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Can Lack of Memory Qualify A Witness as Unavailable?

August 26, 2019

Massachusetts Supreme Judicial Court Adopts New Evidentiary Rule That Lack of Memory Might Qualify A Witness as Unavailable

The Supreme Judicial Court adopted proposed Massachusetts Rules of Evidence 804(a)(3) as common law which allows a declarant (person making a statement out of court), in a civil case, to be deemed “unavailable” if they testify to lack of memory about the subject matter in question.

Plaintiff filed a medical malpractice claim against defendant who performed a hysterectomy.  After the surgery, plaintiff felt pain, numbness and tingling in her left leg and complained to the third-year medical resident who was present in the operating room.  In response, the medical student stated that during the surgery it was difficult positioning plaintiff’s leg and admitted he may have leaned against her leg during the surgery. Years later in the medical resident’s deposition, he had no recollection of the surgery or his statements.  Plaintiff signed an affidavit recounting these statements but defendants did not want them entered into evidence at trial and filed a motion in limine to exclude the statements as hearsay (out of court statements offered for the truth of the matter asserted), which the superior court granted.

Plaintiff filed a motion for reconsideration arguing these statements could come in through plaintiff’s testimony as either an exemption to the rule against hearsay made by an opponent party’s agent under Mass. G. Evid. § 801(d)(2)(D); or as statements against interest by an unavailable declarant under Mass. G. Evid. § 804(b)(3).  The Judge still denied.

Plaintiff appealed and on its own initiative, the Supreme Judicial court transferred the case from the appellate court. Certain exceptions to the rules against hearsay are conditioned on the declarant (person making the statement) being unable to testify. Under the Federal Rules of Evidence 804(a)(3), a declarant can be deemed unavailable if they testify to not remembering the subject matter.  The exceptions to hearsay indicate a preference for live testimony, but recognize that in certain circumstances, hearsay of a certain quality, is preferred over the loss of evidence. Concern over the whether the loss of memory is legitimate would be minimized by the fact that the declarant must testify to the lack of memory and allows the judge the opportunity to determine the credibility as a preliminary question of fact.  The Supreme Judicial Court joined an overwhelming majority of other states and recognized a new rule, that the declarant’s lack of memory was a means to establish unavailability.  The case was vacated and remanded to the superior court for a new trial since the statements should have been admitted as statements against interest by an unavailable witness.  Hedberg v. Wakamatsu, 482 Mass. 613, 126 N.E.3d 956 (2019)