There's Always Two Sides To Every Story ' Obtaining Information From Concurrent Criminal Proceedings

• Published date: 20 August 2021
• Subject Matter: Insurance, Litigation, Mediation & Arbitration, Criminal Law, Insurance Laws and Products, Trials & Appeals & Compensation, Personal Injury, Crime
• Law Firm: Drew Eckl & Farnham, LLP
• Author: Mr Nirav Patel

A subsegment of workers compensation claims are death claims resulting from criminal actions against an employee resulting in his or her alleged death in the course of employment. As with general death claims, the initial threshold requirement and analysis is that the accident must occur in the course of and arise out of the claimant's employment in order to be compensable. When the accident arises out of purely personal reasons, it is not compensable. O.C.G.A. ' 34-9-1(4)("'Injury' and 'personal injury' shall not include injury caused by the willful act of a third person directed against an employee for reasons personal to such employee"). On the other hand, the fact that the injury is the result of the criminal assault of a third person does not prevent the injury from being accidental within the meaning of Act. Hartford Accident & Indem. Co. v. Cox, 101 Ga. App. 789, 115 S.E.2d 452 (1960).

However, when a criminal assault or other such actions are involved there is often a concurrent criminal proceeding in which the alleged assailant, who caused the employee's death, is on trial as a "Defendant." These criminal proceeds are often lengthy and can proceed alongside the workers compensation claim involving the same facts. They may also provide necessary and significant evidence, including testimony and/or documentation which may be helpful for the Employer/Insurer in defending against the pending workers compensation claim. For instance, transcripts from the initial indictment hearing or subsequent motions hearings may include the Defendant's testimony concerning the death of the employee. Unfortunately, attempts to depose the Defendant or have him appear at the hearing during the pending criminal proceeding may prove unfruitful as the Defendant would likely plead his Fifth Amendment Right against self-incrimination due to the high potential for self-incrimination. Thus, mandating the introduction of the prior testimony.

To introduce the Defendant's prior testimony into the Workers Compensation claim, the Employer/Insurer will need to overcome the hearsay exception, based on the unavailability of the testifying witness under O.C.G.A. ' 24-8-804. If there is a transcript of the Defendant's prior testimony, the Employer/Insurer first course of action to resolve this issue would be to request that opposing counsel stipulate to the authenticity and admissibility of the transcript, which may be highly unlikely.

Fortunately, courts have established the basic requirement for admitting testimony of a witness given "at another hearing of the same or a different proceeding" requires: (1) the declarant be unavailable; (2) the testimony be given "at another hearing of the same or a different proceeding"; and (3) "the party against whom the testimony is now offered ... ha[ve] an opportunity and similar motive to develop the testimony by direct, cross or redirect examination." See Dukes v. City of New York, 879 F. Supp. 335, 343 (S.D. N.Y. 1995). See Martin v. State, 284 Ga. 504.

Unavailability of the Witness

"Unavailability" is defined in O.C.G.A. ' 24-8-804(a) as a situation in which the declarant:

(1) Is exempted by ruling of the court on the ground of...