The last 11 years have been a delight for anyone who grew up reading comic books. Jessica and I sat down to share our review of Avengers Endgame, with legal analysis and thoughts on the epic conclusion to the Infinity Gauntlet Saga.
Dying Declarations in Daredevil
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.
Should Batman have taken the rap for Harvey Dent in The Dark Knight?
Should Batman have taken the rap for Harvey Dent?
In The Dark Knight we find our brooding hero face to face (no pun intended) with the Joker, who has decided that he’ll stand for chaos where the Bat stands for order. The Joker rains chaos on the city with explosions and car chases and various murders, so Batman teams up with Bruce Wayne’s friend and newly elected District Attorney Harvey Dent to stop him. Eventually, Joker kidnaps Dent and his girlfriend Rachel (who Bruce/Batman is/are also in love with) and hides them in two buildings across town from each other, both wired to explode. The Clown Prince of Crime gives Batman the choice of who to save, Harvey or Rachel. Batman (who in the Christopher Nolan trilogy is really not the world’s greatest detective) tries to save Rachel, only to realize that the Joker has executed a dastardly trick on him and lied to him about which prisoner is where so Batman ends up being slightly too late to totally save Dent whose face is scared in the explosion and Rachel dies. Bruce becomes mopey and Harvey goes crazy as a result. Dent, now Two-Face, goes on a murder spree and kills a couple of mobsters and kidnaps Commissioner Gordon’s family before being brought down by Batman and Gordon. Batman then laments that by turning Dent into Two-Face he won because if the city ever finds out that Dent was a murderer the hope he inspired will be lost and the criminal he put away as DA will be released. So Batman decides that he’ll take the blame for Two-Face’s murders and have Gordon declare him an outlaw. When faced with the facts of the movie and the law (pun intended that time), does Bat’s decision make sense?
In true lawyer fashion the answer is, it depends. It depends largely on what Batman’s goal was be for taking the blame for Two-Face’s murders. If his aim is to help his friend Harvey Dent avoid a messy public downfall then it might make sense for Batman to publicly take the blame, or at least try to. That way he can be the fall guy for Harvey and hopefully keep him from most of the consequences he might face if he’s ever cured of his Two-Face persona (though that cure never does seem to stick): like disbarment, losing his office, and going to prison. Having Batman as a scapegoat might help frame the public narrative in Harvey’s favor. This really only makes sense if Harvey died at the end of the movie, which is unclear. If Dent is alive then they’re going to have to come up with some very convincing reason why he’s no longer DA (because I’ve seen some bad DA’s in my career but that’s jumping the shark without your Bat-Shark-Repellent). The other major problem with Batman and Gordon crafting this narrative is that they ultimately have to contend with the public understanding of Batman that already exists. At this point Batman is already well known enough that he has copycats and is largely accepted as a figure for good in the public eye and one that doesn’t kill. So there’s a better than even chance that the people of Gotham won’t accept that Batman has suddenly become a murderer. Though even if they don’t accept it, it does still call suspicion off Harvey.
If Batman’s aim is to protect his friend Harvey from any kind of legal consequences then Batman taking the blame for the murders may really work out for him. Dent was a beloved figure in the police department and justice system. He was a crusader of a DA who championed the police department in the Courtroom and he ran for District Attorney with the slogan Take Back Gotham (the subtext being from the mobs that have overrun it).
Batman is right when he describes Dent as someone that the city’s law enforcement need as a light against the corruption that had threatened to overwhelm it. Having Batman as a scapegoat would likely provide all the political and legal cover that the Gotham PD and DA’s office need to never bring charges against Dent. As an aside, it is unlikely that the Gotham City District Attorney’s Office would be involved with this case. To avoid the appearance of (or actual) bias, an outside DA’s office would be the ones to actually prosecute Dent if charges were ever brought. The same thing is done in the real world when a police department has to investigate one of its own officers. You can look at some of the high profile officer shootings that have been in the news lately for how this plays out. Suffice to say, if Batman and more importantly Gordon decide this is the way to go then it will probably work. Gordon would be the one writing the official report and if there’s nothing in that report to implicate Dent, then the Gotham DA’s office could stay on the case. This would not be a difficult cover-up, all things considered. That is, unless Dent lived. If Harvey/Two-Face is still alive they’re going to have to figure out how to deal with that. Even Gordon and Batman would have to admit that he shouldn’t be DA anymore and that’s going to lead to some questions that may best be addressed in their own post.
