Chapter 3 - §5. Exception—Party's own admission

• Jurisdiction: United States

§5. Exception—Party's own admission

A party's out-of-court statement is admissible as an exception to the hearsay rule when offered by a party-opponent. Evid. C. §1220.

§5.1. Overview. The rationale for this hearsay exception is that a party cannot object to the lack of the right to cross-examine the declarant because the declarant is the party himself. 7 Cal. Law Revision Comm'n Rep. (1965) p. 1223. Other safeguards that warrant this hearsay exception are that the party can cross-examine the witness who testifies to the party's own statement and that the party is available to explain or deny his own purported admission. Id.

Federal Comparison Under the FREs, a defendant's out-of-court statement that is offered against the defendant by the prosecution for the truth of the matter asserted is not considered hearsay. FRE 801(d) (2)(A). Thus, in contrast to California law, federal courts admit such statements against the defendant as nonhearsay evidence (not as a hearsay exception). Id.

§5.2. Requirements for exception. For a party-opponent's out-of-court statement to be admissible as a hearsay exception, the following criteria must be met:

1. Declarant is a party. The declarant must be a party to the proceeding in either his individual or his representative capacity. Evid. C. §1220; e.g., People v. Acuna (3d Dist.2017) 9 Cal.App.5th 1, 26-27 (presuming but not deciding that Evid. C. §1220 is inapplicable to gang members who were not named as defendants in suit). In a criminal proceeding, the declarant is usually the defendant.

2. Declarant made a statement. The party-declarant (i.e., the defendant) must have made the out-of-court statement. Evid. C. §1220; see, e.g., People v. Dalton (2019) 7 Cal.5th 166, 229 (out-of-court statement by D—"Yep, we really f*cked that girl up"—and D's accompanying exuberance were admissible as party statement); People v. Armstrong (2019) 6 Cal.5th 735, 785 (out-of-court statement made by D during police interview offered against him by prosecution was admissible as party statement); People v. Reed (1996) 13 Cal.4th 217, 230 (excerpt from probation officer's report was not admissible because it did not identify declarant or declarants who made statements); see also CALCRIM 358 (Evidence of Defendant's Statements). The statement does not have to be made, however, in the defendant's individual or representative capacity. See Evid. C. §1220.

(1) Nature of statement. Under Evid. C. §1220, the nature of the statement is not important. Any statement made by the defendant—written or oral, express, or implied—is admissible; there is no requirement that the statement be an "admission" as it is understood in its normal, everyday meaning (e.g., statement can be opinion, hearsay, or anything else). See People v. Gonzalez (2021) 12 Cal.5th 367, 408-09; People v. Horning (2004) 34 Cal.4th 871, 898 n.5; 1 Witkin, California Evidence (5th ed.), Hearsay §93; see also CALCRIM 358 (Evidence of Defendant's Statements). The exception applies to all relevant statements made by the party against whom they are offered, regardless of whether they meet the narrower definition of an "admission." Armstrong, 6 Cal.5th at 785 n.19. Thus, under Evid. C. §1220, the statement does not have to admit anything or be against the declarant's interest; the statement can be harmful, self-serving, neutral, and even ambiguous. See People v. Cortez (2016) 63 Cal.4th 101, 125; People v. Zack (2d Dist.1986) 184 Cal.App.3d 409, 417; see also People v. Carpenter (1999) 21 Cal.4th 1016, 1049 (heading of Evid. C. §1220 is irrelevant to its construction). Statements that have been considered to be a party admission under Evid. C. §1220 include the following:

• Gang notations made by the defendant in an address book. People v. Becerrada (2017) 2 Cal.5th 1009, 1024-25.
• The defendant's guilty plea to a misdemeanor offense. People v. Lee (2011) 51 Cal.4th 620, 650.
• The defendant's statements to a witness. People v. Anderson (2018) 5 Cal.5th 372, 403; People v. Alexander (2010) 49 Cal.4th 846, 908.
• The defendant's statements made in closing argument in an earlier trial as a pro se litigant. People v. Kiney (3d Dist.2007) 151 Cal.App.4th 807, 813.
• The defendant's statement as a guest speaker at a law-enforcement meeting. People v. Case (2018) 5 Cal.5th 1, 41-42.
• The defendant's written list of murder victims. People v. Kraft (2000) 23 Cal.4th 978, 1034-35.
• An expert witness's testimony about the defendant's statements to him. People v. Flint (1st Dist.2018) 22 Cal.App.5th 983, 1004-05.
• The defendant's admission of gang membership. People v. Thompkins (1st Dist.2020) 50 Cal.App.5th 365, 415.
• The defendant's statements in various prison and hospital records and interdisciplinary progress notes. People v. Orey (4th Dist.2021) 63 Cal.App.5th 529, 553-58.

(2) Assertive conduct. Under Evid. C. §1220, a declarant's assertive conduct may be considered an admission. See People v. Williams (1st Dist.1990) 222 Cal.App.3d 911, 916. See "Assertive nonverbal conduct," ch. 3-A, §3.1.2.

(3) Opinion. Under Evid. C. §1220, it is not necessary that the declarant's statement be one that would be admissible if made at a hearing (i.e., it does not have to be based on the declarant's personal knowledge). See 7 Cal. Law Revision Comm'n Rep. (1965) p. 1223. Thus, a statement that is in the form of an opinion is admissible against a party-opponent. See Levy-Zentner v. Southern Pac. Trans. Co. (1st Dist.1977) 74 Cal.App.3d 762, 786-87.

3. Party-opponent offered statement. The defendant's statement must be offered by a party-opponent (i.e., the prosecution) against the defendant; the defendant cannot offer his own statement as a party admission. E.g., People v. Flinner (2020) 10 Cal.5th 686, 735-36 (statements by D suggesting he killed the victim, although introduced through testimony of a friend and offered by co-D, nevertheless deemed "offered against" D because harmful to D's case and antagonistic to his defense); People v. Russell (2010) 50 Cal.4th 1228, 1258 (although...