See also: ACCIDENT REPORTS AND STATEMENTS; BENEFICIARIES–Admissions
BRUTON RULE; CO-CONSPIRATOR STATEMENTS; CONFESSIONS
EXPERTS–Admissions
HEARSAY–Burden of Establishing  Admissibility
INSURED–Admissions; INTERPRETERS; JUDICIAL ADMISSIONS
MARITAL COMMUNICATIONS AND EXCLUSIONARY RULES–Admissions of Spouse ; MEDICAL EXPENSES
PATERNITY 1.  Sufficiency of Uncorroborated Admission; PLEADINGS AND PLEAS
PRINCIPALS–Admissions; SILENCE
STATUTES, RULES AND STANDARDS–Rules of an Employer
SURETIES–Admissions by Surety
TESTIMONY–Admissions
TRUSTEES—Admissions.

1.  Generally

Admissions are out-of-court statements made by or on behalf of a party which are offered against that party.{footnote}FRE 801(d)(2). {/footnote}  Under FRE  801 and its state counterparts, admissions are not hearsay,{footnote}Moss v. Ole South Real Estate, Inc., 933 F.2d 1300 (5th Cir. 1991); Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991) (police chief’s statement to newspaper).
Burlington Northern Railroad Company v. Hood, 802 P.2d 458, 466 (Colo. 1990).{/footnote} but most states treat them as hearsay admissible under an exception.{footnote}Cal. Evid. Code § 1220; State v. Rivera, 599 A.2d 1060 (Conn. 1991); State v. Jurgensen, 681 A.2d 981 (Conn. App. 1996); Link v. Eastern Aircraft, 57 A.2d 8 (N.J. 1948);.  {/footnote}  In either case, admissions are substantive evidence of the matter asserted.{footnote}Auto-Owners Ins. Co. v. Jensen, 667 F.2d 714, 722 (8th Cir. 1981).
Coalition for the Homeless v. Dept. of Employment Svcs., 653 A.2d 374, 378 (D.C. App. 1995).{/footnote}  They are generally not binding, and may be controverted or explained by a party.{footnote}Keller v. United States, 58 F.3d 1194 (7th Cir. 1995).
But see Mutual Services v. Ballantrae Development Co., 159 Ill. App. 3d 549, 510 N.E.2d 1219 (1st Dist. 1987) (statements in a sworn mechanic’s lien claim deemed conclusive against the party who filed the claim).{/footnote}  Cf. JUDICIAL ADMISSIONS.

The rationale for permitting admissions as exceptions to the hearsay rule is based on the nature of the adversary system.  A party cannot reasonably object that he cannot cross-examine himself or claim he is only credible when testifying in court under oath.{footnote}C. McCormick,  § 262; J. Weinstein & M. Berger, § 801-136-37.
Accord Metropolitan Dade County v. Yearby, 580 So. 2d 186, 188 (Fla. App. 1991) (applying Fla. Stat. § 90.803(18)(d)).{/footnote}

1(a).  Foundation Required

A witness testifying as to a party’s admission need not have personal knowledge of the underlying facts so long as they personally heard or saw the admission.{footnote}State v. Woodson, 629 A.2d 386, 397 (Conn. 1993){/footnote}  It has also been held that one co-defendant may testify as to an admission made by another co-defendant.{footnote}U.S. v. Palow, 777 F.2d 52, 56 (1st Cir. 1985). {/footnote}

No particular guarantees of trustworthiness need be shown to admit a statement of a party opponent.{footnote}FRE 801 (Advisory Committee Notes); Freeland v. U.S., 631 A.2d 1186, 1192-93 (D.C. App. 1991)
See also 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence P 801 (d)(2)[01], at 801-232 (1992) (citing Mccormick On Evidence, § 239, at 503 (1954)).{/footnote}  It is not a prerequesite that the party-opponent testify, be present in court,{footnote}Hunt v. Seaboard Coastline Railroad, 327 So. 2d 193, 195-96 (Fla. 1976).{/footnote} or be unavailable.{footnote}Kekua v. Kaiser Found. Hosp., 601 P.2d 364, 370 (Haw. 1979).{/footnote}

