Daredevil season 3 incorporates many themes from the seminal “Born Again” storyline. The series also has wonderful original elements showing the long range planning of the Kingpin.

The final two episodes center on actions from FBI Agent Ray Nadeem, who was blackmailed by Wilson Fisk. Nadeem had testified before a grand jury about the Kingpin’s blackmailing of FBI Agents into protecting the crime lord, only to have the grand jury also be compromised. Nadeem returned home, waiting to be executed by Wilson Fisk’s operatives. Before being shot by Bullseye, Nadeem recorded a “confession” on his phone to serve as a “dying declaration.” Would that sort of confession be admissible?

Yes, but not for the reason Nadeem thought it would be.

Nadeem’s video confession included his admission that he was guilty of a number of criminal acts, that Fisk coerced Nadeem, and a list of other agents that were also operatives of Fisk, including the agent in charge. Nadeem further admitted to driving Bullseye dressed as Daredevil, who later killed Father Paul Lantom. Nadeem admitted he was an accessory to that murder.

A “dying declaration” is an out of court statements offered for the truth of the matter asserted which are not excluded by the hearsay rule. The Federal Rules of Evidence reference the exception as a “Statement Under the Belief of Imminent Death.” The text of the Rule states:

In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

USCS Fed Rules Evid R 804(b)(2).

Nadeem’s statement arguably is NOT a dying declaration under the Federal Rules of Evidence, because the statement is not directly related to his cause of death. There is also an argument that his death was not imminent, because he had not yet confronted Bullseye. That does not mean the confession could come in other ways.

Considering New York law, which does not have an Evidence code, but instead uses common law, has different elements to consider in a state prosecution of Kingpin. The key issue issues are the state of mind of the declarant, requiring them to be “in extremis, but must also have spoken under a sense of impending death, with no hope of recovery.” People v. Nieves, 67 N.Y.2d 125, 132-33 (1986), citing People v. Ludkowitz, 266 N.Y. 233, 238-39 (1935). Moreover, there must be a “’a settled hopeless expectation…that death is near at hand.” Ludkowitz, at *238-39, citing Shepard v United States, 290 U.S. 96, 100. This means that the declarant believing death is possible, or probable, is not sufficient to be a dying declaration. Id.

Was Nadeem’s video made with a sense of impending death with no hope of recovery? The argument for such a belief is the Kingpin’s high body count with anyone who dared cross him. Toss in dirty FBI Agents acting as a private hit squad, his hopelessness is understandable. However, Courts will not admit a dying declaration if the declaration is “giving expression to suspicion or conjecture, and not to known facts.” Shepard, at *101-102. Nadeem’s belief about Kingpin sending someone to kill Nadeem was conjecture at best, because he did not have actual knowledge of someone on their way to kill him, but only a suspicion. Moreover, Nadeem had armed himself and was prepared to fight, showing he had not given up hope of surviving.

There is a large issue that a dying declaration alone is not enough to convict someone of first-degree murder without corroborating evidence. Ludkowitz, at *240-241. While Nadeem’s statement is damning of others, there would need to be evidence to support such charges.

It is highly unlikely under both Federal and New York law that Nadeem’s statement meets the requirements as a dying declaration. However, there are other options.

Navigating the Rules of Evidence

Prosecutors could offer Nadeem’s confession against the Kingpin and other FBI Agents as “An Opposing Party’s Statement,” because the recording could be offered against Nadeem as a criminal defendant and in his participation of Kingpin’s criminal conspiracy and Nadeem is “unavailable” to testify in court. USCS Fed Rules Evid R 801(d)(2)(E). While such a statement does not establish a conspiracy, the statement would not be excluded by the hearsay rule. Another option is to offer the confession as a Statement Against Interest, which require the following requirements to be met:

(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.

USCS Fed Rules Evid R 804(b)(3)(A) and (B)

No person, let alone a FBI Agent, would admit to be an accessory to murder. Such an admission would subject Nadeem to criminal prosecution. This admission should meet the first requirements of the rule, because it exposed Nadeem to criminal liability. The second element could be met because there is corroborating evidence: Nadeem’s body with a fatal bullet wound to the head that was not suicide. Ballistics would show the point of entry and distance traveled was not indicative of a self-inflicted wound. These facts could be offered to show Nadeem was murdered. While not on its face proof of a conspiracy, evidence to use in prosecuting those named in the video.