But the ultimate question that stands out at the end of the movie is should Batman have taken the fall for Two-Face? I say no, he shouldn’t have.
We have to look back at the origin movie for this iteration of Batman and consider why Bruce Wayne put on the cape and cowl in the first place. In Batman Begins we see Rachel throw Bruce’s rich kid pain in his face by introducing him to the corruption in Gotham via a nightclub and a mobster named Falcone. Falcone has been buying up judges, the DA, and cops so he can run the city’s drug trade without fear of the law. Young Bruce confronts him but realizes he can’t win the fight in the open so he becomes the Batman in order to fight criminals that the Justice System, because of its internal corruption, couldn’t touch. So we know that from his beginning Batman has been trying to clean up Gotham’s justice system and to make sure that outside influences didn’t have a place in how justice was done.
Harvey Dent as Two-Face killed at least 3 people that we see in the movie then he kidnaps Gordon’s family and threatens to kill them. He has broken the law. He may have defenses to his crimes, lack of capacity due to mental illness for example, but that should be up to the justice system. By taking the blame for him, Batman becomes what he set out to stop. In his own way, he’s as bad as Falcone. He may not be paying bribes, but he does use his position and friendship with Gordon to help his other friend Dent get away with murder (literally). He’s taken the system into his own hands to protect his friend and confidant. Yes, he does it because he thinks it will help the system, but Batman is not known for making exceptions in his war on crime.
Batman is traditionally seen as having a single minded devotion to justice and being willing to sacrifice almost anything to see justice done (including his health, sanity, and occasionally a kid sidekick, poor Jason). In every other iteration of Batman he has committed Harvey to the justice system to get help, in Arkham usually, though there’s a legitimate debate over whether anyone can find help in Arkham. Point is, Nolan’s Batman sets out to clean up the system, to make sure that money and power can’t protect people who break the law. Harvey Dent breaks the law and Batman, because of Dent’s power and influence, uses his own power to make sure Dent never faces justice. It doesn’t match up with the character of Batman as a whole and more annoyingly it’s internally inconsistent with this Batman in particular.
So, all things considered the answer to the question is no, Batman should never have taken the rap for Harvey Dent/Two-Face’s murders. It likely doesn’t help Dent in the long run and it really isn’t in keeping with the character of Batman that we’ve come to know over the last 80 years or with this Batman that we’d gotten to know over two movies. Batman is champion of justice, in the DC cannon he may be even more a champion of the justice system than any other character. For him to decide that the system shouldn’t prosecute Dent is totally out of character for Bats. I guess the Joker won this one after all.
How Doublegangers Cause Mayhem for Justice
Cloak and Dagger season 1 ended with Detective Brigid O’Reilly surfacing in a swamp after getting shot and doused with otherworldly energy. The only side effects she experienced were glowing eyes and looking very determined.
None of that is a good sign. Spoilers ahead for Detective O’Reilly’s legal problems resulting from her injuries.
The season 2 opening episode “Restless Energy” followed a traumatized Detective O’Reilly who was unable to hit her target at the firing range and excessive drinking. After leaving a bar to throw up outside, O’Reilly saw a second reflection of herself in a puddle, who effectively told the drunken O’Reilly the reflection was taking over. What followed was O’Reilly acting more confident, wearing her badge around her neck, and illegally entering suspect property by shooting the lock off the gate. O’Reilly choked a suspect for information before slashing his throat with her bare hand.
The episode shocker was not O’Reilly becoming a murderer…that there was a second Brigid O’Reilly. Tyrone found the “original” O’Reilly bound and gaged on her apartment floor. The episode ended with O’Reilly confronting herself.
The Prime O’Reilly has significant legal problems because of “Mayhem O’Reilly.” If Mayhem is physically identical to the Prime O’Reilly, there is DNA evidence on the murder victim with the slashed throat. Ballistics would show that the bullet shot at the lock on the suspect property came from the Prime O’Reilly’s gun. Literally every act of Mayhem could be traced back to the Prime O’Reilly if the O’Reilly’s are physically identical.
