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Admissibility of Video Party Admissions from Hawkeye

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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.

Dying Declarations in Daredevil

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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.

Defending Luke Cage for Iron Fist’s Death

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Marvel’s Luke Cage on Netflix looks amazing. The current Power Man and Iron Fist comic is a lot of fun. Let’s get ready for the premier of Luke Cage, by looking at the final issue of the original Power Man and Iron Fist comic, where Iron Fist was killed and Luke Cage was going to be prosecuted for murder.

Luke and Danny Rand were partners with their business “Heroes for Hire.” Danny tried saving the life of a child who could turn himself into “Captain Hero,” a super-hero adult with extreme strength. Danny was beaten to death by Captain Hero in one of the most tragic scenes in comics. Luke found his dead friend and we are left with the man with unbreakable skin slumped on the floor in grief. (See, Power Man and Iron Fist, Vol 1, issue 125, with excellent summaries on Comic Book Legacy and SuperMegaMonkey’s Marvel Comics Chronology).

charges_luke_cage

The police detain Luke and the District Attorney lays into Power Man with the following allegations that would be an opening statement in court:

Iron Fist was killed by someone with super strength;

Luke and Danny had a very loud and public argument;

Danny named Luke as his sole beneficiary of his fortune;

“Heroes for Hire” was doing poorly;

Luke was an Ex-Con with a reputation for being a “hot head”; and

Bobby, the child, had disappeared;

The DA openly threatening Luke Cage with prosecution should make any lawyer Hulk-out. Luke clearly should have been apprised of his right to counsel under Miranda, because any defense attorney would tell the DA to charge Luke or let him go. An attorney would use language stronger than “Sweet Christmas.”

The first fact against Luke is that someone with super-human strength killed Danny Rand. There are many characters in Marvel Comics with enhanced strength, so that in and by itself is not enough to convict Luke Cage. There would still be substantial reasonable doubt on who killed Iron Fist.

Luke and Danny’s public argument would be an out-of-court statement offered for the truth of the matter asserted, thus hearsay. The District Attorney would likely focus on Luke yelling at Danny, “That’s it, man! I’ve had it! I’m sick of this junk, Fist! I’m out! It’s over, man – Heroes for Hire is finished!” Id.

As Luke would be the defendant, there is a hearsay exception for statements by a party. Staron v. State of N.Y., 993 N.Y.S.2d 646, 646 (Ct. Cl. 2014). However, there would be other challenges to exclude any testimony about the argument, namely that the prejudicial effect of the evidence outweighs its probative value. The state could argue that the probable value outweighs any prejudicial effect, because Luke’s statement would show intent to harm Danny. However, the statement itself merely shows a heated business argument, not any threats. Moreover, if the statement was admitted, multiple Avengers and the Fantastic Four could be called in as witnesses to testify as to Luke and Danny hugging after they believed the child to be saved.

Pro-Tip to Fictional Comic Book Attorneys: If the Defense calls Captain America to testify about loyalty, saving a child, and two heroes hugging, do not cross-examine Captain America. Your case is over.

The District Attorney was wrong to claim evidence of Luke’s past [false] conviction would come into court in the murder trial of Danny Rand. New York law states that, “Evidence of prior crimes or bad acts is not admissible to show a defendant’s predisposition to criminal conduct.” People v. McPhillips, 21 N.Y.S.3d 134, 136 (App. Div.), citing People v Molineux, 168 NY 264, 291-293, [1901]; People v Norman, 837 NYS2d 694 [2007]).

There is no way Luke’s past [false] conviction would be relevant to Danny’s death. Moreover, the probative value of the past convictions would not outweigh the potential prejudice. The DA was effectively trying to convict Luke because he was convicted before. That is both “bad character evidence” and “prior bad acts,” thus would not be admissible.

The District Attorney likely would have enough evidence to charge Luke Cage. However, convicting Luke would be an uphill battle. A good defense attorney could knock down each of the State’s “facts” forming the charges around Luke Cage.

Captain America and The Sin of Hearsay

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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.

She-Hulk and Daredevil Do Not Know California Trial Procedure

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She-Hulk #9 is a courtroom drama with Daredevil facing off against She-Hulk in Los Angeles Superior Court over the wrongful death case of Sam Fogler in 1940, as accused by Sam Fogler’s brother Harold Fogler on his death bed in 2014.

