Tagged: Hearsay

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #375


For a man billed as “the world’s greatest detective,” Batman really sucks at his job.

Understand, by detective I don’t mean the guy who sneaks through the bushes to snap photographs of the secret meetings of some modern day Tryst-an and Isolde. I mean a guy who investigates, seeks out clues, and uses deductive reasoning to arrest criminals. A police detective.

The New 52 Batman does precious little clue seeking and thinks deductions are best left to H & R Block. Mostly he beats information out of lowlifes or threatens to drop them off buildings unless they tell him what he wants to know. He’s not so much Dick Tracy as he is Dick Cheney.

In the pre-New 52 continuity Batman had two great mysteries, who killed his parents and Joker’s real name. However, in Batman: The Dark Knight v 2 #0, Bruce Wayne learned Joe Chill killed his parents before Bruce even became Batman. So the post-New 52, Batman only had one major mystery: what is Joker’s real name?

Batman now knows the answer to that question. But not from any detective work. See, in Justice League v2 #42, Batman took over the Mobius Chair, the technological marvel that allows the New God  Metron to travel through time and space and store all the knowledge accumulated in his travels. When Batman took possession of the chair, the first thing he did was to ask for the chair to tell him the Joker’s real name.

The world’s greatest detective should have learned the Joker’s real name by detecting. By investigating. Looking for clues. Ratiocination. Batman shouldn’t have solved his greatest mystery by asking an upholstered Magic 8 Ball.

But taking the easy way out was the least of Batman’s detective failings. In Justice League: Darkside War: Batman#1, we discovered what else Batman did with the Mobius Chair and that really proved Batman, like all poor detectives, didn’t have a clue.

Batman used the chair to sift through peoples’ thoughts. He could see what criminals were planning and arrested criminals before they committed their crime. Which gave the Gotham Prosecutors Office an even worse record than Hamilton Burger’s score against Perry Mason. The Prosecutor’s Office had to release most of the perps Batman brought in, because they couldn’t prosecute someone for something they hadn’t done yet.

Our criminal justice system is funny that way. Crimes require both a mens rea, or guilty mind, and an actus reus, or guilty act. Without both, no crime has been committed. Especially the actus reus. That’s really, really got to be there. If no criminal act has been committed, then no crime has been committed. Or, as Tony Baretta might put it, if you don’t do the crime, you don’t have to do the time.

A good detective, let alone, the world’s greatest would-be police detective, would have known this. Batman didn’t.

I’m not saying Batman should have let the crimes happen just so that the perps could be prosecuted. But when a good detective knows when and where a criminal is about to strike, the detective conducts a stake out. (Which shouldn’t be confused with letting one’s T-bone thaw.) The detective waits and watches until the perp takes some affirmative step in furtherance of committing that crime, then the detective arrests the perp. That way the perp can be prosecuted for attempted whatever crime it was that the perp was about to commit.

After Commissioner Gordon scolded Batman for bringing the GCPD perps they couldn’t prosecute, Batman changed his tactics. He confronted four people, all armed with unregistered automatic rifles, who had driven somewhere near the Club Alpha to rob it. They shot at him. Batman didn’t arrest them. Instead, he teleported them to McMurdo Bay in Antarctica, where a Navy icebreaker would be passing in a few hours, to give the criminals time to “contemplate their actions.”

Batman didn’t turn them over to the police, presumably because he didn’t think they could be prosecuted, as they hadn’t actually robbed the Club Alpha yet. But once again he showed a marked misunderstanding of the laws that every good police detective should know by heart.

The perps had automatic rifles. Unregistered automatic rifles. New Jersey NJ Rev Stat § 25:39-5 makes it unlawful to possess unregistered rifles. The same statute also makes it illegal to carry a machine gun, which New Jersey defines machine gun as a firearm that doesn’t require the trigger to be pressed for each shot and which has a means of storing and carrying ammunition which can be loaded into the firearm. A fully automatic rifle meets both these requirements. So the perps who were about to rob the Alpha Club had broken the law. A good detective would have known that he could turn these perps over to the law because they could be prosecuted.

