§ 32.05 Statements ("Admissions") of Party-Opponents: Overview

• Jurisdiction: United States

§ 32.05 Statements ("Admissions") of Party-Opponents: Overview

Rule 801(d)(2) exempts statements ("admissions") of a party-opponent from the hearsay rule by defining them 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,³⁵ and Rule 410 excludes certain pleas, offers to plead, and statements in criminal cases.³⁶

In 2011, the advisory committee changed the title of the rule from "admissions" to "statements": "The term 'admissions' is confusing because not all statements covered by the exclusion are admissions in the colloquial sense—a statement can be within the exclusion even if it 'admitted' nothing and was not against the party's interest when made. The term 'admissions' also raises confusion in comparison with the Rule 804(b) (3) exception for declarations against interest. No change in application of the exclusion is intended."

[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."³⁷

Second, virtually all hearsay exceptions are based on some circumstantial guarantee of trustworthiness.³⁸ 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."³⁹In 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.⁴⁰ In any event...