1(b).  Subject or Form of Admission As Affecting Admissibility

A statement must be contrary to the party-opponent’s position at trial,{footnote}U.S. v. Palow, 777 F.2d 52, 56 (1st Cir. 1985); U.S. v. Ferri, 778 F.2d 985, 991 n. 3 (3d Cir. 1985); Butler v. Southern Pacific Co., 431 F.2d 77, 80 (5th Cir. 1970); Auto-Owners Ins. Co. v. Jensen, 667 F.2d 714, 722 (8th Cir. 1981); Shepley V. E. I. Dupont De Nemours and Company, Inc., 722 F. Supp. 506, 514 (C.D. Ill. 1989).
See also McCormick, § 262, at 628-29, § 277, at 671 (otherwise statement would have to be excluded as irrelevant); 4 J. Wigmore, at ‘  1048 at 4-5.{/footnote} although it need not have been against the parties’ interests at the time it was made.{footnote}Staniewicz v. Beecham, Inc., 687 F.2d 526, 530 (1st Cir. 1982); Huff v. White Motor Corp., 609 F.2d 286, 292 n. 7 (7th Cir. 1979); Auto-Owners Ins. Co. v. Jensen, 667 F.2d 714, 722 (8th Cir. 1981).
Kekua v. Kaiser Found. Hosp., 601 P.2d 364, 370 (Haw. 1979); State v. McNally, 443 A.2d 56, 60 (Maine 1982).{/footnote}  Indeed, even statements which were self-serving when made are admissible as admissions.{footnote}People v. La Salle, 103 Cal.App.3d 139, 151, 162 Cal. Rptr. 816 (1980), disapproved on other grounds in People v. Kimble, 44 Cal.3d 480, 498, 244 Cal. Rptr. 148, 749 P.2d 803 (1988); 4 J. Wigmore, § 1048, at 5-6{/footnote}

Admissions need not be based on personal knowledge to be admissible,{footnote}FRE 801 (Advisory Committee Notes); Mahlandt v. Wild Canid Survival & Research Center, 588 F.2d 626 (8th Cir. 1978) (defendants’statements that wolf had bitten child admissible even though no one had seen any biting and it was disputed whether there were any bite marks on child); Baughman v. Cooper-Jarrett, Inc., 391 F. Supp. 671 (W.D. Pa. 1975), vacated in part and remanded, 530 F.2d 529 (3d Cir. 1976), cert. denied, 429 U.S. 825, on remand sub nom. Baughman v. Wilson Freight Forwarding Co., 79 F.R.D. 520 (W.D. Pa. 1977), rev’d on other grounds, 583 F.2d 1208 (3d Cir. 1978).
Rutherford v. State, 605 P.2d 16, 24-25 (Alaska 1979); ITT Continental Baking Co. v. Ellison, 370 A.2d 1353, 1356 n. 4 (D.C. 1977); Kekua v. Kaiser Found. Hosp., 601 P.2d 364, 370 (Haw. 1979); McGill v. Frasure, 790 P.2d 379, 383 (Idaho App. 1990); State v. McNally, 443 A.2d 56, 60 (Maine 1982); Ruszcyk v. Secretary of Pub. Safety, 517 N.E.2d 152, 154-55 (Mass. 1988); Player v. Thompson, 193 S.E.2d 531, 535 (S.C. 1972).
4 J. Wigmore, Evidence In Trials At Common Law ‘  1053, at 16 (J. Chadbourn rev. ed. 1972); 4 J. Weinstein & M. Berger, Weinstein’s Evidence 801(d)(2)(C) [01], at 801-126, 801-131, 801-132 801(d)(2)(D) [01], at 801-139 (Supp. 1977). {/footnote} and may be in the form of conclusions or opinions.{footnote}FRE 801 (Advisory Committee Notes); Owens v. Atchinson, Topeka & Santa Fe Ry., 393 F.2d 77, 79 (5th Cir.), cert. denied, 393 U.S. 855 (1968).
Burlington Northern Railroad Company v. Hood, 802 P.2d 458, 466 (Colo. 1990) (dicta); Holman v. Boston Land and Security Co., 36 P. 797 (Colo. 1894); Kekua v. Kaiser Found. Hosp., 601 P.2d 364, 370 (Haw. 1979); Washington v. Bush, 802 P.2d 70, 71 (Ore. 1990); Mccormick, at ‘  264; 4 J. Wigmore,  at § 1053, at 21
Contra International Harvester Co. v. Industrial Commission, 523 N.E.2d 1303 (Ill. App. 1988) (statement by party as to own medical condition not an admission, since only physician capable of giving opinion as to medical condition);{/footnote}  A party’s legal conclusions have also been held admissible.{footnote}City of Birmingham v. Watkins, 670 So.2d 878, 880 (Ala. 1995) (investigating police officer’s conclusion as to fault admissible against city); Strickland v. Davis, 128 So. 233 (Ala. 1930) (driver’s admission of fault); Wells v. Burton Lines, 45 S.E.2d 569 (N.C. 1947) (driver’s admission of fault); Washington v. Bush, 802 P.2d 70, 71 (Ore. 1990); Southern Passenger Motor Lines v. Burke, 46 S.E.2d 26 (1948) (admission that accident not caused by other driver); McCormick at 779-80; 4 Wigmore § 1053(3) (1972); Annot., 118 A.L.R. 1230.
But see Eagleston v. Guido, 41 F.3d 865 (2d Cir. 1994), cert. denied 116 S.Ct. 53 (police commissioner’s statement as to constitutionality of police department policy toward domestic violence cases inadmissible because a legal conclusion concerning ultimate issue in case); Kohler v. Leslie Hindman, Inc., 80 F.3d 1181, 1185 (7th Cir. 1996) (party’s deposition testimony in another case as to contract rights constituted legal conclusion and was therefore inadmissible); Sabatowski v. Fisher Price Toys, 763 F. Supp. 705 (W.D.N.Y. 1991) (plaintiff’s deposition testimony that she was never subjected to intention infliction of emotional distress did not constitute legal conclusion, and was therefore admissible).{/footnote}  

