§ 32.07 Adoptive Admissions: FRE 801(d)(2)(B)

• Jurisdiction: North Carolina

§ 32.07 Adoptive Admissions: FRE 801(d)(2)(B)

A statement "adopted" by a party is admissible as substantive evidence if offered against that party.⁵⁶ A party may expressly adopt the statement of a third person.⁵⁷ More difficult issues arise when the adoption is circumstantial.⁵⁸

[A] Adoption by Use

Mere possession of a document is not an adoption of its contents. Use of the document, however, is different. Wigmore wrote: "The party's use of a document made by a third person will frequently amount to an approval of its statements as correct, and thus it may be received against him as an admission by adoption."⁵⁹ For example, in Wagstaff v. Protective Apparel Corp. of Am., Inc.,⁶⁰ the Tenth Circuit found that newspaper reprints had been adopted by a party: "By reprinting the newspaper articles and distributing them to persons with whom defendants were doing business, defendants unequivocally manifested their adoption of the inflated statements made in the newspaper articles."⁶¹

Similarly, in Price v. Cleveland Clinic Found.,⁶² a malpractice action for negligent blood-grouping tests, the plaintiff offered three scientific papers as evidence. The court ruled the papers admissible: "[T]he defendants used all of them to train their own personnel at seminars. Thus, they were statements made or adopted by the defendants and were not hearsay when the adverse party offered them as evidence."⁶³

[B] Adoption by Silence

A party may adopt the statement of a third person by failing to deny or correct the statement under circumstances in which it would be natural to deny or correct the truth of the statement. It is not sufficient that the statement was merely made in the presence of a party. In other words, silence is not equivalent to assent. It needs to occur in circumstances where it would be natural to respond by denying or correcting the statement.⁶⁴

In one case, for example, the defendant was asked by a friend during a telephone conversation: "Why did you have to kill her?" He responded: "We shouldn't talk about this." The court ruled that "it is precisely Case's attempt to evade responding to Kelly's accusation that makes his response a tacit admission."⁶⁵ In contrast, the defendant's non-response to text messages of alleged rape victim was not an adoptive admission: "If the party offering such evidence cannot demonstrate that the listener intended to adopt or approve the contents of the statements to which the listener did not respond, then the evidence is inadmissible."⁶⁶

Post-arrest. In criminal cases, "troublesome questions" are raised by decisions holding that failure to deny after arrest is an admission: "the inference is a fairly weak one, to begin with; silence may be motivated by advice of counsel or realization that 'anything you say may be used against you'; unusual opportunity is afforded to manufacture evidence; and encroachment upon the privilege against self-incrimination seems inescapably to be involved."⁶⁷ In United States v. Hale,⁶⁸ the Supreme Court stated that "in most circumstances...