Rules 801 and 613: Evidentiary Uses of Pleadings Filed in Other Cases

• Publication year: 1992
• Pages: 2389
• Citation: Vol. 11 No. 1992 Pg. 2389

21 Colo.Law. 2389 Colorado Lawyer 1992.

1992, November, Pg. 2389. Rules 801 and 613: Evidentiary Uses of Pleadings Filed in Other Cases

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Rules 801 and 613: Evidentiary Uses of Pleadings Filed in Other Cases

by Lawrence M. Zavadil

Q: Can pleadings filed in other cases be used as substantive evidence or for impeachment in a subsequent case between the same or different parties?

A: Yes

ADMISSION BY PARTY OPPONENT: CRE 801(d)(2)

There are numerous circumstances in which pleadings(fn1) filed in related or unrelated cases can have a bearing in subsequent litigation. The most obvious use of a pleading filed in another case is as an evidentiary admission by the opposing party.(fn2) Such admissions can be used as substantive evidence and are admissible as proof of the matter asserted. Statements contained in pleadings, even though prepared and signed by counsel, qualify as an admission by a party under Colorado Rules of Evidence ("CRE") 801(d)(2)(c) because they are "a statement made by a person authorized by him to make a statement concerning the subject."(fn3) Such a statement might also be admitted under CRE 801(d)(2) (b) as a statement which the party has adopted.(fn4) A party seeking to admit a statement in a prior pleading need not have been a party to the proceeding in which the pleading was filed.(fn5)

Admissions by a party are sometimes misleadingly called "admissions against interest."(fn6) Admissions are not hearsay. Statements against interest are hearsay that can be admitted as an exception to the hearsay rule under CRE 804(b)(3) only if the declarant is unavailable, the statement was not self-serving at the time it was made, and the statement was based on the declarant's personal knowledge.(fn7)

There are limits to the evidentiary use of admissions in pleadings. For instance, the admission of such evidence is generally denied as to matters pleaded hypothetically or, in the alternative, pursuant to Rule 8(e)(2) of the Colorado Rules of Civil Procedure.(fn8) Further, although the majority of courts allow matters asserted in withdrawn or superseded pleadings to be used in evidence as an admission,(fn9) some courts reject such evidence as being contrary to the policy of liberal amendment of pleadings.(fn10) Finally, although an admission made in a pleading in a prior case can be very useful in subsequent litigation, it is not conclusive of the matter admitted. Thus, such an...