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Univ. of South Carolina School of Law

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Wednesday, July 4, 2012

The Amazing Spider-Man, Voltaire, Percy Jackson & Alabama Rule Of Criminal Procedure 11.2(b)(2)

As a kid, Spider-Man was my favorite superhero. My first exposure to the web-slinger was watching "The Amazing Spider-Man" in syndication. Then, it was the animated "Spider-Man and His Amazing Friends" on Saturday mornings. In the early 1980s, it was always a thrill to see Spidey appear on reruns of "The Electric Company" on PBS. I used to run around the house with empty potato bags on my wrists and throw them at people while shouting, "Psst! A web!" In 2002, Sam Raimi brought your friendly neighborhood Spider-Man to the silver screen. I recall that the film opened at midnight, nine hours before my last 2L exam, and I had to resist the urge to watch it at the Hampton Town Centre to cram in some last minute studying and sleeping. That movie, of course, broke the opening weekend box office record, and its sequel, which bore the fingerprints of co-writer Michael Chabon, might be my favorite superhero film of all time (Raimi's "Darkman" might beat it by a nose). But then came the disappointing "Spider-Man" and the death of the Tobey Maguire iteration of Peter Parker.

Yesterday, Marc Webb, director of the dazzling rom-dram "(500) Days of Summer" tried to breathe new life into the franchise with the release of "The Amazing Spider-Man," starring Andrew Garfield and Emma Stone. And with the film already breaking some box office records, it is safe to say that this isn't the last that we'll see of Spider-Man on the big screen. It turn, it's likely that the recent opinion of the Court of Criminal Appeals of Alabama in Thompson v. State, 2012 WL 520873 (Ala.Crim.App. 2012), isn't the last we'll see of Spidey in our courts' opinions.

A search of "Spider-Man" in Westlaw returns 76 results in the ALLSTATES database and 1 one fewer (75) in the ALLFEDS database. In Montpelier US Ins. Co. v. Collins, 2012 WL 588799 (E.D.Ky. 2012), the Eastern District of Kentucky began its opinion by noting that

With great power comes great responsibility. This often-repeated Voltaire quote worked for Spider–Man, and it works for federal jurisdiction as well.

In dismissing a copyright action by the creator of the character "Percy John" (PJ) against the creators and distributors of the Percy Jackson novels and film, the Southern District of New York York in DiTocco v. Riordan, 815 F.Supp.2d 655 (S.D.N.Y. 2011), found that

To be sure, there are similarities between the PJ and Percy characters. However, these similarities are not copyrightable. “As have stories since time immemorial, both [sets of works] involve a questing hero acting in accord with a divine power or powers.” Bissoon–Dath v. Sony Computer Entm't Am., Inc., 694 F.Supp.2d 1071, 1082 (N.D.Cal.2010). Young male heroes who must cope with missing parents and display their strength in battles with otherworldly forces are commonplace. Harry Potter and Spiderman, for example, both fit this mold.

Graham v. Perez, 2011 WL 1486707 (S.D.N.Y. 2011), dealt with a perpetrator dubbed "'Spiderman' for his ability to scale walls, climb scaffolding, and leap across rooftops." In Burchette v. Abercrombie & Fitch Stores, Inc., 2010 WL 1948322 (S.D.N.Y. 2010), a witness testified that

that co-workers had given her the nickname of Mary Jane because [her] "hair was similar to the comic book character," Spiderman's love interest.

And then there are the cases in which attorneys have asked children about whether Spider-Man is real to test their competency. For instance, in State v. Johnson, 2012 WL 538957 (Minn.App. 2012), the appellant's attorney asked a child witness:

Q. ... So if I were to tell you that I know Spiderman and he's a real person, would I be telling the truth?

Similarly, in State v. Perez, 151 P.3d 249 (Wash.App. Div. 3 2007), a child witness "knew that dinosaurs and Spiderman were not real, but was not so sure about dragons."

That leaves us with Thompson. In Thompson, Devin Thompson was convicted of murder and sentenced to death. After he was convicted, Thompson appealed, claiming, inter alia, that the trial court erred by allowing a psychologist, Dr. Brent Wilson, to testify at trial concerning certain statements that Thompson made during Dr. Wilson's mental evaluation of him. Specifically,

Dr. Willis testified that Thompson told him that "he done a lot of stupid stuff. He broke into a lot of places. He said, 'people call me Spiderman because I was so athletic.' He said, 'I broke into a place and got clothes and stole a Camry and went home.'"

This testimony prompted an immediate objection by defense counsel:

We're going to object to him referring to matters that are not relevant to his diagnosis. He had been—he has a limited confidentiality stipulation when he is interviewing him to (inaudible) relevant only to his competency at the time of the offense and not all this other stuff

This objection was overruled, prompting Thompson's appeal, with the Court of Criminal Appeals of Alabama finding that the issue was governed by Alabama Rule of Criminal Procedure 11.2(b)(2), which provides that

The results of mental examinations made pursuant to subsection (a)(2) [mental condition at the time of offense] of this rule and the results of similar examinations regarding the defendant's mental condition at the time of the offense conducted pursuant to Rule 11.4 shall be admissible in evidence on the issue of the defendant's mental condition at the time of the offense only if the defendant has not subsequently withdrawn his or her plea of not guilty by reason of mental disease or defect. Whether the examination is conducted with or without the defendant's consent, no statement made by the defendant during the course of the examination, no testimony by an examining psychiatrist or psychologist based upon such a statement shall be admitted against the defendant in any criminal proceeding, except on an issue respecting mental condition on which the defendant has testified. (emphasis added).

Because Thompson did not testify, the court found that the admission of Dr. Wilson's testimony was erroneous, but it found that error to be harmless because

Thompson's detailed confession was admitted into evidence. Thompson's confession was significantly more incriminating than were the statements he made to Dr. Willis. Accordingly, the admission of statements made by Thompson to Dr. Willis during his mental evaluation was harmless beyond a reasonable doubt.

-CM

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