§ 32.09 Agent Admissions: FRE 801(d)(2)(D)
| Jurisdiction | United States |
Because a corporation can speak only through its agents or employees, statements by corporate officials are considered admissions by a corporate defendant. Many common law cases held, however, that statements of an agent or employee without "speaking authority" were inadmissible on the ground that she had no authority to make admissions detrimental to the interests of her employer.76 Suppose a truck owned by the ABC Transport Company slams into your car. The driver says, "I'm sorry. I should not have been drinking." Not admissible against ABC under this theory because the driver had no "speaking authority."77 Rule 801(d)(2)(D) rejects this result.78 Statements by agents or employees are admissible as substantive evidence if offered against the party on two conditions: (1) the statement must concern a matter within the scope of their agency or employment and (2) it must be made during the existence of the agency or employment relationship. The courts rely on the common law of agency to determine who is an agent.79 (The term "servant" was originally use in the rule.)
Within scope of agency or employment. The statement must relate to the declarant's employment responsibilities.80 A truck driver's statements about an accident in which he was involved are admissible but not his statements about an SEC investigation. An employee's statements are not attributable to his employer as an admission unless the employee was involved in the decisionmaking process affecting the employment action at issue.81 If the agency relationship is established, the statement is admissible even if the agent remains unidentified.82
During time of employment. Statements by disgruntled employees after discharge are not admissible. They are not considered reliable.83
"In-house" statements. The rule applies to statements made by agents to their principals ("in-house" statements) as well as statements made to third persons.84 Statements of an employee are sometimes admissible against another employee,85 provided that the other employee supervises the declarant's work.86
Proof of agency. In 1997, the federal rule was amended by adding the following sentence: "The statement must be considered but does not by itself establish . . . the existence or scope of the relationship under (D)."
[A] Admissions by Police
Some courts have held that statements by law enforcement officers are not admissible against the prosecution under Rule 801(d)(2)(D).87 "[C]ourts faced with this issue have refused to apply this provision to government employees testifying in criminal trials based on the rationale that no individual can bind the sovereign."88 This rationale is unpersuasive, and the result is difficult to justify when viewed in light of the expansive exemption for co-conspirator statements, discussed in the next section. It is difficult to distinguish the two situations, except in terms of who gains. Indeed, one commentator questioned whether equal protection rights are violated in this context.89 Moreover, the Sixth Circuit accepted the argument that a paid government informant was in essence an agent of a party opponent.90
[B] Admissions by Attorneys
The statement of an attorney may be admissible against her client as either an authorized admission (because the attorney usually has "speaking authority") or as an agent admission.91
Defense counsel. In United States v. McKeon,92 a prosecution expert concluded that a photocopy machine located at the accused's wife's work place made photocopies associated with a conspiracy to export firearms. In the opening statement, defense counsel stated that a defense expert would testify that this machine did not make these copies. The trial terminated in a mistrial during the prosecution case-in-chief, and the defense expert subsequently learned that his former teacher would be a prosecution expert at the retrial. At the retrial, the defense position changed significantly. The defense opening statement in the earlier trial was admitted as an admission against the accused. The Second Circuit wrote:
The expert testimony about the xerox machine promised by Kennedy [defense counsel] in the opening statement at the earlier trial was in support of a factual claim that Olive McKeon [the wife] had not copied the documents. Kennedy's opening argument at the later trial, stating that Olive McKeon had indeed copied the documents at the request of her husband, was facially and irreconcilably at odds with the earlier assertion.93
McKeon, however, is an unusual case and should not be read expansively.94
Prosecutors. The rule also applies to the prosecuting attorney.95 In addition to agent admissions, these statements may also be adoptive admissions. In United States v. Kattar,96the First Circuit ruled that a government brief in a civil case, which contradicted a government witness, constituted an adoptive admission:
The Justice Department here has, as clearly as possible, manifested its belief in the substance of the contested documents; it has submitted them to other federal courts to show the truth of the matter contained therein. We agree with Justice (then Judge) Stevens that the assertions...
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