Tagged: Cross-Examination

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #378



Sometimes there’s nothing for it but to put the unpleasantness front and center. This is one of those times. So, here comes an unpleasant:


I want to discuss the British police procedural TV show Broadchurch and there’s no way I can do that without massive spoilers on both seasons of the show. Spoilers along the lines of SPOILER ALERT! not just revealing that Darth Vader was Luke’s father but doing it before the Star Wars came out.

Broadchurch is set in the small, seaside British village of Broadchurch, which explains why the show wasn’t called Bexhill-On-Sea. The first season started with the murder of Danny Latimer, a local eleven-year-old local boy then centered on the investigation by Detective Inspector Alec Hardy and Detective Sargent Ellie Miller of said murder. (Wait, who said murder? I thought she only wrote it.) Broadchurch was not a pure procedural. It dealt as much with how the murder tore apart the small, close-knit community.

That tearing-apart aspect came fully into play in the final episode of the first season when DI Hardy learned that the murderer was SPOILER ALERT! Ellie’s husband, Joe. The town of Broadchurch in microcosm was torn apart after Ellie watched Joe’s filmed confession and SPOILER ALERT! beat him up in the police station. The town of Broadchurch in macrocosm was torn apart by the murder then torn apart again in the show’s second season, when SPOILER ALERT! Joe didn’t plead guilty and stood trial for Danny’s murder.

That’s where the law came in. So I guess it’s where I come in, too.

I won’t stress over the niggling legal mistakes that aren’t even worthy of a SPOILER ALERT! such as the fact that the trial judge was wearing a barrister’s wig instead of a judge’s wig, even if legal experts in England did. We’ve got wacking great errors to deal with.

Before the trial began, SPOILER ALERT! Joe’s defense lawyers had Danny Latimer’s body exhumed without telling anyone, even the Latimers. And on rather flimsy grounds. (That is, the grounds for the exhumation were flimsy. The ground of the cemetery was fine old English sod.) I realize things are different in the British criminal justice system; what with the wigs and the “M’luds,” and all. So I did some research. I found an article from the British paper The Daily Mail about Broadchurch’s second season. It answered my questions and confirmed my suspicions.

The body of an English murder victim belongs to the coroner. No coroner would have released Danny’s body without consulting the surviving family, unless said family were suspects in the case; which they weren’t. A spokesperson for England’s Ministry of Justice quoted in The Daily Mail said it was “inconceivable” that the body would have been exhumed in the way shown in the show. And I think the word did mean what he thought it meant.

But that was just the start. When Danny’s mother was cross-examined, defense counsel SPOILER ALERT! asked her about her sex life and her husband’s affair. In America such questions wouldn’t be permitted unless they went to the witness’s credibility. The fact that a woman’s husband was having an affair might affect her gullibility but not her credibility. Legal experts interviewed by The Daily Mail said the questions wouldn’t have been allowed in England either, as they had no connection to the case being tried.

During the trial, SPOILER ALERT! all the witnesses were in the courtroom when the other witnesses testified. Dramatic as hell; we got to see Danny’s parents agonized faces every time something went wrong. But inaccurate as a caveman eating brontoburgers. According to The Daily Mail, British courts, like American courts, require a separation of witnesses http://criminal.lawyers.com/criminal-law-basics/excluding-witnesses-from-the-courtroom.html. Witness aren’t permitted in the courtroom until they’ve testified. That way, no witnesses can hear what other witnesses say and change their testimony to conform it with what had been said before.

But the most egregious error was the SPOILER ALERT! motion to suppress Joe Miller’s confession. (The British called it excluding the statement, not suppressing. Silly Brits, can’t even get their own language right.) After DI Hardy testified about how he arrested Joe and obtained Joe’s confession, defense counsel SPOILER ALERT! got Hardy to admit that DS Miller physically assaulted Joe while he was in custody. Then counsel argued that the police had beaten the confession out of Joe, so it should be excluded.

