Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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B. Statements of a Party Opponent (427)

The exclusion from hearsay rule of statements of a party opponent is grounded in the structure of the adversary process. The party opponent is considered to have an adequate opportunity to deny or explain any such statements.

The exclusion is for "statements" of a party opponent. This is a much broader concept than "admissions." There is a natural tendency for students to-confuse the exclusion for statements of a party opponent with the exception for declarations against interest. There is no requirement where a party opponent is concerned that the statement be an admission or even against interest. The drafters of FRE 801(d)(2) should receive a demerit for subtitling the rule "Admissions by party-opponent."

Problem - He Who Laughs Last...(428)

The point:

Statements of a party opponent need not be against interest when made. They must only be offered by an adverse party at trial.

Answers and Analysis:

(1) Objection overruled; the abatement request is admissible. Cheat's abatement assertion that his property is worth $50,000, when offered by the state, is a statement of a party opponent in the state's proceeding against him. Cheat is not bound by his earlier statement. He is free to explain and contest it. But he cannot exclude it. It makes no difference that the statement was in Cheat's interest when made.

(2) Objection sustained. Cheat is offering his own statement, not the statement of a party opponent. But the fact that the statement is self-serving now is not why it is excluded. It is excluded because it is hearsay .

(3) Objection sustained, the statement is not of a party opponent. The assessment was done by the city tax collector, who is not an agent of the state. The state, not the city, is the party opponent. Contra if the city tax collector is seen as an agent of the. state.

Problem - "If You're Gonna Get Hit, Get Hit by a Rolls" (428)

The point:

The rule providing for the admissibility of statements of a party opponent is incredibly powerful. Such statements are admissible notwithstanding the rules regarding personal knowledge (FRE 602), opinions (FRE 701) and original documents (FRE 1007).

Answer and Analysis:

(1) Objection overruled. The statement is admissible against D as the statement of a party opponent. The statement is admissible against D even if it is in the form of an opinion or a conclusion of law and even if the satement is not based on personal knowledge.

(2) D wins because P has failed to prove that C was D's agent; but if agency were otherwise proved, the nonsuit would have to be denied. D 's admission is substantive evidence establishing a prima facie case against D.

3) Objection overruled; admissible against D to prove both that C is D's agent and that C was at fault.

C's statement is admissible against D under FRE 801(d)(2) (D) if the following foundation is established:

(i) C is D's agent.

(ii) C's statement concerned a matter within the scope of the agency.

(iii) C's statement was made during the existence of the relationship.

These are factual preconditions to the admissibility of the statement. The factual determinations must be made by the judge under FRE 104(a). The judge, in making these determinations, is not bound by the rules of evidence (except privilege). Thus, in making her determination, the judge may take into account the very statement the admissibility of which she is determining.

Problem - Silence as Statement (429)

The point:

A statement of a party opponent can consist of a silent, but tacit adoption of someone else's statement.

Answer and Analysis:

(1) W may testify to S's statement even though S's statement alone would be hearsay if offered to prove that the bills in the safe were $1,000 bills. However, D by his silence in circumstances in which he could be expected to disagree with S's statement if he had felt S to be wrong, manifests his adoption of S 's statement.

D's adoption of the statement makes the statement his, thus a statement of a party opponent under FRE 801(d)(2)(B). However the judge's determination does not foreclose the jury 's redetermination of this question for purposes of judging the weight of the evidence. The jury should be instructed that it should consider whether D's silence in the face of S's statement signified that D agreed with the statement, and that if the jury should find that D had not agreed with the statement, then the jury should disregard S's statement.

(2) O's testimony should not be admissible. Under Miranda, D has a right to remain silent. Thus, his silence cannot reasonably be interpreted as a tacit adoption of O's accusation. But see Jenkins v. Anderson, above and Fletcher v. Weir, below.

(3) This part of the problem is based on the Jenkins case.

Problem - Omar the Disappearing Cat (432)

The point:

A party can make statements through a mouthpiece.

Answers and Analysis:

(1) Objection overruled. M's statement is admissible as the statement of a party opponent. M is employed by D in a manner that authorized M to make statements about the administration of the animal hospital. M 's statement is admissible against D under FRE 801(d)(2)(C) and 801(d)(2)(D).

(2) Objection overruled - maybe. To establish admissibility P must first establish as a foundational element that the declarant was D's agent, that the statement concerned the subject matter of his agency, and that it was made during the existence of the relationship. The judge decides those foundational elements under FRE 104(a). Not being bound by the hearsay rules, the judge can use the very statement the admissibility of which he is determining to decide the foundational elements for the statement's admissibility. At common law, the proponent had to offer evidence aliunde -- outside the statement -- to establish the foundational predicate of agency.

A recent amendment to FRE 801(d) makes it clear that the hearsay evidence may be considered on the foundation for the admission, but is not sufficient to establish the foundation in the absence of other evidence. The question would be whether the location of the meeting (near the facility) and the circumstances of the conversation would be sufficient evidence outside the hearsay to allow the judge to make the preliminary finding of agency.