The stakes are very real for Prime O’Reilly, because the death of the suspect paramedic could be First Degree Murder in Louisiana. First Degree Murder is when there is specific intent to kill or inflect great bodily harm while the offender is engaged in aggravated kidnapping. La. Rev. Stat. Ann. § 14:30. Holding the paramedic by the throat arguably was aggravated kidnapping, because Mayhem O’Reilly prohibited the paramedic from leaving after removing his body from the crashed ambulance. La. Rev. Stat. Ann. § 14:44. However, there is an argument that the paramedic was under arrest, but there are questions whether the arrest was valid given the 4th Amendment violation of entering the property by force without a warrant or exigent circumstance.
If all of the requirements for First Degree Murder are not met, Mayhem O’Reilly could be charged with Second Degree Murder, which is when the offender has a specific intent to kill or to inflict great bodily harm. La. Rev. Stat. Ann. § 14:30.1. Slashing a man’s throat after squeezing information out of him clearly is “specific intent” to kill.
A dead body that has O’Reilly’s DNA on it is highly concerning for her, because Second Degree Murder and Kidnapping can be punished in Louisiana by “life imprisonment at hard labor without benefit of parole.” La. Rev. Stat. Ann. § 14:30.1 and La. Rev. Stat. Ann. § 14:44. First Degree Murder can carry the death sentence.
Proving someone with identical DNA and fingerprints committed a crime is the stuff of comic books. While the story takes place in the Marvel Cinematic Universe, that is still a tall order for a jury to believe. Perhaps if there were GPS location data for each O’Reilly with time stamps and video evidence, there might be a way to exonerate Prime O’Reilly. Alternatively, if both O’Reilly’s were captured and charged with the same crimes, there would be a strong “beyond reasonable doubt,” because a jury would not convict both O’Reilly’s knowing one was the innocent one.
Poor Unconscionable Souls
In 1989, The Little Mermaid made a splash in theaters for the very first time. The story centers around rebellious teenaged mermaid, Ariel, who longs to be part of the human world. Her journey from fins-to-feet is an adventure full of catchy tunes, fishy friends, and… unconscionable contracts?
Let’s get this straight. Ariel strongly desires to become human. Intrigued by the mystique of both her favorite shipwrecked treasures and allure of the human Prince Eric (which, let’s be honest who wouldn’t be?), she is willing to trade her fins in for feet and leave her family and friends behind in the water.
Preying on Ariel’s desire and naiveté, an evil sea-witch named Ursula provides Ariel with a contract and a magic potion to turn her into a human for three days. In order to remain human permanently, before sunset on the third day Eric must fall in love with Ariel. This requirement is satisfied by a kiss- the kiss of true love. If Ariel does not complete this task, she is to be turned back into a mermaid and “belong” to Ursula. Essentially, if Ariel does not convince Eric to fall in love with her, she is selling her soul to the sea-witch.
Seems legit, right? Oh, but it only gets worse.
Ursula quickly exclaims: “Oh, and there is one more thing- we haven’t discussed the subject of payment- you can’t get something for nothing, you know.” Ariel, being a sixteen-year-old mermaid does not have much money, but Ursula does not seem to mind her lack of riches. What Ursula asks of Ariel in exchange for human legs is her voice. Initially unsure, Ariel ultimately gets persuaded by Ursula to sign the contract by emphasizing the importance of her looks, her pretty face, and of course, body language!
Okay, let’s discuss the law on this subject. Under California law, if the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. Civ. Code, § 1670.5. To be found unconscionable, “both a “procedural” and a “substantive” element” must be met. A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486.
While both procedural and substantive unconscionability must be present for a contract or clause to be held unenforceable, there exists a “sliding scale relationship” between the two concepts meaning “they need not be present in the same degree.” Carboni v. Arrospide (1991) 2 Cal.App.4th 76, 83; Higgins v. Superior Court (2006) 140 Cal.App.4th 1238, 1249.
Procedural unconscionability concerns the “manner in which the contract was negotiated and the circumstances of the parties at that time,” focusing primarily on factors of oppression and surprise. Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1319. “Substantive unconscionability focuses on the one-sidedness or overly harsh effect of the contract term or clause.” Lhotka v. Geographic Expeditions, Inc. (2010) 181 Cal.App.4th 816, 824–825. The substantive element also concerns whether a contractual provision “reallocates risks in an objectively unreasonable or unexpected manner.” Id., 821.
