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It worked for Lex Luthor.

Thanks, Matt, that is a good point, which curious cat addressed, via an edit.

After that many evil clones, though, you’d think people would start to think, “Either this guy’s full of crap, or his DNA is just evil to start with.”

Well the burden of proof is with the prosecutor so it’s a matter for them to prove that Person L is the person who actually commited the crime rather than Person L2, who just happens to look exactly the same and have the same DNA.

While getting evidence it makes it a little trickier that such technology and occurances are proven to have happened, I don’t think just throwing out the line “it was an evil twin/clone” is an automatic defence. You still have to account for your whereabouts while your evil clone was sullying your good name.

I wonder if a better defence would be to claim you are a freshly grown good clone of the suspect, or his good twin from another dimension.

In a world with superheroes, though, the law is probably going to look considerably different (i.e., crazier). So in the Luthor case, you have Luthor saying “Ho ho, yes, it was all just an evil clone!” and then the prosecutor just calls the telepath of his choice to scan his brain, figure out he’s a lying sack of crap, and toss his ass in jail.

Remembering that the Astro City case was in the early ’70s, I’d imagine by now law enforcement agencies and prosecutors’ offices in that world have developed investigative strategies to conclusively rule out the “evil twin” defense.

Although really, any lawyer who tried the “are you sure she was dead before you started the autopsy” bit would probably be skirting contempt of court or a reprimand from the ABA.

So is the Luthor corpse provided in 52 #7 a clone or something? The Joker took half of Alex Luthor’s face off in Infinite Crisis #7, but the “evil twin” didn’t have a mark on him.

I mean, sure, nobody else was around to see that, but it really took me out of the story.

I took it that the evil twin in 52 was a genetic clone of Luthor rather than Alex, simply for the fact that Alex is genetically Lex Luthor and Lois Lane’s son rather than a genetic match for Lex.

If it does, i am so playing that card when i get sued/do something illegal.

Brian is right on in his first post…exactly what I was gonna say…

moose…Even in the DCU, I don’t think that an evidentiary rule allowing telepaths would be admissible at court. Any “statement” a teplepath found would be hearsay and I doubt that Federal (or any state) government would just allow mindscans. Additionally, you have to deal with the issue of how reliable is the human mind (or if the telepath is lying - Zatanna could just say someone is guilty is she really didn’t like him). That’s an issue that would be raised whether the police were involved or not. You also have to find a way to deal with people who have convinced themselves they shot Lincoln or Washington even though they couldn’t have possibly done so, as well as the corollary propblem of people they could have killed but did not.

That brings up the additional issue of the 4th Amendment Search and Seizure. I’m sure they have probable cause to believe that there’s evidence of a (or multiple ) crimes in Luthor’s mind, but I’m sure someone would have had to pass an amendment (or have a Supreme COurt ruling) saying that the police can’t just do mind scans.

They’re (in the way comics portray them) generally very broad and could uncover all kinds of prejudicial information also protected by the 5th Amendment right against self-incrimination.

The 5th Amendment also reqires that if someone request the assistance of counsel at an interrogation that counsel be present. However, there’s no real way to guarantee the accuracy of what is found and you have to have the telepath “bring” others with him into the mind (which has been done to varying degrees of simplicity or extreme danger to the person). It’s unlikely a court would allow such harm to come to any person simply to get evidence against him.

Not to mention the right to Privacy. Taking blood is alright, but anything beyond that is an invasion. It depends on whether courts would categorize memories as blood or flesh.

In Astro City, the resolution was that “fantastic” defenses place the burden of proof on the defense, which makes sense.

One cannot prove a negative, so usually the burden of proof is on the prosecutor. But if the prosecutor does prove his case, and the defense tries a “positive” defense, not just “My client didn’t do it” but “That guy over there DID,” then the burden shifts.

And while evil clone cases are possible in comic books, they’re still fairly rare, so the defense has to prove there IS a clone, AND that the clone had motive and opportunity the defendant did NOT. The defense can’t just say it COULD BE an evil clone, wipe his hands and walk away.

What helps Luthor, particularly in the first case, was that it WAS an evil clone of Lex Luthor that destroyed Metropolis, and MOST of his defense was absolutely true. He just left out the part about WHICH evil clone it was that pushed the button, and the little thing about selling his soul to the devil.

And if there are questions about how many times Luthor could pull off the same defense, all he has to do is point to how many times an evil duplicate of Superman has framed Superman for some horrific crime (Bizarro, the Cyborg, Ultraman).

Any “statement” a teplepath found would be hearsay

Oh, bullflop. J’onn could just set up a mental link between himself and all relevant parties (witness, judge, jury, etc.) so everyone has direct experience of the witness’s memories. As for evidenciary rules, you can bet that mindscan warrants would be allowable in court if evil clones are. The fact is that once you open the door for evil duplicates, skrulls, space phantoms, mind control, Ovoid mind-swaps and god knows what else, you need stronger mechanisms for gathering evidence in a court of law, and fortunately Marvel and DC are rife with them.

