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

HEARSAY EXCEPTIONS: HEARSAY EXCEPTIONS:

ADMISSIONSADMISSIONS

STATEMENT OF A PARTY STATEMENT OF A PARTY

FRE 801(d)(2)(A)FRE 801(d)(2)(A)

&&

Evid. Code sec. 122OEvid. Code sec. 122O

Statement Of A PartyStatement Of A Party

FRE 801(d)(2)(A)FRE 801(d)(2)(A)

Non Hearsay if:Non Hearsay if: The statement is offered The statement is offered against a against a

partyparty; ; The statement is the party’s The statement is the party’s own own

statementstatement, , Individual or Representative CapacityIndividual or Representative Capacity

Statement Of A Party (cont.)Statement Of A Party (cont.)

Evid. Code sec. 1220Evid. Code sec. 1220

Not inadmissible by the Hearsay Rule Not inadmissible by the Hearsay Rule if:if:

The statement is offered against the The statement is offered against the declarant,declarant,

In an action where the declarant is a In an action where the declarant is a partyparty

Individual or Representative CapacityIndividual or Representative Capacity


STATEMENT OF A PARTY CAN BE ORAL: STATEMENT OF A PARTY CAN BE ORAL: Words uttered to a witnessWords uttered to a witness Casual conversationCasual conversation BoastingBoasting Emotional outburstEmotional outburst Formal statement or speechFormal statement or speech Prior testimonyPrior testimony


PARTY STATEMENT CAN BE IN PARTY STATEMENT CAN BE IN WRITING:WRITING:

lettersletters diary entrydiary entry notesnotes formal written document (affidavit)formal written document (affidavit) MemorandumMemorandum Published work (book, article, op-ed)Published work (book, article, op-ed)


PARTY STATEMENT CAN BE IN PARTY STATEMENT CAN BE IN WRITING:WRITING:

e-maile-mail text messagetext message facebookfacebook twittertwitter you-tubeyou-tube


STATEMENT NEED NOT BE AN STATEMENT NEED NOT BE AN ADMISSION:ADMISSION:

must be a statement by a partymust be a statement by a party offered by adverse partyoffered by adverse party can be neutral statement can be neutral statement can be self-serving to declarantcan be self-serving to declarant

*Discuss Examples*Discuss Examples


STATEMENT NEED NOT BE AN STATEMENT NEED NOT BE AN ADMISSION:ADMISSION:

INSTEAD ---INSTEAD ---

STATEMENT MUST BE DISSERVING AT STATEMENT MUST BE DISSERVING AT THE TIME IT IS OFFERED BY THE TIME IT IS OFFERED BY OPPONENTOPPONENT

ADOPTIVE ADMISSION ADOPTIVE ADMISSION

FRE 801(d)(2)(B)FRE 801(d)(2)(B)

&&


ADOPTIVE ADMISSION (cont.)ADOPTIVE ADMISSION (cont.)

FRE 801(d)(2)(B) -- Non Hearsay if:FRE 801(d)(2)(B) -- Non Hearsay if:

The statement is offered The statement is offered against a against a partyparty; ;

The party has The party has manifested an manifested an adoption adoption in the belief or truth of in the belief or truth of statement statement


Evid. Code sec. 1221 -- Not Evid. Code sec. 1221 -- Not inadmissible by the Hearsay Rule if:inadmissible by the Hearsay Rule if:

The statement is offered against The statement is offered against the the party,party,

The party has knowledge of the The party has knowledge of the content of the statement, andcontent of the statement, and

By words or conductBy words or conduct Manifests an adoption or belief Manifests an adoption or belief

in its in its truthtruth


WORDS:WORDS:

““Its true; true story; that’s right Its true; true story; that’s right …” etc…” etc

Victim: “He hit me.”Victim: “He hit me.”

Declarant: “She had it coming” or Declarant: “She had it coming” or

“ “He hit me first.”He hit me first.”


WRITINGS:WRITINGS:

Police statements – police officer Police statements – police officer writes it and declarant signs itwrites it and declarant signs it

Insurance claim forms – someone Insurance claim forms – someone else writes it and declarant signs itelse writes it and declarant signs it


CONDUCT:CONDUCT:

Harpo MarxHarpo Marx

Submitting IRS filing, loan application, Submitting IRS filing, loan application, etc (that someone else wrote) etc (that someone else wrote)


SILENCE:SILENCE:

DV victim example (victim and defendant DV victim example (victim and defendant contacted by police – she is beaten up and crying – contacted by police – she is beaten up and crying – she is saying “why did you do this to me” -- he she is saying “why did you do this to me” -- he stands mute)stands mute)

3 car salesmen talking: 1 says to 2 “3 is the best 3 car salesmen talking: 1 says to 2 “3 is the best I’ve ever seen, did you see the way he conned that I’ve ever seen, did you see the way he conned that customer into buying those useless warranties”; 3 customer into buying those useless warranties”; 3 does not deny or correct 1’s statement.does not deny or correct 1’s statement.


