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Thread: Admission by Party Opponent

  1. #1
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    Admission by Party Opponent

    I am so, so sick of seeing this rule misinterpreted both in trial and in practice that I feel the time has come to reach some closure on the subject. Please, set aside our petty team rivalries and come together for the sake of mock trial itself to help me solve this mystery.

    I have seen party opponent used for so many various applications that I'm starting to wonder if my interpretation is, in fact, even correct... though of course, I'm still fairly certain that I'm right and everyone else is wrong.

    For refresher/laziness reduction, here is the rule from the '09 MRE:

    The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) 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, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E)."
    The two major uses I've seen:

    1) Because I am a defense attorney, anything that a prosecution witness says -- that is, my "party opponent" -- is admissible under the party opponent exemption.
    Or, the "party opponent" in today's case is the defense, and therefore, the prosecution may offer any defense statement as a party opponent exemption.

    2) The hearsay rule is predicated upon the belief that a person would not lie if it harmed them in some way -- that is, a person would not falsely confess to a crime or other wrongdoing. Therefore, if a person makes a statement that would harm them in some way, it is presumed to be credible and is exempted from hearsay under "party opponent."

    I personally side with #2 and cringe every time someone tries to explain the logic of #1 to me. IT MAKES NO SENSE! If you understand the philosophy of hearsay even a little bit, I don't see how you can possibly believe that #1 is an accurate representation of the intent behind party opponent.

    I beg of thee, please lift the fog and save mock trial from devolution into a three-ring-circus of misled chimpanzees flinging pages torn from the MRE at each other.
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  2. #2
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    Re: Admission by Party Opponent

    I've never seen anyone claim that everything said by a witness who is merely called by the opposing party is exempt. That would be very bizarre. However, anything said by Jackie Owens is fair game for the prosecution, and anything said by the prosecution's 615 party representative while they were acting under such representation is also fair game for the defense. When people confuse the rule to mean that any witness who was called by the party opponent falls under the same exemption, well... let the judge know that they simply don't know what they're talking about, because you'd be telling the judge the truth.

    The biggest mistake I see in mock trial is this: Sometimes people argue that the statement must have harmed the party opponent's interest, and that therefore not every statement the party makes can be entered under 801d2. Example:


    Sydney Michaels: "Yes, Mr. Owens did say that that's what happens when you play cards with the wrong people."

    "Objection: Hearsay. This is not an admission by a party opponent because in order for it to be so, it must actually go against Owens' interests, and this statement does not do that."

    In my opinion, this argument is really easy to defeat. Instead of arguing about whether it actually harms the defendant's interests, just tell the judge, "We obviously would not be offering this for the truth if we did not feel it harmed the defendant's interests."


    And if it doesn't harm the defendant's interests?

    Detective Finch: "The defendant told me that he was having dinner at Alex Grace's."

    "Objection: Hearsay."

    Now think about this. If you, the prosecutor, didn't think that this statement harmed the defendant's interest, you obviously are not entering it for the purpose of proving that it is true, but rather to show subsequent action on the part of the detective, so it's not hearsay this way either. Either way, anything the defendant says that the prosecution intentionally elicits is simply not hearsay, ever.

  3. #3

    Re: Admission by Party Opponent

    you are completely correct #1 is the most used misinterpretation of the rule, it is based off a correct rule however:

    while the prosecution, plaintiff, or defense is itself a "party" that does not give free rain over what can be omitted. a statement elicited by the parties "representative" or "person" is admissible and is "not hearsay" however. This only applies to the defendant, and the states representative, so any statements being made by them, can be offered up to the court, arguably in any capacity and by any witness (if argued to the court correctly that is). Usually it is done by that sides own witness on cross and the other sides on direct... if that makes any sense.

    (state v. owens; would have to be a statement made by Owens, or finch/lee whichever is deemed the parties "official representative&quot

    #2, is a little off base. Yes a statement made by a party and against their interest would be admissible, because they said it and the court would want to hear it. Foundation needs to be laid for this one though, or you may have to proffer or the court to explain it. (you get a pretty clear breakdown of what would be needed to meet this for the "declarent unavailable" "statment against interest" exception, its pretty much the same idea.

    in addition there is another fun party opponent issue at hand in this years case, so far no one has yet to argue it, reasoning why is because you may discredit the defendant.

    It would be used to elicit testimony of casey maxwell (assuming the are called in accordance with 6th amendment motion to suppress in evidence if they are not), if the defense can argue it well enough.... statments of Casey maxwell could be allowed in and fall under this rule, under the argument that the state is claiming that a coconspiracy exists as part of their case in cheif, therefore statements made that are against casey maxwell from this party would be allowed in against maxwell. (this is tricky because the court might not let it in unless u stipulate a coconspiracy, aka defendants involvement in Bennets death, or the court might just not allow it in because your arguement is that Owens was not a coconspirator all together.)

    hopefully that shed a little light on those shennanagans

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    Re: Admission by Party Opponent

    I'm having deja vu...I feel that I had this exact same argument over the summer on this site. Oh wait, I did. And for the sake of my declining karma, I am staying on the sidelines for this battle. You happy now, Matt?

