Mil. R. Evid. 804(b)(1)

Kentucky has a similar variant of Fed. R. Evid. 804(b)(1).

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–says Prof. Colin Miller.

The trial court in Hardison had denied use of “videotaped statement by Karen taken under oath on November 18, 2013, prior to the filing of the complaint and Karen’s death.” The appellate court determined this was not error.

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.

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