Adoption Stories, Take 3: Rule 806 And Why Adoptive Admissions Are Different From Other Admissions

Yesterday's post was the second 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. And I made the argument despite the fact that personal knowledge is not a prerequiste for the introduction of admissions under Federal Rule of Evidence 801(d)(2)(A) and Federal Rules of Evidence 801(d)(2)(C)-(E). So, what's my justification for treating Rule 801(d)(2)(B) differently? Rightfully or wrongfully, the Federal Rules of Evidence treat Rule 801(d)(2)(B) differently, and I would argue wrongfully.

Federal Rule of Evidence 806 provides that

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

So, for example, if Carl makes a co-conspirator admission that is admitted against his co-defendant Dan but Carl does not testify at trial, Dan can impeach the credibility of Carl as if he were a live witness at trial. He can introduce evidence of Carl's convictions. He can present opinion and reputation testimony indicating the Carl is a liar. He can prove Carl's bias. He can prove that Carl made a prior inconsistent statement. He can contradict Carl's statement with other evidence.

Meanwhile, according to the accompanying Notes of Committee on the Judiciary, Senate Report No. 93-1277,

[The committee considered it unnecessary to include statements contained in rule 801(d)(2)(A) and (B)--the statement by the party-opponent himself or the statement of which he has manifested his adoption--because the credibility of the party-opponent is always subject to an attack on his credibility].

So, let's say that Husband tells Wife in front of Neighbor that he's having an affair and Wife says nothing. Or let's say that Husband accuses Wife in front of Neighbor of having an affair and Wife says nothing. And let's assume that the court deems these statement admissible as adoptive admissions against Wife in her trial for murdering Husband and/or Mistress. Neighbor testifies to these statements and Husband does not testify because he is either dead or otherwise unavailable.

According to Federal Rule of Evidence 806 and the Notes of Committee on the Judiciary, Wife cannot impeach Husband. Instead, once Wife "adopts" Husband's statements, the statements become her own. It's as if she made the statements herself. And because it's as if she made the statements herself, what's the point in allowing her to impeach Husband and show him to be untrustworthy?

Well, here's the point: For the court to deem a statement admissible as an adoptive admission against a party, the court has to find that "the nature of the statement is such that it normally would induce the party to respond...." Pursuant to Federal Rule of Evidence 104(a), the court needs to make that finding by a preponderance of the evidence. In other words (assuming that all of the other elements are satisfied), the court will admit the statement upon a mere finding that it is more likely than not that  "the nature of the statement is such that it normally would induce the party to respond...."

So, if the court allows for the admission of Husband's statements, what would be Wife's likely response? Well, I think that she would try a two-pronged attack. (1) While the court found by a preponderance of the evidence that a normal person would have rebutted Husband's statements, here are reasons why I did not, and (2) Husband is untrustworthy, so you shouldn't believe what he said.

So, with regard to (1), Wife might want to present different types of evidence. She might want to testify that she didn't respond because she regarded the matter as private and didn't want to discuss it in front of Neighbor. She might want to testify that she feared that if she responded, the situation might turn loud and/or violent because Husband had been drinking. She might say that she didn't care what Neighbor would think of her and thus she said nothing. You get the point. You could easily see Wife arguing, and the jury believing, that Wife's silence was not an adoption/endorsement of Husband's statement despite the statement being admissible as an adoptive admission. And nothing in the Federal Rules of Evidence would prevent her from making these arguments.

But once the court deemed Husband's statements admissible as adoptive admissions under Rule 801(d)(2)(B), they became nonhearsay admissible to prove the truth of the matter asserted. Therefore, even if the jury believed that Wife did not adopt Husband's statement, they could still use the statement to prove the truth of the matter asserted, i.e., they could use them to prove that Husband was having an affair and/or that Wife was having an affair.

Thus, with regard to (2), Wife might want to present different types of impeachment evidence. She might want to present evidence of Husband's prior perjury conviction. She might want neighbors to testify that Husband has a reputation for being a liar or that, in their opinion, he's a liar. With regard to Husband's statement that Wife was having an affair, let's say that Husband told Friend, "My wife would never cheat on me." One hour later, Husband learned that Wife filed for divorce based upon spousal abuse. One hour later, Husband accused Wife in front of Neighbor of having an affair.

The way I read Rule 806, none of this evidence would be admissible to impeach Husband. And I think that most would agree that this makes no sense. Indeed, look at the last example above. In this situation, it seems clear that Husband is making up his allegation that Wife was cheating based upon her filing for divorce. And his statement to Friend 2 hours earlier would constitute a classic prior inconsistent statement admissible to impeach Husband if he took the witness stand and accused Wife of cheating. But because his statement is being admitted under Rule 801(d)(2)(B), Rule 806 tells us that his prior inconsistent statement is not admissible to impeach him. In other words, the jury would never hear that Husband told Friend that Wife would never cheat on him.

The hypothetical that touched off this series of posts is more academic than real world because even if Husband's statement to Wife that he was cheating were not admissible as an adoptive admission under Rule 801(d)(2)(B), it would still be admissible to prove effect on  the listener, i.e., to prove that it gave Wife reason to believe that Husband was having an affair and a motive to kill Husband and/or Mistress. And arguably that is the only probative value of the statement.

That, however, is not (necessarily) the case with Husband's statement accusing Wife of adultery. Let's assume that the prosecution's theory of the case is that Wife killed Husband so that she could run away with the man with whom she was having an affair. In that case, Husband's statement accusing Wife of having an affair would be very probative to prove that affair, especially if it was otherwise unclear whether Wife was having an affair. In this case, then, shouldn't Wife be allowed to impeach Husband?

Pursuant to the language of Rule 806, the answer is "no." I think that's the wrong answer. That's not the point, though. The point is that Rule 806 makes clear that courts treat Rule 801(d)(2)(B) admissions differently from admissions under Federal Rule of Evidence 801(d)(2)(A) and Federal Rules of Evidence 801(d)(2)(C)-(E). So, why should the nonrequirement of personal knowledge under the latter Rules apply to the former Rule?

-CM