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    Re: Admission by Party Opponent

    The only thing I'd add is that I'm not sure the Party Opponent rule can be correctly applied to any Prosecution witness in this case. Lee and/or Finch may only be designated a representative for the party for the purpose of rule 615, not for any other RoE purposes, so I'd be inclined to think that excludes their statements from being properly considered Party Opponent.

    This is tempered by the fact that I don't think either one of them says anything harmful to the Prosecution that the Defense would want to elicit from another witness... but nevertheless.
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    Re: Admission by Party Opponent

    [quote author=Carnal Knowledge link=topic=4305.msg178653#msg178653 date=1256074496]
    in addition there is another fun party opponent issue at hand in this years case, so far no one has yet to argue it, reasoning why is because you may discredit the defendant.

    It would be used to elicit testimony of casey maxwell (assuming the are called in accordance with 6th amendment motion to suppress in evidence if they are not), if the defense can argue it well enough.... statments of Casey maxwell could be allowed in and fall under this rule, under the argument that the state is claiming that a coconspiracy exists as part of their case in cheif, therefore statements made that are against casey maxwell from this party would be allowed in against maxwell. (this is tricky because the court might not let it in unless u stipulate a coconspiracy, aka defendants involvement in Bennets death, or the court might just not allow it in because your arguement is that Owens was not a coconspirator all together.)

    hopefully that shed a little light on those shennanagans
    [/quote]

    I am not sure that 801.D.2.e can undo a court suppression order. The order says what it says. I've always figured that 801.D.2.e can really only be used on the text messages.

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    Re: Admission by Party Opponent

    [quote author=RuHurt link=topic=4305.msg178660#msg178660 date=1256086666]
    The only thing I'd add is that I'm not sure the Party Opponent rule can be correctly applied to any Prosecution witness in this case. Lee and/or Finch may only be designated a representative for the party for the purpose of rule 615, not for any other RoE purposes, so I'd be inclined to think that excludes their statements from being properly considered Party Opponent.

    This is tempered by the fact that I don't think either one of them says anything harmful to the Prosecution that the Defense would want to elicit from another witness... but nevertheless.
    [/quote]

    I agree -- I don't think that a witness who is a cop or CSI is a "representative of a party" for purposes of the party opponent rule. Typically you don't see "statements by a party opponent" ever used against the prosecution in a criminal case, though they might apply against the plaintiff in a civil case. To the extent that there is anyone who is a representative of the government, for purposes of the party-opponent rule, it would be government counsel, not a witness.

    KShaw, remember that as a defense attorey, your party opponent is the State of Midlands: not Casey Maxwell, not Hunter Baxamusa, not Shannon Stark, not Ari Finch, and not Jordan Lee. The State of Midlands, and the State of Midlands only, is the party opponent.

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    Re: Admission by Party Opponent

    To the extent that you find this helpful, here is what the advisory committee to the FRE has to say:

    (2) Admissions. Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule. Strahorn. A Reconsideration of the Hearsay Rule and Admissions, 85 U.Pa.L.Rev. 484, 564 (1937); Morgan, Basic Problems of Evidence 265 (1962); 4 Wigmore 1048. No guarantee of trustworthiness is required in the case of an admission. The freedom which admissions have enjoyed from technical demands of searching for an assurance of trustworthiness in some against-interest circumstance, and from the restrictive influences of the opinion rule and the rule requiring firsthand knowledge, when taken with the apparently prevalent satisfaction with the results, calls for generous treatment of this avenue to admissibility.

    The rule specifies five categories of statements for which the responsibility of a party is considered sufficient to justify reception in evidence against him:

    (A) A party's own statement is the classic example of an admission. If he has a representative capacity and the statement is offered against him in that capacity, no inquiry whether he was acting in the representative capacity in making the statement is required; the statement need only be relevant to represent affairs. To the same effect in California Evidence Code 1220. Compare Uniform Rule 63(7), requiring a statement to be made in a representative capacity to be admissible against a party in a representative capacity.

