Hearsay Exceptions

• Library: Objections Guidebook (2022 Ed.)

Hearsay Exceptions

· The proponent of evidence must come forward with the basis on which it is non-hearsay or for bringing it within a recognized exception. Specific objections depend on the exception and foundation proposed. And, the availability of the witness may be an important consideration. See the discussion on page 13 of this guidebook on the criminal defendant’s constitutional right to confront a witness.

Admission of Party Opponent

General Form of Objection

· The question calls for [proffered answer entails]:

- [multiple] Hearsay.

- No demonstration of a conscious attitude toward a transaction.

- Statements not material to the issues in the lawsuit.

- Inadequate foundation as to attribution to adverse party [privity, agent, co-conspirator].

- Not offered by a party against an opposing party.

- Legal conclusion.

General Rules

· A statement of a party that is adverse to the party’s interest in the lawsuit is admissible as substantive evidence of the fact admitted. See definition of party admission in Missouri Evidence Restated, §801.D.2, pp. 384–85 (MoBar 6^th ed. 2021).

· Admission of a party opponent is a “statement by a party that consciously or voluntarily acknowledges the existence of certain facts unfavorable to, or inconsistent with, the position taken by the party at trial and relevant and favorable to the cause of the opposing party who offers the statement.” Thomas v. Harley-Davidson Motor Co. Grp., LLC, 571 S.W.3d 126, 138–39 (Mo. App. W.D. 2019), quoted with approval by Sherrer v. Bos. Sci. Corp., 609 S.W.3d 697, 710 (Mo. banc 2020) (discussion of use of an initial pleading as an admission).

· In Thomas, 571 S.W.3d at 138–39, the admission by a party opponent was treated as an exception to the hearsay rule. See also Dalbey v. Heartland Reg’l Med. Ctr., 621 S.W.3d 36 (Mo. App. W.D. 2021) (explanation of admissions of a party opponent and explanation of contradiction); State v. Garretson, 598 S.W.3d 643, 654–55 (Mo. App. W.D. 2020) (admission of a party opponent is not hearsay) (“[T]he admission of criminal defendant is not considered to be hearsay.”); State v. Simmons, 233 S.W.3d 235, 237 (Mo. App. E.D. 2007).

· The cases are divided on whether admissions by a party opponent are not hearsay or are an exception to hearsay. The admission of the statement does not depend on whether the declarant is available as a witness. Also, the rules in criminal cases involve constitutional issues.

· See Part 2 on making a record of a constitutional challenge.

· Admission that one holds an opinion is admissible, without regard to whether the opinion is correct as a matter of fact or as to whether one is in a position to know the facts. See, e.g., Wadlow v. Donald Lindner Homes, Inc., 654 S.W.2d 644, 648 (Mo. App. E.D. 1983) (deposition statement of president regarding his opinion of carelessness was an admission by a party opponent). Conclusions of law are not admissible as an admission by a party opponent. Devitre v. Orthopedic Ctr. of St. Louis, LLC, 349 S.W.3d 327, 333 (Mo. banc 2011).

Examples and Legal Authority

· See § 287.215, RSMo 2016, which requires production of a copy of an admission by the employee as a condition of use in a workers’ compensation proceeding. The statute excludes a videotape, motion picture, or visual reproduction.

Statements of Persons in Privity with Party

· Form of Objection: Hearsay—Irrelevant, insufficient foundation (to show the declarant in material privity of interest with the party in fact or law at declaration or that the party’s rights are dependent on or coterminous with those of the declarant).

General Rule

· A statement made by one in privity with a party that is adverse to the party’s interest is admissible as substantive evidence of the fact admitted. Black’s Law Dictionary 1361 (1968) defines “Privity” as “the mutual or successive relationship to the same of rights of property.”

· Note: The rule is largely confined to:

- decedents’ estates;

- predecessors in title (before making conveyance);

- existing marital/familial relations;

- assignor-assignee relations; and

- a principal binding a surety in the ordinary course of that principal’s business.

