Psychic Powers and the Law?

[mbentley]

So I have a thread over on RPG.net (http://forum.rpg.net) about Psychic Powers and the Law (http://forum.rpg.net/showthread.php?t=457540) and it has generated some interesting discussion there, but I figured I'd post about the top over here and get some thoughts too:


So I've been contemplating a game where Psychic Powers are known and legislated. The psychic powers I'd probably be using are: psychometry (touching objects and seeing the past), telepathy, telekinesis, clairvoyance (seeing distant places in the mind) and maybe pyrokinesis.

So what kind of laws would be in place for the use of said abilities? I can see requiring Law Enforcement to get a warrent before using telepathy, clairvoyance and maybe even psychometry.


So thats the first post on the subject. Just curious to get thoughts, opinions, suggestions and what not. Thanks

[Tysonium]

GURPS Supers covered a few elements of this in their section on metahumans and the law. The thing I remembered is the handling of telepathic testimony. Basically, any case involving "scanning" the witnesses/defendent required the use of three telepaths - one hired by the prosecution, one by the defense, and one appointed by the court. All three had to agree that the testimony they scanned was true in order for the evidence to be admissable.

[KJW]

This is a pretty complicated issue, it was actually an issue used in a political simulation I was part of last year as a Psychic Crimes Act was being developed by the PC Senators for a superhero setting. Of course, as we are mostly lawyers, law students, or political junkies we were focused on just a specific issue ad nauseum - basically, the psychic coercion defense for when a person is psychically compelled to commit a crime. When you get into it, this is a pretty complicated issue in terms of evidentiary proof and the like.

Anyway in a broader context, the main question is what type of legal system you are dealing with? For example, the US system is procedural based unlike many civil law systems, which are inquisitorial based and function very differently. The US system being procedural based has a heavy emphasis on due process and as such, well, most psychic evidence is going to be inadmissible in more criminal cases (though remember civil cases have different, less stringent, evidentiary burdens). Of course, as I am wont to do - go for TV style US legal system for your campaign then you can just make it up as you go for story purposes. :)

In an inquisitorial system you might get away with this:


GURPS Supers covered a few elements of this in their section on metahumans and the law. The thing I remembered is the handling of telepathic testimony. Basically, any case involving "scanning" the witnesses/defendent required the use of three telepaths - one hired by the prosecution, one by the defense, and one appointed by the court. All three had to agree that the testimony they scanned was true in order for the evidence to be admissable.

But this won't work in a US-style system as the defense's psychic expert will also disagree. Also you have to realize in the US criminal justice system, lie detectors aren't used so nor would psychics. It just wouldn't happen for due process reasons and also hearsay, which you don't want to have to get into, because it pretty complicated, but would apply to psychic testimony on the thoughts of a person. Remember you would have to apply the same standards to thoughts as words and that means hearsay would apply to psychic testimony. Then it's the psychic's testimony versus the accused, a real mess and once again tons of due process concerns.

Remember it is very common in real life for people to 'believe' they committed a crime that they didn't commit. This happens a lot more than people suppose due to various mental illness reasons, delusion, and the like. This is one reason that police don't release all details of a crime so then can use this to confirm if someone confessing to a crime actually did it. This would be better than a psychic who might just pick up the fact the person believes they committed the crime.

However, this isn't the issue - evidentiary chains is where the real issue would be if we have psychics in the real world.

Okay so you can't use a psychic to testify on the guilt of a person, but what about using a psychic to get the location of the body the person killed? Now this is more interesting and on a little firmer ground, but if the acquisition of psychic evidence in this manner was deemed a violation of the person's civil liberties then all evidence acquired in this means could also be deemed inadmissible. However, I think this is probably the more realistic approach for using psychics - they can be used to find evidence that can convict people.

So for allowing a psychic to point to evidence and for the chain to be intact then you would probably just need the psychic to be confirmed as an expert in the use of psychic abilities. Maybe you would have a licensing or certification process for psychic investigators.

Not only would this be a more realistic approach, but from a roleplaying perspective it would be more intriguing. Yes, the PC knows the guy is guilty, but without evidence this knowledge doesn't help - the problem facing prosecutors, police officers, parents every day! :D

[mbentley]

Wow. Some serious stuff to think about. Thanks.

[Grimace]

And considering I just sat on a jury for a criminal case, I know there are some things that psychics could get that would be strongly objected to. In the case I sat on, the prosecuting attorney brought up something and asked the defendent (who was on the stand at the time) how the defense attorney got a particular piece of evidence. The answer to that question could have been potentially damaging and the defense objected: privelage. It was sustained by the judge.

Given a psychic (or three) could easily pull something like that from the witness, tell when a witness was even remotely lying, as well as be able to discern intent, you basically wouldn't ever have need of a jury, and it would defeat the whole idea of "due process".

It would turn into a "do three psychics say you did it? Yes. Guilty."

