Should this supernaturally-acquired evidence be admissable in court?

New week, new hypothetical. If you don’t like these but are still reading, you are obviously just looking to start something.

Today’s story is set in the world ofBob X, the ex-slacker superhero with Kryptonian powers, no known weaknesses, and a public identity. Now Bob, while a good guy, is not a crimefighter. Oh, he’ll stop a bank robbery or whatnot that happens right in front of him, but he’s not trained as a detective. Anyway dealing with natural disasters, alien invasions, and kaiju takes up most of his time.

Recently Bob had occasion to break that rule. In New York City, there’s a sick fuck kidnapping little kids, keeping each victim captive for about twelve hours before exsanguinating them. When the latest victim disappeared, the Gothamites called Bob for help. So he perched himself atop the Empire Building, closed his eyes, and turned his super-hearing on full. Ordinarily he avoids that stunt–it hurts like a mofo, and sorting through all that auditory input is exhausting-- but this time it was worth it. He was able to find the kidnapped child moments before he would have bled to death, and incidentally beat the holy hell out of the kidnapper.

So a happy ending all around, except for th sick fuck. But here’s the thing. During the half hour during which he was eavesdropping on every word uttered in the five boroughs, Bob heard a lot of other stuff: an ISIS plot to shoot up Central Park; public officials soliciting bribes; drug lords talking about drug deals and assassinations; and so forth. While at the hospital waiting to see if the kid would pull through, Bob borrowed a legal pad and jotted down everything important he had overheard. Before heading home, he gave his notes to the police or FB as seemed appropriate telling them he was available to testify as needed but reminding them not to bother him unnecessarily, as he already busy with do-gooding 30-40 hours a week on average, and he doesn’t see why he should work any harder.

How much of what Bob overheard should the authorities be allowed to use?

Was Bob working at the behest of the authorities? The exclusionary rule generally does not apply to information gathered by members of the public unless law enforcement asked them to gather it. Your garbage man is free to tell the police about the bloody glove in your trash, even if the trash can was in a place where the police could not have opened it without a warrant.

The question veers into the territory of “how would our legal system be different if __ was real?” If it was public knowledge that there are people with super senses that can eavesdrop on anybody at will, there would probably be an “expectation of privacy” rule enacted. Remember that lawmakers don’t want to be overheard either.

Can’t they all be treated as anonymous tips? If I call the Crimestoppers line with information about an ISIS cell, does it matter if I learned about it because my walls or thin or if I learned about it through the All-Seeing Eye of Rah?

In the absence of a law created specifically to deal with Kryptonians or other superheroes, the evidence is legally obtained.

Who were the Gothamites that called on him? If it was Commissioner Gordon, any information he got is probably considered exactly like information the police gathered. In fact, the sick fuck and anyone he caught may be able to get off Scott free if the evidence against him is what they found with the child and the police didn’t bother to get a warrant for the super-hearing thing. Whether his super listening counts like a wire tap would be up to the courts, but he’s likely to run afoul of something privacy or directly 4th amendment related unless this was worked out in advance.

Whatever the case, he’s going to be spending a lot of time in court instead of super-heroing if he doesn’t want all of the evidence thrown out. The prosecutor can’t just come to a court room and say ‘some super guy told us you said to kill Jimmy’ and expect a conviction; the drug lord has the right to cross examine the witness. Drug lords and bribe takers don’t usually conduct their business in plain English, they often use euphemisms and slang, so he’d have to explain how he knew ‘take care of the south street problem’ was an assassination order. Prosecutors can usually do this when they have a recording, but I expect it will be trickier with an untrained guy working from memory. Speaking of memory, did he get the conversation about bribes exactly right? One accused with a tape recorder who can show that he got the conversation wrong could make a big problem. Also, people don’t tend to identify themselves in conversation with someone they already know, so whether he could actually recognize voices well enough to identify each individual he’s accusing would be another line of challenge.

It doesn’t VEER into that territory; it’s completely about that.

