § 377.60.

Problem: All of the trial advocacy and rules for Dying Declarations are wrong.

The story begins with Matt Murdock giving his opening statement for the Plaintiff. Opening statements are where lawyers provide a road map of what evidence they will present that supports their case.

Murdock called a witness DURING his opening statement to give testimony. This is simply wrong. The California Rules of Civil Procedure define the order of trial proceedings as follows:

When the jury has been sworn, the trial must proceed in the following order, unless the court, for special reasons otherwise directs:

The plaintiff may state the issue and his case;
The defendant may then state his defense, if he so wishes, or wait until after plaintiff has produced his evidence;
The plaintiff must then produce the evidence on his part;
The defendant may then open his defense, if he has not done so previously;
The defendant may then produce the evidence on his part;
The parties may then respectively offer rebutting evidence only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case;
When the evidence is concluded, unless the case is submitted to the jury on either side or on both sides without argument, the plaintiff must commence and may conclude the argument;
If several defendants having separate defenses, appear by different counsel, the court must determine their relative order in the evidence and argument;
The court may then charge the jury.

Cal Code Civ Proc § 607

Murdock could not call a witness during his opening statement. That is just not how a trial is conducted.

The witness offering testimony during the Plaintiff’s opening statement was a police officer who heard the dying words of the grandfather of the Plaintiffs. The police officer recounted the dying man’s story, blaming Steve Rodgers for the death of the decedent’s brother in 1940. The “death bed” story did not include any quotes from Steve Rogers, but claimed that the cause for the gunman shooting Sam Fogler was because Rogers would not stop talking after being threatened by the gunman.

None of that testimony would be admissible, because it is hearsay without a valid exception to the Hearsay rule.

Hearsay is “a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Cal Evid Code § 1200(a). Hearsay is not admissible, unless there is a valid exception to the Hearsay rule. Cal Evid Code § 1200(b).

The story recognized that the testimony was hearsay, but misapplied the “Dying Declaration” exception to the Hearsay rule. The Dying Declaration rule states:

Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.

Cal Evid Code § 1242.

The Dying Declaration exception is NOT valid here because Harold Fogler was dying of old age, NOT because of events in November 1940. There is no causal relationship between the decedent’s cause of death and the events of 1940. As such, the Dying Declaration exception is not applicable to the police officer’s already procedurally improper testimony, and should be stricken from the record. This would effectively gut the Plaintiff’s case.

The Plaintiffs also called a police officer to read a police report from 1940. This document technically contains layered hearsay, because the writing itself and the quote in it each require an exception to the Hearsay rule to be admissible.

The police report would be admissible as a business record, provided the following conditions are met:

(a) The writing was made in the regular course of a business;

(b) The writing was made at or near the time of the act, condition, or event;

(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

Cal Evid Code § 1271.

The testifying officer was the archivist for the Los Angeles Police Department and could attest to the trustworthiness of the “ancient” document.

Steve Rogers is quoted in the police report stating, “This is all my fault. I could have stopped it.” That quote would be admissible as a party admission, because it was a statement “offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.” Cal Evid Code § 1220.

Could Steve Rogers’ 1940 statement be enough to sustain a case for wrongful death under California law? It is difficult to find Rogers’ unknown statements to the gunman as the proximate cause for Sam Fogler being shot by the gunman. Rogers did not fire the gun, which would make his unknown statements highly suspect for establishing liability for the murderous actions of another. There is simply no evidence that Rogers’ conduct was “wrongful” or negligent other than the accusation of a dead man.

The statute of limitations in this case had long since passed in 1942 pursuant to California Code of Civil Procedure section 335.1. The police in 1940 knew of the Sam Fogle’s death and Steve Rogers’ statement. Despite all of that information in 1940, the Los Angeles District Attorney did not press charges. There was no valid excuse for Harold Fogle to do nothing with this information for 70 years. If there had been a case, November of 1940 would have been the time to press criminal charges or start a civil lawsuit by November 1942, at least two years (possibly three) before Captain America was frozen in ice.

