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THE LAW IS A ASS for 11/28/2000
"The Law is a Ass" Installment # 71
Originally written as installment #60 and published in Comics Buyer's Guide issue # 609, July 19, 1985 issue
Sometime after I wrote this column, I met the editor of Peter Parker, the Spectacular Spider-Man Annual # 5, the comic book being discussed this time around. I had commented in the column that the title character of the story, a man named Ace, looked like Michael Jackson. I was taken to task for this statement. Ace did not look like Michael Jackson, said editor assured me, he looked like Prince. (And, thankfully, the former Mr. Nelson went back to using his name. Justin would have gone crazy trying to figure out how to put that furshlugginer symbol in here.)
If you check the comic, you can understand my mistake. I don't care who they intended, the character's face looked like that of Michael Jackson. Still, I had made the grievous error of IDing the wrong pop star. Properly chagrined, I promised to apologize to both Mr. Jackson and Mr. Prince when next I saw them.
So, if any of you happen to run into Michael Jackson or Prince, tell them to call me, I hate it when apologies are hanging over my head
"The Law is a Ass"
Installment # 71
There is, of course, a problem with being a professional hit man: Everyone expects you to kill someone.
Thus it is with me. I've made my reputation in this column by commenting on the inaccurate portrayals of the law in the comics over the years. Often said commentaries are caustic or satiric; but they are almost always criticisms in the negative sense of the word. I find fault with inaccuracies or mistakes.
I'm sure that when comic readers who are familiar with my column read a story which has anything about the law in it, they anticipate my eviscerating column about the story. More to the point, I'm sure people are waiting for my column about Peter Parker, the Spectacular Spider-Man Annual # 5.
I know that when people read "Ace," (which is how I'm going to refer to the story from now on. Ace is the place fingers tired from typing Peter Parker, the Spectacular Spider-Man Annual # 5 fifty zillion more times) they thought, "Boy, this story can't possibly be right. Just wait until Ingersoll gets his shyster's hands on this one."
Well, I've got my hands on it. And to those people who are waiting for me to tear it a new Ace-hole for its inaccuracies, I have only one thing to say.
"Ace" was accurate. And that's what I want to comment on in this column, why the law works the way it worked in "Ace." In order for me to do that, however, I need to set the scene a little.
Members of the street gang, Reapers, shot and killed several members of the rival street gang, Dragon. They did so outside of Vince DiFeo's restaurant, shooting DiFeo in the process. While this was going down, another person, the titular Ace, watched the incident but didn't come forward as he didn't want to get involved.
As the ambulance was taking DiFeo to the hospital, he tells Captain Jean DeWolff, "Don't worry, though. I took lots worse in Korea. I'll come out of this okay." Spider-Man asks DiFeo if he saw who shot him and DiFeo tells Spidey, "Two Reapers, Lorenzo Spencer and Al Webber." With that DiFeo is taken to the hospital never to be seen or heard from again. He slips into a coma and dies without ever coming out of it. (Ah, the emotion of the dying man surviving just long enough to make that last speech. Where would drama be without it? Could any of us have lived without Ali McGraw's final good-bye to Ryan O'Neal in Love Story? Sure, we could have lived without the entire movie, but that scene is something special, just not in a good way.)
Now Assistant District Attorney Hillman is worried that she won't be able to introduce into evidence what DiFeo said to Spider-Man and DeWolff, when he fingered the two who killed him. And if she can't introduce the statement, her case is about as water tight as the Titanic.
Remember, at this point in the story, Hillman didn't know there was another witness, Ace. And for the purposes of this column and analyzing the law, we'll have to leave Ace that way for the time being--unknown to the police. We'll get back to him later, promise.
Why can't Hillman--who doesn't know about Ace--introduce DiFeo's statement? It seems to be straight forward enough and definitely fingers the two murders. She can't, because of a little thing called hearsay. You remember hearsay, don't you. It was Perry Mason's second favorite objection right after, "Irrelevant, improper, and immaterial." But what is hearsay?
Hearsay is, as my old law school professor defined it to me, "A statement whose probative value depends on the veracity of an out of court declarant." What? You say you want a definition you can understand? Tough! I didn't get one in law school, why should you get one now?
Oh, all right.
Hearsay is testimony about what someone else--someone who was not in court or under oath--said. Hearsay is not admissible. And that means a witness cannot testify about what someone else said.
See, the law seems to equate man with that which floats on the surface of stagnant water and believes that man will ordinarily lie to serve his own needs. The court feels that the only time that man can be depended on to tell the truth, is if he is testifying under oath in a court of law and subject to the penalty of perjury. Absent these conditions, man will lie; so anything that he says under these conditions is not reliable. For this reason hearsay, something which was said out of court and not under oath, is inherently unreliable and is not admissible as evidence.
Hey, don't get mad at me. I'm not calling anyone a congenital liar. I didn't make the hearsay rule. It's part of the old English common law, which our colonial forefathers brought over here from the mother country. This rule is older than the jokes I use in my column.
Anyway, DiFeo is dead, so he can't testify about who shot him. And as the ADA doesn't know about any other witnesses to the shooting, she believes the only way she has to prove her case is DiFeo's statement. But DiFeo's statement was made out of court and not under oath, so it is hearsay and not admissible. That's why ADA Hillman is so upset; without DiFeo's statement, her case is worth less than the salvage rights on Earth-Three.