Re silence in the face of an Re silence in the face of an accusation,accusation,

What arguments can be made if:What arguments can be made if:

Silence is in the presence of a police officer or Silence is in the presence of a police officer or government official?government official?

Silence is in a social situation not directly Silence is in a social situation not directly related to the speaker’s statement?related to the speaker’s statement?


NOTE:NOTE:

The accusatory statement is not The accusatory statement is not admitted for its truth, but only to admitted for its truth, but only to supply meaning to the silence or supply meaning to the silence or conduct of the party in the face of itconduct of the party in the face of it


NOTE:NOTE:

Once the party has adopted the Once the party has adopted the statements of another, the statements of another, the statements become the party’s own statements become the party’s own admissionsadmissions


NOTE:NOTE:

With adoptive admissions, the operative With adoptive admissions, the operative facts occur after the statementfacts occur after the statement

With authorized admissions, the With authorized admissions, the operative facts precede the statementoperative facts precede the statement

AUTHORIZED ADMISSIONSAUTHORIZED ADMISSIONS

FRE 801(d)(2)(C)FRE 801(d)(2)(C)&&


AUTHORIZED ADMISSIONS AUTHORIZED ADMISSIONS (cont.)(cont.)

FRE 801(d)(2)(C)FRE 801(d)(2)(C) Non Hearsay if:Non Hearsay if: The statement is offered The statement is offered against a against a

partyparty; ; The statement is made by a person The statement is made by a person

authorized by the partyauthorized by the party To make a statementTo make a statement concerning concerning

the subjectthe subject


Evid. Code sec. 1222Evid. Code sec. 1222 Not inadmissible by the Hearsay Rule if:Not inadmissible by the Hearsay Rule if: The statement is offered against the party,The statement is offered against the party,

Subsection (a):Subsection (a): The statement is made by a person The statement is made by a person

authorized by the partyauthorized by the party To make a statementTo make a statement concerning the concerning the

subject subject


Evid. Code 1222, subsection (b):Evid. Code 1222, subsection (b): Offered after evidence sufficient to Offered after evidence sufficient to

prove authorization, or prove authorization, or Subject to such proofSubject to such proof


Evid. Code 1222:Evid. Code 1222: Only applies if party has authorized the speaker Only applies if party has authorized the speaker

to make statements on that subject matterto make statements on that subject matter It is not enough to show that the statement It is not enough to show that the statement

related to the scope of the speakers employment related to the scope of the speakers employment with the partywith the party

In Cal. it is interpreted to be ltd. to high-ranking In Cal. it is interpreted to be ltd. to high-ranking organizational agents who have actual authority organizational agents who have actual authority to speak for the organization (Thompson v. City of to speak for the organization (Thompson v. City of L.A. (2006) 142 Cal.App.4L.A. (2006) 142 Cal.App.4thth 154, 169.) 154, 169.)

In this way the rule is narrower than FRE 801(d)In this way the rule is narrower than FRE 801(d)(2(D)(2(D)


Evid. Code 1222:Evid. Code 1222: The determination of whether the The determination of whether the

speaker has authority to speak for the speaker has authority to speak for the party is made on the specific facts party is made on the specific facts and circumstances of the case in light and circumstances of the case in light of the substantive law of agency of the substantive law of agency (O’Mary v. Mitsubishi Electronics (O’Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4America, Inc. (1997) 59 Cal.App.4thth 563, 570; see also comment to 563, 570; see also comment to Evid.Code § 1222.)Evid.Code § 1222.)


Evid. Code 1222:Evid. Code 1222: Hiring an expert does not make the Hiring an expert does not make the

opinions of the expert authorized opinions of the expert authorized admissionsadmissions

Statements made after the Statements made after the termination of the employment termination of the employment relationship are inadmissible as relationship are inadmissible as authorized admissions under this authorized admissions under this sectionsection

OTHER VICARIOUS OTHER VICARIOUS ADMISSIONSADMISSIONS

FRE 801(d)(2)(D)FRE 801(d)(2)(D)

&&

Evid. Code sec. 1224-1227Evid. Code sec. 1224-1227

OTHER VICARIOUS ADMISSIONS OTHER VICARIOUS ADMISSIONS (cont.)(cont.)

FRE 801(d)(2)(D) Non Hearsay if:FRE 801(d)(2)(D) Non Hearsay if:

The statement is offered The statement is offered against a against a partyparty; ;

The statement is made by the party’s The statement is made by the party’s agent or servantagent or servant

Concerning a matter Concerning a matter within the scope within the scope of the agency or employmentof the agency or employment

During the existenceDuring the existence of the of the relationshiprelationship


FRE 801(d)(2)(C) & (D) (authorized and FRE 801(d)(2)(C) & (D) (authorized and agent or employee admissions)agent or employee admissions)

The contents of the statements may The contents of the statements may be used, but are not alone enough, be used, but are not alone enough, to establish the declarant’s authority to establish the declarant’s authority under (C) or to establish the agency under (C) or to establish the agency or employment relationship under or employment relationship under (D)(D)


