§ 32.05 ADMISSIONS OF PARTY-OPPONENTS: OVERVIEW

• Jurisdiction: United States

§ 32.05. ADMISSIONS OF PARTY-OPPONENTS: OVERVIEW

Rule 801(d)(2) exempts admissions of a party-opponent from the hearsay rule by defining admissions as nonhearsay. Under the common law, an admission was classified as an exception to the hearsay rule. The Federal Rules do not change this result; they are still admissible, although under a different theory. The rule recognizes five types of party admissions: (1) individual admissions, (2) adoptive admissions, (3) authorized admissions, (4) agent admissions, and (5) co-conspirator admissions.

In addition, admissions may be regulated by other rules. For example, Rule 408 excludes compromises and offers of compromise,³² and Rule 410 excludes certain pleas, offers to plead, and statements in criminal cases.³³

[A] Rationale

An admission of a party-opponent is treated as nonhearsay, rather than as an exception to the hearsay rule, for two reasons. First, the principal objection to hearsay evidence is that the party against whom the hearsay statement is offered has been denied the opportunity to cross-examine the declarant. A party-opponent cannot object on this ground, however, "because he does not need to cross-examine himself."³⁴

Second, virtually all hearsay exceptions are based on some circumstantial guarantee of trustworthiness.³⁵ There is no guarantee of trustworthiness for party admissions. The firsthand knowledge rule does not apply. The opinion rule does not apply. Also, the statement need not be against interest when made. Instead, party admissions "are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule."³⁶ In other words, the adversary system imposes upon a party the burden of explaining her prior statements. Note that this rationale breaks down with vicarious admissions, such as those made by co-conspirators.³⁷ In any event, although the Federal Rules change the theory of admissibility, the result is generally the same as under prior law.

[B] Evidential and Judicial Admissions Distinguished

Rule 801(d)(2) deals with evidential admissions. It does not govern the use of judicial admissions, such as admissions in pleadings³⁸ or in stipulations.³⁹ Unlike evidential admissions, which can be rebutted at trial,⁴⁰ judicial admissions bind a party. Thus, a judicial admission, unless allowed by the court to be withdrawn, is conclusive in the case, whereas an evidentiary...