There wouldn't be "reasonable doubt".
Psychics would basically become the jury and the lie detector test all in one. Plus, you'd likely only have 3 people in the court: A psychic judge, a psychic prosecuting attorney and a psychic defense attorney.

Heck, go far enough, and you likely wouldn't have any need for defense attorneys. Just a quick scan. "Telling the truth? Yep. Not Guilty."

WAAAY too much power in the hands of too few people. Psychics get into positions of power and basically take control. You'd have "Hmmm... I don't like this guy...I'll just make sure the jury votes they way I want them too. *Ping* Done."

And I think the civilian populace would get mighty anxious with people like that in courts. The power to see into people's minds is too dangerous to be used like that.

[mbentley]

One thing I am considering with Telepaths is ruling they can only read active thoughts in a persons mind, so no delving into past memories or anything like that. Not sure how that would change peoples thoughts.

[KJW]

Surface thoughts are mostly about sex. :)

The problem is that there is a privacy right in the U.S. and it would definitely apply to thoughts so at least in the U.S. lots of hurdles for reading minds in any manner.

Now also I have to say that psychic evidence would probably be more trouble than it's worth - also think of a reverse of what Grimace is saying. What if you have a criminal trial without psychic testimony - then the jury will assume the psychics say the guy is innocent. Sure there is a psychic shortage for trials, but jurors watch TV and know there should be psychic evidence, right? This stuff does factor into things.

Also what about this - you commit a crime and then you go to a psychic and he wipes your memories. If you have a psychic reliant prosecution system them this guy gets off clean, sure he lost some memories, but he might very well get off.

So another issue for roleplaying is what about convicting psychic criminals? Sure the evil psychic mastermind used psychic coercion to make the old lady rob the band and gun down three cops - but how do you prove it? This is really tricky due to the lack of evidence, this creates a whole host of problems. You really can't have beyond a reasonable doubt in all of these situations, especially, if you have a psychic mastermind who doesn't control a little old lady, but an ex-convict trying to go straight.

Of course, you could probably use conspiracy and various other laws to work some serious prosecutorial magic, but psychic criminals open up a can of worms - which is great for roleplaying! :D

[kellhound]

Very interesting points KJW.

In the homemade sci-fi setting I'm using, psionics is an understood field, and altough initial research was made by the military, now is (relatively) more widespread.

I made a few notes regarding interaction with the law, but did'nt delve too deep because none of my playtesters plays a psionic for now, and you could write a lot of books on the issue.
Basically, most evidences obtained by mental powers or psychometry are not legal, offensive powers require a license similar to a gun, and little ideas like these. But I don't know how to focus the mental control issue.
Lucky me I retired the "medium" power from the list. :D

[KJW]

I dug up my notes and here was the bill we were debating. It has some funky legal elements (like the shifting burdens of evidentiary proof), but is a pretty decent legal attempt at this issue.


113th CONGRESS
2d Session
S. 16
To establish the legal requirements for psychic crimes and establish the Psychic Investigation Agency in the Department of Super Affairs.
IN THE SENATE OF THE UNITED STATES
__________
Mr. THOMAS HARCOURT-SOLOMON (for himself and Mr. CRICKLAND) introduced the following bill; which was read twice and referred to the Committee on Super Affairs,

A BILL
To establish the legal requirements for psychic crimes and establish the Psychic Investigation Agency in the Department of Super Affairs.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE
This Act may be cited as the “Psychic Crimes Act”.

SECTION 2. DEFINITION OF PSYCHIC ABILITY.
(a) In General._ In this Act, the term “psychic ability” means an inherent ability possessed by an individual to influence the minds of others.
(b) Inclusion._ The term “psychic ability” includes a psychic ability that is the result of genetics, paranormal gifts, or technological augmentation.

SECTION 3. PSYCHIC CRIMES
(a) Psychic assault._

(1) In General._ The use of psychic abilities to cause physical or emotional harm to a person is the felony of psychic assault.
(2) Elements._


(A) In General._ To prove that a psychic assault has been committed, 4 elements shall be established, as follows:



(i) The suspect has the psychic abilities, which shall be proven beyond a reasonable doubt.
(ii) The suspect used psychic abilities, which shall be proven by a preponderance of the evidence.
(iii) The suspect had intent to cause harm, which shall be proven beyond a reasonable doubt.
(iv) Genuine harm was caused to the victim.