Problem- P v. Greed Power & Light Company (432)

The point:

There are many types of statements of a party opponent. This problem is a test of FRE 801(d)(2) .

Answers and Analysis.

(1) Admissible. Assuming that the engineer is an agent of the company, the statement concerned a matter within the scope of her agency. FRE 801(d)(2)(D). Indeed, the statement does not even present a conceptual hearsay problem if offered to show notice to the power company of a dangerous condition.

(2) Admissible. It makes no difference to whom the agent made the statements (assuming no assertions of privilege). "During the existence of the relationship" does not exclude statements made after quitting time each day .

(3) Admissible. Rockeyfellow has made a statement concerning a matter within the scope of his agency. FRE 801(d)(2)(D). As president of Greed he is authorized to speak on behalf of Greed, so the statement also falls within FRE 801(d)(2)(C). (Query: is this also an excited utterance even though Rockeyfellow did not perceive the disaster first-hand?). Rockeyfellow's statement is admissible even though it states an opinion and is not necessarily based on personal knowledge. See the Wild Canid case (page 433).

(4) Admissible. FRE 801(d)(2)(D). Also, for the purposes of FRE 801(d)(2)(C), the Rancid Corporation was employed for the purpose of making statements to the corporation. It makes no difference that Rancid's report was to the principal and not to a third party on behalf of the principal. (See Advisory Committee Note to FRE 801(d)(1)(C)). The report might also be admissible under FRE 801(d)(2)(B) as a tacit adoption by Greed.

(5) Admissible. Harbinger's letter is introduced to show that the landowners had notice of the danger, not for the truth of the matter asserted in Harbinger's letter. If offered for the truth (to prove assumption of the risk?) the best shot is FRE 801(d)(2)(B) (tacit adoption by failing to respond).

Problem - Recall Letters (442)

Answer and Analysis:

The courts are divided over whether statements made under a statutory reporting duty are admissible as statements of a party opponent. Compare Earner v. Paccar. Inc., 562 F.2d 518 (8th Cir. 1977) (admitted) with Vackie v. General Motors Corp., 66 F.R.D. 57 (E.D. Pa. 1975) affd. 523 F.2d 1052 (3d Cir. 1975) (not admitted). See 4 Wigmore 1050(2) (Chad. rev. 1972.)

Many reporting statutes contain an express privilege that would bar the use at trial of reports filed persuant to the statutes. Where they don't, the question is one of policy -- should court's exclude reports filed persuant to such statutes in order to encourage compliance with the reporting obligation?

Problem - "The Rat Roommate" (442)

The point:

Watch out for hearsay within hearsay. When it appears, then each part of the statement must be separately qualified to admit the statement.

Answer and Analysis:

Inadmissible; hearsay within hearsay (FRE 805). The second part of the combined statement does not qualify for admission. If R took the stand and testified to "D saying something about his planning to get V", that would be admissible as the statement of a party opponent (namely D). But here it is W on the stand testifying to R's statement about what D said. R is not a party opponent.

Problem - "Incident" (442)

The point:

This problem is drawn from the film, "Incident" a very brief depiction of the robbery. It is useful not only to demonstrate analysis of field evidence under the co-conspirator's exception, but to ask some very provocative questions about eyewitness identification.

Answer and Analysis:

Assume that the man, M, and the Woman, D, are tied together, charged with armed robbery, and that neither testifies. Assume further that Harry can identify M as one o f the two people who robbed him, but says that he did not get a good look at M 's confederate.

Can Harry testify that M, during the struggle, said "The girl made me do it"? The statement is a statement of a party opponent as against M. It is hearsay as against D. The statement cannot be introduced only against M with instructions not to consider it against D without violating D's constitutional right of confrontation. (See Bruton v. United States, below).

D's response to the statement would be admissible if it were relevant. If her response were a denial it would not be relevant. If D's response were anything other than a denial, then the response might be considered to be an adoptive admission. Harry's statement, in that event, would become admissible.

Can Harry testify that he (Harry) said, "He already told me that you put him up to it"? Even though this is Harry's own prior statement, it is nonetheless a statement other than one made while testifying offered for its truth, and therefore, hearsay. Moreover, it incorporates M's statement that the girl made him do it, thus is hearsay within hearsay. Again it could set the scene for an adoptive admission by D.

Are any of M's statements admissible under the co-conspirator exclusion to the hearsay definition, FRE 801(d)(2)(E)? The defendants need not be charged with conspiracy for the exception to apply. Nonetheless, M 's statements were not made during the pendency of the conspiracy (indeed M 's statements may have abruptly ended any conspiracy), and can hardly be considered in furtherance of the conspiracy .

Bourjaily v. United States, 483 U.S. 171 (1987) (444)

In this famous case the United States Supreme Court decided that a judge could consider hearsay testimony in determining the preconditions to admission of an otherwise hearsay statement as an statement of a co-conspirator under FRE 801(d)(2). The question left open by the court in Bourjaily, whether the finding of a conspiracy could be based solely on the hearsay statement, has been resolved by amendment of Rule 801(d) to provide that the hearsay statement can be considered but is not sufficient without more to establish the elements required by FRE 801(d)(2).

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