DI Hardy had testified that Joe confessed before DS Miller assaulted him. Moreover, the confession was filmed, so the judge could see that Joe Miller didn’t have any signs of a physical assault at the time he confessed. Despite all this, SPOILER ALERT! the judge agreed she could not discount the possibility that the injuries were sustained before Joe Miller arrived at the police station, suppressed the confession, and ordered the jury to disregard it.

This whole proceeding was the Lex Luthor of dash; balderdash.

First there’s the matter of the suppression motion being heard in open court in front of the jury. Suppression motions are questions of law not evidentiary matter. No American suppression hearing would be held in front of the jury, the way it happened on Broadchurch. No English hearing would either according to the attorney interviewed by The Daily Mail.

More egregious was the timing of the suppression motion; after the trial started. In the United States, defense counsel wouldn’t even have been permitted to make a motion to suppress a confession after trial had started. Motions to suppress evidence must be filed before trial starts. See, if the trial has started and the prosecution loses the motion to suppress, it’s stuck. The trial court won’t grand a prosecution motion for a months-long continuance, while the prosecution takes an interlocutory appeal on the suppression ruling. But the prosecution can’t wait until the trial ends before appealing the suppression ruling. Assuming the prosecution lost the trial – a totally warranted assumption; if the prosecution won the trial, it would bother appealing – Double Jeopardy would prevent it from trying the defendant a second time, should it win the appeal. So defense attorneys are required to file motions to suppress before trial starts. That way, the prosecution can appeal the decision before jeopardy attaches and, should it win the appeal, still be able to try the defendant.

England, apparently, doesn’t have the same requirement. However, the lawyer interviewed by the ubiquitous Daily Mail said that the suppression matter would still have been settled before trial started. Neither the defense nor the prosecution would want to start a trial with this question mark over the case.

Most egregious was the fact that the judge granted the motion to suppress Joe’s confession. Judges don’t like to suppress confessions; especially confessions of confessed child killers. No judge in her right mind would agree with the defense counsel argument that “we cannot discount the possibility that the injuries were sustained before his arrival at the police station,” when the video evidence before her clearly showed that not only did Joe receive his injuries after he arrived at the station, he received them after he confessed.

Sure the judge was wearing a barrister’s wig instead of a judge’s wig. But that only means she wasn’t in her right wig, not that she wasn’t in her right mind. This ruling was shakier than a selfie in an earthquake.

You’ll be glad to know the attorney quoted in The Daily Mail agreed that no judge would have excluded Joe’s confession. Even if you’re not glad, I certainly am. I’d hate to think my grasp of the law was as tenuous as Broadchurch’s.

I had a problem with Broadchurch’s second season on from a legal point of view. I also had problems with it from a story point of view. An underlying subplot of Broadchurch’s first season was that SPOILER ALERT! DI Hardy was trying to restore his career after he failed to bring to justice a different child killer from an earlier case. Broadchurch’s first season was also a story of Hardy’s redemption when he solved the murder of Danny Latimer. However in the final episode of Broadchurch season two, SPOILER ALERT! the jury found Joe Miller not guilty. This demeaned the whole redeemed story of the first season, because, once again, DI Hardy failed to secure the conviction of a child murderer.

Still, Broadchurch’s second season wasn’t as bad as it could have been. It wasn’t, for example, Gracepoint, the American version of Broadchurch. Gracepoint managed to undercut all of the themes in Broadchurch, not just the redemption one, by SPOILER ALERT! having a completely different solution and a different murderer.

Broadchurch’s second season also wasn’t as bad as the second season of True Detective. Broadchurch’s second season only undercut the themes of the first season, True Detective’s second season tarnished the memory of the first season by being lousy.

Oops. Guess I should have put a SPOILER ALERT! there.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #369


Because it had three stories in it, that’s why.

Yes, we’re playing Jeopardy. That’s the answer. And the correct question is, why did you write three columns about Daredevil v4 #15.1?

