Green Lantern # 76, cont’d

Returning to Green Lantern/Green Arrow # 76, which we started looking at last month, we find two more issues to discuss. First, whether the tape recorder Green Arrow set up would have been admissible if it had worked, and relatedly, whether Green Arrow can testify to the contents of the tape even if it’s broken. Second, whether the arrest of the villain at the end of the story is legitimate.

I. Tapes and Evidence

Green Arrow knows that the villain, Slade, has taken out a hit on him. So he figures whether the hit men are going to be and sets a trap. Not only is he lying in wait to apprehend them, but he’s set up a tape recorder, hoping that they’ll say something that would incriminate both themselves and Slade. Unfortunately, the tape recorder is damaged in the resulting altercation. Question: would the tape have been admissible even if it had worked? And in the absence of the tape, can Green Arrow testify about their statements? These are classic evidence questions that could have come right out of a textbook.

Hearsay is, with certain exceptions and exemptions, any out-of-court statement offered for the truth of the matter asserted.  This is a very exacting definition, and anything which does not meet it exactly is not considered hearsay.  So let’s  break that definition down.

Suppose Green Arrow wants to testify as to what the hit men said.  Their statements were made out-of-court, so there’s the first part of the definition.  And the prosecution might be trying to prove that the hit men were, in fact, there to kill GA at the behest of Slade.  In that case, the statement would be offered to prove that the assertion (“The hit man said, ‘Slade hired us to kill you and now we’re going to’”) was true.  Thus, hearsay.  In which case any record of those statements, whether audio or in writing, would be inadmissible if offered to prove that Slade had sent the hit men to kill Green Arrow.

Luckily for Green Arrow, although it looks like hearsay, such a statement would be admissible under a specific exemption. Federal Rule of Evidence* 801(d) lists several statements which look like hearsay but are not. FRE 801(d)(1) includes “an opposing party’s statement” as something which is specifically not hearsay. In any prosecution, the parties would be the state and the defendant. Here we’ve got a statement of the defendant being offered as evidence against the defendant. That goes in, and for the truth of the matter asserted.  The reason for this exception is that the opposing party (in this case the defendant) has an opportunity to disprove the assertion, either through cross-examination or through other evidence.

* This would probably be a state case, not a federal one, but most state rules of evidence are very similar to the federal rules.

Alternatively, if the prosecution thinks it doesn’t have enough evidence to prove the hit, it can use the tape as evidence of motive. So the statements go in, not for their truth, i.e., that the villain sent them to kill Green Arrow, but to prove that they were there on purpose. Not for the truth of the matter asserted, but certainly damning, and possibly conclusive proof of intent. That goes in under 803(3).

But how do we know that it’s the defendant speaking? Well, under FRE 901(5), any voice recordings may be identified by anyone familiar with the voice of the person being recorded. So if the prosecutor could find someone who knows what the hit men sound like—say, Green Arrow, who heard them make the statements in the first place—he can get the recording authenticated as evidence that the men who made it were present with the recorder. But it doesn’t have to be Green Arrow. Anyone familiar with the defendants’ voices can be called to authenticate the recording: fellow criminals, parents, you name it. Of course, finding a person other than Green Arrow who would be willing to offer that testimony might be tricky, but it’s certainly not impossible. There’s a very large number of people who could offer the testimony, and the prosecutor only needs the one.

Further, Green Arrow would be able to testify as to the statements even without the tape! Anyone who hears the admissions of a party may be called to testify about said admissions. Green Arrow was there, there’s no reason he couldn’t testify. He might not want to testify, but that’s another issue entirely. But Green Arrow’s testimony that the men were there to kill him on the villain’s orders is good evidence against both the perps and the villain. So unless his concern is that his only evidence requires him testifying in person, his in-panel anguish and resulting scheming are a tad unnecessary.

II. Impersonation and Arrest

Towards the end of the story, one of the hit men goes back to the villain’s office. The villain asks “Green Arrow! Did you finish him? I paid you to kill him. . . remember?” At which point Green Lantern turns off the disguise, revealing that the “hit man” has been Green Arrow all along. Furthermore, Green Arrow and the county prosecutor were hiding behind a curtain and heard the whole thing. Is this a clean bust?

Yep. True, the defendant was deceived as to the identity of the person in front of him and wound up making incriminating statements. But that’s not a problem. It’s not entrapment, as no one ever asked him to do anything wrong, much less something wrong that he wouldn’t have thought of on his own. And it doesn’t violate his Fifth Amendment rights against self-incrimination either. The Fifth Amendment only says that you have the right not to incriminate yourself, not that you have the right to have self-incriminating statements suppressed regardless of the circumstances. Specifically, the right to have such evidence suppressed only attaches to statements made while in custodial interrogation if there has not been a voluntary and knowing waiver of such rights. The villain here was not only not in custody, but no one asked him any questions! He volunteered information of his own free will. Turns out that people heard that whom he would rather not have, but that’s not a constitutional problem.

