Thursday, June 4, 2009

Evidence of Interest in Evidence

My May 27th Court Denies Summary Judgment Motion Based on Insureds' Recorded Statements post generated many thoughtful comments on how an insured's recorded statement might better have been presented to avoid being characterized as inadmissible hearsay and permit its introduction and use on Metropolitan's motion as admissible evidence. In case you did not click on and read those comments, I'm reprinting that thread in this separate post.

In support of its motion for summary judgment seeking a declaration that its named insured and insured driver had breached the policy's cooperation clause by lying to Metropolitan in their recorded statements about whether the driver had the owner/named insured's permission to use the insured vehicle, Metropolitan submitted those recorded statements to prove the misrepresentations and non-cooperation. The decision does not indicate in what form Metropolitan submitted the recorded statements, although it was most likely via typed transcripts of those statements. Metropolitan argued that the statements were admissible under CPLR 4518 as business records and, thus, excepted from the hearsay rule. The court disagreed.

The commenters observed:
Larry Rogak said...
In my own commentary on this case today, I opined that an EUO would be a more effective tool than a signed statement.
Anonymous said...
Embarrassing. Clearly, the statement here is not hearsay because it is not being used for its truth, but to show it was made. Therefore, it is outside the definition of hearsay. This decision demonstrates that counsel, and Justice Siegel, missed the ball on this straightforward evidence issue.
Zuppa said...
Roy a little confusing. Was the lie the recorded statement or the truth the recorded statement.

The Court's decision is dead on regarding business records.

Secondly anonymous makes a technical point that at first blush might cause one to leap for it. But if the truth was the recorded statement than it was made for the truth of the matter asserted. If the lie was the recorded statement we run into the issue of what constitutes the "truth of the matter asserted." It is broader than anonymous opines. This is not a case where a prior inconsistent statement is being offered on cross to demonstrate just that -- inconsistency. And it is not a case as it would seem where we are offering a statement to show a state of mind.

The statement was a lie. It is being offered to demonstrate a lie which is non-cooperation. If the same statement were introduced in opposition to a motion for summary judgment than it would be admissible as non-hearsay because it would merely demonstrate inconsistency. Here the lie is being offered to show a lie and most courts would conclude that this is hearsay. To hold otherwise would open the door to a host of out of court statements rendering every case the equivalent of a no fault farce.

Perhaps to refine anonymous' argument it would have been better to classify the statement as a verbal act -- like saying I accept in a contract action. The statement "I don't know who was driving" was a verbal act of non-cooperation and therefore not hearsay. The equivalent of a refusal to answer.

But that brings us to hearsay layers and authentication. An admission would cure one layer. I assume that the recorded statement was transcribed. The transcript is another layer. It is another out of court statement as opposed to a person testifying IN COURT that a Party to the action said this or that. The plaintiff tried to get the transcript in as a business record. No go. If it were admitted as business record than the statement itself would have been an admission.

Hence Larry's EBT analysis. Under the CPLR if the party is given the opportunity to review his transcript the EBT can be used for almost anything.

I don't know the facts of the Tower case. Were the signed statements used to obtain summary judgment or defeat it.
Anonymous said...
To clarify my earlier comment, and respond to Zuppa, the statement here is not hearsay. Hearsay is evidence that depends for its probative value on the veracity of an out-of-court declarant. It is claimed that the declarant (Shaid) made a false statement. Therefore, the probative value does not depend on whether Shaid was lying, the only relevant fact is whether the statement was in fact made to the insurer.

Zuppa, although I understand your concern that the statement is being offered to prove a lie, that's not really correct. Presumably, the insurer has non-hearsay evidence to prove that this statement is, in fact, false. Thus, the necessity of first proving the statement was made (non-hearsay use), followed with admissible evidence proving the falsity of the statement.

An example: In a defamation case, the plaintiff offers the defamatory statement. Objection: hearsay. Response: the statement is not being offered to prove the truth of its content, but to show that it was made. Result: the statement is let in.
zuppa said...
It is a tough issue and I am tending to agree with you more. I am going to pull the case when I get time and the other cases.

I absolutely know your argument but still stand by the fact that courts define what constitutes "the truth of the matter asserted" more broadly.

Your hearsay hypo is convincing but flawed. If a witness came into court and testified Defendant said "Zuppa is a hack" than we'd have an admission which overcomes the single layer of hearsay.
zuppa said...
I've read the decision. The facts are not sufficiently described to make any judgments here visa-vi the above issues. This is a good Judge so I am giving the Judge the benefit of the doubt here. The attorneys for the insurance company certainly had to be smart enough to argue admission and nonhearsay but instead sought entry of the statement via the business records exception. That argues in favor of the multiple layer of hearsay theory.
Zuppa said...
And the Tower case doesn't address hearsay. Apparently the issue was not raised by the great attorneys for the defendants.
DLev said...
The opinion does not clearly identify the statement being considered. There are two statements: the original false statement that the insured did not know the identity of the driver, and the subsequent true statement that he did know the identify of the driver. The first statement is not hearsay. It is more likely that the opinion is about the second statement
zuppa said...
I said that in my first comment. But calling the first statement "not hearsay" is not necessarily true. Forget whether the statement is in and of itself hearsay. They manner in which the statement is introduced can be but another layer of hearsay. For example if the non-hearsay statment is being presented via the transcript of a recorded statement. The transcript is hearsay. The transcript must fall under an exception i.e. business record or statement taken under oath, etc. Than there are reams of authentication issues. How do we know it was actually John Doe that made the statement as opposed to someone else posing as John Doe. You would need some form of authentication.

I am sorry but that is evidence. I didn't show up to court with a bag full of cocaine and intro it into evidence: "Here it is your honor." I had to establish chain of custody.

More on point when I introduced taped conversations from wiretaps I had to lay out a massive authentication from the monitoring through the sealing and the unsealing. Evidence is a lost art. It mi[ght] as well be lost since many courts do not even understand it.
Post Script ~~ I'll only add my opinion that it would be inexact for a litigator to conclude or argue from this decision that all recorded statements are inadmissible hearsay. As the commenters point out, there are both non-hearsay and other exceptions to hearsay arguments that can be and perhaps should have been made.


max gershweir said...

As counsel for Tower Insurance Company, I've always successfully submitted with summary-judgment motions insured statements to investigators by submitting them with an affidavit from the investigator that states that the insured identified him/herself as such and that the statement accurately reflects what the insured stated. This solves both layers of hearsay. The insured's statement is admissible as a party admission and the investigator's authentication solves the other layer.

Zuppa said...

Nice work Roy. Nice work Max.

A vexing issue. Soon as I get the time I intend to research it.

Max and Roy have covered the layers and various exceptions as well as authentication.

What is vexing is the recorded lie. If it is not being offered to prove the truth of the matter asserted in the out of court statement -- and its not -- every law professor will tell you its not hearsay. So if its method of introduction is properly authenticated it is an admission whether its hearsay or not.

Ahh here is the missing link that reduces my anxiety over winning summary judgment based upon an out of court statment that passes muster one way or another. If the opposing party fails to rebut the evidence than under a series of Court of Appeals and Appellate Division cases it is deemed admitted.

So if the recorded statements were ruled admissible and the bozos said nothing in rebuttal summary judgment would be properly granted. But if the Bozos submitted Affidavits that stated: "I never said that and never met with an investigator" we'd have an issue of fact.

Which brings us the doctrine of feigned issues of fact --

Good job Roy.