Ultimately, of course, this is just an argument to avoid doing court scenes in superhero universes, because they’ll come out looking absurd. Unless you’re going for comedy, of course, in which case dive right in.

Oh, bullflop. J’onn could just set up a mental link between himself and all relevant parties (witness, judge, jury, etc.) so everyone has direct experience of the witness’s memories.

And then the defense points out that J’onn’s power is more than capable of altering memories, and that the JLA have a history of doing just that.

“How do we know that Mister J’onzz’s ‘link’ is not in fact a telepathic illusion or a filter? Did he plant these memories in my client’s mind, like a corrupt cop planting evidence at a scene?”

But to address the original question, it wouldn’t work — the prosecution doesn’t have to counter every possible alternative explanation, just those explanations that are plausible in the case at hand.

An ‘evil clone” argument or a min-control defense would be much closer to the real-world realm of affirmative defenses — defenses that concede part or all of the prosecutor’s evidence and then try to introduce other circumstances or interpretations to mitigate the evidence conceded.

As you might expect, they’re very hard to pull off, since the defense is basically spotting the prosecution points. The defense can’t just introduce an alternative explanation, they have to show that said explanation is reasonably plausible or likely, in order to make the doubt itself reasonable.

In the real world, after all, it’s certainly possible that a murder defendant is the victim of a huge frame-up, with the “real” killer or the police planting DNA evidence at the scene or leaving the murder weapon in his/her garage, or digitally faking the securi-cam footage of his/her crime; but such a defense virtually NEVER works. It’s possible that a real defendant has a heretofore unknown identical twin who committed the crimes and left the evidence. It is not, however, plausible or reasonable to doubt the evidence soimpl;y because such claims are being made.

Even in the OJ case, the defense got very lucky in that Mark Furman, the cop at the scene, was on record as havinjg made racist remarks in the past. They had to build a genuine motive for the proposed frame-up to get it over with the jury, and that was an absurdly expensive “dream team” of defense attorneys.

Luthor can probably afford the DCU equivalent, and he has enough enemies to make it work, but your average schmoe defendant simply can’t. The Astro City resolution mentioned is the way such things work in real court cases.

“Oh, bullflop.”

Um, technically, hearsay is “an out-of-court statement offered to prove the truth of the matter asserted.”

My analysis is correct. We only disagree on what telepathy is. Of course, that definition defines whether or not telepathy is reliable. Is a memory false (whether altered by the subconcsious or a telepath) or if not, how reliable is it? We’d have to have a corollary rule for this situation like is used to ensure the “reliability (note this is in quotes, as it is the purpose though not actually the result in all cases)” of eyewitness identification.

Omar got to that point, in that the JLA is known for altering memories (thanks to DiDio, et al. - although it’s not full his fault as it’s been around the DCU for ages - see Silver Age Superman - not to mention the Marvel U, where Iron Man mindwipes the entire planet to protect his ID).

This is why I want to see the great She-Hulk/Manhunter crossover, where a Marvel villain goes on trial in DCU Los Angeles and engages the services of Goodman, Lieber, Kurtzberg & Holliway, so that Jen Walters and Kate Spencer fight over jurisdiction and the other vagueries of the superpowered law.

The problem with creating a law or evidentiary rule for telepathy is that it’s different for each telepath. You’d have to craft a law for each individual person you used.

J’onn can mindlink and bring everyone in. However, does J’onn really want to spend all his time as an “interpreter” in court when his other powers could bring in bad guys?

To use Star Trek as another example, Troi can sense feelings (empathic), but cannot get actual thoughts. Lwaxana can enter people’s minds and get information and can speak mentally. However, have you noticed anytime they do a mindlink on the show, the subject’s life is in danger? Notice how traumatic Spock’s mind-melds are?

Or Professor X who can do (and has according to recent retcons) anything, but because he can, what information he gets would be more unreliable because of his inherent ability to change the information himself.

“This is why I want to see the great She-Hulk/Manhunter crossover.”

Except neither of those comics have even tried to make it appear as if they actually follow the American Constitution. Granted, because of the nature of the Universes, law will be different, but there’s little that rings true legally in either (for more info check out Loren’s suspension of disbelief blog - it’s one of the blogs linked along the side).

I’m sure there would be viable “evil clone” and “telepath” laws. Superhero universes simply can’t hope to be “realistic” for these reasons.

Also, you’d have to prove you weren’t a clairvoyant or from the future in order to play the lottery.

Look, telepaths just end up becoming another variety of expert witness. So the prosecution can bring in J’onn, and the defense can bring in, say, Mr. Mind. Whoever wins the ensuing psychic face-off gets to dominate the jury’s minds and win the case.

“Also, you’d have to prove you weren’t a clairvoyant or from the future in order to play the lottery.”

See, time travel is where it starts to really suck. And I don’t just mean paradoxes and Time Variance Authority stuff - I mean immigration. Think about the vast quantity of dystopian futures, and then think of the number of time travelers going back to the past, breathing our non-poisoned air, eating our non-radioactive food, stealing our non-conquered-by-Kang jobs! How do you regulate all of that?