The third story in this extra-long volume with the screwy numbering – “Chasing the Devil” – featured a familiar scene. No, not the balcony scene from Romeo and Juliet– please tell me that scene is familiar to you and I didn’t need to go with the food fight from Animal House. Rather this is the familiar scene that ends the standard super hero-super villain fight scene.

In this version of the scene, Daredevil was fighting Diablo, the centuries-old master of alchemy who first appeared in Fantastic Four #30 and who, despite the fact that he is centuries-old and a master of alchemy, is a surprisingly second-rate super villain. Let’s face it, he appeared in the third story in this particular comic, a story that was only eight pages long. Considering that some of the story was set-up and some of it denouement, the actual number of pages devoted to the fight was three and one-half. So, no, we’re not talking an A-lister here. B-lister, anyone? C-lister? Let’s just say, Diablo would be suffering delusions of grandeur if he auditioned for Dancing With the Stars.

So after their mercifully brief fight, Daredevil tied Diablo up and left him hanging for the cops to find and arrest. The cops did find Diablo, did arrest him and, I assume, Diablo was prosecuted for his misdeeds. I can only assume, because we didn’t see the aftermath. Apparently, the story didn’t want to spend any more time with the loser villain, either.

However, assuming Diablo was prosecuted for his crimes, the fact that he was prosecuted should be ringing more bells than Quasimodo in the Westminster Concert Bell Choir. Because we have talked about this before. Masked super heroes catching criminals, leaving them for the cops to find, then walking – or swinging – away before the police have a chance to question them or get their statements. I’ve noted that without that an actual conversation with the super hero involved, the police wouldn’t have enough probable cause to arrest the bad guy in question, because they didn’t see the baddie committing any crime and the person who did was nowhere to be found.

And even if the police did arrest the bad guy, taking him to trial would be trickier than a Penn & Teller special. Under the Sixth Amendment’s Right of Confrontation, the defendant has the right to cross-examine the state’s witnesses. But the defendant wouldn’t be able to cross-examine a masked witness, because the defendant wouldn’t know who that witness was, so wouldn’t be able to question the witness about possible biases.

Masked super heroes wouldn’t be allowed to testify in court without revealing their secret identities, which they wouldn’t want to do. (If they wanted to reveal their secret identities, they wouldn’t wear masks. I mean, what’s the mask for other than keeping a secret identity secret? A bad case of hat hair?) So if the masked heroes don’t reveal their secret identities and aren’t allowed to testify, there would be no evidence against the bad guy and said bad guy would be found not guilty.

That’s the way it would usually go, in one of the average super hero scenarios. That’s not, however, the way it would have gone in Daredevil v4 #15.1. Because this story was smarter than the average super hero scenario.

It didn’t have Daredevil chance upon the super villain doing his super villainy by happenstance. No, it had Daredevil overhear a police radio broadcast that “a major drug deal involving ‘Diablo’ and a number of known offenders is under way at the Syracuse Salt Mines.” (Hey, I know there are operating salt mines underneath Cleveland, Ohio. Are there actually salt mines under New York City, too? Not a big deal, I just wondered.)

The police already knew that Diablo was around and dealing drugs. The police didn’t need Daredevil for the information about Diablo’s diabolic doings, they already had it. The story didn’t say how the police knew. Could have been an eyewitness account from another witness. Could have been a undercover narcotics officer report. Could have been a tip from the Morton Salt Girl. How they got the information doesn’t matter. What’s important is, they had it.

And because the police had the information, that means someone other than Daredevil – the someone who told the police about the drug deal in the salt mines in the first place – could have testified at Diablo’s trial and supplied the jury with the information it needed to convict Diablo.

Of course, considering Esteban Corazón de Ablo goes by the nom de guerre of Diablo, maybe not even that information was necessary. Get people on the jury people who know that Diablo means devil and it might be a short trial.

(“Ladies and Gentlemen of the jury, the defendant in this case goes by the name Diablo.”


But even if the jury was conscientious and required more information than the defendant’s chosen nickname, whoever supplied the information to the police should have been enough information for a conviction. The police wouldn’t need Daredevil on the witness stand.

