Jessica Jones vs. The Purple Man: The Right Way To Build A Criminal Case

[Note: Spoilers for Jessica Jones found within. Read at your own peril.]

I love Netflix but I dislike its “release every episode at once” model. By the time I’ve had a chance to watch a show in its entirety and formulate an opinion on it, it’s already out of the public discourse. How many times have I had a conversation like this? 

“Hey, can we talk about Jessica Jones?”

“Uh, didn’t that come out like a month ago?”

Too many times. It’s infuriating.  Nevertheless, here I am to discuss Jessica Jones, another of Marvel's marvelous marvels, so hopefully you haven't moved on to the next thing yet (coughStarWarscough). Or if you have, you’re willing to entertain my thoughts on Jessica Jones, because on top of being a cracking good noir story, it gets a lot of the details right: the drudgery of PI work, the effects of infidelity, guilt, and consent, and the right way to build a criminal case. For the bulk of the show, Jessica is on a quest to put her nemesis, Kilgrave, The Purple Man, in prison. Kilgrave's power is mind control, and unlike our hero, he uses his power to harm others and further his own petty self-interest. 

Throw that hot coffee in your face. 

Toss yourself off the roof. 

Abandon your baby in the street.

He’s not interested in world domination or riches, he just wants his way like a spoiled child and lashes out dangerously even when he gets it. The result is a wake of destruction so immense that a support group forms just so his victims can openly discuss, without judgment, the terrible acts he made them commit. None, however, are worse than when he forces a young woman named Hope to murder her own parents. Jessica believes that if she can prove Kilgrave's control over Hope, she can save her from a life behind bars.

But even in a world where Norse gods, alien invasions, green rage monsters, and various Iron-, Spider-, and Ant-Men are all possible, how do you convince people of something so intangible? Jessica knows how tough it is, which is why her plans (all of which go awry) focus on getting Kilgrave to use his power on camera.

Without direct evidence like that, Jessica would have to rely on indirect or circumstantial evidence, which proves a fact by inference rather than explicitly. Pretty much everything that isn’t direct evidence (like a video or confession) is circumstantial, like eye-witness testimony, documentation, or forensic evidence. Direct evidence is hard to come by, so the more indirect evidence that links the suspect to the crime, the smaller the window of “reasonable doubt” and the more likely you are to secure that conviction. 

Jessica knows she has to build an airtight case - minimizing the reasonable doubt - if she wants to guarantee Kilgrave's conviction and Hope’s release. So what does she do?

First, she begins by interviewing Kilgrave's victims and assembling them into a support group. Her reasoning is that one victim’s testimony won’t be enough to convince a jury, but a dozen could do the trick. But while a nice start, that kind of testimony, even from numerous victims, may not go far. You need only look at rape conviction statistics to get a sense of how ill-equipped the legal system is to deal with these kinds of cases. According to various studies by the FBI and Justice Department, only 2-5% of sexual assaults ever end in a felony conviction. There are many reasons for this, such as the low reporting rate. But a big one is that prosecutors don’t want to pursue cases where the only evidence is the word of the victim. For many prosecutors, that’s just too little evidence to hang a conviction on. And that doesn't even begin to touch on the abysmal social and cultural deficiencies with which we treat sexual assault in this country.

But Kilgrave's victims are also eye-witnesses to his atrocities, so wouldn’t their testimony in that regard help put him away? Not necessarily. While juries tend to give a lot of deference to eye-witness testimony, a lot of doubt has arisen in recent years over its reliability as evidence. According to The Innocence Project, eye-witness misidentification is the leading cause of wrongful convictions, and various scientific studies are now showing how unreliable the memory of a witness can actually be

True story: in 2005, I was producing a show called Wrong Man for Court TV where a man named Fernando Bermudez was wrongfully convicted for shooting a rival after a fight at a New York City nightclub. Despite claiming he never knew the guy he supposedly killed, Bermudez was convicted based on the testimony of five eye-witnesses. Several years after his conviction, all five witnesses recanted, claiming that the police pressured them to pick Bermudez, that they had never met him, and pointed towards at least two other men who fit Bermudez’s description, were at that bar, and had actual gang-related connections with the victim. Bermudez was eventually exonerated in 2009 because of the unreliability of the witness testimony. That was my first experience with eye-witness misidentification and it honestly shocked me how easy it was to implicate the wrong person.

One factor that can reduce the reliability of eye-witness identification is stress. Jessica Jones makes it clear that Kilgrave's victims are under a great deal of anxiety when under his control (hence the support group). Some question who they are at a fundamental level, others feel guilt and self-loathing, many consider suicide to escape his grasp. That level of stress would make it easy for a defense attorney to poke holes in their accounts, to make the jury question how reliable their memories are.

Jessica’s attorney, Jeri Hogarth, knows that victim and witness testimony won’t be strong enough, and instructs Jessica to get something more concrete. Along the way, Jessica acquires a video of Kilgrave as a child using his power (which Hogarth points out won’t be enough because she can’t link the child in the video to the man he is today), and surreptitiously records Kilgrave's various rants, hoping to get a confession.

It’s not until she gets him locked up in the “sin bin,” an electrified soundproof booth, that her hopes of getting Kilgrave to use his power on camera finally becomes a possibility. If you’ve seen the show, you know how well that turns out.

Jessica Jones handles the various aspects of case building with a really deft hand, and is able to discuss the complexities of it clearly and without bludgeoning the audience with it. That takes a lot of skill and the makers of the show have it in spades. I can't wait to see what they do for season two.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA