Thursday, August 20, 2009
The "Phantom" Blue Corvette And New Jersey's Hearsay Exception For Trustworthy Statements By Deceased Declarants
New Jersey Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for
Trustworthy statements by deceased declarants. In a civil proceeding, a statement made by a person unavailable as a witness because of death if the statement was made in good faith upon declarant's personal knowledge in circumstances indicating that it is trustworthy.
This is an odd exception; indeed, as far as I know, there is no state that has a similar hearsay exception in its rules of evidence. In a sense, it is the complement to a Dead Man's Statute, which precludes an interested party from testifying about any communication, transaction, or promise made to him by a now deceased or incapacitated person when the testimony would go against the decedent's estate. And the recent opinion of the Superior Court of New Jersey, Appellate Division in Estate of Nick Hanges v. Metropolitan Property & Casualty Insurance Company, 2009 WL2496810 (N.J.Super.A.D. 2009), provides a nice illustration of how the exception works.
In Byrd, Nick Hanges was involved in an automobile accident and reported to police that he was cut off by a "phantom" Blue Corvette, causing him to lose control and strike an underpass. Two physicians later treated Hanges for his physical injuries, and a therapist treated him for his psychological injuries; Hanges repeated his claims regarding the "phantom" blue Corvette to all three. Harges later committed suicide, and his estate thereafter claimed coverage under the uninsured motorist provision of an automobile insurance policy issued to him by Metropolitan Property & Casualty Insurance Company.
The estate's claim was that the driver of the "phantom" Blue Corvette should be treated as an uninsured motorist, entitling Hanges to coverage. Metropolitan Property countered by moving for summary judgment, claiming that the only evidence that there was a "phanton" blue Corvette -- Hanges' statements -- was inadmissible hearsay. The trial court agreed with Metropolitan Property and granted its motion, finding that Hanges' statements were not admissible under New Jersey Rule of Evidence 803(c)(2) as excited utterances, New Jersey Rule of Evidence 803(c)(6) as business records, New Jersey Rule of Evidence 803(c)(6) as statements made for the purpose of medical diagnosis or treatment, or New Jersey Rule of Evidence 804(b)(6) as trustworthy statements by a deceased declarant.
In addressing the estate's appeal, the Superior Court of New Jersey, Appellate Division agreed with the first three rulings but disagreed with the fourth, at least with regard to Hanges' statement to the police officer. The appellate court noted that under Rule 804(b)(6), “[a] trial court must make particularized findings of good faith, personal knowledge and trustworthiness...." It then noted that the trial court had deemed Hanges statements inadmissible under Rule 804(b)(6) because
[T]he Estate has failed to show that...the decedent's statement was made in good faith or it was...trustworthy. The decedent had reason to not be forthcoming in this situation. He crashed his car into an underpass and there was no other evidence of any other vehicles involved. A person in these circumstances has much to gain if he or she can successfully shift the blame to some other non-verifiable cause. Thus under the circumstances in which the statement was made there is great incentive for a driver to skew the facts in [his] favor. For this reason the statements do not possess the requisite trustworthiness or reliability to be admitted under the hearsay exception [ ] for unavailable declarants....
The appellate court disagreed, concluding that
The declarant was clearly deceased and there does not appear to be any dispute that his statement regarding the "phantom vehicle" was made from his personal knowledge. There is nothing in the record, moreover, to indicate that the statement was not made in good faith or that it was otherwise lacking in reliability or trustworthiness. The trial court need not find the statement absolutely trustworthy before it may be admitted under the Rule; it need only find a probability that the statement is trustworthy from the circumstances surrounding its making....The factors relevant in consideration of trustworthiness include: whether the statement was made under oath; the duration of the time between the event and the statement; whether the declarant had first-hand knowledge; and the credibility of the declarant....
Although the decedent was not under oath, the statement was made immediately after the accident to the police officer and there is nothing in the record to suggest that the decedent had any motive to falsify his statement to the officer. Indeed, that is a credibility issue solely within the province of the jury and not subject to the trial court's determination on a motion for summary judgment.
I think that the appellate court was probably right, which leads me to believe that the "trustworthy statements by a deceased declarant" is wrong, or at least that it allows for the admission of statements which are not (necessarily) sufficientluy reliable to overcome the general rule against hearsay.