That said, this isn’t the DC Universe in at least two ways:

  1. Bob is nearly unique. An earlier thread established that there are fewer than 100 supers living in Bob’s world, and most of the others are around the Buffy the Vampire Slayer power level; the others are neither numerous nor powerful enough to be significant from a law enforcement perspective.

  2. As the OP states, Bob rarely fights ordinary crime anyway. He kills dragons and caps volcanoes and catches meteors, but leaves other stuff to mortals. Note that the didn’t intervene earlier in investigation into the sick fuck’s murderous rampage.He doesn’t realize what evidentiary problems his tips present because he doesn’t know anything about criminal law except what he remembers from DRAGNET reruns.

  3. Bob is really lazy. Note that he didn’t bother to track down the terrorists himself. If the feds ask him for further information on the mob, he’s going to say, “I am binge-watching HOW I MET YOUR FATHER right now, go away.”

  4. Even apart from that, Bob’s not going to do this sort of thing except in direst emergency. The citywide super-hearing stunt hurts like a mofo and is exhausting.

I seriously doubt that super-hearing could be treated as wiretapping, unless the governments of Earth X have changed the law to make it so. If I’m walking down the street and through an open window overhear my neighbor plotting crime, that’s not wiretapping. Neither is it wiretapping if I’m sitting at a booth in a restaurant and overhear Big Tony plotting crime with Jimmy Two-Times. It still isn’t wiretapping if I’m a cop, and I know Big Tony goes to this restaurant, so I sit at the nearby booth and try to overhear them.

None of this is wiretapping.

The problem comes getting all this evidence admitted. Some of it will be hearsay. Other stuff will be difficult to prove. “So Mr X, you testify you heard a voice discussing mopery. How could you identify the voice as my client?”

Other stuff is irrelevant to the trial. Nobody cares how Bob found out about the ISIS sleeper cell, if he warns the cops before they bomb Central Park and everyone gets arrested then his work is done. He doesn’t need to testify anymore than someone who calls an anonymous tip line. The cops can find enough evidence to put the ISIS guys in prison, the conversation is irrelevant.

The organized crime stuff is different though. Usually the cops have a very good idea who the players are, and know they’re involved in all sorts of crimes, the hard part is proving it. So there Bob’s testimony that he heard Big Tony order the hit might be the only actual evidence linking Big Tony to the murder, even though everyone knows Big Tony is the crime boss. But the problem is that Big Tony is very careful about what he says, even in private, because there’s no telling what sort of surveillance the Feds could be using. So he probably didn’t explicitly say anything that would be a smoking gun in court.

So it’s very likely that Bob’s scribbled notes won’t do any good for the organized crime stuff, it will just give the FBI one more bit of information in their case against Big Tony. The terrorist stuff can be stopped by the SWAT team, and there’s no need to testify about it. Assassination plots the same, the important part is stopping the murder and prosecuting the perps falls in line after that. Other stuff like bribery and so on can just be reported to the FBI as the equivalent of anonymous tips, which might be used as probable cause for a real search warrant but wouldn’t be enough in itself for a prosecution. So almost none of this will result in the cops guilting Bob into wasting a whole Thursday afternoon in court.

Legally, this doesn’t strike me as any different from Ordinary Joe, who has no super-powers, putting a stethoscope up to the wall of his apartment and overhearing a bank robbery being planned. As others have said, if he was induced to do so by the police in return for them dropping his unpaid parking tickets, then it is probably not admissible, but if he did it of his own whim, hoping to hear his neighbors have sex, then it probably comes in.

Well, there is a line of cases that suggests using unusual technology is a “search” for Fourth Amendment purposes, which could be applied to super powers.

They would not be able to use any of it in court.

However, they could use it to begin investigating those people based on an “Anonymous Tip/Source”.

