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.

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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.