What Are Henry’s Ethical Duties to Frank Irving as an Attorney?

By

Josh Gilliland

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September 30, 2014

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The Horseman of War on Sleepy Hollow is a lawyer. Or pretending to be one. Either way, just lovely for our reputation as attorneys.

The reveal came at the end of The Kindred when Henry visited former Sheriff Frank Irving in a prison psychiatric hospital. The NEW Sheriff in town apparently was pushing the limits on cruel and unusual punishment, seeking not just psych evaluations, but threats of electric shock therapy. “Henry the Lawyer” appeared to put a stop to the tests, which is what a lawyer is exactly supposed to do for his client at object police torture.

However, Henry had Irving sign papers (most likely the engagement letter) that pricked the former sheriff’s finger, in effect making him sign the engagement letter in blood.

This raises many important legal issues. No one should EVER sign a contract of any type without reading it first. God knows what evil clause is in there that could negatively impact Frank Irving. No legal fees or retainer could include someone’s soul, even though not specifically stated in any state’s ethical rules.

Henry might be a powerful warlock, but that does not mean he passed the bar in the late 18th Century. New York does not permit people to engage in the unauthorized practice of law, warlock or not. The law specifically prohibits any “natural” person from holding themselves out to the public to practice law (including appearing in Court and advertising), without having been licensed, admitted to practice law in New York, and taken an oath to the Constitution. NY CLS Jud § 478.

If Henry is a licensed attorney, he has several major breaches of his ethical duties. The first being having his client sign a blood oath that likely goes against his client’s interests. This act would violate his Duty of Loyalty to Frank Irving to not act adversely against his client.

Henry also has a significant conflict of interest with Irving, as Henry’s goal is to bring about the Apocalypse under the direction of Moloch, which goes against Irving’s interests. A lawyer may not represent someone if a lawyer’s professional judgment will be adversely affected by the lawyer’s own business or personal interests. NY CLS Jud Appx R 1.7(a)(2). As Henry wants to destroy the world and use Irving in some way to achieve that goal, this conflict of interest unquestionably would violate Henry’s ethical obligations to Irving.

Henry is also violating his duties to New York State and the US Constitution, with his active criminal conspiracy to kidnap his mother, commit murder, and bring about the end of the world. All of these actions would result in disbarment.

Was Nick Fury’s Original Sin Having His Own Foreign Policy?

By

Josh Gilliland

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September 15, 2014

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Original Sin ends with several big changes in the Marvel Universe:

Thor is no longer worthy to lift his hammer Mjölnir because of a secret Nick Fury whispered to Thor;

The Orb shot Uatu the Watcher in the head and cut out one eye;

Nick Fury fired the final shot that killed Uatu the Watcher;

Uatu the Watcher threatened Fury on purpose to get Fury to fire the fatal shot;

Fury took the Watcher’s remaining eye;

The Winter Soldier took Fury’s place as the “man on the wall”;

The Watchers punished Fury by making him a chained “watcher” on the Moon, unable to take any action.

Here is my take on Nick Fury: Everything he did was right. Fury saw the world in terms of Realpolitik, which understands that protecting a nation (or in the Marvel Universe, the entire Earth), requires someone who operates in the shadows to eliminate the threats that would destroy freedom. There cannot be any detente with a foreign power, whether it was from another dimension or planet, that sought the Earth’s destruction. Fury’s actions kept interplanetary wars from erupting (and when one did with the Skrulls, Fury was prepared).

The problem with Fury’s actions is that private individuals are not supposed to have their own foreign policies. The Logan Act (notice, not Wolverine Act), prohibits US citizens from directly or indirectly commencing correspondence with a foreign government with the “intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States…” 18 USCS § 953.