A criminal defendant’s statements of his intent to commit uncharged criminal acts in the future have been held admissions properly admitted to prove his motive and intent at the time of the crimes charged.{footnote}State v. Woodson, 629 A.2d 386, 394 (Conn. 1993); State v. Rivera, 599 A.2d 1060, 1064 (Conn. 1991).{/footnote}

1(c).  Circumtances of Admission as Affecting Admissibility

Admissions obtained by trickery or by duress are generally held inadmissible,{footnote}Cal. § 1204.{/footnote} although the traditional view is that such circumstances go merely to the weight of the evidence.  See also CONFESSIONS.

A party-opponent’s claim that the statement was in jest has been held to go to the weight, rather than the admissibility, of the statement, since this rule does not require that the declarant manifest an adoption of or belief in the truth of the statement.{footnote}Webb v. State, 938 S.W.2d 806 (Ark. 1997).{/footnote}  Cf. Adoptive Admissions.

Admissions have been allowed into evidence even where the declarant was insane,{footnote}United States v. Buttram, 432 F. Supp. 1269, 1272 (W.D. Pa. 1977) (agent’s admission), aff’d mem., 568 F.2d 770 (3d Cir. 1978).
Fountain v. McCallum, 21 S.E.2d 610, 614-15 (Ga. 1942).
But see E.M. Morgan, Basic Problems Of State And Federal Evidence 243 (J. Weinstein 5th ed. 1976) (declarant must "have been in such mental condition as to be able to understand what he was saying.").{/footnote} hysterical,{footnote}Friedman v. United Rys. Co. of St. Louis, 238 S.W. 1074, 1076 (Mo. 1922).{/footnote} asleep,{footnote}State v. Morgan, 13 S.E. 385, 386-87 (W. Va. 1891); cf. State v. Posten, 302 N.W. 2d 638, 641-42 (Minn. 1981) (held admissible but insufficient to support conviction). 
See also Sutton v. State, 237 Ga. 418, 419, 228 S.E.2d 815, 817 (1976) (statement admissible although made while defendant was allegedly asleep or in drunken stupor).
Contra Brock v. United States, 223 F.2d 681 (5th Cir. 1955); People v. Robinson, 19 Cal. 40 (1861); People v. Knatz, 76 A.D.2d 889, 889, 428 N.Y.S.2d 709, 711 (1980).{/footnote} or under sedation.{footnote}Currier v. Grossman’s of N.H., 219 A.2d 273, 275 (N.H. 1966) (admission in writing).{/footnote}   Statements by minors have been held properly introduced as admissions.{footnote}De Souza v. Barber, 263 F.2d 470, 476-77 (9th Cir.), cert. denied, 359 U.S. 989 (1959).
Atchison, Topeka & Santa Fe Ry. v. Potter, 58 P. 471, 471-72 (Kan. 1899); Smith v. Illinois Cent. R.R. Co., 58 So. 2d 812, 817 (Miss. 1952); Rolfe v. Olson, 208 A.2d 817, 818-19 (N.J. Super. 1965); Berggren v. Reilly, 95 Misc. 2d 486, 407 N.Y.S.2d 960 (Sup. Ct. 1978) (mem.).
But see Admundson v. Tinholt, 36 N.W.2d 521 (Minn. 1949) (statement inadmissible where minor lacked capacity to describe what he observed).{/footnote}

