Transcript HEARSAY EXCEPTIONS: ADMISSIONS

HEARSAY EXCEPTIONS:
ADMISSIONS
STATEMENT OF A PARTY
FRE 801(d)(2)(A)
&
Evid. Code sec. 122O
Statement Of A Party
FRE 801(d)(2)(A)
Non Hearsay if:
 The statement is offered against a
party;
 The statement is the party’s own
statement,
 Individual or Representative Capacity
Statement Of A Party (cont.)
Evid. Code sec. 1220
Not inadmissible by the Hearsay Rule if:
 The statement is offered against the
declarant,
 In an action where the declarant is a
party
 Individual or Representative Capacity
Statement Of A Party (cont.)
STATEMENT OF A PARTY CAN BE ORAL:






Words uttered to a witness
Casual conversation
Boasting
Emotional outburst
Formal statement or speech
Prior testimony
Statement Of A Party (cont.)
PARTY STATEMENT CAN BE IN WRITING:
 letters
 diary entry
 notes
 formal written document (affidavit)
 Memorandum
 Published work (book, article, op-ed)
Statement Of A Party (cont.)
PARTY STATEMENT CAN BE IN WRITING:
 e-mail
 text message
 facebook
 twitter
 you-tube
Statement Of A Party (cont.)
STATEMENT NEED NOT BE AN ADMISSION:




must be a statement by a party
offered by adverse party
can be neutral statement
can be self-serving to declarant
*Discuss Examples
Statement Of A Party (cont.)
STATEMENT NEED NOT BE AN ADMISSION:

INSTEAD ---
STATEMENT MUST BE DISSERVING AT THE
TIME IT IS OFFERED BY OPPONENT
ADOPTIVE ADMISSION
FRE 801(d)(2)(B)
&
Evid. Code sec. 1221
ADOPTIVE ADMISSION (cont.)
FRE 801(d)(2)(B) -- Non Hearsay if:


The statement is offered against a
party;
The party has manifested an adoption
in the belief or truth of statement
ADOPTIVE ADMISSION (cont.)
Evid. Code sec. 1221 -- Not inadmissible by
the Hearsay Rule if:

The statement is offered against the
party,

The party has knowledge of the
content of the statement, and

By words or conduct

Manifests an adoption or belief in its
truth
ADOPTIVE ADMISSION (cont.)
WORDS:


“Its true; true story; that’s right …” etc
Victim: “He hit me.”
Declarant: “She had it coming” or
“He hit me first.”
ADOPTIVE ADMISSION (cont.)
WRITINGS:
Police statements – police officer writes it
and declarant signs it
Insurance claim forms – someone else
writes it and declarant signs it
ADOPTIVE ADMISSION (cont.)
CONDUCT:


Harpo Marx
Submitting IRS filing, loan application, etc
(that someone else wrote)
ADOPTIVE ADMISSION (cont.)
SILENCE:


DV victim example (victim and defendant contacted by
police – she is beaten up and crying – she is saying “why
did you do this to me” -- he stands mute)
3 car salesmen talking: 1 says to 2 “3 is the best I’ve
ever seen, did you see the way he conned that customer
into buying those useless warranties”; 3 does not deny
or correct 1’s statement.
ADOPTIVE ADMISSION (cont.)

Re silence in the face of an accusation,

What arguments can be made if:


Silence is in the presence of a police officer or
government official?
Silence is in a social situation not directly related to
the speaker’s statement?
ADOPTIVE ADMISSION (cont.)
NOTE:
The accusatory statement is not admitted
for its truth, but only to supply meaning to
the silence or conduct of the party in the
face of it
ADOPTIVE ADMISSION (cont.)
NOTE:
Once the party has adopted the statements
of another, the statements become the
party’s own admissions
ADOPTIVE ADMISSION (cont.)
NOTE:
With adoptive admissions, the operative
facts occur after the statement
With authorized admissions, the operative
facts precede the statement
AUTHORIZED ADMISSIONS
FRE 801(d)(2)(C)
&
Evid. Code sec. 1222
AUTHORIZED ADMISSIONS
(cont.)





FRE 801(d)(2)(C)
Non Hearsay if:
The statement is offered against a
party;
The statement is made by a person
authorized by the party
To make a statement concerning the
subject
AUTHORIZED ADMISSIONS
(cont.)