Fury was not sending correspondence with inter-dimensional being, but Gamma bullets to eliminate active threats to planetary security. Fury’s actions would be justified if the United States was declaring it was defending itself, thus ordering strikes on threats, but Fury apparently was writing his own orders on who to kill (unless there is some Kennedy-Era Executive Order giving Fury orders to defend the planet).

Were Nick Fury’s actions justified from a foreign policy perspective? Yes. The logic is difficult to refute, which is why the Winter Soldier took up Fury’s station as the man on the wall. However, this appears to be without any legal authority, even though it is the realistic solution to actual planetary threats operating in the shadows.

As for killing the Watcher, Fury had a solid self-defense argument that the other Watchers ignored: Uatu the Watcher raised his hands charged with energy to threaten Fury. The Watcher’s power easily could have killed Fury. As such, Fury was legally justified to shoot Uatu the Watcher.

However, the Watchers permitting the Orb to escape while Fury was chained to the Moon for the rest of time, forced to watch without interference, appears to be an extremely flawed legal system. Letting the Orb, who committed attempt murder and torture by mutilating Uatu, run free with one of the Watcher’s eyes in his chest is not a proportional punishment. If anything, the Orb now has depth perception and possibly binocular vision, which would be personal enhancements.

The Original Sin of Gamma Bombs & Proximate Cause

By

Josh Gilliland

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July 22, 2014

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Marvel’s Original Sin limited series Hulk vs Iron Man has a simple premise: Tony Stark was paid $500,000 (Stark’s Daily Rate) and 2 Bottles of 25 year-old Scotch to conduct a “supervisory examination” of Bruce Banner’s Gamma Bomb to make it more lethal. Because of Stark’s interference, the bomb turned Bruce Banner into the Hulk (plus Rick Jones going into the test area which arguably was a superseding event).

As one can imagine, finding this out rather upset Bruce Banner. And you do not like him when he is angry. However, instead of calling his lawyer cousin Jennifer, he plotted revenge on Tony Stark.

Tony Stark’s sabotage of the bomb creates a huge issue of proximate cause on whether he (and General Ross) are responsible for creating the Hulk and thus enough damage costs to bankrupt Tony Stark.

“Proximate cause” is an act that is “legally sufficient to result in liability.” Black’s Law Dictionary App, 9th Edition. The cause must directly produce an event and would not have occurred “but for” that event. Id. Legal responsibility cannot exist in the air and “must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability.” Id., citing W. Page Keeton et al., Prosser and Keeton on Torts § 41, at 264 (5th ed. 1984).

One element of establishing liability is whether or not the harm was foreseeable. In a case where a plaintiff walked through a Navy test bombing range that was open to the public when not in use, found an unexploded bomb, took it home, struck it on the ground, which caused it to explode, the Court found liability against the Government. Duvall v. United States, 312 F. Supp. 625, 633 (E.D.N.C. 1970). The reasons for liability included that the Navy knew unexploded bombs could be carried off by those who walked through the area and a state law imposed a duty to control explosives from unauthorized possession (the case was brought under the Federal Tort Claims Act which is how the state claim was allowed against the Federal Government). Id. Moreover, New Mexico law imposes absolute liability for any damages proximately caused by explosives, which is where the Gamma Bomb was detonated. N.M. U.J.I. Civ. 13-1627.

If Tony Stark, who acted as an independent contractor hired by General Ross for the the US Government, was the proximate cause for creating the Hulk, both Stark and the US Government could be responsible for Banner’s condition AND all the damage the Hulk had created. The issue would turn on whether or not the Gamma Bomb turning Banner into the “smashing” Hulk was foreseeable. As no one had ever turned into a rampaging grey, green, or red Hulk before from Gamma Radiation, it would be very difficult to argue that Banner’s transformation was reasonably foreseeable from altering the Gamma Bomb.

