EvidenceProf Blog

Kentucky's Three Privity-Based Hearsay Exclusions

Kentucky has some unique hearsay exclusions that I recently came across. Kentucky Rule of Evidence 801A(c) reads as follows:

(c) Admission by privity:

(1) Wrongful death. A statement by the deceased is not excluded by the hearsay rule when offered as evidence against the plaintiff in an action for wrongful death of the deceased.

(2) Predecessors in interest. Even though the declarant is available as a witness, when a right, title, or interest in any property or claim asserted by a party to a civil action requires a determination that a right, title, or interest existed in the declarant, evidence of a statement made by the declarant during the time the party now claims the declarant was the holder of the right, title, or interest is not excluded by the hearsay rule when offered against the party if the evidence would be admissible if offered against the declarant in an action involving that right, title, or interest.

(3) Predecessors in litigation. Even though the declarant is available as a witness, when the liability, obligation, or duty of a party to a civil action is based in whole or in part upon the liability, obligation, or duty of the declarant, or when the claim or right asserted by a party to a civil action is barred or diminished by a breach of duty by the declarant, evidence of a statement made by the declarant is not excluded by the hearsay rule when offered against the party if the evidence would be admissible against the declarant in an action involving that liability, obligation, duty, or breach of duty.

I will break down these exclusions in my next three posts.

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Louisiana State University, Paul M. Hebert Law Center Seeks a Visiting Professor

Ronnie Long Petition for Rehearing En Banc

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Theo Wilson Stipulations

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8th Circuit Applies New Portion of Prior Consistent Statement Rule in Sexual Abuse Case

Federal Rule of Evidence 801(d)(1)(B) used to only allow for admission of a prior consistent statement when there had been a claim of recent fabrication based upon an improper motive. So, for instance, if Carl accused Dan of a murder days after the killing, this statement could be used if defense counsel later claimed at Dan's murder trial that Carl was only implicating Dan due to a recent favorable plea agreement.

After a recent amendment, however, Federal Rule of Evidence 801(d)(1)(B) now states that

A statement that meets the following conditions is not hearsay:....

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:....

(B) is consistent with the declarant’s testimony and is offered:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground

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Supreme Court of Georgia Finds Proper Authentication of Facebook Printouts in Murder Trial

Like Federal Rule of Evidence 901(a), OCGA § 24-9-901(a) states that

The requirement of authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

So, what is required to authenticate Facebook evidence under this standard? This was the question addressed by the Supreme Court of Georgia in its recent opinion in Nicholson v. State, 2019 WL 7046856 (Ga. 2019).

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Ronnie Long Letter

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Lamar Johnson Letter

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