· See Mo. Evidence Restated §801, pp. 398–99 (MoBar 6^th ed. 2021).

Statements of Co-Conspirators

· Form of Objection: Hearsay—Declaration not in furtherance of conspiracy during its continuance or not evidently in concealment thereof; inadequate foundation (to show existence of conspiracy).

General Rule

· A statement made by a co-conspirator in furtherance of a crime, or the concealment thereof, is admissible as an admission of other co-conspirators. Coday v. State, 179 S.W.3d 343, 357–58 (Mo. App. S.D. 2005); State v. Ferguson, 20 S.W.3d 485, 496–97 (Mo. banc 2000) (statements made after the commission of the crime—e.g., to conceal the crime—are still admissible under this exception to the hearsay rule); State v. McFarland, 259 S.W.3d 621, 625 (Mo. App. S.D. 2008) (if the conspiracy continues for “any purpose,” the statements are admissible as an exception to the hearsay rule). See also State v. Warren, 141 S.W.3d 478, 491 (Mo. App. E.D. 2004) (it is not an exception to the hearsay rule if “it was made prior to the formation of the conspiracy or after consummation of its purpose”) (citations omitted).

Admission of Agent or Employee

· Form of Objection

- Hearsay—Irrelevant

- Insufficient foundation (to show declaration was in the ordinary course of business of principal or was within scope of agent’s authority)

- Statement of purported agent is incompetent to prove agency of co-employee

General Rule

· An admission of an agent or employee may be received in evidence against the principal, if relevant to the issues involved, when the agent, in making the admission, was acting within the scope of the agent’s authority. Bynote v. Nat’l Super Mkts., Inc., 891 S.W.2d 117, 124 (Mo. banc 1995) (rejection of term “res gestae” admission of a party opponent); M.W. by and though K.W. v. Six Flags St. Louis LLC, 605 S.W.3d 400, 412 (Mo. App. E.D. 2020) (employee’s statements were admissible as that of a party opponent). Cf. Fed. R. Evid. 801(d)(2)(C) and (D) (usual test of agency is not used).

Admission by Silence

· Form of Objection

- Hearsay—[Fails to qualify for the hearsay exception]

- Irrelevant

- Insufficient foundation (to show circumstances indicating that party heard or had to have heard the declaration not denied; or to show absence of response; or to show circumstances dictated a response)

General Rule

· When circumstances call for a duty to speak, a failure to deny or contradict statements against the party’s interest constitutes an admission of the fact asserted. Kelso v. C.B.K. Agronomics, Inc., 510 S.W.2d 709, 729 (Mo. App. W.D. 1974); Ogle v. Todd, 514 S.W.2d 38, 42 (Mo. App. W.D. 1974) (a tacit admission is weak and not admissible if there was no “need” to respond to the question).

· Note: Silence cannot be admissible if constitutionally or otherwise privileged, so that circumstances are not competent to pose occasion calling for response. For example, silence by an accused, counsel, a priest, or a physician may signify unwillingness to discuss matters presumptively confidential. In the case of an accused, admission by silence can only be used if the accused has waived the right to remain silent. See State v. White, 941 S.W.2d 575, 580 (Mo. App. E.D. 1997) (stating general rule that defendant’s post-arrest silence is not admissible except to rebut the impression that defendant “fully cooperated” with the police: trial court reversed under plain error review).

· See Part 2 on making a record.

Adoptive Admission

· Form of Objection

- Hearsay—Irrelevant

- Insufficient foundation (to show conduct consistent only with belief in the truth of other’s statement, or to show that actor was conscious of or responding to the other’s statement)

General Rule

· Conduct by a party manifesting a belief in the truthfulness of a statement by another constitutes an admission of the stated facts. The exception to the hearsay rule requires that the “speaker must make the assertion in the presence and hearing of the party, and it must be one that would naturally call for a...