In addition, the perps shot at Batman. He didn’t die because the Mobius Chair protected him. The perps didn’t know that the Mobius Chair would protect Batman, so when they shot at him they committed attempted murder. Again, a crime for which they could be prosecuted.

Finally, a good detective would also know that when four people plan to rob a club at gunpoint, secure the guns that they’re going to use to rob the club at gunpoint, then drive to the club; they have committed a crime. They have planned to commit a crime together then committed at least one overt act in furtherance of their agreement. Two actually, getting the guns and driving the car. That means the four perps were also guilty of conspiracy to rob. So, again, if Batman was a good detective – you know, the kind who knows the law he’s allegedly upholding– he would have turned these perps over to the police to be prosecuted for conspiracy.

Even if the prosecution couldn’t get the attempted murder or conspiracy charges to stick, because Batman was the only witness to them and Batman can’t testify in the New 52 continuity; the weapons charges, they would have stuck. Once the police found the men in possession of illegal weapons, it wouldn’t have mattered that Batman couldn’t testify. The cops could have testified.

After committing these felony faux pas, Batman visited Joe Chill in his prison cell. He asked Chill how many people Chill had killed. “And remember,” he told Chill, “you can’t be tried for hearsay.”

Finally Batman got something right. Chill couldn’t be tried for hearsay. Hearsay is a rule of evidence, not a crime. However, if Batman meant that nothing Chill told him would be admissible in a prosecution for murder, because it would be hearsay, then once again Batman was more wrong than Hello Kitty sex toys.

Chill told Batman he had killed forty people. If Chill were to be prosecuted for any of those forty murders, his statements would be admissible. In these prosecutions Chill’s admissions would be a statement made by a party-opponent in the case. Many jurisdictions, such as Ohio, say such statements are not hearsay, so would be admissible. The other jurisdictions, like New Jersey, consider such statements to be hearsay. But they’d still be admissible because their rules of evidence make statements of a party-opponent an exception to the hearsay rule.

Okay, the statements probably wouldn’t be admissible, because the only witness to them was be Batman and, as I said earlier, Batman can’t testify. So Batman was right for the wrong reason. Still, a good detective would know the right reason.

World’s greatest detective? Please. Detective? Batman’s not even fit to hold Inspector Clouseau’s magnifying glass.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #371


Let’s make it 12 Angry Men and one really pissed-off judge.

When I was practicing law in Cleveland, there was a judge who hated that movie. Really hated it. Once a prosecutor mentioned the 1957 movie during jury selection.. The judge actually interrupted the prosecutor, scolded him for mentioning the movie then exploded because the prosecutor said it was an example of how juries should deliberate.

“That’s a horrible movie!” the judge said. His rant could be heard back in chambers. On another floor. That was just his warm up. He next went into a tirade to make sure the jury knew why the movie was horrible and why no jury should do what the eighth angry man in 12 Angry Men did.

What did the Juror # 8 do that so infuriated said judge? Well, I’ll tell you. But before I tell you, I have to tell you that in order to tell you, I have to tell you important plot details about the 12 Angry Men. If you’ve never seen the movie but plan to and don’t want me to tell you telling plot details then…


… stop reading. It’s really that simple. Now cue the Bob’ll Tell Overture, because here we go.

In this flick. In this flick. In this classic flick. (Boy that got old fast!) twelve jurors were deliberating their verdict in a murder trial. The defendant was an 18-year-old from the slums of New York City on trial for stabbing his father. Eleven jurors thought the defendant was guilty. Juror # 8, didn’t agree. What followed was 90 minutes of discussion among one dozen displeased deliberaters.

One of the key pieces of evidence was the murder weapon, a switchblade knife with a carved handle just like the knife the defendant carried. Eleven jurors said the murder weapon was the defendant’s knife, so he had to be guilty. Juror # 8 argued someone else could have owned a duplicate knife and used it to kill the victim. The guilty votes argued the intricate carvings on the knife’s handle were unique. The knife was one of a kind. There wasn’t another one like it anywhere else in the city. So the murder weapon had to be the defendant’s knife.

