EvidenceProf Blog

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

Wednesday, June 12, 2013

Mouthguard: Why Does Rule 806 Apply to Rule 801(d)(2)(C) But Not Rule 801(d)(2)(B)?

Following up on Monday's post, in today's post, I want consider the impeachment implications raised by Federal Rule of Evidence 801(d)(2)(B) and Federal Rule of Evidence 801(d)(2)(C). My question is: Why can a party impeach an absent Rule 801(d)(2)(C) declarant but not a Rule 801(d)(2)(B) declarant.

Let's start by listing the relevant Rules. Federal Rule of Evidence 801(d)(2) provides in relevant part that

A statement that meets the following conditions is not hearsay:....

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:....

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject....

Meanwhile, Federal Rule of Evidence 806 provides that

When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

As noted, in Monday's post, this language means what it says as a party cannot impeach an absent Rule 801(d)(2)(B) declarant. Courts are actually of two minds on this issue. Let's return to Monday's hypothetical: Carl, Dan, and Fred are in a basement when Carl says, "Dan killed Vince," and Dan explicitly or implicitly adopts Carl's statement. Some courts say that Carl is the declarant of the statement and that he cannot be impeached unless he appears as a witness based upon the plain language of Federal Rule of Evidence 806.

Other courts deem Dan the declarant and use this reasoning to preclude impeachment of non-witness Carl. In United States v. Finley, 708 F.Supp. 906, 911 (N.D.Ill. 1989), the court held as follows:

Defendants argue that Burnett is subject to impeachment because his statements are adoptive admissions of defendants. Rule 801(d)(2)(B) provides that a statement is not hearsay if it is offered against a party and is "a statement of which the party has manifested an adoption or belief in its truth."...However, even assuming defendants did adopt Burnett's statements, making them admissible pursuant to Rule 801(d)(2)(B), that does not make Burnett subject to impeachment. The declarant of an adoptive admission is the one who adopts it as his own statement; the declarants would therefore be defendants, not Burnett.

I don't really care which interpretation is correct because the result is the same: A party cannot impeach the person who made a statement that he adopted unless the person who made the statement testifies as a witness. 

Now, let's compare a case in which we have a statement admitted under Federal Rule of Evidence 801(d)(2)(C). For instance, let's look at the recent perjury prosecution of Barry Bonds. That case involved the issue of whether certain urine samples came from Bonds. To prove that they did, the prosecution introduced statements by Bonds' trainer, Greg Anderson. According to the Ninth Circuit in United States v. Bonds, 608 F.3d 495, 509 (9th Cir. 2010),

Anderson was authorized by Bonds to identify the samples as coming from Bonds under Rule 801(d)(2)(C). As it was normal and necessary to make sure accurate test results were procured, Anderson was impliedly authorized to identify the samples as coming from Bonds. Because Anderson made these statements for the purpose of insuring accuracy of the test results, they are imputed to party-opponent Bonds as authorized admissions, and were admissible in evidence against him under Rule 801(d)(2)(C).

What this then means is that, even if Anderson did not testify at trial, Bonds could impeach him unde Federal Rule of Evidence 806

I don't get it. The only logic that I can see behind precluding a party from impeaching the speaker of an adoptive admission is that the party adopted the statement, meaning that he can't now claim that the speaker is/was unreliable. In other words, it is as if the party took the words out of the speaker's mouth.

But with an authorized admission, the speaker is the mouthpiece of the party who is speaking on behalf of the party. Why should such a person be subject to impeachment when the person who makes as Rule  801(d)(2)(B) statement is not?



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