[cciolistic asshole]
Knowest thou the difference between “should” and “would,” sirrah?
[/sciolistic asshole]

How is this different from a person being in normal hearing range? Bob’s got better hearing so he can hear from farther away. His notes are as contemporaneous as possible. But what he heard isn’t necessarily what happened. He didn’t see it. One or more of the conversations he overheard might have been a role-playing exercise, for example. Or a theatre production. Or…

There’s a famous case, here in Scotland IIRC, where a woman committed suicide while loudly declaiming that a certain man was murdering her. The neighbours duly heard, and the man was arrested, duly convicted, and hanged. Then the truth came out and the man was posthumously exonerated. Too late, alas, for the man. (It’s one of the reasons why I’m against the death penalty but that’s for another thread.) After that the law was changed. I’m going from memory here so the details may not be exact.

Generally ‘wiretapping’ laws include use of listening devices, they don’t limit themselves specifically to putting a tap onto a phone line. Using a parabolic microphone to listen into a conversation from a block away is not considered the same thing as happening to overhear a conversation through an open window, and the reason a cop can get away with trying to overhear Big Tony is that he is visible to big Tony, so Big Tony knows someone can hear him, so has no expectation of privacy. It’s quite possible that a judge would decide that using a superpower to do what a parabolic microphone does falls under the same restrictions that using a parabolic microphone does, especially since Bob can turn the power on and off (that is, he doesn’t accidentally overhear the conversations).

The Judge and defense lawyer care very much how the cops found out about the ISIS sleeper cell, because the fruit of the poisoned tree doctrine means that all of the evidence the cops find without sufficient probable cause or warrant is completely useless for convicting the ISIS guys. It’s quite common for investigations based on an anonymous tip to fall apart on this basis.

Also, I think the ‘anonymous’ tip line bit that you keep talking about won’t actually work, because an anonymous tip has to be credible, and the cops saying ‘we got an anonymous tip that a person overheard this conversation inside of a closed room on the 23rd story’ is obviously not credible - either the person just made it up, or was conducting illegal surveilence. The only way to make it credible is to de-anonymize it, since there is (according to the OP) literally only one person in the world who can do what Bob did with his super-powers.

No, it shouldn’t be used. As much as I like the idea of having a superhero helping put the mob away, the problem is that the courts can’t prove how accurate his super-hearing is. If Bob X weren’t such a slacker, and would be willing to undergo testing to prove his abilities, then sure, have at it. But he won’t, I presume, so there isn’t a way for the defense to adequately fulfill its job.

And speaking of slackers, where’s the pie?

No poll, no pie.

Anyway, let’s say Bob IS willing to be tested. He probably won’t be willing to replicate the full power bit–it hurts!&-but he shows that he can hear a whispered conversation in Queens from a rooftop in Manhattan. Does that erase your objections?

But can he tell the difference between Big Tony and some other guy who maybe sounds a lot like Big Tony? It’s one thing to overhear a conversation, and it came from such and such a location and Big Tony was there so you know it was him, or you saw Big Tony there. But overhearing a conversation in a convenience store back room in Queens that was something something something whack a guy something is going to be very hard to pin on Big Tony. Even if Bob could demonstrate that his super hearing really does work, how do we prove the identity of the participants in the overheard conversation?

As for the wiretapping, you might have an expectation of privacy in your house, but if I hear your conversation through the wall that’s not wiretapping. If I’m partially deaf I might not hear anything. If my hearing is normal I might hear voices but not understand them. If my hearing is pretty good I might understand what is being said and recognize the person’s voice. Bob isn’t using a device, he’s just using his God-given natural abilities. Just like an 8 foot guy might notice a dead body behind a fence where a five foot tall guy wouldn’t.

The police and FBI have got to get super valuable, super non-admissible tips all the time. What do they do with it in non-superhero situations?


If you hosers don’t learn how to spell “Athena,” I’m gonna have to start slapping people.

Nope. Can he still hear that voice with enough certainty with 5 million other simultaneous conversations and while in pain? And the test needs to be done more than once under controlled circumstances.

It’s no different than other new methods of obtaining evidence. The method needs to be proven accurate or it’s not admissible.