Sorry, 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.