Matt “Daredevil” Murdock would have to prove that Steve Rogers’s actions in 1940 were “wrongful acts” or “negligent” in causing the gunman to murder Sam Fogler under Cal Code Civ Proc § 377.60.

Problem: All of the trial advocacy and rules for Dying Declarations are wrong.

The story begins with Matt Murdock giving his opening statement for the Plaintiff. Opening statements are where lawyers provide a road map of what evidence they will present that supports their case. Daredevil_CivilProcedure_0372

Murdock called a witness DURING his opening statement to give testimony. This is simply wrong. The California Rules of Civil Procedure define the order of trial proceedings as follows:

When the jury has been sworn, the trial must proceed in the following order, unless the court, for special reasons otherwise directs:

  1. The plaintiff may state the issue and his case;
  2. The defendant may then state his defense, if he so wishes, or wait until after plaintiff has produced his evidence;
  3. The plaintiff must then produce the evidence on his part;
  4. The defendant may then open his defense, if he has not done so previously;
  5. The defendant may then produce the evidence on his part;
  6. The parties may then respectively offer rebutting evidence only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case;
  7. When the evidence is concluded, unless the case is submitted to the jury on either side or on both sides without argument, the plaintiff must commence and may conclude the argument;
  8. If several defendants having separate defenses, appear by different counsel, the court must determine their relative order in the evidence and argument;
  9. The court may then charge the jury.

Cal Code Civ Proc § 607

Murdock could not call a witness during his opening statement. That is just not how a trial is conducted.

The witness offering testimony during the Plaintiff’s opening statement was a police officer who heard the dying words of the grandfather of the Plaintiffs. The police officer recounted the dying man’s story, blaming Steve Rodgers for the death of the decedent’s brother in 1940. The “death bed” story did not include any quotes from Steve Rogers, but claimed that the cause for the gunman shooting Sam Fogler was because Rogers would not stop talking after being threatened by the gunman.

SheHulk_Dying_Declarations None of that testimony would be admissible, because it is hearsay without a valid exception to the Hearsay rule.

Hearsay is “a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Cal Evid Code § 1200(a). Hearsay is not admissible, unless there is a valid exception to the Hearsay rule. Cal Evid Code § 1200(b).

The story recognized that the testimony was hearsay, but misapplied the “Dying Declaration” exception to the Hearsay rule. The Dying Declaration rule states:

Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.

Cal Evid Code § 1242.

The Dying Declaration exception is NOT valid here because Harold Fogler was dying of old age, NOT because of events in November 1940. There is no causal relationship between the decedent’s cause of death and the events of 1940. As such, the Dying Declaration exception is not applicable to the police officer’s already procedurally improper testimony, and should be stricken from the record. This would effectively gut the Plaintiff’s case.

SheHulk_Objection_0377The Plaintiffs also called a police officer to read a police report from 1940. This document technically contains layered hearsay, because the writing itself and the quote in it each require an exception to the Hearsay rule to be admissible.

The police report would be admissible as a business record, provided the following conditions are met:

(a) The writing was made in the regular course of a business;

(b) The writing was made at or near the time of the act, condition, or event;

(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

Cal Evid Code § 1271.

The testifying officer was the archivist for the Los Angeles Police Department and could attest to the trustworthiness of the “ancient” document.

Steve Rogers is quoted in the police report stating, “This is all my fault. I could have stopped it.” That quote would be admissible as a party admission, because it was a statement “offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.” Cal Evid Code § 1220.

Could Steve Rogers’ 1940 statement be enough to sustain a case for wrongful death under California law? It is difficult to find Rogers’ unknown statements to the gunman as the proximate cause for Sam Fogler being shot by the gunman. Rogers did not fire the gun, which would make his unknown statements highly suspect for establishing liability for the murderous actions of another. There is simply no evidence that Rogers’ conduct was “wrongful” or negligent other than the accusation of a dead man.

The statute of limitations in this case had long since passed in 1942 pursuant to California Code of Civil Procedure section 335.1. The police in 1940 knew of the Sam Fogle’s death and Steve Rogers’ statement. Despite all of that information in 1940, the Los Angeles District Attorney did not press charges. There was no valid excuse for Harold Fogle to do nothing with this information for 70 years. If there had been a case, November of 1940 would have been the time to press criminal charges or start a civil lawsuit by November 1942, at least two years (possibly three) before Captain America was frozen in ice.