Bob Ingersoll: The Law Is A Ass #412


How do research labs in comic book or science fiction universes or, in this case, the TV show The Flash stay in business? Given that their experimental default setting seems to be catastrophe, how can they afford their insurance premiums?

To no one’s surprise, an experiment in the Central City branch of S.T.A.R. Labs went wrong in the Flash episode “Cause and Effect.” The result – other than one of those marking time episodes that crop up when the season has three more episodes but the season-long arc only has two episodes worth of story – Barry (The Flash) Allen got amnesia. It also resulted in the world’s most unnecessary SPOILER WARNING.

By the end of “Cause and Effect” Barry got his memory back. And if you didn’t want to know that, you should have stopped reading two sentences ago.

The A plot of “Cause and Effect” doesn’t concern us now. (It didn’t even concern me while I was watching the episode. I knew Barry’s amnesia would be more temporary than a henna tattoo in a car wash.) It was the B plot that prompted me to get anal-retentive and anal-lytical.

There was this pyromaniac named Lucius Coolidge AKA the Heat Monger, which is a silly name. Mongers sell things. Heat Monger set fires for free so he was actually giving heat away. Coolidge was caught largely because of the forensic investigation of Barry Allen. Unfortunately, some judge had a hole in his schedule and unilaterally moved Coolidge’s probable cause hearing up to that afternoon on the very day that Barry Allen, unlike Cats, had no memory.

Without his memory, Barry couldn’t testify. Well, he could testify, but he wouldn’t be able to say anything more useful than my one-year-old granddaughter could. And he wouldn’t be nearly as cute saying it. If Barry didn’t testify, the judge would find there was no probable cause to bind Coolidge over for trial and dismiss the cause. Coolidge would go free.

Team Flash gave Barry a pair of glasses equipped with a heads up display in the lenses and warned him not to let them get wet. Barry took the witness stand while his supervisor, Julian Albert, sat in the courtroom. Julian typed the answers to the DA’s questions on his laptop which were transmitted to the lenses on Barry’s glasses so Barry could read them in court.

If I said that the scene then played out exactly as anyone could have predicted, I’d be selling the word “exactly” short. Julian used emojis which Barry read out loud. Julian typed too fast so Barry had to tell him to slow down. Barry started to sweat and shorted out the glasses. Barry couldn’t continue testifying and the judge dismissed the case. Coolidge was released.

All in all, a three-minute scene played for comedy relief – it’s funny because Barry perpetrated a fraud upon the court – that ended with a dangerous sociopath being released. Don’t worry about the sociopath, he celebrated his victory by setting fire to an office building in front of eye witnesses who identified him for the police. Worry about that preliminary cause hearing. It may not have been funny like the show intended, but it was laughable.

Did the DA never consider asking the judge for a continuance, because the key prosecution witness was ill and not able to testify? After all, the judge created the problem by unilaterally rescheduling the PC hearing for later that day just because he had a hole in his schedule. (Note: judges don’t normally do things like that because it doesn’t provide the parties with adequate notice to prepare for the hearing.) Heaven forbid that the judge use his free afternoon to read the motions filed in the other cases before him or an article on how to avoid judicial intemperance.

And if the judge denied the continuance? There’s still a solution that’s a lot simpler than creating makeshift and volatile Google glasses. Have Julian Albert testify, for crying out loud!

Julian was Barry’s supervisor in the Central City CSI division. He would have overseen Barry’s work. He would have been familiar with Coolidge’s file. He could have testified with as much authority as Barry.

But if Julian was testifying based on Barry’s notes, wouldn’t Julian’s testimony have been inadmissable hearsay? No. Barry’s test results were records kept in the ordinary course of business. As such, they fell under the business records exception to the hearsay rule; one of the many hearsay exceptions. As long as Julian authenticated the notes, he could have testified about them.

But what about Coolidge’s ability to cross-examine Barry, the person who performed the tests? Wouldn’t having Julian testify instead of Barry deny Coolidge his right of confrontation?

Not according to the case law.

In Crawford v. Washington, the U.S. Supreme Court held that admitting out-of-court statements that fell under one of the hearsay exceptions violated the defendant’s right to confrontation, if the statements were “testimonial” in nature. If the statements were not testimonial, then standard hearsay rules would apply. If the statements were testimonial, then the Sixth Amendment superceded the hearsay rules and precluded admission.

The Crawford case also said that business records were not testimonial. So having Julian testify wouldn’t have violated Coolidge’s Sixth Amendment rights. Moreover, Coolidge’s attorney could cross-examine Julian as to the procedures that were performed, the test results, and Julian’s expert opinion as to what the business records meant. Coolidge would have been able to exercise his right of confrontation, so no harm.

Anyway, that’s what the case law holds. See how simple it is? Julian testifies and Coolidge is bound over.

Here’s the thing about all that case law, I think it’s wrong. I think its reasoning is flawed and it’s conclusion incorrect. Doesn’t matter. No matter how much I might not like it – and I don’t like it a lot – it’s still the law. And I can’t ignore the law no matter how much it would suit my needs.

And here’s the other thing about that case law; no matter how much it might have suited the show’s needs, The Flash can’t ignore it either.