PRINT PAGEWhat’s in a Name?

Written by Roy Black

Labels can be misleading. When Juliet says the Montague name isn’t important to her, she means what matters is what something is, not what it is called. In more modern times, we slap labels on politicians — left-winger, conservative, liberal, reactionary — in order to distort and deliberately oversimplify each other’s beliefs.

One of my basic tenets is that one must look past the label of the rule or principle to the reason behind it. Until one can do that, one will never be able to fully comprehend its purpose and utility. Just because something has “always” been interpreted or done one way, that is no reason not to consider another perhaps better way to do it. Until one grasps the reason for the rule, one can’t improvise a new interpretation. The person who knows how will always have a job; the person who knows why will always be his boss.

And so it is with the non-hearsay admissions rule.

In our last class, we were working on a hearsay issue. The prosecution was seeking into evidence a question asked by the third party passenger in the car. The defendant objected as hearsay. The prosecution responded that the question was non-hearsay because it elicited an admission by a party opponent from the defendant. I admitted both utterances as non-hearsay.

After class a student asked a good question. How could the defendant’s response be an admission because it was not on its face incriminating or damaging to the defendant? Confusion reigns in this situation because the word “admission” in the title to the rule is a misnomer. The rule itself uses the word “statement,” which is more accurate. Here is the rule:

FRE 801(d)(2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

Rule 801(d)(2) defines admissions as non-hearsay while under the common law, an admission was characterized as an exception to the hearsay rule. The rule recognizes five types of party admissions: (1) individual admissions, (2) adoptive admissions, (3) authorized admissions, (4) agent admissions, and (5) coconspirator admissions. An individual admission is any statement made by a party at any time that is (1) relevant and (2) offered by the opposing party — e.g., guilty pleas, confessions, deposition testimony, or even off-hand statements to friends.

The rule affords the lawyer the widest leeway in using the admissions or statements of a party opponent. The rule is so broad that calling it an admission is inaccurate. It should be re-named “statements by a party opponent.”  There is a common misperception that Admissions by a Party Opponent need to meet a preliminary showing that the statement is against the interest of the party. There is no such requirement. Party admissions are often confused with the hearsay exception relating to declarations against interest, FRE 804(b)(3). As I have said, there is no requirement that the statement of the party be incriminating, inculpatory or inconsistent with his case. Any statement made by the party is admissible when offered by his opponent.  If the party complains he didn’t make the statement, he is in the courtroom and can assume the witness stand to refute it.

The only legitimate objections that can be made is that the statement does not meet the relevance standard under FRE 401, as it does not make the existence of any fact of consequence to the determination of the action more or less probable and possibly the unfair prejudice rung of Rule 403.

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