§ 10.03 THE EXEMPTION FOR STATEMENTS OR ADMISSIONS OF A PARTY-OPPONENT

• Jurisdiction: North Carolina

§ 10.03 THE EXEMPTION FOR STATEMENTS OR ADMISSIONS OF A PARTY-OPPONENT

[1] IN GENERAL

If the statement falls within the definition of hearsay, the proponent of the statement must find an applicable hearsay exemption or exception. One of the most frequently used exemptions is that for the statements or admissions of a party-opponent. For example, in a tort action the plaintiff can prove the defendant's out-of-court statements acknowledging fault. From the plaintiff's perspective, the defendant's statements are admissions of the party-opponent. The same hearsay exemption permits prosecutors to introduce accused's confessions acknowledging guilt.

Although the common law treats the admission doctrine as a hearsay exception, the admission doctrine differs from most hearsay exceptions. Commentators have had some difficulty explaining the admission doctrine. Unlike most hearsay exceptions, admissions do not have to have a circumstantial guarantee of trustworthiness; although the admission is obviously disserving at the time of trial, the admission is admissible even if it was self-serving when made. Nor is there any need to show a necessity for resorting to the hearsay; the opposing party may be available and perfectly willing to testify about the subject-matter of the earlier statement. The truth of the matter is that like the word product doctrine, the admission doctrine is a product of the adversary litigation system; the opponent can hardly complain that he or she does not have an opportunity to cross-examine himself or herself. The opponent can always take the stand to deny or explain the statement. Because of the unique rationale for this exception, some commentators do not even classify admissions as hearsay. Thus, Federal Rule of Evidence 801(d)(2) exempts admissions from the hearsay definition and admits admissions as "not hearsay." The restyled Rules effect a second change from the common law; the new Rules use the expression, "an opposing party's statement," rather than the traditional terminology "admission."

Although the commentators and courts disagree over the question whether admissions should be classified as hearsay, there is general consensus on the foundational elements of the various types of admissions. There are three basic kinds of admissions: personal, adoptive, and vicarious. The basis of the classification is the reason for which we attribute the statement to the party-opponent. In the case of personal admissions, we attribute the statement to the party-opponent because we find the statement in the party's own words or acts. In the case of adoptive admissions, a third party makes the statement, but we impute the statement to the party-opponent because the opponent manifests agreement with the assertion in the statement. The opponent thereby "adopts" the statement. Finally, in the case of vicarious admissions, again a third party makes the statement, but the party-opponent does not manifest agreement. Instead, we attribute the statement to the party-opponent because of a close legal relationship, such as agency, between the third party and the party-opponent. We shall now examine the foundations for these various types of admissions in detail.

[2] PERSONAL ADMISSIONS

[a] OVERVIEW

All jurisdictions admit the party-opponent's own personal admissions in civil and criminal cases. Federal Rule of Evidence 801(d)(2)(A) sanctions the admission of personal admissions. It permits the proponent to introduce a statement when "(t)he statement is offered against an opposing party and . . . was made by the party in an individual or representative capacity." Personal admissions are liberally admissible; the phrasing of the admission can be highly opinionated, and the admission need not even be based on personal knowledge.

[b] IN CIVIL CASES

In civil cases, the foundation for personal admissions is very simple. The foundation includes these elements:

1. The witness heard a declarant make a statement.
2. The witness identifies the declarant as the present party-opponent.
3. The statement is inconsistent with the position the party-opponent is taking at trial. (Although the appellate courts often phrase this requirement negatively and seem to insist upon inconsistency, in practice trial judges apply the requirement affirmatively; trial judges ask whether the statement is logically relevant under Rule 401 to an issue the proponent has a right to prove in the case. The phrasing of the question eliciting the statement usually ensures the statement's logical relevance; the question inquires "about" a specific topic.)

Our fact situation is a civil tort action. The case arose from a collision on May 19, 2017. The plaintiff, Ms. Langdale, alleges that the defendant, Mr. Maire, caused the collision by speeding. The speed limit in this section of town is 25 miles an hour. The plaintiff calls the investigating officer, Patrolman Hightower. The witness has already identified himself and testified that he went to the accident scene. The proponent is the plaintiff.

P WHAT did you do when you arrived at the scene of the collision?

W I investigated the accident.

P HOW did you investigate the accident? (1)

W I viewed the debris and interviewed the persons involved.

P WHOM did you interview? (2)

W Ms. Langdale and Mr. Maire.

P WHERE is Mr. Maire now? (2)

W In the courtroom.

P Specifically, WHERE in the courtroom? (2)

W He's sitting at the table.

P HOW is he dressed? (2)

W In a green suit and blue tie.

P Your Honor, please let the record reflect that the witness has identified the defendant.

J It will so reflect.

P Officer Hightower, WHAT did the defendant say about the accident? (3)

O Your Honor, I object on the ground that the question calls for hearsay.

P Your Honor, may I be heard?

J Yes.

P The statement is hearsay, but it falls within the exception for admissions of a party-opponent.

(In federal court, the proponent would say, "The statement is exempt from the hearsay rule because it is the statement or admission of a party-opponent" or "The statement is not hearsay because it is the statement or admission of a party-opponent.")

J The objection will be overruled.

P Let me repeat the question. WHAT did the defendant say about the accident? (3)

W He said he was really sorry about it because he thought he caused it by going too fast.

P HOW fast did he say he was going? (3)

W He said maybe 40 miles an hour.

[c] IN CRIMINAL CASES

The foundation for a criminal accused's confession is more complex than the foundation for admissions in civil cases. The foundation is more complex because in a criminal case, the prosecutor must comply with constitutional requirements as well as common-law hearsay requirements. The prosecutor must first demonstrate that the confession was voluntary; the Fifth and Fourteenth amendment due process clauses bar the admission of involuntary confessions. Furthermore, if the accused was in custody, the prosecutor must demonstrate that the police administered proper Miranda warnings; Miranda imposes requirements in addition to traditional voluntariness. Finally, the prosecutor must prove that the accused properly waived his or her Miranda rights. In 2000, in Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000), the Supreme Court affirmed that Miranda is still good law. Thus, the complete foundation includes these elements:

1. The witness heard a declarant make a statement.
2. The witness identifies the declarant as the present accused.
3. Any confession was voluntary.
4. The police administered proper Miranda warnings to the accused.
5. The accused waived his or her rights.
6. The statement is inconsistent with the position the accused takes at trial; the statement is logically relevant to some issue the prosecution has a right to prove at trial. If the accused pleads not guilty, the accused defendant requires the prosecution to prove all the elements of the crime. By pleading not guilty, the defendant takes the general position that all the facts alleged are false.

Our fact situation is a prosecution for robbery. The accused is Mr. Walters. The prosecution calls Officer Gannon as a witness. Officer Gannon identifies himself and then testifies that he is assigned to the robbery detail of the Lincoln, Nebraska Police Department. The proponent is the prosecutor.

P Officer Gannon, WHERE were you on the afternoon of January 20, 2017?

W I was at our downtown station on duty in the robbery detail office.

P WHAT happened that afternoon?

W Some other officers brought in someone for questioning.

P WHO was that person? (2)

W James Walters.

P WHERE is James Walters now? (2)

W Here in the courtroom.

P Specifically WHERE in the courtroom? (2)

W He's sitting right there.

P HOW is he dressed? (2)

W He's attired in a brown shirt and green pants.

P Your Honor, please let the record reflect that the witness identified...