Captain America and The Sin of Hearsay

Captain America has faced many foes. In the Trial of James Buchanan Barnes, that foe included a video of the Red Skull’s daughter Sin making the following statement:

“It was all a trick… A Set-Up… No idiot, Barnes was my father’s operative for years… They claim he was brainwashed, but it was a lie…The Russians just TURNED him. Him saving the President, claiming redemption…it was a fake…Daddy didn’t want his own President…he wanted his own Captain America.”

Captain America No. 613, February 2011.

Could the Prosecution offer this statement on video as evidence of Barnes’ guilt?

Admissibility is the shield for juries to ensure the truth is presented in a trial. Evidence is admissible if the following is satisfied:

Relevant: FRE 401: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.

FRE 402: Irrelevant evidence is not admissible.

Authentication: FRE 901: To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
Undue Prejudice: FRE 403: The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: Unfair prejudice; Confusing the issues; Misleading the jury; Undue delay; Wasting time; Needlessly presenting cumulative evidence
Hearsay: FRE 801: Out of Court Statement offered for truth of the matter asserted.
Original Writing: Fed Rules Evid R 1002: An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

Fed Rules Evid R 1003: A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

Relevance

The Prosecution could argue that Sin’s video “confession” is relevant, because it goes to show James Buchanan Barnes was a traitor, not someone who was brainwashed.

The Defense would argue that the video irrelevant, because the video is only of Sin making an uncorroborated statement about two other people (her Nazi father and James Barnes). Her statement is not an admission by Barnes. Making a statement against someone else’s interest does not make it true; it is only defamation.

Authentication

Authenticating the video would require the Prosecution to demonstrate the video is what it purports to be. This means that a Court “need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so.” U.S. v. Safavian, 435 F. Supp. 36 (D.D.C. 2006).

The Court would make the Prosecution go through a Danger Room of authentication to ensure the video is accurate. The first stage is demonstrating the video was true, competently recorded, and free of any editing (see U.S. v. McMillan (8th Cir. 1984) for audio recordings).

The second stage is to prove the speaker is Sin. Federal Rule of Evidence 901(b)(5) states that: “Voice identification is adequate if made by a witness having sufficient familiarity with the speaker’s voice.” Familiarity may be obtained previous to or after listening to the recorded voice.

The big question: who could testify for the Prosecution as to the authenticity of the video?

Unfair Prejudice

Let’s be very clear: A Would-Be Nazi Queen saying your client are a traitor is extremely prejudicial to your client’s reputation while they are on trial for treason.

Federal Rule of Evidence Rule 403 is not the “Bucky Rule” of Admissibility, however, it would be heavily relied on by the Defense. Courts may exclude evidence if “its probative value is substantially outweighed by a danger of one or more of the following: Unfair prejudice; Confusing the issues; Misleading the jury; Undue delay; Wasting time; Needlessly presenting cumulative evidence.

A video with a convicted terrorist accusing Barnes of treason on its face causes unfair prejudice and arguably misleads the jury. What evidence does Sin have of Barnes’ guilt? Did she witness it? Moreover, how can she testify to what the Red Skull wanted? Her entire statement is purely speculation that accuses Barnes of guilt.

Witnesses cannot be impeached based on a hearsay accusation that they committed a crime, because a hearsay accusation of guilt has little logical relevance to the witness’ credibility. State v. Cox (1983) 298 Md. 173, 181. In Captain America’s case, a third-party hearsay statement accusing Barnes of committing treason is far more prejudicial than simply impeachment, because it goes to the ultimate issue of guilt.

Hearsay

Sin’s recorded statement should never see the inside of a courtroom because it is hearsay without any exception or non-hearsay purpose. Hearsay is an out-of-court statement offered for the truth of the matter asserted. Fed Rules Evid R 801(c)(1) and (2). In this case, that is 1) The Russians turned James Buchanan Barnes into a traitor; and 2) Barnes was the Red Skull’s Captain America.

Valid hearsay exceptions include party admissions and co-conspirator statements. In Sin’s statement, Barnes by definition is not the speaker. Sin is also accusing Bucky of being part of a conspiracy, which is NOT the same as being part of a conspiracy. A declarant cannot bootstrap someone into the co-conspirator exception through an accusation of guilt. There has to be evidence that Barnes was part of the same conspiracy as Sin in order to connect the wheels and spokes of the purported conspiracy.

The Prosecution could argue the statements were made to psychiatrist, thus were made for the purpose of medical treatment, and thus would be admissible. That is a stretch of the Rule, because accusing a third-party of treason has nothing to do with her medical treatment. Sin’s accusation would be forcefully attacked on cross-examination if Sin was available to testify at trial, which again highlights the reason we have a hearsay rule in the first place.

Closing Argument

The trial of James Buchanan Barnes had excellent cross-examination of Prosecution witness to impeach each of them. That being said, motion in limine hearings are exciting to attorneys, but not necessarily to all comic book fans. At the Mock Trial of the Winter Soldier at San Diego Comic Fest, the Defense brought a motion in limine pursuant to Federal Rule of Evidence Rule 403 to exclude the “security footage” from the Winter Soldier killing SHIELD airmen at the Battle of the Triskelion. The audience paid extremely close attention to the hearing. The law students did extremely well, with the Judge ultimately ruling for the Prosecution to allow the “security footage.”

Sin’s “confession” was never introduced at trial in the Captain America story arc from 613 to 615. However, it is unlikely the Judge would have allowed the evidence because it is hearsay and its prejudicial effect.

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Josh Gilliland

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, the ABA Web 100 for Best Legal Blog and Podcast categories, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.