Learning Outcomes
This article details the rules governing statements attributable to a party-opponent under the Federal Rules of Evidence. You will learn how these statements, often referred to as "admissions," are treated as non-hearsay and the specific conditions under which different types of statements (made by the party, adopted by the party, or made by others connected to the party) are admissible against that party in court. Upon completion, you will be able to identify and analyze party-opponent statements in MBE fact patterns and determine their admissibility. Strictly 85 words.
MBE Syllabus
For the MBE, you are required to understand which statements offered against a party are excluded from the definition of hearsay under FRE 801(d)(2). This involves analyzing the relationship between the declarant and the party against whom the statement is offered. You should be prepared to:
- Distinguish party-opponent statements (non-hearsay) from hearsay exceptions (like statements against interest).
- Identify the requirements for admitting a party's own statement.
- Analyze when a party has adopted another's statement (including by silence).
- Determine if a statement was made by a person authorized by the party to speak.
- Assess the admissibility of statements made by a party's agent or employee.
- Apply the rules for admitting statements made by a co-conspirator.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following statements, offered against Defendant Dan in his criminal trial, would be classified as non-hearsay under FRE 801(d)(2)?
- Testimony from Witness Wendy that Dan's friend Fred told her, "Dan confessed everything to me."
- A written statement signed by Dan admitting he was at the scene of the crime.
- Testimony from Police Officer Paula that Dan's co-defendant Carl, while being interrogated, said, "Dan was the orchestrator."
- A business record prepared by Dan's employee detailing routine inventory, offered by Dan himself.
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Plaintiff Pam sues Driver Dave for injuries from a car accident. At trial, Pam offers testimony from Witness Will that immediately after the accident, Will heard Bystander Betty shout, "Wow, Dave just ran that red light!" Dave remained silent. Under what theory might Betty's statement be admissible against Dave as non-hearsay?
- As an excited utterance.
- As a statement against interest made by Betty.
- As an adoptive statement by Dave.
- It is inadmissible hearsay.
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To be admissible against a party as a statement by that party's agent under FRE 801(d)(2)(D), the statement must have been made:
- With the specific authorization of the party-principal.
- While the agent was under oath.
- During the existence of the agency relationship and concerning a matter within the scope of that relationship.
- Against the agent's own interest at the time it was made.
Introduction
Under the Federal Rules of Evidence, certain statements that might appear to meet the definition of hearsay (an out-of-court statement offered to prove the truth of the matter asserted) are specifically defined as non-hearsay if they meet particular criteria. One significant category involves statements attributable to a party-opponent, codified in FRE 801(d)(2). These statements are admissible against a party because that party, against whom the statement is offered, cannot complain about the inability to cross-examine the declarant when the declarant is the party herself or someone sufficiently aligned with the party.
Unlike hearsay exceptions found in FRE 803 and 804, statements admissible under FRE 801(d)(2) do not require specific guarantees of trustworthiness. Their admissibility stems from the adversarial nature of litigation – a party's own words (or words attributable to the party) can fairly be used against them. This article outlines the five types of statements admissible against an opposing party under this rule.
Statement Must Be Offered Against an Opposing Party
Crucially, for any statement to qualify under FRE 801(d)(2), it must be offered against an opposing party. A party cannot introduce their own prior out-of-court statements under this rule, although such statements might be admissible under other rules (e.g., as a prior consistent statement for rehabilitation).
Types of Party-Opponent Statements
FRE 801(d)(2) categorizes five types of statements attributable to an opposing party.
1. The Party's Own Statement
A statement made by the party in an individual or representative capacity is admissible against that party. [FRE 801(d)(2)(A)] This is the most straightforward application of the rule.
- Personal Knowledge Not Required: The party need not have had personal knowledge of the facts stated.
- Against Interest Not Required: The statement need not have been against the party's interest at the time it was made.
- Opinion Rule: The statement may be in the form of an opinion.
- Formal Admissions: This includes formal judicial admissions (e.g., statements in pleadings, stipulations) which are generally conclusive, and informal judicial admissions (e.g., testimony from another proceeding) which can be explained. Extrajudicial statements (made outside of court) are also admissible.
2. Adoptive Statements
A statement of which the party has manifested an adoption or belief in its truth is admissible against that party. [FRE 801(d)(2)(B)]
Key Term: Adoptive Statement A statement made by someone else that a party expressly or implicitly accepts or treats as their own assertion.
- Express Adoption: Occurs when a party explicitly agrees with or endorses another's statement (e.g., "Yes, what she said is true.")
- Implied Adoption (Including Silence): Adoption can be implied by conduct. Silence in the face of an accusatory statement can constitute an adoptive statement if:
- The party heard and understood the statement;
- The party was physically and mentally capable of denying the statement; and
- A reasonable person in the party's position would have denied the statement if it were untrue.
- Caution with Silence: Silence in the face of accusations from law enforcement during custodial interrogation after Miranda warnings is generally inadmissible due to the privilege against self-incrimination.
