Consumer Complaint Emails Admissible under Residual Exception to the Hearsay Rule — Meaning of a “Competent” Witness

From State of Conn. v. Sunrise Herbal Remedies, Inc., 296 Conn. 556, 2010 Conn. LEXIS 196 (Conn. Sup. Ct. 2010):

The plaintiff, the state of Connecticut, appeals from the decision of the trial court granting the motions of the defendants, Valerie Hawk-Hoffman and David Hoffman, to dissolve prejudgment attachments originally filed against their property on which the intervening defendant Wachovia Bank, N.A. (Wachovia), had held a mortgage. The state claims that the trial court improperly concluded that it lacked subject matter jurisdiction over the applications for those attachments because the applications had not complied with the requirements of General Statutes § 52-278e(a). Specifically, the state claims that the trial court improperly concluded that the applications for the prejudgment attachments were invalid because they had not been accompanied by affidavits from a "competent affiant" as required under § 52-278e (a). We agree with the state, and, accordingly, we reverse the decision of the trial court. ***

"Competent affiant" is a legal term of art, and, because there is no legislative indication to the contrary, the term is presumed to carry its legal meaning in the context of the statute. *** An "affidavit" is defined as "[a] voluntary declaration of facts written down and sworn to by a declarant before an officer authorized to administer oaths" and an "affiant" is "[o]ne who makes an affidavit." Black's Law Dictionary (9th Ed. 2009). "Generally, affidavits must be made on the affiant's personal knowledge of the facts alleged in the petition. The affidavit must in some way show that the affiant is personally familiar with the facts so that he could personally testify as a witness." 3 Am. Jur. 2d 397, Affidavits § 14 (2002). Black's Law Dictionary (9th Ed. 2009) defines "competence" as "[a] basic or minimal ability to do something; qualification, esp. to testify." See also Blue Cross & Blue Shield of Connecticut, Inc. v. Mike, 184 Conn. 352, 354, 439 A.2d 1026 (1981) ("The word 'competent' has a number of meanings. One of the definitions is 'legally qualified'; Webster, Third New International Dictionary; or stated another way 'possessing the requisite . . . legal qualifications.' Black's Law Dictionary [5th Ed. 1979]."). These sources indicate that competence denotes a threshold level of basic capacity and ability.

In determining the competence of a witness, it is well established that "[a] person who has no personal knowledge concerning facts about which he or she is asked to testify is not competent to testify about these facts." C. Tait &E. Prescott, Connecticut Evidence (4th Ed. 2008) § 6.4, p. 301; see also 1 C. McCormick, Evidence(6th Ed. 2006) § 10, p. 47 ("[T]he law prefers that a witness testify to facts, based on personal knowledge, rather than opinions inferred from such facts. One of the earliest and most pervasive manifestations of the common law insistence is the rule requiring that a witness testifying about a fact which can be perceived by the senses must have had an opportunity to observe, and must have actually observed the fact."). "A distinction should be drawn [however] between a witness who has no personal knowledge and one who has only hearsay knowledge. A person who has no personal knowledge about the subject matter of his or her testimony, i.e., the person is guessing or speculating, is an incompetent witness as to that matter. A witness who is testifying to information that is not admissible in evidence, such as inadmissible hearsay or privileged evidence, is a competent witness as to that matter because he or she has some personal information, but the evidence is inadmissible because the evidence is incompetent." C. Tait & E. Prescott, supra, § 6.4, p. 301. These sources indicate that the touchstone of competence is personal knowledge. "Personal knowledge" is variously described as knowledge acquired firsthand or from observation. See Black's Law Dictionary (9th Ed. 2009); 1 C. McCormick, supra, § 10, p. 47. Black's Law Dictionary (9th Ed. 2009)defines "personal knowledge" as "[k]nowledge gained through firsthand observation or experience, as distinguished from a belief based on what someone else has said." See also Ballentine's Law Dictionary (3d Ed. 1969) ("[P]ersonal knowledge" is defined as: "One's own knowledge. With more accuracy, knowledge derived from the exercise of one's own senses. . . . A person's direct knowledge of anything, as distinguished from that which he learns by hearsay." [Citation omitted.]).

Accordingly, the rule that a witness must testify from personal knowledge requires "that a witness testifying about a fact which can be perceived by the senses must have had an opportunity to observe, and must have actually observed that fact." 1 C. McCormick, supra, § 10, p. 47. As the Second Circuit Court of Appeals has explained: "When A testifies that B told him of an event, A usually has personal knowledge only of B's report. It is B who has personal knowledge of the event."(Emphasis added.) United States v. Stratton, 779 F.2d 820, 829 (2d Cir. 1985), cert. denied, 476 U.S. 1162, 106 S. Ct. 2285, 90 L. Ed. 2d 726 (1986). ***

[Footnote 17] It is true that the requirements that a witness or affiant have personal knowledge and the bar against such an individual testifying about hearsay are related concepts, but *** the determination of whether an affiant is competent is distinct and independent from the determination of whether evidence is hearsay. See C. Tait & E. Prescott, supra, § 6.4, p. 301. Accordingly, our conclusion in part I of this opinion has no bearing on whether the affidavits contain hearsay. We also note that it is not clear whether the trial court would conclude that much of the purported hearsay, such as the contents of the consumer complaints, is inadmissible. Compare Federal Trade Commission v. Figgie International, Inc., 994 F.2d 595, 608 (9th Cir. 1993) (consumer complaint letters admissible under residual exception to hearsay rule); Federal Trade Commission v. Magazine Solutions, LLC, United States District Court, Civ. No. 7-692, 2009 U.S. Dist. LEXIS 20629 **4-7 (W.D. Pa. March 16, 2009) (consumer complaints admissible under residual exception to hearsay rule); Federal Trade Commission v. Cyberspace.com, LLC, United States District Court, Civ. No. 00-1806L, 2002 U.S. Dist. LEXIS 25565 *13 (W.D. Wash. July 10, 2002) (consumer e-mails and letters of complaint admissible under residual exception to hearsay rule) with Iams Co. v. Nutro Products, Inc., United States District Court Civ. No. C-3-00-566, 2004 U.S. Dist. LEXIS 15129 *15 (S.D. Ohio July 26, 2004) (mystery shopper reports not admissible under residual exception to hearsay rule because insufficient circumstantial guarantees of trustworthiness).

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