Adoption Stories: Can A Husband's Admission Of An Affair Be Used As An Adoptive Admission Against His Wife?

Yesterday on the Evidence Professor Listserv, Professor David H. Kaye asked the following interesting question:

When Husband H confesses to Wife W that he had an affair with another woman, W is speechless. Now W is on trial for murdering the other woman. The prosecution calls H to testify to his admission of adultery.  W objects.

The obvious response is that the statement is not hearsay because it is introduced only to show its effect on the hearer, giving her a motive for the murder regardless of whether H's statement was true. But is the following argument also valid: Although W said nothing, she looked shocked and sad. In this way, "the party manifested that it...believed [H's statement] to be true"? FRE 801(d)(2)(B). 

On the one hand, silence is not usually a statement unless the circumstances are such that the party would be expected to contradict the speaker. On the other hand, this is not a statement that accuses the party of anything. Is W's silence in this context, or at least her facial expressions, enough to manifest her belief?

Professor Kaye's question raises four separate issues connected to adoptive admissions under Federal Rule of Evidence 801(d)(2)(B) that I will address over the next four days.

Federal Rule of Evidence 801(d)(2)(B) provides that

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

Assume that Husband had said in front of Wife and Neighbor that "Wife murdered Mistress." If Wife responded, "Yeah, I killed her, and I would do it again if I had the chance," it is clear that Wife adopted Husband's admission under Rule 801(d)(2)(B), making it admissible against her at her criminal trial for murdering Mistress. The same conclusion would hold if Wife said nothing in response to Husband's statement because "the nature of the statement is such that it normally would induce the party to respond...." United States v. Duvall, 496 F.3d 64, 76 (1st Cir. 2007). In other words, if someone accused you of murder, you normally would respond that you did not commit the murder so that others (such as Neighbor in the example) wouldn't be left with the misimpression that you are a criminal/murderer.

But does a statement need to be accusatory with regard to the party for Rule 801(d)(2)(B) to apply? Reconsider the hypothetical given by Professor Kaye. In that hypothetical, Husband told Wife that he was having an affair, and Wife said nothing in response. Was the nature of Husband's statement such that it normally would induce Wife to respond? In a broad sense, I think that the answer might be "yes." But for Rule 801(d)(2)(B) purposes, the answer seems to be "no." 

The following statement of the Tenth Circuit in United States v. Wolf, 839 F.2d 1387, 1395 n.5 (10th Cir. 1988), is representative in this regard: "Where a person hears, understands and has the opportunity to deny an accusatory statement made in his presence, the statement and his failure to deny it are admissible against him as an adoptive admission." 

In other words, for a statement to potentially qualify as an adoptive admission by a party, the statement must accuse the party of something. An individual might normally respond to all sorts of statements such as, "How is your day going?" or "What did you have at lunch?" but it is only statements accusing a party of something that can qualify as adoptive admissions.

And I think that this makes sense. If we want to use the statement of someone who is not a party's representative to convict a defendant or render invlaid a claim or a defense by a civil plaintiff or defendant, we want to make sure that the party in fact adopted that statement as if he made it himself. If a statement merely implicates the speaker, we lack such certainty. 

-CM