EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, May 28, 2011

Adoption Agent: 2nd Circuit Finds Notes From Agent's Interrogation Of Suspect Admissible As Adoptive Admission

Assume that a suspect in a crime is interviewed by an investigative agent and makes certain incriminatory statements. And, assume that, during the interview, the agent takes notes during the interview that are not a perfect transcription of exactly what the suspect. But, assume that the agent shows the notes to the suspect at the end of the interview and has the suspect review and sign the notes. Should the notes be admissible against the suspect at trial? According to the recent opinion of the Second Circuit in United States v. Stafford, 2011 WL 1938662 (2nd Cir. 2011), the answer is "yes."

In Stafford, Brian Stafford was convicted of one count of conspiracy to import cocaine and one count of conspiracy to distribute and possess with intent to distribute cocaine. He thereafter appealed, claiming, inter alia, "that the District Court erred in permitting the government to introduce as evidence the notes that an investigative agent took during an interview with Stafford." According to the Second Circuit,

It is undisputed that Stafford participated in a voluntary interview in which he was told that he was free to leave at any time. In the course of that interview, Stafford made various admissions regarding his involvement in the charged conspiracies. At the end, the investigative agent, who had been writing notes during the conversation, reviewed each line of his notes with defendant to ensure that they accurately reflected the contents of the interview. Stafford made minor corrections to the notes, agreed that the information therein (after the appropriate corrections were made) was accurate, and signed his name on the last page

The Second Circuit then found that the district court properly admitted these notes under Federal Rule of Evidence 801(d)(2)(B), which provides that 

A statement is not hearsay if...The statement is offered against a party and is...a statement of which the party has manifested an adoption or belief in its truth....

According to the court,

Stafford's thorough review of the agent's notes and acknowledgment of their accuracy adequately demonstrated his adoption of their contents. They were therefore admissible as non-hearsay. See Fed.R.Evid. 801(d)(2)(B) advisory committee's note ("Adoption or acquiescence may be manifested in any appropriate manner.").



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