Rules 801 and 804: the Admissibility of Out-of-court Statements Made by Present and Former Employees

• Publication year: 1997
• Pages: 77
• Citation: Vol. 26 No. 9 Pg. 77

26 Colo.Law. 77 Colorado Lawyer 1997.

1997, September, Pg. 77. Rules 801 and 804: The Admissibility of Out-of-Court Statements Made by Present and Former Employees

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77

Vol. 26, No. 9, Pg. 77

The Colorado Lawyer
September 1997
Vol. 26, No. 9 [Page 77]

Specialty Law Columns
Civil Evidence
Rules 801 and 804: The Admissibility of Out-of-Court Statements Made by Present and Former Employees
by Sherri Heckel

Q: Can a party introduce an out-of-court statement made by a present or former employee to help prove a case against the party's employer

A: Yes, when the statement is: (1) an admission (made during employment) against the interests of an employee-declarant unavailable to testify [C.R.E. 804(b)(3)], (2) an admission against the employer's interests, made by an authorized agent [C.R.E. 801(d)(2)(C)], or (3) a statement made by an employee about a matter within the scope of his or her employment while employed [C.R.E. 801(d)(2)(D)]

Assumed Facts

Joe is suing the Acme Corporation for race discrimination. He wants to introduce at trial an out-of-court statement made by former Acme Personnel Manager Bob Smith. Smith is now deceased, but, before he retired from Acme, he told Joe that Acme had intentionally terminated Joe because of his race How should the court rule?

Discussion

To provide a basis for admitting Smith's statement, Joe should consider three rules of evidence: C.R.E. 804(b)(3), C.R.E. 801 (d)(2)(C) and C.R.E. 801(d)(2)(D).

Rule 804(b)(3) provides that a statement may be admitted as an exception to the hearsay rule if the declarant is unavailable and the statement "at the time of its making [was] so far contrary to the declarant's pecuniary or proprietary interest . . . that a reasonable man in his position would not have made the statement unless he believed it to be true. . . ."

Rule 801(d)(2)(C), relating to admissions by a party opponent, establishes that a statement is nonhearsay if "the statement is offered against a party" and is "made by a person authorized by the party to make a statement concerning the subject."1

Finally, C.R.E. 801(d)(2)(D), also relating to admissions by a party opponent, provides that a statement is nonhearsay if it is "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. . . ."2

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