Section 16.5 Admissions of a Party-Opponent

• Library: Evidence 2017

II. (§16.5) Admissions of a Party-Opponent

An out-of-court hearsay statement by a party-opponent is admissible if it is:

· a conscious or voluntary acknowledgment by a party-opponent of the existence of certain facts;

· relevant; and

· unfavorable to, or inconsistent with, the party’s current position in the litigation.

In re Mirabile, 975 S.W.2d 936, 938–39 (Mo. banc 1998); Hemphill v. Pollina, 400 S.W.3d 409, 414 (Mo. App. W.D. 2013) (no duty to speak after Miranda rights were explained, Miranda v. Ariz., 384 U.S. 436 (1966)).

Older cases characterize admissions of a party-opponent as an exception to the hearsay rule. Now these statements are not considered to be hearsay at all. As the court explained in State v. Brown, 833 S.W.2d 436, 438–39 (Mo. App. W.D. 1992), “the hearsay rule is designed to protect a party from out-of-court declarations of other persons who cannot be cross-examined as to the bases of their perceptions, the reliability of their observations, and the degree of their biases.” An admission of a party-opponent comes from the party. The party “does not need to cross-examine himself. He already knows why he said what he said when he said it.” Id.

The admission of a party-opponent is sometimes referred to as an “admission against interest.” See, e.g., White v. Burkeybile, 386 S.W.2d 418 (Mo. 1965). But such a statement does not need to be “against interest” in the sense that phrase is used in the hearsay exception for declarations against interest by a nonparty. There is no need to show that the statement is against the party’s proprietary, pecuniary, or penal interest. All that is necessary is that it be unfavorable to, or inconsistent with, the party’s litigation position. The inconsistency is the critical element. See, e.g., St. Louis Cnty. v. River Bend Estates Homeowners’ Ass’n, 408 S.W.3d 116 (Mo. banc 2013) (statements made during the commissioners’ hearing were not inconsistent with trial testimony on value); Albertson v. Wabash R. Co., 253 S.W.2d 184, 189–90 (Mo. 1952).

Only conscious or voluntary statements by a party qualify. A statement made under duress—for example, at the point of a gun—would not be classified as an admission because the declarant would have a motive to falsify the statement (for obvious reasons). And, of course, there are limits on the use of confessions obtained in violation of a defendant’s constitutional rights. See, e.g., Haynes v. State of Wash., 373 U.S. 503, 513 (1963); State v. Kiplinger, 430...