Evid. Code sec. 1222
Not inadmissible by the Hearsay Rule if:
The statement is offered against the party,
Subsection (a):
The statement is made by a person authorized
by the party
To make a statement concerning the subject
AUTHORIZED ADMISSIONS
(cont.)
Evid. Code 1222, subsection (b):
 Offered after evidence sufficient to prove
authorization, or
 Subject to such proof
AUTHORIZED ADMISSIONS
(cont.)
Evid. Code 1222:
 Only applies if party has authorized the speaker to make
statements on that subject matter
 It is not enough to show that the statement related to
the scope of the speakers employment with the party
 In Cal. it is interpreted to be ltd. to high-ranking
organizational agents who have actual authority to speak
for the organization (Thompson v. City of L.A. (2006)
142 Cal.App.4th 154, 169.)
 In this way the rule is narrower than FRE 801(d)(2(D)
AUTHORIZED ADMISSIONS
(cont.)
Evid. Code 1222:
 The determination of whether the speaker
has authority to speak for the party is
made on the specific facts and
circumstances of the case in light of the
substantive law of agency (O’Mary v.
Mitsubishi Electronics America, Inc. (1997)
59 Cal.App.4th 563, 570; see also
comment to Evid.Code § 1222.)
AUTHORIZED ADMISSIONS
(cont.)
Evid. Code 1222:
 Hiring an expert does not make the
opinions of the expert authorized
admissions
 Statements made after the termination of
the employment relationship are
inadmissible as authorized admissions
under this section
OTHER VICARIOUS
ADMISSIONS
FRE 801(d)(2)(D)
&
Evid. Code sec. 1224-1227
OTHER VICARIOUS ADMISSIONS
(cont.)
FRE 801(d)(2)(D) Non Hearsay if:

The statement is offered against a
party;
The statement is made by the party’s

Concerning a matter within the scope of


agent or servant
the agency or employment
During the existence of the relationship
OTHER VICARIOUS ADMISSIONS
(cont.)
FRE 801(d)(2)(C) & (D) (authorized and
agent or employee admissions)
The contents of the statements may be
used, but are not alone enough, to
establish the declarant’s authority under
(C) or to establish the agency or
employment relationship under (D)
OTHER VICARIOUS ADMISSIONS
(cont.)
Additional Evid. Code Hearsay exceptions



Overlap with sec. 1222 (Authorized admissions)
Several other exceptions for admissions
attributed to the party
Each is offered against a party
OTHER VICARIOUS ADMISSIONS
(cont.)



Sec. 1224 – statement of a declarant
whose liability or breach of duty is in issue
Example: painter hired by party injures
guest – guest sues party
painter’s statement to guest at time of
injury (“I’m sorry, how careless of me!”)
is attributed against party
OTHER VICARIOUS ADMISSIONS
(cont.)


Sec. 1225 – statement of a declarant
whose right or title is in issue
Example: painter sells land to party –
guest makes claim on title as a result of
promises made by painter – party sues
guest to clear title – painter’s statement to
guest at time of promises is attributed
against party
OTHER VICARIOUS ADMISSIONS
(cont.)



Sec. 1226 – statement of minor child in
parent’s action for injury to child
Example: painter hired by party injures
guest’s child – guest, on behalf of child,
sues party
child’s statement to painter at time of
injury (“sorry mister, I was running too
fast”) is attributed against guest
OTHER VICARIOUS ADMISSIONS
(cont.)



Sec. 1227 – statement of a declarant in
action for wrongful death
Example: painter hired by party injures
guest – guest dies – survivors sue party
guest’s statement to painter at time of
injury (“no, no, you weren’t careless, I
was distracted and should have seen
you”) is attributed against survivor
CO-CONSPIRATOR’S
STATEMENTS
FRE 801(d)(2)(E)
&
Evid. Code sec. 1223
CO-CONSPIRATOR’S
STATEMENTS (cont.)






FRE 801(d)(2)(E)
Non Hearsay if:
The statement is offered against a
party;
The statement is made by a
coconspirator
During the course of the conspiracy
And in furtherance of the conspiracy
CO-CONSPIRATOR’S
STATEMENTS (cont.)








Evid. Code sec. 1223
Not inadmissible by the Hearsay Rule if:
The statement is offered against the party,
The statement was made by declarant while
participating
In a conspiracy to commit a crime or civil wrong
And in furtherance of the objective of that
conspiracy
The statement was made prior to or during
the time that the party was
participating in the conspiracy
CO-CONSPIRATOR’S
STATEMENTS (cont.)


Coconspirator’s statements may be offered
against a party without evidence of
authorization for the declarant to speak
for the party
Coconspirators are presumed to authorize
each other to speak for each other if
certain conditions are met related to the
circumstances surrounding the making of
the statements
CO-CONSPIRATOR’S
STATEMENTS (cont.)




FRE
Allows the statements themselves to be used as
evidence of the existence of the conspiracy
But must have additional facts to determine
preliminary issues (existence of conspiracy,
participation therein of declarant and the party)
Court must consider the circumstances
surrounding the statement including the identity
of the speaker, the context in which the
statement was made and evidence corroborating
the contents of the statement in determining
each preliminary fact
CO-CONSPIRATOR’S
STATEMENTS (cont.)
Evid. Code
 requires sufficient evidence for a
reasonable finder of fact to find
foundational facts to be true (existence of
conspiracy, participation therein of
declarant and the party)
 Coconspirator statements can be excluded
from this analysis on a hearsay objection