36 | Fall 2021 | BAEC Bulletin
NY Legislature Expands Speaking Agent Exception to the Hearsay Rule Continued from Page
Similarly, in Stern v Waldbaum Inc, 234 AD2d 534 (2d Dep’t 1996), the court held that testimony of a customer who overheard an announcement over the store’s P.A. system directing an employee to clean up a spill should have been admitted as circumstantial evidence of the employee’s notice and, by extension, the employer’s knowledge of the spill. In such case, it could also be argued that the statement, “clean up on aisle seven” is more in the nature of a command to take action (clean up the mess), rather than an assertive statement of fact which is the essence of hearsay offered to prove the truth of the matters asserted therein. (See Nucci v Proper, 95 NY2d 597 [2001]). DECLARATION AGAINST INTEREST: Another possible alternative theory of admissibility in appropriate cases could be that the statement qualifies as a declaration against pecuniary (or penal) interest which the declarant knew at the time of its making was against his/her interest (or tended to subject him/her to criminal liability). For the statement to be admissible, however, the declarant must be UNAVAILABLE as a witness. (See Advisory Committee Evidence Rule 8.11) In Kelleher v FME Auto Leasing Corp., 192 AD2d 581 (2d Dep’t 1993), the Court held that admissions of the defendant’s cab driver who picked up an intoxicated (BAC .28) and recalcitrant patron from a bar, that the driver dumped the passenger in the snow of a driveway somewhere near the passenger’s home (where he died of hypothermia), in order for the driver to get to his next fare at his employer’s urging, were admissible against both the driver and his employer as a declaration against interest. The Court noted that while the cabbie lacked the authority to speak for the employer, (citing Loschiavo v NY Port Authority, supra) his statements constituted a declaration against interest (notwithstanding his subsequent acquittal on criminal charges after which he left the jurisdiction).The Court also pointed out that a declaration against interest may be admitted against a party other than a declarant where the party’s liability is derived from the acts of the declarant (citing Basile v Huntington Utilities Fuel Corp, 60 AD2d 616 [2d Dep’t 1977]). The Court was satisfied that the plaintiff had established the necessary elements of admissibility including the declarant’s unavailability, the adverse nature of the statement, his competent knowledge of the facts and no evidence of any motive to fabricate (citing People v Thomas, 68 NY2d 194 [1986]). In the criminal context, the rule also requires corroborating evidence that provides a high probability of truthfulness if offered against the defendant and a reasonable possibility of truthfulness if offered by the defendant. (See People v Soto, 26 NY3d 455 [2015]). EXPRESS OR IMPLIED AUTHORITY: Under the speaking agent rule, the proponent can establish the declarant’s speaking authority by direct evidence of EXPRESS AUTHORITY from the principal/employer (e.g., “this is my press agent,”), or by circumstantial evidence of IMPLIED AUTHORITY which may be inferred from the broad scope of the employee/agent’s authority vis-a-vis his/her employer/principal’s operation. For example: Spett v President Monroe Building and Manufacturing Corp., 19 NY2d 203 (1963): general foreman who ran employer’s business and had complete managerial responsibility over its operations
was found to have speaking authority for the employer. (See also Stecher Lithographic Co v Inman, 175 NY 124 [1903]: employee in “full charge” of the business had authority to speak. Absent evidence of wide-ranging authority over business operations or an express grant of authority (i.e., those high up the company food chain), admissibility of statements of employees/agents under the speaking agent theory is an unlikely proposition. Now that the New York rule will be coming into line with the federal rule admitting employee/agent statements where the foundational predicate has been properly laid, then the incidence of inculpatory statements offered and received against employers will undoubtedly increase significantly, perhaps causing more cases to settle rather than to proceed to trial. The rule change will probably be more appealing to plaintiffs’ attorneys than to defense counsel in personal injury and medical malpractice cases. Its applicability to criminal cases will come into play where a corporate defendant is charged with a crime and its employee/agent has made admissions relating to the matter being prosecuted and during the scope of the relationship. (e.g., site manager of a company that is charged under Article 17 of the NYECL or the Clean Water Act with intentionally depositing toxic waste into a local waterway says something like, “we’ve been dumping that stuff in there for years.”) RELEVANCE + RELIABILITY = ADMISSIBILITY The admissibility of just about all evidence, including admissions made by a principal or his/her agent, ultimately comes down to relevance, reliability (likelihood of being true) and the absence of undue prejudice to one side or the other. Lest there be any doubt, the Rules of Evidence are generally intended to be rules of admissibility. As stated by the Court of Appeals in People v Robinson 17 NY3d 868 (2011), “the paramount purpose of all rules of evidence is to ensure that the jury will hear all pertinent, probative and reliable evidence which bears upon disputed issues.” (Citing, inter alia, People v Miller, 39 NY2d 543, 551 [1976]). Once enacted, the change in the law to include statements of employees made about relevant and material matters within the scope of their employment, and during the employment relationship (regardless of whether they also have specific authority to speak) will be in keeping with the above-stated purpose. About the Author Hon. Tim Franczyk (ret.) retired from the Erie County Court Bench in December 2017. He serves as the Deputy for Legal Education in the Assigned Counsel Program, Erie County Bar Association’s Aid To Indigent Prisoner’s Society, Inc. He is a member of the New York State Advisory Committee on Evidence and served for several years as Co-Director of the Trial Advocacy Program at University at Buffalo Law School.
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