In the case of Ariel v. Ursula, it is abundantly clear the Ursula is in the position of superior bargaining power (she is the magical sea-witch after all!). Of course, Ariel does not have much power to negotiate the terms of the agreement, making the contract for humanity in exchange for voice and potential soul ownership unduly oppressive. Also, the fact that Ursula waits until the end of her spiel to mention the method of payment, being Ariel’s voice, is most likely evidence that there is at least some surprise involved during contract formation. Thus, procedural unconscionability is most likely substantially met.
It must be noted that Ariel states, “If I become human, that means I’ll never be with my father and sisters again.” To this Ursula responds, “but you’ll have your man.” In defense of Ursula, this demonstrates that Ariel does understand the severity of the situation, and that there is at least some consideration on both sides of the agreement. However, due to the overly one-sided, harsh terms of the contract, a court would likely find that this agreement reallocates risks in an unexpected manner (i.e., if Ariel does not get Prince Eric to fall in love with her, she becomes one of Ursula’s possessions!). Thus, Ursula’s contract with Ariel would most likely be deemed substantively unconscionable as well.
The presence of high degrees of both procedural and substantive unconscionability makes this contract unmistakably unconscionable under California law. Though luckily Ariel gets the kiss from Eric and her voice back from Ursula, this contract would have undoubtedly been unenforceable from the start!
Lawyers Go Batty Over the World’s Greatest Detective from Gotham
We had a Bat-tastic time at WonderCon 2019 with our panel honoring the 80th Anniversary of Batman. A big thank you to Matt Weinhold from MonsterParty for moderating the panel, and our great attorney presenters Steve Chu, Courtney McNulty, and Jordon Huppert. Check out the video, podcast, and photos below.
Special thank you to Autumn Ericson for serving as our photographer.
Fraud in the Matrix
The Matrix confronted audiences with the question of whether they would choose freedom over slavery, even if choosing freedom meant sacrificing the comforting illusion of material security. Sometime prior to the events in The Matrix, Morpheus (Laurence Fishburne) convinced Cypher (Joe Pantoliano) to take the red pill and escape the Matrix. However, once he realizes the depressing and terrifying reality of existence outside of the Matrix, Cypher strikes a deal with the evil Machines to be reinserted into the computer simulation.
But what if, instead of betraying his crew to the Machines in exchange for reinsertion, Cypher took a slightly less dastardly approach and sued Morpheus for fraud, alleging that Morpheus’s promises of freedom and truth were misleading?
Generally, fraud is any unfair means of deceiving another and is typically associated with misconduct in inducing a contractual agreement. However, fraud may also support liability for personal injury. For example, Cypher might allege that Morpheus’s misleading recruitment practices exposed Cypher to lethal risks of physical harm, such as the relentless pursuit by demonic flying robots bent on the extermination of every free human being on the planet.
Assuming that the free human society of The Matrix has adopted California law, proving intentional fraud may be an uphill battle for Cypher. To establish this kind of intentional deceit, Cypher would have to prove that Morpheus’s enticement to take the red pill involved an intentional misrepresentation of fact that was made with Morpheus’s knowledge of the fact’s falsity. See Kumaraperu v. Feldsted, 237 Cal. App. 4th 60, 70 (2015).
However, The Matrix establishes Morpheus as a man of profound faith who sincerely believes the prophecies of The One as factually true. Morpheus genuinely believed that “the truth,” a life free of the Matrix’s lies, was objectively better than the alternative, and he never said that he was offering anything other than the truth.
In that case, Morpheus’s conduct may be better described by the type of fraud that involves nondisclosure of material fact. See Cal. Civil Code § 1710(3). Specifically, Cypher would allege that Morpheus did not disclose the major downside to choosing freedom from the Matrix: a refugee-like existence in a post-apocalyptic hellscape.
But this kind of legal liability for misrepresentation by omission arises only in the context of fiduciary or confidential relationships. Ordinary salesmanship, even if not entirely forthcoming, is not unlawful misrepresentation by omission unless the defendant is in a unique position to unfairly exploit your trust. There’s no evidence in The Matrix that Cypher and Morpheus had that kind of relationship at the time Cypher swallowed the red pill.
Ultimately, Morpheus’s mysterious but technically accurate salesmanship would likely prevail over Cypher’s allegations of fraud. Perhaps the moral of Cypher’s buyer-beware story is to never trust salespeople in cool dark sunglasses, no matter how much kung fu they know.