Adoption Stories, Take 2: Why I Think There Should Be A Personal Knowledge Requirement For Adoptive Admissions

Yesterday's post was the first in a series of four posts dealing with adoptive admissions under Federal Rule of Evidence 801(d)(2)(B) based upon the following fact pattern:

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.

As I noted yesterday, the first problem with the prosecution trying to admit Husband's statement as an adoptive admission under Rule 801(d)(2)(B) to prove that Husband was in fact having an affair (the statement would be admissible to prove its effect on the listener) is the statement is not accusatory with regard to Wife. It doesn't accuse her of anything and thus could not qualify as an adoptive admission. The second potential problem for the prosecution would or at least should (in my view) be Wife's apparent lack of personal knowledge of the affair.

Federal Rule of Evidence 801(d)(2) sets forth five types of admissions that are defined as "not hearsay" under the Federal Rules of Evidence. It is well established that the other four types of admissions do not require personal knowledge. See, e.g., Mahlandt v. Wild Candid Survival & Research Center, Inc., 588 F.2d 626, 630 (8th Cir. 1978). And this makes sense. In the case of an admission by a party-opponent, the party can't complain that her admission is inadmissible because she lacked personal knowledge. If Wife said to Friend, "My Husband is having affair," the prosecution would like to try to admit this statement against Wife at her trial for murdering Husband and/or Mistress to prove her motive for the murder(s). Wife's claim that this statement should be inadmissible because her statement was mere conjecture would and should fall on deaf ears. She made the damaging statement, and she has to live with it. Moreover, as a party, Wife can always take the stand and explain away the statement.

With authorized, employee, and co-conspirator admissions under Federal Rule of Evidence 801(d)(2)(C)-(E), a similar logic holds. If Friend were Wife's co-conspirator in a conspiracy to kill Husband and/or Mistress, Friend would be Wife's representative, her agent. Therefore, statements made by Friend during the course of and in furtherance of the conspiracy would be attributable to Wife, and she couldn't claim that Friend lacked personal knowledge of the facts contained in her co-conspirator admissions. And the same logic applies to authorized and employee admissions. The authorizee and employee are similarly representatives, agents of the party.

With adoptive admissions under Federal Rule of Evidence 801(d)(2)(B), however, the person making the subject statement is not the party's representative. When Husband tells Wife that he is having an affair, he is not speaking on her behalf. His statement, when made, is not attributable to her. The theory, though, is that when someone makes a statement in the presence of a party that would normally call for a response, the party's silence or response that does not rebut the statement in effect adopts the statement, makes it the party's own. And it seems that for this adoption to happen, the party should need personal knowledge of the contents of the statement.

If for instance, Wife did not previously know that Husband was having an affair, why would she rebut the statement? The answer is that she wouldn't/couldn't because she would have no idea whether Husband was or was not having an affair. That being the case, why should Wife's silence constitute an adoption of Husband's statement? For some courts, its shouldn't.

According to the court in White Industries, Inc. v. Cessna Aircraft Co., 611 F.Supp. 1049, 1063 (W.D.Mo. 1985), for a statement to qualify as an adoptive admission,

the statement must deal with a matter within the personal knowledge of the party-opponent. [FN5] McCormick on Evidence, supra at 653. This is so even if Rule 801(d) is viewed as having generally dispensed with the requirement of first hand knowledge in connection with admissions, see Mahlandt v. Wild Canid Survival & Research Center, Inc., 588 F.2d 626, 630–31 (8th Cir.1978), for the reasons so well expressed in McCormick, supra:

FN5. In the present sort of context, I take this to mean that the matter must be within the personal knowledge of the employee to whom the statement was made, or of other company personnel to whom the matter was referred or reported.

"At first glance, this requirement may appear inconsistent with the general dispensation with firsthand knowledge with respect to admissions, yet the unreasonableness of expecting a person to deny a matter of which he is unaware seems evident; he simply does not have the incentive or wherewithal to embark upon a dispute."

Other courts, however, hold that a party doesn't need personal knowledge of the contents of a statement to adopt it. Check out this quote from Pillsbury Co. v. Cleaver Brooks Division of Aqua-Chem, Inc., 646 F.2d 1216, 1218 n.2 (8th Cir. 1981): "This court previously has held, however, thatpersonal knowledge is not a prerequisite for the adoption of another's statement pursuant to Rule 801(d)(2)(B) of the Federal Rules of Evidence." And then there's this quote from Grundberg v. Upjohn Co., 137 F.R.D. 365, 370 (Utah 1991): "Even if the person adopting the statement had no personal knowledge or first hand information about the reports, if a person manifests their acceptance of information, the admission by adoption is admissible non-hearsay evidence."

Now, in fairness, the parties in both Pillsbury and Upjohn did not merely remain silent in the face of someone else's statement. Instead, Upjohn, submitted the statements to the FDA and a Pillsbury supervisor signed the statement. And maybe in those circumstances, personal knowledge should not be required. But when Husband says he's having an affair and Wife says nothing in response, I think that personal knowledge should be required.

-CM