HEARSAY EXCEPTIONS: ADMISSIONS

1. HEARSAY EXCEPTIONS: ADMISSIONS

2. STATEMENT OF A PARTY FRE 801(d)(2)(A) & Evid. Code sec. 122O

3. 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

4. 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

5. 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

6. 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)

7. Statement Of A Party (cont.) PARTY STATEMENT CAN BE IN WRITING: • e-mail • text message • facebook • twitter • you-tube

8. 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

9. Statement Of A Party (cont.) STATEMENT NEED NOT BE AN ADMISSION: • INSTEAD --- STATEMENT MUST BE DISSERVING AT THE TIME IT IS OFFERED BY OPPONENT

10. ADOPTIVE ADMISSION FRE 801(d)(2)(B) & Evid. Code sec. 1221

11. 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

12. 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

13. 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.”

14. 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

15. ADOPTIVE ADMISSION (cont.) CONDUCT: • Harpo Marx • Submitting IRS filing, loan application, etc (that someone else wrote)

16. 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.

17. 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?

18. 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

19. ADOPTIVE ADMISSION (cont.) NOTE: Once the party has adopted the statements of another, the statements become the party’s own admissions

20. ADOPTIVE ADMISSION (cont.) NOTE: With adoptive admissions, the operative facts occur after the statement With authorized admissions, the operative facts precede the statement

21. AUTHORIZED ADMISSIONS FRE 801(d)(2)(C) & Evid. Code sec. 1222

22. 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

23. 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 statementconcerning the subject

24. AUTHORIZED ADMISSIONS (cont.) Evid. Code 1222, subsection (b): • Offered after evidence sufficient to prove authorization, or • Subject to such proof

25. 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)

26. 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.)

27. 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

28. OTHER VICARIOUS ADMISSIONS FRE 801(d)(2)(D) & Evid. Code sec. 1224-1227

29. 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 agent or servant • Concerning a matter within the scope of the agency or employment • During the existence of the relationship

30. 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)

31. 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

32. 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

33. 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

34. 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

35. 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

36. CO-CONSPIRATOR’S STATEMENTS FRE 801(d)(2)(E) & Evid. Code sec. 1223

37. 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

38. 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

39. 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

40. 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

41. 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