    (B) Under established principles an admission may be made by adopting or acquiescing in the statement of another. While knowledge of contents would ordinarily be essential, this is not inevitably so: "X is a reliable person and knows what he is talking about." See McCormick 246, p. 527, n. 15. Adoption or acquiescence may be manifested in any appropriate manner. When silence is relied upon, the theory is that the person would, under the circumstances, protest the statement made in his presence, if untrue. The decision in each case calls for an evaluation in terms of probable human behavior. In civil cases, the results have generally been satisfactory. In criminal cases, however, troublesome questions have been raised by decisions holding that failure to deny is an admission: the inference is a fairly weak one, to begin with; silence may be motivated by advice of counsel or realization that "anything you say may be used against you"; unusual opportunity is afforded to manufacture evidence; and encroachment upon the privilege against self-incrimination seems inescapably to be involved. However, recent decisions of the Supreme Court relating to custodial interrogation and the right to counsel appear to resolve these difficulties. Hence the rule contains no special provisions concerning failure to deny in criminal cases.

    (C) No authority is required for the general proposition that a statement authorized by a party to be made should have the status of an admission by the party. However, the question arises whether only statements to third persons should be so regarded, to the exclusion of statements by the agent to the principal. The rule is phrased broadly so as to encompass both. While it may be argued that the agent authorized to make statements to his principal does not speak for him, Morgan, Basic Problems of Evidence 273 (1962), communication to an outsider has not generally been thought to be an essential characteristic of an admission. Thus a party's books or records are usable against him, without regard to any intent to disclose to third persons. 5 Wigmore 1557. See also McCormick 78, pp. 159-161. In accord is New Jersey Evidence Rule 63(8)(a). Cf. Uniform Rule 63(8)(a) and California Evidence Code 1222 which limit status as an admission in this regard to statements authorized by the party to be made "for" him, which is perhaps an ambiguous limitation to statements to third persons. Falknor, Vicarious Admissions and the Uniform Rules, 14 Vand.L.Rev. 855, 860-861 (1961).

    (D) The tradition has been to test the admissibility of statements by agents, as admissions, by applying the usual test of agency. Was the admission made by the agent acting in the scope of his employment? Since few principals employ agents for the purpose of making damaging statements, the usual result was exclusion of the statement. Dissatisfaction with this loss of valuable and helpful evidence has been increasing. A substantial trend favors admitting statements related to a matter within the scope of the agency or employment. Grayson v. Williams, 256 F.2d 61 (10th Cir. 1958); Koninklijke Luchtvaart Maatschappij N.V. KLM Royal Dutch Airlines v. Tuller, 110 U.S.App.D.C. 282, 292 F.2d 775, 784 (1961); Martin v. Savage Truck Lines, Inc., 121 F.Supp. 417 (D.D.C. 1054), and numerous state court decisions collected in 4 Wigmore, 1964 Supp., pp. 66-73, with comments by the editor that the statements should have been excluded as not within scope of agency. For the traditional view see Northern Oil Co. v. Socony Mobile Oil Co., 347 F.2d 81, 85 (2d Cir. 1965) and cases cited therein. Similar provisions are found in Uniform Rule 63(9)(a), Kansas Code of Civil Procedure 60-460(i)(1), and New Jersey Evidence Rule 63(9)(a).

    (E) The limitation upon the admissibility of statements of co-conspirators to those made "during the course and in furtherance of the conspiracy" is in the accepted pattern. While the broadened view of agency taken in item (iv) might suggest wider admissibility of statements of co-conspirators, the agency theory of conspiracy is at best a fiction and ought not to serve as a basis for admissibility beyond that already established. See Levie, Hearsay and Conspiracy, 52 Mich.L.Rev. 1159 (1954); Comment, 25 U.Chi.L.Rev. 530 (1958). The rule is consistent with the position of the Supreme Court in denying admissibility to statements made after the objectives of the conspiracy have either failed or been achieved. Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Wong Sun v. United States, 371 U.S. 471, 490, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). For similarly limited provisions see California Evidence Code 1223 and New Jersey Rule 63(9)(b). Cf. Uniform Rule 63(9)(b).

  9. #9

    Re: Admission by Party Opponent

    [quote author=Nur Rauch link=topic=4305.msg178665#msg178665 date=1256090597]
    I am not sure that 801.D.2.e can undo a court suppression order. The order says what it says. I've always figured that 801.D.2.e can really only be used on the text messages.
    [/quote]

    I agree, i was saying that it cannot do that. the suppression order is used when maxwell isnt called only (that suppression order) it would only apply when maxwell was called, and you would need it only for statements no made by Maxwell in court (obv).

  10. #10

    Re: Admission by Party Opponent

    [quote author=RuHurt link=topic=4305.msg178660#msg178660 date=1256086666]
    The only thing I'd add is that I'm not sure the Party Opponent rule can be correctly applied to any Prosecution witness in this case. Lee and/or Finch may only be designated a representative for the party for the purpose of rule 615, not for any other RoE purposes, so I'd be inclined to think that excludes their statements from being properly considered Party Opponent.