Except, to get the information, the Prosecution’s expert would be in effect interrogating the defendant and would be acting as a law enforcement officer, presenting evidence of what happened, rather than expert opinion. Accordingly, he would still have to follow the Constitution.

Your proposed situation might work if the issue was raised only at trial (except for the prejudice to the defendant of having Mr. Mind be his expert), but I was addressing the problem throughout the whole system.

“think of the number of time travelers going back to the past, breathing our non-poisoned air, eating our non-radioactive food, stealing our non-conquered-by-Kang jobs! How do you regulate all of that?”

LOL! Treat them as enemy combatants and stick them in Guantanamo? =P

I’m a white-collar criminal defense attorney (and Marvel Zombie in my free time

My sense is that an evil clone defense would theoretically work, but it would be terribly hard to prove to a jury, and very easy for a prosecutor to counter, so effectively it’d be a hard defense to pull off. I wouldn’t rely on it as my best hope.

If you were going to raise it in a habeas attack (basically, how you appeal convictions after you’ve exhausted the regular appeals process — this is how those DNA cases get heard), well, you’d have to meet the standard for showing actual innocence, which is a very high standard.

Also, how would you go about proving it? Short of testimony by the evil clone him/herself? Proving that a clone exists doesn’t establish that the clone committed the crime — you need to have strong proof linking the clone to the crime.

Also, now that I’ve read your specific question…

I don’t think you would get anywhere by trying to argue that a clone *might* have done this. In a criminal case, before you can get evidence admitted that another person committed a crime, you need to show a strong link between that person and the crime. Simply “could have done it” is nowhere near strong enough to get the evidence related to the clone admitted.

Oh, true, DW, poor wording on my part.

Despite what laymen tend to think, this really isn’t a big problem.

Even in the Marvel and DC Universes, clones and such forth may exist, but they aren’t exactly common. The difference between our world and theirs is that these lines of defence have gone from “totally impossible” to “very unlikely.” That puts it in the same category as plenty of defences that would work in the real world - the evil twin, for example, or “I was sleepwalking.”

The criminal law already has ways of coping with this sort of thing. The prosecution only has to prove its case beyond reasonable doubt. So it doesn’t have to prove the case to a standard of mathematical certainty, and it doesn’t have to rule out every conceivable line of defence. Some explanations are just so unlikely that they don’t amount to a reasonable doubt, unless there are particular circumstances applying to the case in question.

For example, insanity is a defence. But that doesn’t mean the prosecution have to lead evidence from a psychiatrist in every single case in order to prove that the accused was sane when he committed the crime. It’s not an issue unless the defence raise the point.

This is known (in some circles) as an “evidential burden of proof.” The defence have to lead some cogent evidence if they want to raise the issue as a possibility. They don’t need to PROVE it, but they need to show that it’s a reasonable doubt IN THE CIRCUMSTANCES OF THE PARTICULAR CASE.

In the typical Marvel Universe trial, there will be absolutely no reason to think that an evil doppelganger might be in play, and the courts will just proceed on the basis that it doesn’t amount to a reasonable doubt.

According to creator commentary, the ‘clone’ was Alex’s body–albeit after some touch-up work by Luthor’s folks. This is why they mentioned the green contact lenses, since Alex’s eyes are blue. I don’t think anything that ‘Alex’ was blamed for would have relied on DNA evidence, so the fact that he was a Luthor-imposter would have been enough to damn him.

The fact that Alex Luthor actually was posing as Luthor, particularly during a time in which Luthor was lying low, should help his case.

I think the danger in the clone defense, at least for the prosecution, is that while it may not absolve the accused of his or her crimes, it introduces clear reasonable doubt as to their guilt.

As far as telepaths, I agree that they ought to have status as expert witnesses, but the courts really ought to have a couple on retainer, and not rely on superhero telepaths, who could be unreliable. And, of course, a judge would have to issue a warrant for the contents of the accused’s mind.

Someone really ought to draw up guidelines for superhero law.

And, of course, a judge would have to issue a warrant for the contents of the accused’s mind.

While that sentence is awesome, having a confession read off the suspect’s mind feels like a violation of his fifth amendment right, but having a telepath tell the jury that no, he really did not have malice aforethought seems more probable. So I think telepaths would be more likely introduced by the defense while trying to plead down to manslaughter or 2nd degree murder.

Course, then, the prosecutor would bring in their telepath…

“Someone really ought to draw up guidelines for superhero law.”

You don’t have to.

All you have to do is pull down a diagram of Chewie and say:

“This is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk, but Chewbacca lives on the planet Endor. Now, think about that. That does not make sense!

If Chewbacca lives on Endor, you must acquit! The defense rests.”

I’ve got Harvey Birdman on retainer, so when this happens to me, I’ll let ya know.

“think of the number of time travelers going back to the past, breathing our non-poisoned air, eating our non-radioactive food, stealing our non-conquered-by-Kang jobs! How do you regulate all of that?”

Abortion?