EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, January 27, 2020

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.

First, under Kentucky Rule of Evidence 801A(c)(1),

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.

So, imagine that the family of Vince, the deceased, believes that Dan killed him and brings a civil wrongful death action against Dan. Dan's defense is that Vince took his own life. To support his claim, Dan wants to call Vince's friend Fred to testify that Vince told him he had been depressed the entire prior week. Because Vince's statement is about a prior feeling -- depression -- it would be classic hearsay.

But Kentucky Rule of Evidence 801A(c)(1) makes clear that the statement is admissible as an exclusion to the rule against hearsay? Why? As the rule notes, this is an "[a]dmission by privity." Privity is "a relation between two parties that is recognized by law, such as that of blood, lease, or service." Here, because the plaintiffs are related to the deceased and have privity with him, his statements can be introduced against them.

-CM

https://lawprofessors.typepad.com/evidenceprof/2020/01/kentucky-has-some-unique-hearsay-exclusions-that-i-recently-came-across-kentucky-rule-of-evidence-801ac-reads-as-follows.html

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