Additional Evid. Code Hearsay exceptionsAdditional Evid. Code Hearsay exceptions

Overlap with sec. 1222 (Authorized Overlap with sec. 1222 (Authorized admissions)admissions)

Several other exceptions for admissions Several other exceptions for admissions attributed to the party attributed to the party

Each is offered against a partyEach is offered against a party


Sec. 1224 – statement of a declarant Sec. 1224 – statement of a declarant whose liability or breach of duty is in whose liability or breach of duty is in issueissue

Example: painter hired by party Example: painter hired by party injures guest – guest sues party injures guest – guest sues party

painter’s statement to guest at time of painter’s statement to guest at time of injury (“I’m sorry, how careless of injury (“I’m sorry, how careless of me!”) is attributed against partyme!”) is attributed against party


Sec. 1225 – statement of a declarant Sec. 1225 – statement of a declarant whose right or title is in issuewhose right or title is in issue

Example: painter sells land to party – Example: painter sells land to party – guest makes claim on title as a result guest makes claim on title as a result of promises made by painter – party of promises made by painter – party sues guest to clear title – painter’s sues guest to clear title – painter’s statement to guest at time of statement to guest at time of promises is attributed against partypromises is attributed against party


Sec. 1226 – statement of minor child Sec. 1226 – statement of minor child in parent’s action for injury to childin parent’s action for injury to child

Example: painter hired by party Example: painter hired by party injures guest’s child – guest, on injures guest’s child – guest, on behalf of child, sues party behalf of child, sues party

child’s statement to painter at time child’s statement to painter at time of injury (“sorry mister, I was running of injury (“sorry mister, I was running too fast”) is attributed against guesttoo fast”) is attributed against guest


Sec. 1227 – statement of a declarant in Sec. 1227 – statement of a declarant in action for wrongful deathaction for wrongful death

Example: painter hired by party injures Example: painter hired by party injures guest – guest dies – survivors sue party guest – guest dies – survivors sue party

guest’s statement to painter at time of guest’s statement to painter at time of injury (“no, no, you weren’t careless, I injury (“no, no, you weren’t careless, I was distracted and should have seen was distracted and should have seen you”) is attributed against survivoryou”) is attributed against survivor

CO-CONSPIRATOR’S CO-CONSPIRATOR’S STATEMENTSSTATEMENTS

FRE 801(d)(2)(E)FRE 801(d)(2)(E)&&


CO-CONSPIRATOR’S CO-CONSPIRATOR’S STATEMENTS (cont.)STATEMENTS (cont.)

FRE 801(d)(2)(E)FRE 801(d)(2)(E) Non Hearsay if:Non Hearsay if: The statement is offered The statement is offered against a against a

partyparty; ; The statement is made by a The statement is made by a

coconspiratorcoconspirator During the course of During the course of the conspiracythe conspiracy And in furtherance of And in furtherance of the conspiracythe conspiracy


Evid. Code sec. 1223Evid. Code sec. 1223 Not inadmissible by the Hearsay Rule if:Not inadmissible by the Hearsay Rule if: The statement is offered against the party,The statement is offered against the party, The statement was made by declarant The statement was made by declarant

while participatingwhile participating In a conspiracy to commit a crime or civil In a conspiracy to commit a crime or civil

wrongwrong And And in furtherance of in furtherance of the objective of that the objective of that

conspiracyconspiracy The statement was made The statement was made prior to or prior to or

during the timeduring the time that the party was that the party was participating in the conspiracyparticipating in the conspiracy


Coconspirator’s statements may be Coconspirator’s statements may be offered against a party without offered against a party without evidence of authorization for the evidence of authorization for the declarant to speak for the partydeclarant to speak for the party

Coconspirators are presumed to Coconspirators are presumed to authorize each other to speak for authorize each other to speak for each other if certain conditions are each other if certain conditions are met related to the circumstances met related to the circumstances surrounding the making of the surrounding the making of the statementsstatements


FRE FRE Allows the statements themselves to be used Allows the statements themselves to be used

as evidence of the existence of the conspiracyas evidence of the existence of the conspiracy But must have additional facts to determine But must have additional facts to determine

preliminary issues (existence of conspiracy, preliminary issues (existence of conspiracy, participation therein of declarant and the participation therein of declarant and the party)party)

Court must consider the circumstances Court must consider the circumstances surrounding the statement including the surrounding the statement including the identity of the speaker, the context in which identity of the speaker, the context in which the statement was made and evidence the statement was made and evidence corroborating the contents of the statement in corroborating the contents of the statement in determining each preliminary factdetermining each preliminary fact


Evid. CodeEvid. Code requires sufficient evidence for a requires sufficient evidence for a

reasonable finder of fact to find reasonable finder of fact to find foundational facts to be true foundational facts to be true (existence of conspiracy, participation (existence of conspiracy, participation therein of declarant and the party)therein of declarant and the party)

Coconspirator statements can be Coconspirator statements can be excluded from this analysis on a excluded from this analysis on a hearsay objectionhearsay objection

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

Documents

party statement

party cont

neutral statement

accusatory statement

speakers statement

party individual

truthadoptive admission

party fre 801d2aevid