Admission by Party-Opponent, Fed.R.Evid. 801(d)(2); Government Agent or Employee, Experts, Confrontation Clause

Overview A statement of a party-opponent, whether an oral or written assertion, or nonverbal conduct offered in evidence by an adverse party to prove the truth of the matter asserted, falls within the definition of hearsay at common law and in Fed.R.Evid. 801(a)-(c). Nevertheless, it has been universally accepted since the advent of the rule against hearsay that such a statement, referred to as an admission by a party-opponent, is admissible as substantive evidence to prove the truth of the matter asserted. While formerly considered an exception to the hearsay rule, in recognition of its position in the adversary system, Fed.R.Evid. 801(d)(2) exempts admissions of a party-opponent from the operation of the rule against hearsay, Fed.R.Evid. 802, by defining admissions of a party-opponent as “not hearsay”. While most alleged declarants of admissions of a party-opponent will in fact testify at trial, Fed.R.Evid. 801(d)(2) is not based upon that rationale nor could it be as some alleged declarants, particularly a criminal defendant, do not testify. Nor is the rationale for not hearsay treatment of admissions of a party-opponent based on particularized guarantees of trustworthiness surrounding the making of the statement that functions as a substitute for oath, demeanor, and cross-examination with respect to out-of-court statements admitted pursuant to an exception to the hearsay rule, Fed.R.Evid. 803, 804 and 807. Rather the rationale that supports the definition of admissions of a party-opponent as not hearsay is the “adversary system.” This can be taken to mean that statements by an adverse party, if actually made, are very often critical to the determination of the matter at hand, i.e., highly probative evidence on a very material question. Admitting only some but not all such statements, i.e., only those that are either not hearsay under the traditional common law hearsay definition represented by Fed.R.Evid. 801(a)-(c) or meet the requirements of a hearsay exception, would thus result in substantial injustice. The adversary system rationale appreciates that it is not uncommon that a very substantial issue will be raised as to whether the alleged admission by a party-opponent was made, especially when the out-of-court statement is claimed to be oral and testified to the opposing party himself. Nevertheless, ever since the against hearsay was first accepted, admissions of a party-opponent have been admitted, traditionally as a hearsay exception rather than now as defined as not hearsay, with full knowledge that in some cases the plaintiff’s or government’s witness is lying as to what the defendant said and the defendant’s witness is also lying as to what the plaintiff said. The adversary system rationale says that it is best to let the trier of fact sort it out. Lack of opportunity to cross-examine is deprived of significance by the incongruity of the party objecting to his own statement on the ground that he was not subject to cross-examination by himself at the time. In the nature of things, the statement is usually damaging to the party against whom offered, else it would not be offered. However, neither Fed.R.Evid. 801(d)(2) nor the common law cases lay down a requirement that the statement be against interest either when made or when offered, and the theory of the exception is not based thereon. The sometimes encountered label, “admission against interest,” is inaccurate, serves only to confuse, and should be abandoned. Admissions are substantive evidence, as contrasted with mere impeaching statements, and no preliminary foundation need be laid by examining the declarant concerning the admission, Fed.R.Evid. 613(b). Personal knowledge of the matter admitted is not required; nor is a requirement of mental capacity imposed. Admissions in the form of an opinion are competent, even if the opinion is a conclusion of law. The opinion rule, designed to elicit more concrete and informative answers, is a rule of preference as to the form of testimony. Since out-of-court statements are not made under circumstances in which alternative forms of expressions may be secured, this aspect of the opinion rule is inapplicable. Admissibility does not depend upon whether the declarant is unavailable, available, or actually testifies. Whether the specific requirements set forth in Fed.R.Evid. 801(d)(2) not involving conditional relevancy, Fed.R.Evid. 104(b), have been satisfied, such as whether a person is authorized to make a statement, Fed.R.Evid. 801(d)(2)(C), or whether a statement concerns a matter within the scope of his agency or employment, Fed.R.Evid. 801(d)(2)(D), are determined by the court, Fed.R.Evid. 104(a). Admissions of a party-opponent may be excluded upon application of Fed.R.Evid. 403. Confrontation Clause Admission by party-opponent are “nontestimonial” under the confrontation clause as interpreted by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), to Williams v. Illinois, 467 U.S. —, 132 S.Ct. 2221 (2012) and Clark v. Ohio, — U.S. —, 135 S.Ct. 2173 (2015), on many rationales, including the obvious ground that there is incongruous and unnecessary for the constitution to provide a right of the criminal defendant to cross-examine himself, a rationale that applies as well to vicarious admissions, such as a statement “made by the party’s co-conspirator during and in furtherance of the conspiracy,” Fed.R.Evid. 801(d)(2)(E), even where the person making the statement is unavailable, e.g., generally because dead, or unavailable to the party’s on the basis of the Fifth Amendment privilege against self-incrimination. A further and commonly employed rationale in support of the notice of admissions being “nontestimonial” is that the Crawford to Williams/Clark “testimonial” “nontestimonial” distinction only applies to hearsay statements admitted substantively against the criminal defendant while admissions by a party-opponent are defined as “not hearsay” by Fed.R.Evid. 801(d)(2) or simply because Crawford and progeny say so. Even jurisdictions such as Florida which continues in 90.803(18) to treat admissions offered against a party-opponent as hearsay admissible pursuant to a hearsay exception, the traditional common law approach, treat admissions of a party-opponent as “nontestimonial” under the Crawford to Williams/Clark interpretation of the confrontation clause. Government Agent or Employee In a criminal prosecution, whether government employees are or are not to be considered agents or employees of a party-opponent for purposes of admissions rules is highly disputed. Since the adoption of the Federal Rules, the federal circuits have drifted apart in their interpretation of Rule 801. On one side of the divide stands the Seventh Circuit as the leader, which has held that in a criminal prosecution government employees are not considered servants of a party-opponent for the purposes of the admissions rule. On the other side of this jurisprudential gully the flag-bearer is the Ninth Circuit, which permits admission of statements by government agents who are not involved with the litigation to be admitted in a criminal proceeding. Most of the remaining federal circuits are distributed somewhere between those two poles. Ordinarily with one key exception, Fed.R.Evid. 801(d)(2)(C) and (D) should be applied to agents and employees of the government in the same manner and to the same extent as agents and employees of other persons and entities. The simple but critical exception is when a government agent or employee makes a statement in the course of conducting a criminal investigation to a witness or potential or actual suspect including but not limited to during an interview or interrogation. Under such circumstances the tactic of deception, legally employed, results in the making of statements of alleged opinion or alleged fact that are simply false for the purpose of facilitating the criminal investigation. Such statements might include something like, “We know from Harry you weren’t involved,” or, “You’re not a suspect, we have our sights clearly on another but we need to ask you some questions to formally clear you off our list.” Under such circumstances, while the government agent or employee statement would technically conform to Fed.R.Evid. 801(d)(2)(C) or (D), application of Fed.R.Evid. 403, particularly the concepts of “misleading the jury”, “confusing the issues”, and “wasting time” require that such statements made during the course of a criminal investigation are not treated as admissions of a party-opponent.