Saturday, October 12, 2013

The Danger

We have scotch’d the snake, not kill’d it:
She’ll close and be herself, whilst our poor malice
Remains in danger of her former tooth.

Macbeth to Lady Macbeth, III.2

This post assumes consensus about one of the best moments in the baddest TV show around—a series that may be over but is hardly finished.  The moment in question features meth-manufacturer Walter White receiving a lecture from his agitated wife about their dangerous fiscal situation; wife Skyler warns that, if they make one misstep, the IRS will surely come knocking and their entire world will unravel.  An exasperated Walt cuts her off, retorting:  “I am not in danger, Skyler.  I am the danger.  I am the one who knocks.”
The moment is simultaneously chilling and exhilarating, like so much of Breaking Bad.  A truly Shakespearean moment. 
Part of what makes the moment Shakespearean is that, unbeknownst to Walt, his statement is fraught with tragic irony.  When Walt says “I am the danger” he is utterly convinced that he is in charge.  By contrast, if the audience pauses to reflect for a moment, it can see that, despite what Walt may feel, he is hardly The Man.  He is not the master of his own fate, let alone that of others.  His life is careening out of control.  He is being engulfed by danger—not just courtesy of drug lords and law enforcement of various shapes, sizes, and ethnicities, but also thanks to his cancer-ridden body.  Walt, like Oedipus, is blind to the truth about his condition even as he sees himself as unusually self-aware; and Walt—like Macbeth, Othello, Richard III—makes increasingly dark, self-serving choices in part because he labors under the misguided assumption that he is in full command of each choice and its attendant consequences.   But whatever Walt may believe when he says “I am the danger,” he is not simply the purveyor of The Danger who knocks on others’ doors; he is being knocked around in some much larger pinball game that he does not and cannot fully comprehend.
This parallel between Walter White and Macbeth, et al got me to thinking about Rule 801(d)(2) and Rule 804(b)(3) of the Federal Rules of Evidence.
Hearsay, as defined by the Rules, is an out-of-court statement offered into evidence “to prove the truth of the matter asserted in the statement.”  Fed. R. Evid. 801(c).  But in a move worthy of the most postmodern deconstructionist, Rule 801, right after defining hearsay, expressly defines certain hearsay statements as “not hearsay.”  See Fed. R. Evid. 801(d).   Subpart 801(d)(2) includes among the hearsay statements that are “not hearsay” out-of-court admissions by an opposing party as well as evidence that the opposing party adopted out-of-court statements made by others.  Generally, these adoptions happened long before any lawsuit was filed.  So, the logic goes, when the opposing party adopted some other person’s statement, the adopter was not then worried about the legal implications of embracing a certain belief; and that is why the framers of the Rules of Evidence think that these adoptions should not count as hearsay.  If the adopter really had a problem when someone sent him an email that said “Wow, it’s great how you decided to take it to that Mexican drug cartel,” the person would have taken pains to correct the statement at the time if he did not believe it really reflected The Truth.  So later, when a lawsuit arises, the adopter’s opponent ought to be able to seize on the adopter’s silence in the wake of that email; and so this adoption (and the statement being adopted) is considered hearsay-that-is-not-hearsay that can be admitted into the record as proof of the matter asserted in the out-of-court statement.  In short, the Rules presuppose that, when someone adopts some other person’s statement as his or her own—or at least did not bother to correct the statement when it was made although it would have made sense to do so—that must mean that the person is okay with the statement.  And the presumption underlying that presupposition is that being okay with a statement means that the statement reflects The Truth.
Even easier to follow is the logic underscoring out-of-court statements covered by Rule 804.  These include out-of-court statements that are “admissions against interest” made by any witness—whether or not the witness is “available” to testify at trial.  We are talking about statements made by a person that reveal something incriminating, embarrassing, or otherwise damaging to the maker of the statement, i.e., a statement that, “when uttered, [was] against the party's pecuniary, proprietary, or penal interest.”  Fed. R. Evid. 804(b)(3)(A).  Walt’s “I am the danger” utterance fits nicely into this category.  And if he had made this statement to someone other than Skyler (his wife such that the comment is protected by the “spousal privilege”) or Saul Goodman (his lawyer such that the comment is protected by the “attorney-client privilege”), then the statement could be admitted into evidence against him even though it was not made under oath as “an admission against interest.”
What is interesting is that the Rules of Evidence presume that Walt’s admission-against-interest should be admissible because being “against his interest” means that it is more likely to be true.  But if we look at the statement through a Shakespearean lens, we see that the admission-against-interest is not so much one that reflects The Truth as one that indicates what the speaker thinks is true, which is a far more complicated phenomenon.  Walt’s admission (assertion, really) that he is “The Danger” is not really accurate—at least not in the way he means it.  But the “admission” is not untrue because he is lying; it is untrue because he does not have a sufficiently omniscient perspective with respect to his own existence.  Therefore, the admission is only true as a barometer of what he feels is true at the time.  In other words, the admission reveals his intent: his willingness to embrace the identity of a bad-ass maker of illicit substances who sees himself as beyond good and evil, beyond fear, beyond repercussions—however delusional this self-image might be.  And since intent is one of the trickiest things to prove in a lawsuit—civil or criminal—admissions against interest, if one can convince a fact-finder that they were indeed uttered, are pure gold from an adversary’s perspective.
Consider, for instance, Macbeth’s “Is this a dagger which I see before me” speech.  If caught on tape thanks to a duly issued search warrant, that speech would be a clear admission against interest that could be deemed “not hearsay” under Rule 804(b)(3)(A) and thus would be admissible into evidence to prove the truth regarding Macbeth’s guilt:
Is this a dagger which I see before me,
The handle toward my hand? Come, let me clutch thee.
I have thee not, and yet I see thee still.
Art thou not, fatal vision, sensible
To feeling as to sight? or art thou but
A dagger of the mind, a false creation,
Proceeding from the heat-oppressed brain?
I see thee yet, in form as palpable
As this which now I draw.
Thou marshall’st me the way that I was going;
And such an instrument I was to use.
With this out-of-court statement, Macbeth is unmistakably  confessing his willingness to move from (a) dreaming of a bloodied dagger and the destiny symbolized by such an instrument to (b) drawing a real dragger that he might murder King Duncan who sleeps obliviously in the Macbeths’ guest room at that very moment.  But the true import of this admission is not that it proves what he did.  More than proving that he took a certain action, the admission proves Macbeth’s mental state at the time of the utterance, his mens rea, as they say in the crim law biz.  His statement shows that he knows, on some level, that what he intends to do is wrong—the product of a “heat-oppressed brain” intoxicated with the idea of becoming The Danger.  But even as part of him recognizes that he may be suffering from delusions of grandeur, he proceeds because he can’t tolerate seeing himself as anything but the master of his own (and others’) fate: 

I go, and it is done; the bell invites me.
Hear it not, Duncan; for it is a knell
That summons thee to heaven or to hell.
Tragically, irrevocably, ironically, as Macbeth sets off to murder Duncan, he thinks he is The One Who Knocks; but, in truth, he is just responding to a bell rung by another—someone, some force that he cannot see or refuses to see.  Why?  Because no one likes to admit to being destiny’s pawn.  That would, after all, be the ultimate “admission against interest.”

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