    This is tempered by the fact that I don't think either one of them says anything harmful to the Prosecution that the Defense would want to elicit from another witness... but nevertheless.
    [/quote]

    Yeah I don't really think it even effects the case at all that much, but it has always worked. As designated as the parties "representative" for 615 you get the title, and are acting in a "representative" capacity. So they always allow it in under that rule, should that be right? idk but it works

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    Re: Admission by Party Opponent

    Yeah I don't really think it even effects the case at all that much, but it has always worked. As designated as the parties "representative" for 615 you get the title, and are acting in a "representative" capacity. So they always allow it in under that rule, should that be right? idk but it works
    You can try it, but a sharp attorney will point out that Finch/Lee wasn't working in a representative capacity prior to the date and time of the trial, making any and all out-of-court statements they made inapplicable to the foundation for 801d2.

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    Re: Admission by Party Opponent

    [quote author=Nur Rauch link=topic=4305.msg178673#msg178673 date=1256095309]
    You can try it, but a sharp attorney will point out that Finch/Lee wasn't working in a representative capacity prior to the date and time of the trial, making any and all out-of-court statements they made inapplicable to the foundation for 801d2.
    [/quote]

    It doesn't matter if they were acting in a representative capacity when they made the statement and it shouldn't matter which witness is designated the representative of the state. Lee and Finch are both AGENTS of the state and were acting in the course of their employment so their statements are not hearsay under 801(d)(2)(d). Even though there is no stipulation to that effect, how could you argue that the officer in charge of the investigation was not acting in the course of his employment?

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    Re: Admission by Party Opponent

    [quote author=mockabelle link=topic=4305.msg178674#msg178674 date=1256096296]
    It doesn't matter if they were acting in a representative capacity when they made the statement and it shouldn't matter which witness is designated the representative of the state. Lee and Finch are both AGENTS of the state and were acting in the course of their employment so their statements are not hearsay under 801(d)(2)(d). Even though there is no stipulation to that effect, how could you argue that the officer in charge of the investigation was not acting in the course of his employment?
    [/quote]

    While I have wondered about that myself at times, I am almost positive that that argument does not apply to investigators/police. I want to know what crim law attorneys have to say about this idea.

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    Re: Admission by Party Opponent

    Admission by Party Opponent doesn't apply to the State of Midlands in this case. It would be somewhat ridiculous to attempt to invoke this rule as the defense. In a civil case obviously both sides have grounds under 801-D(2) but there is no party opponent in a criminal case for the prosecution because they represent the State. The prosecution may, however, invoke this rule when bringing in statements from Jackie Owens. I have conferred with some of our attorney coaches, two of them criminal defense attorneys, who have echoed the same idea. There is no mandate that such a statement be against his interest. It seems if someone is arguing that they are probably confusing it with 804-3 which is an actual exception.

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    Re: Admission by Party Opponent

    [quote author=Nur Rauch link=topic=4305.msg178676#msg178676 date=1256097321]
    While I have wondered about that myself at times, I am almost positive that that argument does not apply to investigators/police. I want to know what crim law attorneys have to say about this idea.
    [/quote]

    I'm a prosecutor and I've never heard of 801(d)(2) being used by defendants to admit out of court statements by law enforcement under the theory that they were made by the U.S. in a representative capacity. I just think that's a misinterpretation of the rule.

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    Re: Admission by Party Opponent

    I'm also a prosecutor, and I've also never seen a defense attorney try to get a police officer's statements in under 801(d)(2). But I'm not so sure it's an illegitimate argument. I've seen arguments about it somewhere on the internet, at least. If I were judging, I'd certainly at least consider this argument if made by a defendant.

    KShaw, your post is simply wrong. I'll comment on it more later if necessary.
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    Re: Admission by Party Opponent

    FunCepts, does your jurisdiction's rule for party-opponent statements generally track 801(d)(2)? That might make a difference, as well.

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    Re: Admission by Party Opponent

    [quote author=FundamentalPrecepts link=topic=4305.msg178685#msg178685 date=1256123244]
    I'm also a prosecutor, and I've also never seen a defense attorney try to get a police officer's statements in under 801(d)(2). But I'm not so sure it's an illegitimate argument.
    [/quote]

    I'm curious, and also bored in LRW so I'm not thinking about this thoroughly right now, but how would one argue that Finch/Lee's statements are being offered against the State of Midlands? I understand that they would probably be offered to exculpate Owens in some way, but does that inherently make them offered against the State?
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    Re: Admission by Party Opponent

    Interesting question. I think that would be the flipside of the prosecution's offering a defendant's statements: they're inherently offered against the defendant because they are being offered by the prosecution.

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    Re: Admission by Party Opponent

    That makes sense with the understanding that the defendant is the one on trial, therefore anything offered by the prosecution, with that premise, is necessarily offered against the defendant- or else it's irrelevant. I'm curious, what constitutes offering something against the State? Is it possible to offer something against the party not on trial?
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