(B) Genuine harm._ For purposes of subparagraph (A)(iv), genuine harm shall include emotional distress.
(b) Psychic Coercion._

(1) In General._ The use of psychic abilities to cause a person to commit a crime is the felony of psychic coercion.
(2) Elements._ To prove that psychic coercion has been committed, 4 elements shall be established, as follows:


(A) The suspect has the psychic abilities, which shall be proven beyond a reasonable doubt.
(B) The suspect used psychic abilities, which shall be proven by a preponderance of the evidence.
(C) The actions of the victim were predominately the result of psychic abilities, which shall be proven beyond a reasonable doubt.
(D) The actions of the victim were criminal.
(c) Admissible Evidence._ In addition to evidence that is admissible under any other provision of law, the following evidence shall be admissible to prove the first 2 elements of the crimes of psychic assault and psychic coercion:

(1) Medical and genetic analysis of the suspect.
(2) Testimony of the victim about the mental state and thought process of the victim during the incident in question.
(3) Testimony of expert witnesses, which shall include psychics registered under the SUPER Act.
(d) Penalties.

(1) Psychic assault._ Psychic assault is punishable by not more than 20 years nor less than 2 years imprisonment.
(2) Psychic coercion._ Psychic coercion is punishable by-_


(A) the penalty for the crime committed; and
(B) not more than 20 years nor less than 2 years imprisonment for the psychic coercion.

SECTION 4. PSYCHIC COERCION DEFENSE
(a) Purpose._ The purpose of this section is to establish a defense to the crime of psychic coercion in recognition of the possibility that innocent citizens may be coerced by psychic abilities.
(b). Elements._ To prove a defense to the crime of psychic coercion, 3 elements shall be established, as follows:

(1) The alleged psychic has the psychic abilities, which shall be proven beyond a reasonable doubt.
(2) The alleged psychic used psychic abilities, which shall be proven by a preponderance of the evidence.
(3) The actions of the suspect were uncharacteristic, which shall be proven beyond a reasonable doubt.

SECTION 5. COURT SAFEGUARDS FOR PSYCHIC DEFENDANTS
If there is reasonable suspicion that a suspect has psychic abilities, the court may take the least restrictive steps practicable to limit the potential of the suspect for tampering with the trial, including_

(1) remote video feed with the suspect kept at another location;
(2) medications to reduce psychic abilities upon consultation with a medical doctor to ensure medications will not significantly impair the suspect;
(3) presence of federally certified psychics to counter any potential threat from the suspect;
(4) isolation of the jury with a video feed to follow court proceedings;
(5) white noise and other effects to distract suspect to reduce psychic ability; and
(6) such other measures as the court determines to be least restrictive.

SECTION 6. ESTABLISHMENT OF THE PSYCHIC INVESTIGATION AGENCY
(a) Establishment._ There is established within the Department of Super Affairs an agency to be known as the “Psychic Investigation Agency” (referred to in this section as the “PIA”).
(b) Director._ The head of the PIA shall be a director who shall be appointed by the President and confirmed by the Senate for a 5-year term.
(c) Duties._ The PIA shall_

(1) investigate all Federal felonies believed to involve psychic abilities;
(2) carry out research on psychic crimes; and
(3) develop training programs for Federal, State, and local law enforcement.
(d) Annual report._ The Director of the PIA shall submit to Congress an annual report that describes_

(1) the investigations carried out under subsection (c)(1) during the preceding year;
(2) the results of any research carried out under subsection (c)(2); and
(3) any recommendations for legislative action of the Director.
(e) Authorization of appropriations._ There are authorized to be appropriated to the Secretary of Super Affairs to carry out this section_

(1) $50,000,000 for fiscal year 2015; and
(2) such sums as may be necessary for each fiscal year thereafter.

SECTION 7. CONSTRUCTION; SEVERABILITY.
Any provision of this Act held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable from this Act and shall not affect the remainder thereof or the application of such provision to other persons not similarly situated or to other, dissimilar circumstances.

[Whill]

This topic brings to mind the movie Minority Report (and the Phillip K. Dick novel it was based on for the more literary fans). The whole "pre-crime" idea of predicting crimes before they happen, and still holding people ressponsible for what they were about to do, and how that system could fail.

Sorry for the tangent.

[KJW]

I don't think it's a tangent as a good point - don't go to the extreme of Minority Report, instead what about this...a parole hearing and the psychic says, "I see that he will likely commit a crime if he is released!" Now you have a legal issue - would these be permittable testimony. See what a mess psychics would be in the real world, though an interesting mess. :D

[Whill]

Lie detectors are't permissible in court because it has been proven that certain emotional reactions can cause false positives. If the law can throw out lie detectors, then there would be a whole lot of ways to throw out a psychic's testimony. First of all, not everyone even believes in ESP. Even if phychics would have to pass a test of predicting a 1000 things, you would still have skeptics that would say they were just lucky, or even worse, that they must get their powers from the devil. Plus there's the whole privacy issue. "Thoughts" may be legally protected under privacy laws. Even defendants accused of murder still have rights under law. In a country with a large populatation of people who really should not be allowed to reproduce, we have laws that protect the "reproductive rights" of individuals. My point is, there are so many rights that are protected so I'm sure they would somehow protect private thoughts.

So a question not really relevant to the real world, but still an interesting topic for fantasy/sci-fi.