Now there are, as "Ace" indicated, a few exceptions to the hearsay rule. (A few, he says. The hearsay rule has more exceptions than the X-Men has dangling plot threads.) Apparently, the old English common lawyers felt that the hearsay rule was a little too harsh and wanted to soften it. They reasoned that if hearsay forbade out of court statements, because they were unsworn and unreliable, then it shouldn't exclude statements which, even though unsworn, are reliable. There are some times, these crafty old men of the law reasoned, that man will not lie, even though he is not under oath or subject to perjury. For example a man will not lie to his doctor about what ails him, for if he does, the doctor will not be able to treat him properly. Such statements, which common sense tells us are not likely to be lies, are inherently reliable, so we should allow testimony about them to become evidence.
It became incumbent upon the old English lawyers to determine exactly which unsworn statements were likely to be true and reliable. They immediately eliminated all statements about age or weight. But after much trial and error and error in trial, they came up with an acceptable, to them, list of reliable exceptions to the hearsay rule.
"Ace" correctly identified two of the many exceptions, the only two under which DiFeo's out of court statement might be admissible: "deathbed testimony" and "res gestae." (You'll just have to take my word for it that these are the only two exceptions which are applicable. There are some twenty-five exceptions to the rule. If I listed then all and explained why they weren't applicable, then the Classified will have to be bumped to make room; and if we knock out the ad revenue, I don't get paid.)
Deathbed testimony--or as it is called under modern rules of evidence, a dying declaration--is a statement made by a man who believes he is dying and made about the cause of his impending death. The underlying assumption here is that a man who is dying will want to identify correctly the cause of his death, so that the cause can be punished if human or eliminated if not. Thus, it is assumed that a dying man will not lie about what killed him.
The catch in a dying declaration is that the declarant must believe that he is dying. If he doesn't, then his declaration lacks the inherent reliability necessary to be a hearsay exception. I don't know why. Keeping track of hearsay is more confusing than keeping track of those aforementioned dangling plot threads in X-Men. Here's what they told me in law school.
Let's assume that a man, A, with two hated enemies, B and C, has been shot by B. A knows who shot him and will naturally want revenge on B. If A thinks he is dying, then the only way he can get his revenge is to correctly identify his attacker, because A will die, before he can do anything else. If, however, A doesn't think he is dying, he might lie. A might say that C, who is someplace where A cannot attack him, shot him so that C will be arrested and tried. Then A can seek his revenge on his B himself, after A has recovered. (Simple as ABC wasn't it?)
Of course I know that the assumption is ludicrous and that A might hate C more than B and lie to get C anyway. I never claimed that the exceptions were any good, I just said they existed.
Anyway, as "Ace" clearly shows, DiFeo didn't think he was dying, so his statement doesn't qualify as a dying declaration. In other words, ADA Hillman needs another exception. That's why "Ace" talked about res gestae.
Res gestae is a Latin phrase which means acts which are spontaneous and so related to the occurrence in question as to appear to be evoked or prompted by it. Only old lawyers use the phrase res gestae, as the rules of evidence have replaced it with the term "excited utterance".
The explanation of excited utterance given in "Ace" is absolutely correct. It is a spontaneous exclamation made about a startling event and made so close to the event, that it was made while the declarant was still under the stress or excitement of the event. Basically, excited utterances are deemed to be reliable, because they are spontaneous. A person sees an exciting event and immediately exclaims about it. In that case the person hasn't had enough time to reflect upon what he saw or to fabricate a lie, so his statement is probably the truth. It is the utterance's spontaneity which makes it reliable.
The problem with DiFeo's statement is that it wasn't spontaneous. He didn't just exclaim, "Al and Lorenzo shot me!" he was answering Spider-Man's question. Many courts have held that such a statement, which was not spontaneous but the result of questioning, is not inherently reliable. The declarant had time to reflect on the situation so he also had time to concoct a lie. Thus, many courts will not permit as a hearsay exception, utterances which are the result of questioning and not completely spontaneous.
That's why Spider-Man feels guilty and starts checking into things. That's also why, when his checking into things reveals that there was another witness, Spider-Man becomes obsessed with finding Ace and convincing him to testify. Spidey feared his question might have rendered DiFeo's statement inadmissible, and Spidey wanted to correct his mistake.
For the record, Spidey does track down Ace and convince him to come forward. That's important to the resolution of the story as a whole, but not important to our discussion here. That's why I wrapped up the last twenty or so story pages in a paragraph But back to that noted ass, the law. Everything "Ace" had to say about the law was correct, and I can be a nice guy, if I set my mind to it.
Still, I don't want my much- deserved reputation as a nasty guy to suffer too much as a result of his most recent column. So I want to say something nasty about "Ace."
Whose idea was it to make Ace look like Michael Jackson? That bit of cuteness spoiled the entire story for me. When we really get to know Ace, he kills a rat at forty paces--or fifty, I didn't have the chance to pace them off--by throwing a switchblade into it.
Okay, so Ace must be a mutant. Only a mutant could kill a rat that way. Switchblades have spring mechanisms in the handle designed to snap the blade out into position. As a result, switchblaces knifes aren't balanced for throwing. Their handles are much heavier, so, if thrown, the knives and will invariably land bottom first not blade first. Only a telekenetic mutant could have killed Rickey Rat that way Ace did. They didn't call Ace a mutant, but that's my reading of the situation.
Next we are asked to accept that Ace is some incredibly talented fighter capable of holding his own against a super-powered hero, one with the proportionate strength and agility of a spider and. So we're dealing with a potential telekenetic that Spider-Man can't beat, but who looks like an underweight, high voiced, pop singer.
Personally, I think that Spider-Man could wipe up the floor with Michael Jackson, so every panel of the fight scene literally made me laugh. What's next Slim Whitman punching out the Hulk?
There? How's that for nasty?
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