Compelling the Truth

Recently it came to my attention that there’s an episode in season 3 of Smallville that deals with a particularly interesting question about testimony and the law. Smallville is a show about the life of Superman as he grows up in smalltown Kansas. My girlfriend has watched all 10 seasons of the show approximately 6 or 7 times now. I am not to season 3 yet but she told me about this episode as she thought it would pique our collective interest.

To understand the episode, however, you need to understand how the show works (or at least from what I’ve seen). Although Clark Kent is not a full-fledged Superman yet, he still has powers such as super strength and X-ray vision. Most every episode introduces a new ‘freak of the week’ that Clark must somehow defeat. Usually the freak of the week is as such because they have been infected with kryptonite that is still littered around the town from the meteor shower that brought Clark to Earth. From the kryptonite, they inherit some fantastical power (or a curse, more like it) that they then use to terrorize those around them. For example, the high school football coach with anger issues gained the power to light things on fire with his mind. You can imagine how that went over. Clark manages to defeat the freaks all the while concealing his powers from his friends at school.

In this particular episode of Smallville, the purported freak of the week has the ability to compel people to always tell the truth when asked a question, no matter the content of the question. Of course, this is used to gain knowledge of confidential information against the will of the person who has it originally. The freak does this by spraying a green kryptonic mist from their mouth when they ask the question. The subject of inquiry inhales the mist inadvertently and cannot help but say a truthful answer.

My girlfriend brought this to my attention as a matter of debate over whether or not this could be admissible in court. Although the person is 100% telling the truth, could that testimony actually be used against them in a court of law?

I initially said “sure, why not?” My thinking being that if someone confessed a crime to me, although I am not a sworn officer and that person may not be under criminal investigation, I can still report that to the police. Also, depending on what the crime is, this may be under exigent circumstances. I mean, if someone is a suspected serial killer and the freak of the week breathes their mist onto the suspect in order to get them to truthfully admit whether or not they are the killer, I think that is a okay in the confines of the law.

My girlfriend brought up the fact, though, that the green mist compels the subject against their will. Although it is not technically cruel or some form of torture (in fact the subject does not even know that they have been misted), it is still technically against their will. Even if the subject had previously decided in their mind to confess to the crime, or proclaim their innocence, the green mist will assuredly bring out the truth.

Although this is a convincing counterargument, I posit that duress matters as much in this case. Again, the green mist is not a particularly cruel or unusual manner of forcing confession. I find it to be more akin to a Freudian slip. The subject of inquiry, although they full on divulge the truth, does not even know that they did that until it is revealed to them after the fact. So, what’s the real harm in using this power as it always gives a 100% true answer? Regardless of the outcome?

In the case of the particular episode, the mist-ifying power is used to make an individual confess to a murder that they had committed years prior. So long ago, in fact, that the case was deemed cold by the police. Although my girlfriend will not allow me to know who exactly confessed to the murder so as not to spoil the show, she still asked whether or not the cases standing matters. If the case happened so long ago that it’s cold, and combined with the fact that the suspect was forced to make a Freudian slip, should it still be prosecuted? I think, by principle, yes. They are, to this day, still arresting old Nazis who have unknowingly been living in the U.S. for years.

The question still stands, however, is this testimony admissible in court. Some recent court rulings lead me to believe that it is. Specifically, with the advent of biometrics in cellphone technology, several court cases have made it a point to determine if a suspect unlocking their phone with FaceID or the like counts as testimony.

There has been varying outcomes in such cases. For instance, in U.S. v. Brown (2025) the court ruled that pressuring a defendant to unlock their phone with a thumbprint violates their Fifth Amendment protections. In this case, the court ruled that the compelled act was testimonial in nature and thus evidence obtained from the device must be suppressed. The court described this as a “physical manifestation of testimonial thoughts.” Although the defendant did not open the phone willingly, the court found that the police would not have unlocked or found incriminating evidence in good faith. A verdict in a similar case, U.S. v. Payne (2024), however, found that unlocking a cellphone with fingerprint under compulsion did not constitute a testimonial act. Instead, they grouped it more along the lines of something like giving a blood sample or standing in a line-up; a physical act, despite being compelled.

What’s crazier is in another recent case, police officers used FaceID to unlock a defendants phone. The details of this case are rather horrific and I am glad that the defendant pled guilty. Regardless, this poses a very difficult question for lawyers in the future. We are now transcending the physical realm by using a totally contactless yet direct method of incrimination. What’s striking is that this is not a case of the police using digital forensics to wirelessly access the device, nor did they have a warrant to open the device; they literally just held the phone up to his face and it unlocked.

Although this case was not taken to higher courts since the defendant pled guilty, it still poses a difficult problem for the legal philosopher. It also bears a striking resemblance to that of the Smallville problem discussed above: using the least form of duress to get a suspect to give up incriminating information. For the time being, I guess using FaceID to unlock a suspect’s phone is not a testimonial act and, thus, not protected by the Fifth.

My $0.02, though: I think this is BS. I can get behind the idea that compelling a suspect to use their fingerprint to incriminate is valid in the court of law. However, it is still a physical act that requires literal contact between the suspect and the device. If the suspect really did not want that device to be unlocked, they could cut off their finger.

Could they have cut off their face? Well, yes, but also no. That would be infinitely harder. What’s more, though, is that the FaceID argument does not entail in the least bit any physicality. I already believe that the “physical manifestation of testimonial thoughts” argument is walking a fine line because we cannot literally know what the defendant is thinking in that moment. If I am thinking about an apple pie right now, should I expect one to manifest in front of me? That would be freak of the week stuff right there. And don’t even try to tell me infrared light interacting with the suspects face is the ‘physical act.’ We don’t even know for sure what light is.

This is in no way a defense of the suspect in the case on interest. Obviously FaceID came in clutch here to put away who needed to be put away. However, there needs to be new caveats in the law to accommodate for this kind of thing in the future. My point being that the compulsory use of FaceID will eventually become protected under the Fifth and we will not be able to use it to put away criminals like Grant Michalski. All it’s going to take to make FaceID in law go awry is one case where the court rules that it is protected under the Fifth Amendment, like in U.S. v. Brown, and boom, criminals walk.

So, back to the program, would the green mist confession stand up in court? Well, maybe. It seems that the courts may be heading in that direction, using what is directly out of the defendants control against them. Green mist is green lighted in the books of Smallville, I argue. Let’s just hope that we don’t see a real life version of it anytime soon. And let’s also hope that we can clear up the confusion about biometrics in policing.