In Hawkeye final episode “So This is Christmas,” attorneys had the great evidence gift of a video with individuals making very incriminating statements. Would those admissions be admission in either New York or Federal Court? The answer…is yes.
The former Black Widow Yelena Belova recorded Wilson Fisk (The Kingpin) and Eleanor Bishop discussing past criminal activity. While MCU villains know not to outright say, “I killed Armon for you,” Eleanor stated she “handled Armon like you asked.” This was after Armon had been killed at his home with a sword. Add in Eleanor’s statements that she had “never asked questions” and did what she was told, there are valid concerns she is admitting to crimes. Toss in her statement “[M]y fiancé is taking the fall for Sloan,” and there is a narrative of criminal activity. However, the icing on the cake is her stating, “I have been keeping an insurance policy. Copies of everything.”
All of those statements are hearsay, which is an out of court statement offered for the truth of the matter asserted. See, Federal Rule of Evidence 801(c)(3) and Nucci v. Proper, 95 N.Y.2d 597, 602 [2001]. The issue is, can those statements be party admissions for trial?
New York caselaw states the following on party admissions:
Plainly, defendant’s own statements could be received in evidence as party admissions ( see People v. Chico, 90 NY2d 585, 589 [1997]; Reed v. McCord, 160 NY 330, 341 [1899] [“admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever or to whomsoever made”]; Prince, Richardson on Evidence § 8-201, at 510 [Farrell 11th ed] [defining an admission as “an act or declaration of a party . . . which constitutes evidence against the party at trial”]).
People v. Caban, 5 N.Y.3d 143, 151 n._ (N.Y. 2005).
New York’s law holds that Eleanor’s statements could be admitted in evidence, because they go to the following material facts: 1) the death of Armon; 2) her fiancé taking the fall for Sloan; and 3) she kept copies of “everything” as an insurance policy. All of these statements have supporting facts. The ugliest is the corpse of Armon. The easiest is the arrest of Eleanor’s fiancé. The trickiest is the “insurance policy” with “copies of everything.” Provided Wilson Fisk is no longer operating out of a penthouse and now the backroom of a restaurant or dry cleaners, it looks like he is hiding from law enforcement after his conviction in Daredevil season 1 and arrest in Daredevil season 3. Fisk is a wanted man for a long list of RICO charges ranging from murder, bombing Hell’s Kitchen, human trafficking, and aggressive urban redevelopment. The “insurance policy” and established list of crimes, all point to the statements being admissible.
Federal law would have the same result as New York. Statements against interested are admissible under Federal Rule of Evidence Rule 804(b)(3)(A) and (B):
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
Federal law also requires that the statements be truth worthy and that “declaration against interest exception is unreliable unless the declarant is aware at the time of making the statement that it is against his interest.” See Donovan v. Crisostomo, 689 F.2d 869 (9th Cir. 1982); Workman v. Cleveland-Cliffs Iron Co., 68 F.R.D. 562 (N.D.Ohio 1975).” Roberts v. City of Troy, 773 F.2d 720, 725 (6th Cir. 1985).
Neither knew Eleanor or Fisk knew they were being recorded. This gives their statements an air of trustworthiness, because they were being very direct in their statements, without crossing into the fanciful “here is my detailed admission for how I killed Armon.” However, no sane person admits to murdering someone (also known as “handling”) or that they had their fiancé get arrested. Those statements are textbook “expose to criminal liability.” A Court could find these statements were trustworthy and that the speakers knew they were subjecting themselves to criminal liability.