Bruce Banner was employed by the US Government to build a bomb. While Banner did not want to build a a “continent killer,” General Ross was very interested in Tony Stark’s claim the bomb could be more powerful. Establishing liability for the General retaining Stark to enhance the bomb could be problematic, based on the cases barring property owners from recovering damages against the Federal government for testing nuclear weapons. See, Bartholomae Corp. v. United States, 253 F.2d 716, 718 (9th Cir. Cal. 1957). Moreover, Stark was a $500,000 a day consultant and one of the best weapons designers in the world who did his job: make the bomb more lethal. Federal law would trump any possible state law claims for Tony Stark conducting the work he was hired to perform, barring any Federal statute allowing for claims to be brought against the Government for weapons testing.

However, since Stark’s work was done without Banner’s knowledge, and if Stark’s job was to sabotage the bomb instead of improving it, these facts may negate the nuclear bomb case precedents, because those were controlled tests. If the lead scientist does not know changes had been made, addition risk is created by those altering the bomb. The fact that testing a Gamma Bomb was already an ultra-dangerous activity, making changes in secret could impose absolute liability on Tony Stark and the United States Government.

Now, the unanswered question is how General Ross could retain someone with a $500,000 daily rate without following government bidding requirements.

Transformers: Age of Criminal Prosecutions

By

Josh Gilliland

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July 7, 2014

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The most believable part of Transformers Age of Extinction is the idea of giant alien robots that can transform into different vehicles. The movie went out of its way to say it was legally “O.K.” for a 20 year-old to date (and arguably have sex with) a 17 year-old, and totally ignore the Export Control Licensing Act and Firearm Control Act. Both Shane Dyson and Joshua Joyce would need to live in China at the end of the movie to avoid criminal prosecution in the United States.

Don’t Have Sex With High School Students

Let’s start with Shane Dyson, the 20 year-old who was in a presumed sexual relationship with the 17 year-old Tessa Yeager. While Tessa Yeager could consent to a sexual relationship at age 17, the issue is engaging in sexual activity when Shane was 19 and Tessa 16; or when Shane was 18 and Tessa 15. This would subject Shane Dyson to prosecution for having committed statutory rape. Dyson went so far as carrying the Texas code section in his wallet, as if that would protect him from prosecution for having sexual relations with a high school student who was under the age of consent. Texas law states:

(e) It is an affirmative defense to prosecution under Subsection (a)(2):

(1) that the actor was the spouse of the child at the time of the offense; or
(2) that:

(A) the actor was not more than three years older than the victim and at the time of the offense:

(i) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or
(ii) was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and

(B) the victim:

(i) was a child of 14 years of age or older; and
(ii) was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

Tex. Penal Code § 22.011(e).

I hope to God no 20 year-old watched this film and thought they could sleep with girls in high school because the age of consent in Texas is 17. This entire scene is grossly irresponsible and added nothing to the plot.

Texas allowing an affirmative defense to statutory rape does not mean Shane would be free to have sexual relations with Tessa Yeager because she was only three years younger than him. The law takes the view that juveniles “lack the capacity to appreciate the significance or the consequences of agreeing to sex, and thus cannot give meaningful consent.” In re B.W., 313 S.W.3d 818, 820-821 (Tex. 2010), referencing Hazelton, 915 A.2d at 234; Collins v. State, 691 So.2d 918, 924 (Miss. 1997) and Roper v. Simmons, 543 U.S. 551, 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

Texas Penal Code section 22.011 states it a crime to intentionally or knowingly have non-consensual sex with an adult, or sex under any circumstances with a child (a person under seventeen). Id. In situations where the victim is fourteen, a Court would examine the child’s subjective agreement on whether a crime had been committed. In re B.W., 313 S.W.3d 818, 820-821 (Tex. 2010), citing TEX. PENAL CODE § 22.011(e).

Shane could be charged with the strict liability crime of statutory rape. Carrying a copy of Texas law in his wallet will not protect him from a District Attorney charging him with sexual assault under Texas Penal Code § 22.011. Whether or not he has an affirmative defense would turn on the testimony of Tessa on whether she subjectively agreed to have sex with a legal adult (let alone who consented to Tessa participating in high risk driving competitions. Add forgery and child endangerment to the charges in state court).

