§ 32.08 AUTHORIZED ADMISSIONS: FRE 801(D)(2)(C)

• Jurisdiction: North Carolina

§ 32.08. AUTHORIZED ADMISSIONS: FRE 801(d)(2)(C)

Statements made by a person authorized by a party to speak for that party are admissible as substantive evidence if offered against that party.⁶⁸ The rule governs only statements by agents who have speaking authority — e.g., attorneys, partners, and corporate officers.⁶⁹ A different rule governs the admissibility of statements by agents who do not possess speaking authority: Rule 801(d)(2)(D). (See below.)

In-house statements. The rule covers statements made by agents to their principals ("in-house" statements) as well as statements made by agents to third persons.⁷⁰

Proof of authority. At common law, before statements of an agent were admissible, the authority of the agent to speak had to be established by independent evidence.⁷¹ In other words, this authority could not be proved by the statements themselves. In 1997, the federal rule was amended, rejecting this position: "The statement must be considered but does not by itself establish the declarant's authority under (C)."

--------

Notes:

^[68] The firsthand knowledge and opinion rules do not apply to admissions. See supra § 32.05[C] (discussing firsthand knowledge and opinion rules).

^[69] See Hanson v. Waller, 888 F.2d 806, 814 (11th Cir. 1989) (stating that lawyers have implied authority to speak outside of court on matters related to the litigation); Mahlandt v. Wild Canid Survival & Research Ctr., Inc., 588 F.2d 626, 631 (8th Cir. 1978) ("As to the entry in the records of a corporate meeting, the directors as primary officers of the corporation had the authority to include their conclusions in the record of the meeting. So the evidence would fall within 801(d)(2)(C) as to Wild Canid Survival and Research Center, Inc., and be admissible."). See also United States v. Bonds, 608 F.3d 495, 503 (9th Cir. 2010) ("Athletic trainers . . . do not traditionally have such any such implicit authorization to speak.").

^[70] See Fed. R. Evid. 801 advisory committee's note ("No authority is required for the general proposition that a statement authorized by a party to be made should have the status of an admission by the party. However, the question arises whether only statements to third persons should be so regarded, to the exclusion of statements by the agent to the principal. The rule is phrased broadly so as to encompass both. While it may be...