Adoption Stories, Take 4: Why Adoptive Admissions Should Be Governed By Standards Governing Statements Against Interest

Yesterday's post was the thirdt 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.

In my first post, I claimed that this statement shouldn't qualify as an adoptive admission admissible against Wife because it was not accusatory toward her. In my second post, I argued that this post shouldn't qualify as an adoptive admission admissible against Wife unless the prosecution could prove that Wife had personal knowledge of the affair before Husband made his statement. In my third post, I contended that it makes sense to treat adoptive admissions differently from other admissions under Rule 801(d)(2) because the Federal Rules of Evidence treat them differently under Federal Rule of Evidence 806. Today's post takes this argument to its logical conclusion: The standards governing adoptive admissions under Federal Rule of Evidence 801(d)(2)(B) should be the standards governing statements against interest under Federal Rule of Evidence 804(b)(3), not the standards governing other admissions under Rule 801(d)(2).

Besides the fact that admissions under Rule 801(d)(2) are made by a party or a part'y's representative and statements against interest under Rule 804(b)(3) are made by an unavailable declarant, there are three features that distinguish the two types of statements. Two fact patterns can be used to reveal these differences:

Vince vs. Dan, Take 1

On November 1, 2011, Wanda tells her husband Dan, "I'm probably going to buy you a pit bull on November 3rd for your birthday." On November 3rd, before seeing the pit bull, Dan tells his neighbor Ned, "I got a pit bull for my birthday." On November 5th, Vince is bitten by a pit bull. He brings a civil negligence action against Dan, claiming that the pit bull belonged to Dan. Vince wants to call Ned to testify about Dan's statement.

Vince v. Dan, Take 2

On November 1, 2011, Wanda tells her husband Al, "I'm probably going to buy you a pit bull on November 3rd for your birthday." On November 3rd, before seeing the pit bull, Al tells his neighbor Ned, "I got a pit bull for my birthday." On November 5th, Vince is bitten by a pit bull. He brings a civil negligence action against Dan, claiming that the pit bull belonged to Dan. Dan claims that the pit bull belonged to Al and wants to call Ned to testify about Al's statement. Al has died before trial or is otherwise unavailable. 

Personal Knowledge

The first difference between statements against interest and admissions is that statements against interest require personal knowledge while admissions do not. In Take 1 above, Dan has no personal knowledge that he has a pit bull on November 3rd. First, Wanda's statement about buying a pit bull was equivocal. Second, even if she bought a pit bull on the 3rd, it might have been after Dan made his statement to Ned. Doesn't matter. Dan's statement is the admission of a party-opponent -- the defendant -- and does not require personal knowledge.

In Take 2 above, Al also has no personal knowledge that he has a pit bull on November 3rd. Does matter. Al is not a party, so his statement could only be admitted as a statement against interest under Rule 804(b)(3). Statements against interest require personal knowledge. Al's statement is inadmissible.

Against Interest When Made

The second difference between statements against interest and admissions is that statements against interest must be against interest when made while admissions do not. In Take 1 above, Dan's statement is not against his interest when he makes it. The pit bull attack doesn't take place until November 5th, so his statement of ownership on November 3rd wouldn't expose him to any liability. Doesn't matter. Admissions do not need to be against interest when made.

In Take 2 above, Al's statement is also not against interest when made. Does matter. Statements against interest need to be against interest when made. This is another reasons why Al's statement would be inadmissible.

How Much Against Interest?

The third difference between statements against interest and admissions is that statements against interest must be against a specific type of interest while admissions just need to be relevant to the opposing party. Let's assume that Dan and Al told Neighbor that they owned a pit bull on November 5th after Vince was bitten but before Dan/Al knew about the bite. In Take 1, Dan would have no reason to believe that his statement would expose him to liability because he is unaware of Vince being bitten. Doesn't matter. Obviously, Dan's statement is relevant to Vince's action against him, making it admissible as an admission.

In Take 2, al would also have no reason to believe that his statement would expose him to liability. Does matter. Federal Rule of Evidence 804(b)(3)(A) defines a statement against interest as a statement that

a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability....

Thus, because Al would have no reason to believe that his statement would expose him to civil liability when he made his statement, it wouldn't qualify as a statement against interest.

What Does This All Mean For Adoptive Admissions?

Why are the rules so lax with regard to the introduction of admissions generally? Hearsay is generally inadmissible because it is unreliable. Admissions are made by a party or someone speaking on the party's behalf (an authorizee, an employee, or a co-conspirator), and you can't complain that your own statement or a statement by your agent too unreliable to be admissible. Moreover, if it is your own statement, you can always take the stand and explain the statement away, and if it is your representative's statement, you can impeach the representative.

But adoptive admissions are different. They are not made by a party or the party's representative. Instead, they are thought to be reliable because they are adopted by a party. This being the case, the court needs to be sure that the party is actually adopting the statement rather than remaining silent or otherwise not rebutting the statement for other reasons (especially because the party can't impeach the speaker). 

The way that courts do this is by only finding that a statement is adopted by a non-responsive party if "the nature of the statement is such that it normally would induce the party to respond...." But when would a party normally respond to a statement? I would argue that a party normally would respond to a statement if, modifying the language from Rule of Evidence 804(b)(3)(A),

a reasonable person in the [party]’s position would have [not rebutted it] only if the person believed it to be true because, when made, it was so contrary to the [party]’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability....

Doesn't this make sense? An alleged statement against interest is too unreliable to be admissible under Rule 804(b)(3) if the declarant lacks personal knowledge, the statement isn't against interest when made, or the statement isn't, in effect, against legal interest. So, if any of these factors applies when a party doesn't rebut a statement made in close proximity to him, shouldn't the conclusion be that the statement was not of the nature that it normally would induce the party to respond?