Tony Isabella https://en.wikipedia.org/wiki/Tony_Isabella once told me that whenever possible he’d have his super hero-super villain fights take place in highly public places before lots and lots of witnesses. That way there would be plenty of people around who could testify against the super villain, even if the super hero couldn’t. A wise practice. Prosecutors have enough trials and tribulations without extra trialing tribulations.

The Law Is A Ass


She-Hulk_Vol_1_8_TextlessSorry, but if your bucket list included “Read a comic book that has an explanation of the dying declaration exception to the hearsay rule on Page One,” you can’t cross it off your list yet. Because, despite what you read in She-Hulk v 3 # 9, you still haven’t read a comic book which has an explanation of the dying declaration on Page One.

She-Hulk v 3 # 9 is the middle chapter of a three-part story about Steve (Captain America) Rogers being sued for wrongful death in Los Angeles over an incident that happened on the L.A. docks in the year 1940. Cap was represented by Jennifer (She-Hulk) Walters and the Foglers, the family suing Cap, were represented by Matt (Daredevil) Murdock. Chapter One in issue 8 was the set-up. In issue 9, the middle chapter, the trial is about to begin.

So there on Page One Matt was giving his opening statement to the jury and defined the dying declaration exception to the hearsay rule for them. He told the jury that ordinarily a person may not testify about “what they heard someone say,” because it’s hearsay. Which isn’t accurate. I mean, come on, Matt used a simple sentence composed of only one- or two-syllable words. When has the law ever expressed anything with a simple sentence using only one- or two-syllable words?

The California Evidence Code defines hearsay in Section 1200 and it’s more complex than Matt let on. California defines hearsay as “a statement that was made other than by the witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” In order for a statement to be hearsay, it must 1) have been made by someone other than the witness, 2) must have been uttered outside of the courtroom, and 3) must be offered into evidence in order to prove the truth of the fact contained in the hearsay.

Let’s see if I can’t translate that into some simple sentences that use words of only one or two syllables for you. First, the statement must be an out-of-court statement. That’s easy, if a witness says something in court than it isn’t hearsay, it’s testimony.

(Damn! “Testimony.” Four syllables. Okay, I can’t use words of only one or two syllables. Some polysyllabic words will sneak into my explanation. But I promise they’ll be simpler polysyllabic words than polysyllabic.)

Second the statement must have been made by someone other than the witness who’s testifying. If Linus is a witness, he can testify as to what he told Lucy even if he said it when he wasn’t in the courtroom, because he’s the witness. But Linus can’t testify as to what Lucy told him.

The reason for this second prong of the hearsay definition is because if the person who actually made the statement isn’t testifying, that person’s demeanor can’t be seen and evaluated by the jury and the person can’t be cross-examined. (By the way, we call the person who made the statement the declarant in the law game and consider ourselves as having been pretty straightforward for using only a three-syllable word.) So, if the witness, Linus, testifies as to what the declarant, Lucy, told him, Lucy, isn’t subject to cross-examination and the statement is excluded as hearsay. But if Linus is testifying as to what he told Lucy, then Linus – the declarant – is available to be cross-examined and the statement isn’t hearsay.

The third and final prong of the hearsay definition is that the statement is being offered for the truth of the matter asserted in the statement. If Lucy and Linus were in a car accident then, later, Charlie was talking to Linus and said he saw the accident and that Lucy ran the red light, Linus could not testify as to what Charlie said in order to prove that Lucy ran the red light. That would be using the statement to prove of the matter asserted; that Lucy ran the red light.

Matt may have given the jury an over-simplified version of hearsay, but that wasn’t the worst of his sins. Matt next told the jury that he was about to offer testimony about a dying declaration, which is admissible because dying declarations are an exception to the hearsay rule.

