An opposing party’s statement
(formerly known as “admission.”)
Fed. R. Evid. 801(d)(2)
1
Example
Defendant said, “I’m sorry, it was my fault. I
was fiddling with my radio instead of
looking at the road ahead.”
The statement is later offered by the plaintiff
to prove the truth of the matter asserted.
2
Statements of an opposing party
are admissible as a result of -1. satisfaction of the
requirement of
trustworthiness.
2. the adversarial
system.
76%
ad
ve
rs
ar
ia
...
th
e
sa
tis
fa
ct
io
n
o.
..
24%
3
Advisory Committee’s Note to Rule
801(d)(2):
“[T]heir admissibility in evidence is the
result of the adversary system rather than
satisfaction of the conditions of the
hearsay rule * * * * No guarantee of
trustworthiness is required in the case of
an admission.”
Casebook, p. 1094. (We’ll discuss what this means later.)
4
Often statements of a party opponent are
trustworthy because they are against
interest when made. But even if they were
not against interest when made, they are
still admissible.
Examples:
-- provenance of painting
-- “It was the truck driver’s fault”
6
The theory may be abstruse, but the rule is
short and simple. Anything a party says can
be used against him by the opposing party.
-
. . . so far as the hearsay rule is concerned.
9
A
A
co
nf
es
si
on
b.
..
co
nc
es
si
on
b.
..
A
st
at
em
en
t
b.
M
..
or
e
th
an
on
e
...
In order to qualify as an “opposing party’s
statement” under Rule 801(d)(2), the declarant’s
statement must be
1.
- A confession by a
party opponent
2. A concession by a
67%
party opponent
3. A statement by a
33%
party opponent
4. More than one of the
0% 0%
above.
10
Restyled rule 801(d)(2)(A)
A statement that meets the following
conditions is not hearsay . . .
(2) An Opposing Party's Statement. The
statement is offered against an opposing
party and:
(A) was made by the party in an
individual or representative capacity
11
Revisiting the Advisory Committee’s note
to Rule 801(d)(2):
“[T]heir admissibility in evidence is the
result of the adversary system rather than
satisfaction of the conditions of the
hearsay rule.”
What does that mean?
Casebook, p. 1178. (continued next slide)
12
By saying there is no “satisfaction of the
conditions of the hearsay rule,” the
Advisory Committee means that the
trustworthiness condition is not satisfied.
(continued next slide)
13
Receiving statements of a party opponent can be justified
as a “result of the adversary system” because . . .
.
ab
o.
..
...
w
Al
l
of
t
he
s
dv
er
sa
rie
A
co
nc
er
n
th
...
10% 10%
cl
ai
...
4.
19%
Th
e
3.
61%
ca
n’
t
2.
You can’t claim it’s unfair that
you didn’t get to cross-examine
yourself.
The concern that proponents
might manufacture hearsay to
avoid cross-examination of their
witnesses is not present here.
Adversaries would feel that
they were unfairly treated if they
couldn’t use their opponent’s
statements.
All of the above.
Yo
u
1.
14
The statement of a party opponent is --
21%
e.
..
b.
..
12%
sa
y
ot
he
ar
N
N
ot
he
ar
sa
y
...
3.
68%
ea
rs
ay
,b
ut
2.
Hearsay, but
admissible under an
exception
Not hearsay even if
offered to prove its
truth.
Not hearsay because it
is not being offered to
prove its truth.
H
1.
16
The reason that the Advisory Committee decided to
classify statements by opposing parties as not hearsay,
instead of classifying them as hearsay falling under an
exception, is that--
81%
Su
ch
st
at
em
en
t..
b.
..
.
19%
en
ts
2.
statements by
opposing parties are not
trustworthy enough to
qualify as a hearsay
exception.
Such statements are
more trustworthy than
are statements falling
under the hearsay
exceptions.
st
at
em
1.
17
Reed v. McCord, p. 250
Court of Appeals of New York, 1899
What argument did the opponent make against
admitting the evidence?
How did the court rule?
18
The Reed court stated that the rationale for receiving
admissions is that it is improbable a person will make a
statement against interest unless it is true. Is this the
rationale for admitting statements of an opposing party
under Fed. R. Evid. 801(d)(2)(A)?
69%
No
31%
Ye
s
1. Yes
2. No
19
Under the federal rules, are statements by the
opposing party received even when the declarant
had no personal knowledge?
93%
Yes.
No
No
7%
Ye
s.
1.
2.
20
Yes, they are.
See Advisory Committee Note, pp. 1178:
“The freedom which admissions have enjoyed from
technical demands of searching for an assurance of
trustworthiness . . ., and from the restrictive influences of
the opinion rule and the rule requiring firsthand
knowledge, when taken with the apparently prevalent
satisfaction with the results, calls for generous treatment
of this avenue to admissibility.”
See also Mahlandt, p. 260.
21
United States v. Hoosier, p. 252
United States Court of Appeals for the 6th Circuit, 1976
Defendant’s girlfriend said:
“That ain’t nothing, you should have seen the money we
had in the hotel room . . . . [We had] sacks of money.”
Why was her statement admissible?
22
Suppose that defendant had not heard his
girlfriend’s statement. Would it still have been
admissible?
74%
1. Yes.
2. No.
No
.
Ye
s.
