Section 16.8 Admission by Silence or Adoptive Admission

• Library: Evidence 2017

C. (§16.8) Admission by Silence or Adoptive Admission

Sometimes what a party does not say may nevertheless be deemed an admission that is against the party’s interest. An admission by silence, also known as a tacit admission or adoptive admission, is an out-of-court statement by another person that may be attributed to a party if:

· the statement is made in the party’s presence;

· the party heard and understood the statement;

· the circumstances surrounding the statement were such that the statement “naturally called for a reply” by the party if the party did not intend to admit it; and

· the statement was not made in a judicial proceeding or while a criminal defendant was in custody or under arrest.

See, e.g., State v. Peebles, 569 S.W.2d 1 (Mo. App. E.D. 1978); Gamble v. Browning, 277 S.W.3d 723, 728–29 (Mo. App. W.D. 2008) (the defendant-informant’s failure to object to the plaintiff’s statements on tape was admissible as an admission because of his “assent or agreement” to the plaintiff’s statements).

Although admissions by silence have long been recognized, Missouri courts have been hostile to admission of this evidence. Indeed, it has frequently been called one of the weakest exceptions in terms of probative force. Creager v. Chilson, 453 S.W.2d 941, 943 (Mo. 1970). The courts have been particularly strict in its application. The evidence of the “circumstances” that cause a person to conclude that the statement by another person “naturally” calls for a reply “must point clearly to the necessity for a reply before it can be admitted at all.” Id. at 943 (quoting Keim v. Blackburn, 280 S.W. 1046, 1048 (Mo. 1926)). See State v. Davies, 330 S.W.3d 775, 796 (Mo. App. W.D. 2010).

The requirement that the statement be made in the physical presence of the party is strictly enforced. In State v. Samuel, 521 S.W.2d 374 (Mo. banc 1975), for example, the victim of a shooting told the sheriff that the defendant shot him. The accused was about ten feet away, but in another room. The sheriff was standing next to the defendant and heard the victim’s statement. The State offered the defendant’s failure to contradict the victim as, in effect, an adoption of the truth of the victim’s statement. The Court, however, held that the foundation for admission of the statement was insufficient because the evidence showed that the defendant could not see the victim when the statement was made, although he could presumably hear the statement. Samuel, 521 S.W.2d at 377–78.

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