There are, however, some problems. Is there probable cause to arrest? Absolutely. Is there sufficient evidence to prosecute (i.e. to indict)? Almost certainly. Is there sufficient evidence to convict? Possibly. As you probably know, the standard for criminal convictions is “beyond a reasonable doubt.” That’s a high bar. This kind of confession is going to be pretty persuasive, but a good, responsible prosecutor is going to want to show the jury more than the testimony of people closely associated with law enforcement (he won’t be able to call himself as a witness; see Model Rule 3.7) in a situation which, if strictly legal, is still more than a little hinky. He would be well advised to use that statement as the probable cause basis for a warrant to search the premises. There’s bound to be some incriminating evidence there somewhere, all of which would strengthen his case. But trying a case on that evidence alone is inadvisable.

Of course, all we see in-panel is the arrest being made, with our heroes assuming that the prosecutor will do his job from there, and it’s not unreasonable to assume that he did it well.

III. Conclusion

So this part of the story is sort of one and a half for two. Turns out the statements made by the perps during the hit are admissible, but only if Green Arrow is willing to testify about them. As he doesn’t seem to make a practice of this, his concern about losing the tape is not unjustified. If the tape hadn’t been damaged, then it would be admissible provided the prosecutor could find anyone willing to testify that the voices on the tape are those of the defendants. So partial credit for that. But the arrest scene is legit. Nothing unconstitutional happens, and even if the prosecutor would be well advised to bring more evidence to the table before filing charges, he’s certainly got probable cause to tear the place apart looking for it.

11 Responses to Green Lantern # 76, cont’d

  1. One small point: FRE 801(d) lists exemptions from the definition of heresay. FRE 803 and 804 list exceptions to FRE 802. So it’s not quite right to say that the party opponent rule is an exception. Instead, it’s an exemption from the definition of heresay. It’s splitting hairs for most people, but it’s an important concept for those of us working in the area. Also, I would add that the henchman’s statement as you present it here includes a statement of intent, which is admissible hearsay (i.e., an exception to FRE 802) under FRE 803(3).

  2. Wouldn’t the hitmen’s statements be “against interest” when presented at the trial of the guy who hired them?

    • Perhaps, but that is an FRE 804 exception to FRE 802, which requires unavailability. I haven’t read the comic, so I’m not sure if that criterion is met. Perhaps those who have read it can weigh in.

    • Macknzie is correct. “Statements of an opposing party” are always admissible, even if the party is available to testify–he presumably is–and they don’t even have to be against the interest of the party when made. They can be in almost any form and need not even be based upon personal knowledge. Anything you say can be used against you in a court of law.

      “Statements against interest” are both more and less broadly admissible than “statements of an opposing party.” They’re more admissible because they don’t have to come from an opposing party. Anyone who makes a statement against interest can find that statement showing up in court, even in a case in which they’re not involved. But the declarant needs to be unavailable, and the statement needs to be against interest at the time it was made. Further, in a criminal case, these statements need to be supported by “corroborating evidence that clearly indicate its trustworthiness.”

      The “statements of an opposing party” is going to be the better route here.

      • James Pollock

        Which is fine, if the hitmen and their employer are tried together; everyone is in the same place at the same time. But if you try the employer separately, then the person who made the statement isn’t a party.

        Of course, if you can turn the hitmen, and get them to testify in court that they were employed by the defendant, then there’s no problem.

      • I don’t think you need to get them to in the same trial, James. The person making the statement (the hitman) isn’t the party, but probably qualifies under 801(d)(2)(D) as the party’s agent or employee, making a statement within the scope of the relationship while it lasted. Once you establish that—which doesn’t require the hitman to testify if you have other evidence to lay foundation—the statement would be admissible as a statement of a party opponent.

      • James Pollock

        “probably qualifies under 801(d)(2)(D) as the party’s agent or employee”
        There’s a little element of bootstrapping there. If the statement is true*, then the statement isn’t hearsay. But, if you don’t have evidence except for the (out-of-court) statement by the hitmen, then it can’t be considered for the truth of statement. If you already have evidence that the hitmen were employed by the employer as hitmen, you don’t NEED their statement (though it probably makes deliberations quicker.)

        *Technically, the statement doesn’t conclusively prove the truth of the matter, anyway, as it is possible that the hitmen were mistaken about the identity of their actual employer, the intention of their employer, or even whether or not they are “employees” when they make the statement.

      • James Pollock

        On the other hand, is it still “against interest” if the hitmen have already been tried, convicted, and sentenced for being hitmen? I took Evidence quite a while ago, before I even finished all my 1L classes.

      • I agree, I think you have to have evidence that the hitman meets the 801(d)(2)(D) criteria. Bootstrapping is an issue, but I don’t know enough about the caselaw, so I don’t know if the statement itself is enough. Perhaps someone with more expertise knows? I really don’t want to spend much time looking into it, but I’m curious now.

  3. You mentioned the prosecutor not being able to call himself as a witness, which makes sense. But if his testimony would be useful it seems pretty easy for him to hand the case off to another attorney at the office, which seems to be specifically contemplated by Model Rule 3.7(b).

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