A party’s own words are not considered hearsay when offered against that party at trial (even though the statement follows the basic rule for hearsay).


Party’s Own Words

Jordan v. Binns, 712 F.3d 1123 (7th Cir. 2013). Jordan was a motorcycle driver involved in a car accident against a truck. The truck driver seeks to admit into evidence testimony from a witness claiming to have heard another person hear Jordan taking the blame and releasing the truck driver from liability. Is this testimony admissible? No, see 805 (hearsay on hearsay).

Adoptive Admissions

State v. Stubbs, 78 A.3d 987 (N.J. Super. App. Div. 2013). After being arrested for possession of drugs and drug money, Ms. Stubbs signed a form as the claimant stating that the money would be returned if nothing happened with the case. Is the form admissible if offered to prove that Ms. Stubbs had ownership of the money? No, this is a statement made by someone other than who it is trying to admit it against.

United States v. Beckham, 968 F.2d 47 (D.C. Cir. 1992). Undercover officers approached Monroe and Beckham and purchased drugs from Monroe. When the officer’s asked for more, Monroe responded that she was out but the officers could obtain more from her buddy. Beckham then stood up and fetched more drugs. At this point the officers arrested both parties. Now the state wishes to admit into evidence statements made by Monroe and adopted by Beckham’s actions. Admitted.

Franklin v. Duncan, 70 F.3d 75 (9th Cir. 1995). Duncan was arrested and accused of murder. His daughter (the accuser) visited him in jail. There she said that she was telling the truth. In response the father pointed to the sign saying that the message was being monitored. Now the state wants to get this jail visit into evidence. At trial, his silence was admitted as an adoption of the statement. Should have been excluded.

For silence to count as an admission four prongs need to be satisfied:

  1. Did the opposing party hear and understand the statement?
  2. Was the opposing party at liberty to respond?
  3. Was there a call for a response?
  4. Did the opposing party fail to deny or otherwise respond?

801(d)(2)(C) and (D)

Statements of Agents

Mahlandt v. Wild Canid Survival & Research Center, Inc.

588 F.2d 626 (8th Cir. 1978).

Daniel Mahlandt was a young child who was sent out to fetch his older brother down the street. Along the way he passed by the home of Mr. Poos, director of the Wild Canid Survival & Research Center. The center owned a wolf that Mr. Poos would take to schools and institutes for presentations. This wolf had a reputation for being gentle and was kept at the Poos home. Daniel was discovered in the back enclosure of the home where the wolf was kept while the wolf was standing over him. He had sustained several injuries. Hot in dispute is how those injuries were sustained. Mr. Poos arrived home later to discover Daniel, called the institute and said the wolf had bit a child. Later, the board had a meeting to discuss the implications of the event.

At trial, none of the evidence was admissible. On appeal, the statements made by Mr. Poos could be admitted against him and the center because Mr. Poos was an agent of the center. Although the board minutes could be admitted against the center, they could not be admitted against Mr. Poos.

Notice that Poos had no knowledge, but because he said something, the comments could be made against him.

Pappas v. Middle Earth Condominium Ass’n, 963 F.2d 534 (2d Cir. 1992). Pappas slipped and fell outside a vacation condominium causing extensive injuries. Management was called to take care of the ice problem. One worker said that others were supposed to be on duty and should have taken care of the ice earlier. Is this statement admissible against the condominium company?

801(d)(2)(E) & 104(a)

Coconspirators’ statements

For a coconspirator statement to be admitted, there must (1) be a conspiracy, (2) the conspiracy included both the declarant and the party against whom the statement is sought to be admitted, (3) the statement went in furtherance of the conspiracy. Determination of the existence of a conspiracy occurs in a 104(a) hearing and may consider all the evidence, hearsay included, based on a preponderance of the evidence.

Bourjaily v. United States

483 U.S. 171 (1987).

The FBI had a call with Lonardo arranging the sale of drugs. Lonardo said that a friend would call to discuss the sale and also to facilitate pickup of the drugs. The friend facilitated the rest of the sale and was apprehended after completed. That friend is Bourjaily. At trial, the court sought to admit the telephone call the FBI had with Lonardo as evidence. This was permitted as a coconspirator statement. A 104(a) hearing was conducted, determined that the statement leads to a conspiracy and furtherance thereof, by a preponderance of the evidence. Thus, this is admissible under 801(d)(2)(E).

United States v. Aboumoussallem, 726 F.2d 906 (2d Cir. 1984). An undercover agent organized a deal for drugs with N. N said more family deals in the business and the agent arranged further dealings with Y, N’s cousin. Y executed a sale with the agent over a flight. Because neither spoke the other’s language, N translated. Once the officers attempted to arrest, N resisted resulting in his death. At Y’s trial, can N’s translation be admitted as furtherance of a conspiracy?


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 2L Spring, Evidence

Will Laursen

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