There could be additional Federal charges against Shane Dyson and Tessa Yeager if photos of a sexual nature were exchanged over webcam (which was alluded to when the two talked over a Skype-like application) or text messages. Both could be subject to having created or stored child pornography under 18 USCS § 2252A. This would result in both having to register as sex offenders.

You Cannot Take Military Technology to China

Joshua Joyce, CEO of KSI, took his Transformers built for the US military to China. This unquestionably would violate the Arms Export Control Act. The purpose of the Act is to keep weapons that could contribute to an arms race, aid in the development of weapons of mass destruction, support international terrorism, increase the possibility of outbreak or escalation of conflict, or prejudice the development of bilateral or multilateral arms control or nonproliferation agreements or other arrangements. 22 USCS § 2778(a)(2).

The President of the United States can control the import and export of defense articles and services in furtherance of world peace, security, and the foreign policy of the United States. Giant weaponized robots build for the US military would fall under the export licensing requirements 22 USCS § 2778(c), because they are “drones,” which are specifically named in the Act. There is simply no way these weapons could be taken to China, which has nuclear missiles aimed at the United States.

A college professor who worked as defense contractor was convicted of violating export control law by emailing a paper on plasma technology used in Drones to a professor in China; taking the same material on a computer to China; and showing two foreign nationals the data in Tennessee. United States v. Roth, 628 F.3d 827, 829 (6th Cir. Tenn. 2011). In another case, two Defendants were convicted of violating exporting laws by shipping military grade electronic components to China. United States v. Zhen Zhou Wu, 711 F.3d 1, 8 (1st Cir. Mass. 2013).

Giant military robots that could be operated by a pilot are a Drone that could not be sent to China without an export license. There is simply no way any President would authorize the transfer of such advanced technology to a country in the “frenemy” category that lends money while performing cyber-acts, contemporaneously building a blue water Navy to challenge the United States, along with a horrid human rights record on its own citizens. Just no way on Earth that would happen.

Joshua Joyce could be charged and convicted of violating the Arms Export Control Act. The punishments are 20 years in prison, $1,000,000 for each violation, or both. Considering that 50 KSI Transformer Drones were sent to China, the billionaire could be fined $50,000,000 and spend 20 years in Federal prison. 22 USCS § 2778(c).

Let’s not forget the criminal conspiracy with the rogue CIA officers to commit treason, which included a plan to detonate a “Seed” in China. That could be considered an act of war or providing China with the raw materials it needed to build its own Transformer Drones. Joyce should strongly consider never returning to the United States, unless the President pardons him for treason and violating the Arms Export Control Act.

Who Pays the Clean-Up Costs for Acts of Godzilla?

By

Josh Gilliland

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May 21, 2014

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Godzilla has a bad habit of walking through cities, shooting atomic breath through buildings and causing massive structural damage with each step.

Who pays for clean-up after the King of Monsters stomps through town? And in the new Godzilla movie, who picks up the tab for damage (or extreme urban renewal) to Honolulu, Las Vegas, and San Francisco for the rampaging Kaiju?

Ironically, each city likely will have to endure the costs for emergency services, police, and other governmental services performed in response to Godzilla and other MUTO.

Business owners in Honolulu might also be unable to recover from damage caused by Godzilla’s tsunami when he came ashore if their insurance policies excluded water damage from flooding. See, Gaffney v. State Farm Fire & Cas. Co., 2008 U.S. Dist. LEXIS 27805, 1-2 (E.D. La. Apr. 7, 2008). However, if he stepped on a house, that likely is not a policy exclusion, thus recoverable.

How Did They Clean Up in 1906?