Okay, that much is true. The hearsay has lots of exceptions. California wrote something like 18 exceptions to the hearsay rule into its evidence code. One of those exceptions, found in Evidence Code § 1242, was the dying declaration exception. Matt was correct when he said that dying declaration is an admissible exception to the hearsay rule. Had he stopped there, all would have been fine. Matt didn’t stop there.

Matt went on to explain that a dying declaration is, “when a person makes a statement believing they are about to die … that testimony is admissible, because of a long-held belief that people cleave to the truth on their deathbeds.” Wrong!

In the aforementioned California Evidence Code § 1242 – Aforementioned is a simpler polysyllable than polysyllabic, isn’t it? – a dying declaration is defined as a statement made by a person who believes he is about to die, “respecting the cause and circumstances of his death.” So not every statement a person makes on his or her death bed is a dying declaration. To be a dying declaration, it must be a statement made about the cause and circumstances of the person’s impending death.

For example, if Linus comes upon Charlie, who’s lying on the ground near death, and Charlie tells him, “I”m dying because Lucy pulled the football out from under me and I broke my neck,” that would be a statement made about the cause and circumstances of Charlie’s impending death. It would be a dying declaration and would be admissible as a hearsay exception.

If, on the other hand, Charlie were to say, “I’m dying, and Lucy’s stupid psychiatric advice wasn’t worth five cents,” it would not be a statement about the cause and circumstances of his impending death and would not be admissible as an exception to the hearsay rule.

This becomes important in our story. In the middle of Matt’s opening statement – after he gave the jury legally incorrect definitions of both hearsay and dying declarations but before he explained to the jury that the case was a wrongful death case – Matt called his first witness.

And I move into a brief aside, before I can move on to what’s “important to our story.” I know of no court which allows a plaintiff’s attorney to call a witness in the middle of his opening statement. The attorneys give their opening statements covering what their case is about and what they expect the evidence will prove and then they present the evidence. I don’t think even the allegedly uber-liberal of Los Angeles County disrupt normal courtroom proceedings by letting witnesses testify in the middle of the opening statements. But that, as I said, was an aside. Let us hie ourselves back to what’s important to our story.

What’s important to our story is that in order to introduce his dying declaration, Matt called police officer McKinley, who was in the hospital at Harold Fogler’s bedside as Harold lay dying. McKinley testified as to what Harold Fogler said from his death bed.

He shouldn’t have been allowed to, but he did. As we saw in She-Hulk v 3 # 8, Harold died sometime in 2014, three weeks before the trial in this story started. She-Hulk v 3 # 8 also informed us that Harold died of old age and natural causes while he was in his nineties. Harold’s deathbed statement was about how his brother Sam died on the docks of Los Angeles sometime in 1940 and how Steve Rogers was responsible for Sam’s death.

Harold’s deathbed statement wasn’t a statement about the cause and circumstances of his impending death, it was a statement about the cause and circumstances of his brother’s death some 74 years earlier. It was not a dying declaration as defined in the California Evidence code, so would not have been admissible as an exception to the hearsay rule.

You’re probably wondering exactly what Officer McKinley did say about Harold Fogler’s statement, how Cap caused the death of Sam Fogler, and why Harold’s grandchildren are suing Cap for the wrongful death of their great-granduncle. I’m afraid you’ll have to wonder a little longer. This column is already long and I’ve only covered what happened on Page One. I’m going to need another column to cover the other 19 pages of the story. But before I leave you in the To-Be-Continued limbo, I did have one more thought.

One more thought: as I explained the last time I wrote about this story, Cap has repeatedly told She-Hulk that he doesn’t want to win on a technicality, so he probably wouldn’t have let She-Hulk object to the not-really-a-dying-declaration-so-not-actually-an-exception-to-the-hearsay-rule on the grounds that Harold’s statement wasn’t a really dying declaration so wasn’t actually an exception to the hearsay rule. Personally, I don’t think that’s a technicality, I think it’s a lawyer doing her job. But what do I know? I’m not the lawyer who wrote the story, I’m just the lawyer who’s trying to make sense of it.

I’ve got the harder job.