Statements by Party

Opponents and
Unrestricted Exceptions
Tuesday, September
Statements by Party20, 2022
Opponents, 2:17
MK PM
214-31; Unrestricted Exceptions MK
235-44
Statements by Party
Opponents (214-31)
1. Admissions by Speaking
Agents
a. The admissions doctrine
defines conditions in
which a statement by
one person is viewed as
an admission by another
b. Usually, what the
"speaking agent" says is
not even hearsay in the
common situation
(where his words are
commit the principal
and are offered to prove
the commitment)
c. Sometimes words of a
speaking agency are
offered for a hearsay
purpose, to prove that
something they describe
actually exists or
happened
d. Philosophy of: when
one hires another to
speak for him, it is fair
to allow the words of
the latter to establish
facts at trial against the
former
e. Answers to
interrogatories are
typically allowed
against the party who
 speak for him, it is fair
to allow the words of
the latter to establish
facts at trial against the
former
e. Answers to
interrogatories are
typically allowed
against the party who
filed them
f. Pleadings from prior
lawsuits and pleadings
superseded by
amendments in a
pending suit are
generally admissible
AGAINST the party
who filed them.
i. NOTE: an
admission filed in
response to
requests to admits
can only be used
in the pending
action NOT from
prior actions
2. Admissions by Employees and
Agents
a. Rule 801(d)(2)(D):
paves the way to admit
against an employer or a
principal, a statement by
an "agent or employee"
when he speaks "on a
matter within the scope
of that relationship
while it existed"
i. In favor of
admissibility
AGAINST the
principal or
Employer
b. Form of statement
(under FRE 801(d)(2)
(D))
i. Under the present
exception, is an
oral utterance
1) Described
 (under FRE 801(d)(2)
(D))
i. Under the present
exception, is an
oral utterance
1) Described
in court by
someone
who heard
the speaker
ii. In writing
iii. In digital age,
emails count too
c. Agent or employee
i. Usually no doubt
(think truck driver
deliver goods or
someone who
provides services),
but when there is
courts are left to
resolve it by apply
agency principles
ii. Typically trying to
reach
1) The person
whose
conduct
produces
liability for
the
employer or
principal, or
person ho
conduct
contributes
to
organization
al liability
2) Person who
is a passive
observer or
bystander
rather than
an actor, but
who makes
statements
on matters
 bystander
rather than
an actor, but
who makes
statements
on matters
within the
scope of his
duties
iii. Independent
contractors are
usually not
considered to be
agents
1) The law of
evidence
stresses that
independent
contractors
differ from
most agents
or
employees
because the
principal
exercises
less control
over what
they do
2) Note: even
though
actions by
contractors
aren't
covered by
FRE 801(d)
(2)(D),
sometimes
actions by
the one who
retains their
services
constitutes
adoption
a) Making
their
stateme
nts
admissi
 constitutes
adoption
a) Making
their
stateme
nts
admissi
ble
against
the
princip
al.
d. Within the scope
i. FRE 801(d)(2)(D)
only to statements
by agents or
employees that
were within the
scope of their
duties
1) This doesn't
mean the
speaker has
to be at
work or that
they have
authority
about what
they are
speaking on
2) Just because
a statement
working
conditions
doesn’t
mean its
within the
scope of
one's duties
a) But
these
type of
stateme
nts can
be
admitte
d
3) Some
statements
 nts can
be
admitte
d
3) Some
statements
even though
within the
scope of
ones work
can be
excluded for
other
reasons
e. Multiple of "layered"
hearsay
i. Often statements
by someone who
counts as an agent
or employee under
FRE 801(d)(2)
(D), often rest on
or pass along what
OTHERS in the
workplace have
said
ii. Note: Under FRE
805, multiple or
layered hearsay is
admissible if each
statement fits an
exception
f. Personal knowledge
i. There is no
personal
knowledge
requirement
g. Government admissions
i. Arguable FRE
801(d)(2)(D)
reaches statements
by agents and
employees of the
government
1) Traditionall
y,
statements
by public
 employees of the
government
1) Traditionall
y,
statements
by public
employees
have not
been
admissible
against the
government
on the
grounds that
a) Such
people
don’t
have
the
same
persona
l stake
in the
outcom
e of any
dispute
as
private
employ
ees
have
b) Agents
cannot
bind the
soverei
gn

Mahlandt v. Wild Candid

Survival & Research Center
Rule:
Facts:
3 year old child went to pick up his
brother. Walked past a house that
had a wolf (the wolf was good with
kids). A neighbor heard screams and
so did the son of the house who had
the wolf. The son pulled the wolf off
the kid and brought the kid inside.
brother. Walked past a house that
had a wolf (the wolf was good with
kids). A neighbor heard screams and
so did the son of the house who had
the wolf. The son pulled the wolf off
the kid and brought the kid inside.
The father, and owner of the wolf,
went to where he worked (who
provided the wolf) and wrote to his
boss that the wolf bit the kid. There
was a corporate meeting later with
minutes regarding what to do with
the wolf.
Issues:
1. Can the note written by the
father and be admitted as
evidence against the father and
the place he worked at even if
he had no personal
knowledge?
2. Can the notes from the
corporation be admitted as
evidence
Holding:
1. Yes the evidence can be
admitted against the father and
the place he worked at (even
without personal knowledge)
2. No. the notes from the
corporation cannot be used
against Mr. Poos
Reasoning:
1. The note can be used against
the father because he wrote it.
It is his admission. He took
what his son said as truth and
wrote the note, no personal
knowledge was needed
a. He adopted the
statements from his son
as truth or belief and the
same can be said about
the next day
2. The statements were
admissible against Wild
Candid too because there is no
requirement for personal
knowledge and he was an
 the next day
2. The statements were
admissible against Wild
Candid too because there is no
requirement for personal
knowledge and he was an
agent (and it seems to be
within the scope of his
employment because the wolf
was given to him by the
company)
3. Mr. Poos wasn’t at the
meeting when the notes were
taken. FRE 801(d)(2)(D)
doesn’t cover the claim that
minutes of a corporate board
meeting can be used against a
non-attending, non
participating employee of that
corporation
When a witness testifies, they need
Mr. Poos couldn’t testify
directly on what hes seen (has
no personal knowledge)
Another way of looking
at this (rejects this) what
keneth poos is saying,
since no personal
knowledge, what he is
really saying is that
clark told him
Have kenneth
poos statement as
potential hearsay
because he's
relying on Clarks
statement
Not double
hearsay
because
801d-- poos
statement is
not hearsay
Hard to read sophie bit
the kid as anything other
than Clark told him, but
because he said it as if
he knew (even though
he didn’t) then its ok
 not hearsay
Hard to read sophie bit
the kid as anything other
than Clark told him, but
because he said it as if
he knew (even though
he didn’t) then its ok
If he said, Clarke
told me then it
would be a
hearsay issue and
have to find
another way to get
it in
BUT can argue that
because Kenneth
worked with and lived
with sophie him saying
that she bit someone
because he might have
known that she had the
possibility of biting
someone
Circumstantial
evidence of his
state of mind
(way to get
around this)
because its
being
brought in
for the
purpose of
proving
kenneth
thought that
sophie
could attack
a child.
"strange and wrong" that
there wasn’t a hearsay
problem
NOTE!!! Rule 801d2 HAS
NO PERSONAL
KNOWLEDGE
REQUIREMENT
EVEN FOR AGENTS