San Francisco took the most significant damage it has endured since the 1906 earthquake in Godzilla. There are no California disaster cases directly on point, but states such as New York and Ohio follow the general rule “that public expenditures made in the performance of governmental functions are not recoverable.” County of Erie v. Colgan Air, Inc., 711 F.3d 147, 150 (2d Cir. 2013). As such, counties have been unable to recover costs responding to, and cleaning up, plane crashes or damages from a blackout. These costs could include wages, overtime, fire, sanitation, and hospital personnel who performed services in response to the emergency. Id.

The rules change with events such as oil spills. In the event of an oil spill, many states allow the state to recover clean-up costs. State of New York v Getty Petroleum Corp., 89 A.D.3d 262, 264-265 (N.Y. App. Div. 3d Dep’t 2011).

Nuclear accidents have their own special set of rules to limit liability of a licensed nuclear power company. The 1957 Price-Anderson Act was designed to encourage the development of nuclear power and protect the public. As such, the original law limited the aggregate liability for a single nuclear incident to $ 500 million plus the amount of liability insurance available on the private market ($ 60 million in 1957). Nuclear power companies had to buy maximum available amount of privately underwritten public liability insurance. In the (highly likely) event a nuclear disaster exceed the amount covered by private insurance, the Federal Government would kick in an amount not to exceed $500 million. Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 64-65 (1978).

Navigating Nuclear Liability

In the new Godzilla movie, a nuclear weapon is detonated off the coast of California. In all likelihood, given the speed of the boat (which could have been 20 knots if a pilot boat), a nuclear weapon in the megatons, and less than 5 minutes to cruise to a distance outside of the Golden Gate Bridge, the city of San Francisco should have sustained massive damage from the shock wave alone of the weapon at only a couple of nautical miles from the Golden Gate at best. Let’s not forget about the following radioactive tsunami.

While I am a lawyer and sailor, but not a weapons expert, I’d say it was a miracle of science fiction San Francisco was not flattened, given the amount of time the vessel could travel before the bomb detonated. Perhaps an actual nuclear weapons expert could determine how much radiation had to be absorbed by the MUTO nest to reduce the explosion to a survivable detonation. Additionally, how much fallout Godzilla had to absorb, so San Francisco would not have to be abandoned like Chernobyl.

Would there be any governmental liability for the detonation of the nuclear weapon? Most likely no, based on cases barring property owners from recovering damages against the Federal government for testing nuclear weapons. See, Bartholomae Corp. v. United States, 253 F.2d 716, 718 (9th Cir. Cal. 1957).

In the story, the weapon was going to be used as bait to get the monsters away from San Francisco, then detonated. After the mission fails, the military options are to either let the bomb go off in San Francisco, defuse the bomb, or get it out to sea.

No lawyer could argue letting the bomb go off in San Francisco would be a good thing. The City was a mess, but a nuclear explosion would only make it a bigger mess. Defusing the bomb turned into a physical impossibility, thus getting it away from the City was the only option.

From Russia With Love

The Russian nuclear submarine dropped off on Hawaii creates a small international problem. Warships are property of their countries, even if they were lost at sea. As such, you have a Russian nuclear warship sitting on Hawaii. The Russians would want her back for burying their lost sailors and ensuring the US did not study the ship.

The Federal government would get stuck with the bill in cleaning up a nuclear mess on Hawaii. Hopefully, the area is not too hot with radiation, thanks to the MUTO’s feeding on the reactor and weapons. Whether or not the Russians would chip in for clean up costs for the return of the vessel, or consider it a loss, or throw in a few rides to the International Space Station for free, is unknown.

History Shows Again & Again, How Nature Points Out the Folly of Men

Godzilla, King of the Monster, is a force of nature who can knock over a building. However, the City of San Francisco responding to damages caused Acts of God(zilla) would have to cover the costs themselves as the “general rule is that public expenditures made in the performance of governmental functions are not recoverable.” The good news housing should be affordable in San Francisco after reconstruction and decontamination. Bad news is everyone would have long-term heath problems.