Worked Example 1.1
During police questioning after receiving Miranda warnings, Detective asks Suspect, "Your friend told us you drove the getaway car." Suspect remains silent. At trial, can the prosecution introduce Suspect's silence as an adoptive statement admitting he drove the car?
Answer: No. A suspect's silence after receiving Miranda warnings cannot typically be used as an adoptive statement. The warnings implicitly assure the suspect that silence will not be penalized. Using post-arrest, post-Miranda silence against the defendant would violate the Due Process Clause.
3. Authorized Statements
A statement by a person whom the party authorized to make a statement concerning the subject is admissible against the party. [FRE 801(d)(2)(C)]
Key Term: Authorized Statement A statement made by a person specifically empowered by a party to speak on a particular subject on that party's behalf.
This applies to persons explicitly or implicitly authorized to speak for the party, such as attorneys, partners (regarding partnership business), or designated spokespersons.
4. Agent or Employee Statements
A statement by the party's agent or employee on a matter within the scope of that relationship and made during the existence of the relationship is admissible against the party. [FRE 801(d)(2)(D)]
Key Term: Agent/Employee Statement A statement made by a party's agent or employee concerning matters within their agency/employment scope, made while the relationship existed.
- Scope Requirement: The statement must concern matters within the scope of the agency or employment.
- Timing Requirement: The statement must have been made during the agency or employment relationship. Statements made after the relationship terminates are not admissible under this rule.
- Authorization Not Required: Unlike authorized statements (subsection 3), the agent/employee need not be specifically authorized to speak; it is enough that their statement concerns matters within the scope of their duties.
Worked Example 1.2
Truck Driver, employed by Delivery Corp, has an accident while making a delivery. Immediately after, Driver tells Bystander, "My brakes failed; I told the company they needed fixing last week!" Delivery Corp fires Driver the next day. Two weeks later, Driver tells Plaintiff (injured in the accident), "Yeah, the company knew those brakes were bad." Can Plaintiff introduce both of Driver's statements against Delivery Corp in a suit against the Corp?
Answer: The first statement ("My brakes failed...") is likely admissible against Delivery Corp under FRE 801(d)(2)(D). Driver was an employee, the statement concerned the condition of the truck (within the scope of his employment), and it was made during the employment relationship. The second statement ("Yeah, the company knew...") is likely inadmissible under this rule because it was made after Driver was fired, thus not during the agency/employment relationship.
5. Co-conspirator Statements
A statement by a party's co-conspirator during and in furtherance of the conspiracy is admissible against the party. [FRE 801(d)(2)(E)]
Key Term: Co-conspirator Statement An out-of-court statement made by one member of a conspiracy, during its course, and to advance its goals, offered against another member of the conspiracy.
- Existence of Conspiracy: The court must find, by a preponderance of the evidence (considering the statement itself but not relying solely on it), that a conspiracy existed involving the declarant and the party against whom the statement is offered.
- During the Conspiracy: The statement must have been made while the conspiracy was ongoing. Statements made after the conspiracy's objectives have been achieved or abandoned (e.g., during post-arrest interrogation) are generally not admissible under this rule.
- In Furtherance Requirement: The statement must have been made to advance the objectives of the conspiracy (e.g., recruiting members, planning, concealing activities). Mere narrative declarations or "idle chatter" among conspirators usually do not qualify.
Exam Warning
Do not confuse statements attributable to a party-opponent (FRE 801(d)(2), non-hearsay) with the hearsay exception for Statements Against Interest (FRE 804(b)(3)). Party-opponent statements need not be against the party's interest when made and the declarant need not be unavailable. Statements against interest require unavailability and must have been against the declarant's interest when made.
Summary
Statements offered against an opposing party, if made or adopted by that party, or made by someone authorized to speak for them, their agent/employee (within scope, during relationship), or their co-conspirator (during and in furtherance), are defined as non-hearsay under FRE 801(d)(2). These statements are admissible as substantive evidence against that party without needing independent guarantees of trustworthiness or a showing of the declarant's unavailability (except for the declarant's participation in the relevant relationship or conspiracy). Careful analysis of the relationship between the declarant and the party, and the context of the statement, is essential for MBE questions.
Key Point Checklist
This article has covered the following key knowledge points:
- Statements attributable to a party-opponent are classified as non-hearsay under FRE 801(d)(2).
- The statement must be offered against the opposing party.
- A party's own statement (individual or representative) is admissible against them.
- Statements adopted (expressly or impliedly, including by silence under specific conditions) by a party are admissible against them.
- Statements by authorized speakers are admissible against the party.
- Statements by agents/employees concerning matters within the scope of the relationship and made during the relationship are admissible against the party-principal.
- Statements by co-conspirators made during and in furtherance of the conspiracy are admissible against fellow conspirators.
- Unlike many hearsay exceptions, unavailability of the declarant is not required.
- Unlike Statements Against Interest (FRE 804(b)(3)), these statements need not have been against interest when made.
Key Terms and Concepts
- Adoptive Statement
- Authorized Statement
- Agent/Employee Statement
- Co-conspirator Statement