26%
23
Suppose there’s a factual dispute about whether
the defendant heard the girlfriend’s statement. The
judge would decide that issue of fact in ruling on
the hearsay objection.
81%
1. True
False
Fa
ls
e
19%
Tr
ue
2.
24
In the following examples, the out of court statement is offered against
a party opponent who heard or read the statement and made no
response. Pick the statement, if any, that ought to be received in
evidence as being adopted by the opposing party.
Pr
es
id
No
e.
ne
..
of
th
e
ab
...
th
e
As
an
gr
y
tru
ck
...
0%
tg
ot
...
..
5%
An
5.
14%
De
fe
nd
an
4.
33%
ed
di
ng
,.
3.
48%
w
2.
At a wedding, someone
makes scurrilous comments
while toasting the bride.
Defendant got a postal notice
saying she owed a debt. She
did not answer.
An angry truck driver
accuses a timid motorist of
stopping suddenly.
As the President is entering
his limo, someone shouts an
accusation at him
None of the above.
At
a
1.
25
Test for adoption by silence
“Adoption or acquiescence may be manifested in
any appropriate manner. When silence is relied
upon, the theory is that the person would, under
the circumstances, protest the statement made
in his presence, if untrue.” -- Adv. Comm. Note
to FRE 801(d)(2)(B), quoted in Hoosier case.
26
State v. Carlson, p. 255
Supreme Court of Oregon, en banc, 1991
D’s wife yelled at him, “you liar, you got them from shooting
up in the bedroom with all your stupid friends!”
27
In Carlson, the court held that the question whether the
defendant’s head-shake signified his adoption of the wife’s
statement was --
90%
A
qu
es
t
io
n
of
...
10%
pr
el
im
in
ar
...
2.
a preliminary question of fact for
the judge to decide. The judge
should exclude her statement
unless persuaded that defendant
intended to adopt it.
A question of conditional
relevancy, so that her statement
and his reaction are admissible
when there is evidence
sufficient to support a finding that
he intended to adopt her
statement.
a
1.
28
Rule 104(a) standard: the proponent must
persuade the judge that the foundation
fact is true by a preponderance of the
evidence.
Rule 104(b) standard: the proponent need
only provide the judge with evidence
sufficient to support a finding that the
foundation fact is true.
29
As a matter of policy, is it a good idea to treat the
question whether the defendant in Carlson
intended to adopt the statement as a 104(a)
question?
93%
No.
7%
o.
2.
N
Yes.
Ye
s.
1.
30
Mahlandt v. Wild Canid S & R Ctr., p. 260
8th Cir., 1978
One of the challenged statements was Mr.
Poos’s note saying “Sophie bit a child
that came into our yard.”
31
Was Mr. Poos’s statement admissible
against the company?
90%
o
10%
N
Yes
No
Ye
s
1.
2.
32
Suppose that you’re arguing the case and you want to have Mr. Poos’s
note admitted. The opponent argues that the note should be excluded
under Rule 403 because, in the absence of personal knowledge, it is
prejudicial and a waste of time. A good counterargument would be --
25%
of
pe
...
la
ck
ha
ve
di
d
He
Hi
s
.
pe
...
0%
ak
er
..
3.
75%
ru
le
m
2.
The rulemakers faced this
issue and decided not to
require personal knowledge.
He did have personal
knowledge.
His lack of personal
knowledge does not affect
probative value.
Th
e
1.
35
Mahlandt, p. 263:
“There is left only the question of whether the trial judge’s
rulings . . . are justified under Rule 403. He clearly found
that the evidence was not reliable, pointing out that none
of the statements were based on the personal
knowledge of the declarant. . . .“[T]hat problem was
faced by the Advisory Committee . . . .”
[The court then quoted the Advisory Committee Note on
the freedom that the admissions rule has enjoyed from
the rule requiring first hand knowledge.]
36
Suppose that the security guard employed by the company
back at headquarters had written the note about Sophie
biting the child. Would the note have been admissible?
No
62%
38%
o
2.
N
Yes
Ye
s
1.
37
Was the statement by the company’s Board of
Directors admissible against Mr. Poos?
Yes
No
71%
N
o
29%
Ye
s
1.
2.
38
The end
(Optional hypos follow)
39
An admission within an admission is
admissible.
Example: Worker repeats what boss said,
when both are agents acting within the
scope of employment.
40
Plaintiff offers evidence that a temporary worker hired by
an airline to clean up debris after an airline disaster said
that he heard the airline’s investigators say that the disaster
was due to pilot error. Objection, hearsay.
56%
O
ve
rr
ul
e
44%
Su
st
ai
n
1. Sustain
2. Overrule
41
The police questioned the accused through an interpreter.
A police officer testifies that the interpreter said that the
suspect said that he cut his hand while fixing his car. This
statement is offered against the accused at trial. Objection,
hearsay.
1. Overrule
2. Sustain
42
• The End
•
[Barry Bonds video]
43
The Bonds case raised a debatable legal
issue about whether ____ was admissible
as the statement of a party’s agent.
0%
ta
t..
.
la
b’
ss
in
er
’s
Th
e
tra
m
’s
st
at
e
Bo
nd
0%
...
e.
..
0%
Th
e
1. Bond’s statement
2. The trainer’s
statement
3. The lab’s
statement
44