Congress would have to pass a Godzilla-sized MUTO relief act, as it would be political suicide to not help San Francisco, Las Vegas and Honolulu rebuild. Interestingly, there likely would be a mass exodus out of San Francisco, given the level of destruction. Depending on whether or not where former San Francisco survivors moved to, this could change the political make-up of California after one election.

On the bright side, the West Coast should have help in rebuilding the fishing industry, due to the tsunami Godzilla creates when he swims. The resulting damage to coastal fisheries would meet the definition of a Catastrophic Regional Fishery Disaster, because there is 1) economic losses to the fishing communities; 2) more than 1 state is affected; and 3) should qualify as a fishery resource disaster or section 308(d) of the Interjurisdictional Fisheries Act of 1986 (16 U.S.C. 4107(d)).” See, MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT REAUTHORIZATION ACT OF 2006, 109 P.L. 479, 121 Stat. 3575, 3602.

Vader’s Forcing Confessions

By

Josh Gilliland

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May 4, 2014

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Darth Vader had a very forceful way of getting the information he wanted from people. From the opening scenes of Episode IV, we learned Vader thrived on choking others. Moreover, orders such as, “Commander, tear this ship apart until you’ve found those plans, and bring me the passengers. I want them alive!” do not endear him as someone who is not above using any means to get the answers he wants.

Episode IV included a scene where Princess Leia faced a floating droid that appeared ready inject her with a truth serum.

Would that be legal under our laws?

I Have A Bad Feeling About This

The Empire and its Doctrine of Fear is not one that would protect civil rights. Its very founding was based on “security” to protect its “citizens,” not one of freedom.

Could a Republic, be it the United States or the Old Republic, force confessions from prisoners with truth serum?

The Fifth Amendment gives everyone the right in the United States to NOT “be compelled in any criminal case to be a witness against himself.” Moreover, the long line of cases following Miranda go to advise people of their right to remain silent, and the right to counsel, if they have been arrested.

One of the most extreme cases involving forced confessions was from 1936, where the Supreme Court referred to an extracted confession through brutal torture as “revolting to the sense of justice.” Brown v. Mississippi, 297 U.S. 278, 286 (1936).

Truth serums administered to prisoners uniformly have been found to violate the law. Courts often refer to such compelled confessions as “police wrongdoing.” Colo. v. Connelly, 479 U.S. 157, 165 (U.S. 1986), citing Townsend v. Sain, 372 U.S. 293, 298-299 (U.S. 1963).

Montana Supreme Court Justice Harrison held in State v. Allies that confessions made under the influence of a “truth serum” was not voluntary. State v. Allies, 186 Mont. 99, 115 (Mont. 1979). As the Court explained:

The pivotal issue presented here is whether the results of the sodium amytal (popularly known as truth serum) test are admissible where the recipient was without benefit or advice of counsel and had not received a Miranda warning immediately preceding the administration of the serum. We find they are not. The overwhelming weight of authority in this country still regards truth serum tests as inadmissible inasmuch as they have not attained the scientific acceptance as reliable and accurate means of ascertaining truth or deception.

Allies, at *114.

nor shall be compelled in any criminal case to be a witness against himself, – See more at: http://constitution.laws.com/5th-amendment#sthash.cQfK9nLu.dpuf

or shall be compelled in any criminal case to be a witness against himself, – See more at: http://constitution.laws.com/5th-amendment#sthash.cQfK9nLu.dpuf

Many Courts will not allow any truth serum results or expert testimony over truth serum results from expert witnesses, until it is proven with “verifiable certainty that truth serum compels a person to tell the truth.” Harper v. State, 249 Ga. 519, 526 (Ga. 1982).

What does this mean for Darth Vader and Governor Tarkin ordering Leia to be injected with a truth serum? First, Vader is not getting a Father’s Day card. Second, it would not be legal in a country like the United States, which highlights the dangers of a society founded on security instead of freedom. Third, the truth serum was not effective, as Leia did not provide the location of the Rebel Base or Plans.