That’s when Juror # 8 (Henry Fonda)did the thing which made that Cleveland judge so mad. (No not sire Jane Fonda.) Juror # 8 pulled a knife out of his pocket and showed it to the other jurors. Not just any knife; a knife that was identical to the murder weapon.

The previous night, Juror # 8 wandered the slums where the defendant lived. He found a knife identical to the defendant’s in a store and bought it to prove there was more than one knife that looked like the defendant’s. So it was possible the murder weapon was someone else’s knife.

I’ll give Juror # 8 credit, buying that knife before the trial was even over proved he had foresight. I can’t give Juror # 8 credit for anything else, however, because what he did was conduct his own research into the case.

Last week, as you recall, we left Will, Dr. Smith, and the Robot

Sorry, wrong recap.

Last week, I discussed why it’s improper for a juror to have personal knowledge about a case. In much the same way, it’s also improper for jurors to conduct their own research into the case or find their own evidence separate from the evidence that was introduced at trial.

Why is it improper? Juries are supposed to consider only the evidence introduced at trial. Evidence someone has testified about and then been cross-examined about. Evidence that opposing counsel has had an opportunity to challenge. When juries produce their own evidence the lawyers don’t get any chance to challenge it.

Say the defense attorney had introduced that identical knife at trial, the prosecutor could have looked for other evidence to prove the murder weapon was the defendant’s knife. Maybe the duplicate knife was part of a shipment that came in after the murder, so, up to that point, the defendant’s knife was the only knife like it in the city. We’ll never know what evidence the prosecutor might have introduced, because he never had that opportunity. The jury found new evidence after the trial part of the trial was over.

Another problem with jurors conducting their own research into a case, their research might find evidence which was inadmissible. What if the police interviewed Bill who said, “My cousin told me he saw the defendant running away from the murder scene right after it happened,” but the police never found the cousin. Bill’s statement would be inadmissible hearsay. If one of the jurors did his own investigating and also talked to Bill then told the rest of the jurors what Bill said, the jury might have believed the cousin’s statement and based a guilty verdict on the hearsay statement.

Hearsay is inadmissible, because the parties can’t cross-examine the actual declarant, who didn’t testify. Maybe the cousin hated the defendant and was lying to frame him. Had the cousin testified, the defendant could have shown this and the jury would have discounted his statement. As no one can cross-examine a hearsay declarant for possible bias, hearsay isn’t admissible. But if the jury’s private research finds this inadmissible hearsay and considers it, it’s considering evidence the judge wouldn’t have allowed at trial.

12 Angry Men extolled the virtues of jurors conducting their own research and collecting their own evidence, which is why a judge in Cleveland had a problem with it. Meanwhile, the public defender in Cleveland, me, had a different problem with the movie. It portrays defense attorneys in a bad light. You didn’t even see the defense attorney and it still portrayed him in a bad light.

The prosecutor’s case relied heavily on the fact that the knife was unique. But a duplicate knife was so easy to locate Juror # 8 found one in only one day. Why didn’t defense counsel do this?

How difficult would it have been for defense counsel to check a few stores and find a duplicate knife? Based on how long it took Juror # 8, not very difficult at all. Even if the defense attorney didn’t have any staff or investigators, he could have done it himself. All he had to do was skip I Love Lucy one night and check into things.

Maybe he didn’t know Desi Arnaz had the foresight to shoot I Love Lucy on film not video tape so that it would last for decades and be syndicated forever. Maybe he didn’t know he’d have another chance, or ten, to see that episode in reruns. (If it was the Vitameatavegamin episode, more like one hundred chances.) Even if he thought it was his only chance to see the episode, would skipping I Love Lucy to do his job properly have been too much to ask of the defense attorney?

If the defense attorney had done his job properly, he could have introduced this evidence during the trial and made his client’s acquittal easier. Not to mention making life easier for some poor unsuspecting prosecuting attorney in Cleveland forty years later who wouldn’t have incurred a judge’s renown and redoutable robe-ed wrath.

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.