EvidenceProf Blog

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

Friday, December 25, 2020

Court of Appeals of Kentucky Grapples With Former Testimony Hearsay Exception

Similar to its federal counterpart, Kentucky Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

In its recent opinion in Estate of Karen Burden v. Hardison, 2020 WL 7640000 (Ky.App. 2000), the Court of Appeals of Kentucky dealt with one element of this exception and left another element for another day.

In Hardison

Karen Burden (Karen) resided with the Hardisons in their home in Shepherdsville, Kentucky. On June 30, 2013, Karen assisted Lawrence and Linda in collecting brush on their property and assembling it into a large pile. Linda decided to burn the brush pile and poured gasoline on the brush. At her deposition, Linda testified that she poured gasoline on the brush pile, in Karen's presence. Linda also testified that Karen directed her to pour additional gasoline on at least two other spots in the pile. Linda then testified she had left her matches to light the pile at the house which she went to retrieve. Before leaving for the house, Karen suggested to Linda that she could light the pile with her cigarette lighter. Linda testified that she adamantly told Karen not to light the pile with her cigarette lighter and continued walking away. Linda further testified that shortly after telling Karen not to light the pile, Linda heard a “boom” and saw Karen rolling downhill away from the fire. Karen had lit the brush pile with her lighter which exploded. As a result, Karen suffered serious burns and injuries.

On December 20, 2013, Karen filed a negligence action against the Hardisons in Bullitt Circuit Court. The complaint alleged that Karen had no knowledge that the brush had been soaked with gasoline by Linda and that Linda instructed Karen to light the brush. On December 27, 2013, Karen died. On March 31, 2014, the Estate filed an amended complaint alleging Karen died from her burn injuries.

After the Hardisons moved for summary judgment, "the Estate relied on a videotaped statement by Karen taken under oath on November 18, 2013, prior to the filing of the complaint and Karen's death." In finding that the trial court properly excluded this statement, the Court of Appeals of Kentucky held that

The Estate contends Karen's statement falls under [Rule 804(b)(1)] because she is unavailable as a witness and the Hardisons’ insurance carrier was notified that the statement was being taken and thus, the carrier became the Hardisons’ predecessor in interest. What qualifies as a predecessor in interest under Kentucky law is unsettled. However, we need not determine here whether the Hardisons’ insurance carrier was their predecessor in interest because KRE 804(b)(1) applies only to testimony given in a court or similar legal proceeding. When Karen made her statement, there was no pending litigation and, thus, there were no pending legal proceedings at that time. See BLACK'S LAW DICTIONARY (11th ed. 2019) (defining “proceeding” as “[t]he regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment.”). Additionally, taking a sworn statement in contemplation of litigation falls outside the usual parameters of testimony admissible under KRE 804(b)(1). See TRIAL HANDBOOK FOR KY. LAW § 29:12 (2020 ed.) (noting that “[t]he most common uses of the exception will be the following: (1) the trial and retrial of a single case; (2) the sequential trial of multiple causes of action with common issues of fact, including a civil case and a criminal trial arising from the same transaction; and (3) a preliminary hearing and trial of a criminal charge”). Karen's recorded statement does not fall within the hearsay exception.



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I love that the court noted that Karen gave her statement before her death. (Thanks for clarifying that, Judge.)

Posted by: Fred Moss | Jan 13, 2021 3:19:27 PM

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