1(d).  Parties Against Whom Admissions May Be Used

Generally, only statements made by or on behalf of one who is named in the pleadings as a party are admissible.{footnote}Alabama Power Co. v. Ray, 32 So. 2d 219, 221 (Ala. 1947); Bristol v. Moser, 99 P.2d 706, 709 (Ariz. 1940); Scott v. State, 240 N.Y.S.2d 279 (N.Y. App. Div. 1963); Atlantic Coast Line R.R. v. Bowen, 63 S.E.2d 804 (Va. 1951). {/footnote} Some courts have extended this rule to declarants who, though not named, are real parties in interest.{footnote}Sherman v. Mountaire Poultry Co., 419 S.W.2d 619, 621 (Ark. 1967); Lewis v. American Road Ins. Co., 167 S.E.2d 729, 732 (Ga. Ct. App. 1969).{/footnote} It has also been held that a non-party’s statements may be used as admissions if the non-party "’occupied an adverse position toward’ the party seeking to call him . . . and could have been named as a party."{footnote}Smith v. Fortune Insurance Co., 404 So. 2d 821 (Fla. 1st Dist. Ct. App. 1981) (insuror could use non-party co-insured’s statements as admissions against other insured) (quoting Degelos v. Fidelity & Casualty Co., 313 F.2d 809, 815 (5th Cir. 1963)); Sarah E. Nall, Case Note: Evidence — Florida Court Uses Broad Adverse Party Witness Definition For Both Impeachment And Admissions Purposes — Smith V. Fortune Insurance Co., 404 So. 2d 821 (Fla. 1st Dist. Ct. App. 1981), 10 Fla. St. U.L. Rev. 277 (1982).{/footnote}

Declarations of a party who has been dismissed cannot be used as party admissions.{footnote}Taylor v. Checker Cab Co., 34 Ill. App. 3d 413, 339 N.E.2d 769 (1st Dist. 1975){/footnote}  Some courts go further and do not allow as admissions statements by one who, though nominally a party, has no vital interest in the outcome of the proceedings.{footnote}State Farm Mut. Auto. Ins. Co. v. Gudmunson, 495 F. Supp. 794, 796 n.1 (D. Mont. 1980).{/footnote}

Ordinarily a party admission is only admissible as against the party which made the statement,{footnote}Walsh v. McCain Foods Ltd., 81 F.3d 722 (7th Cir. 1996).
Felker v. Bartelme, 260 N.E.2d 74 (Ill. App. 1970) (statement of defendant driver not admissible against co-defendant tavern owner).{/footnote} unless the statement comes in as a vicarious admission (agents and employees, for example).  Where the statement is made by a corporate employee and is being offered against a fellow employee, not against the corporation, its admissibility will depend on the relationship between the two employees.{footnote}Zaken v. Boerer, 964 F.2d 1319 (2d Cir. 1992), cert. denied, 506 U.S. 975, 113 S.Ct. 467, 121 L.Ed.2d 375 (statement ruled inadmissible because declarant not identified).{/footnote}  See Vicarious Admissions: Employees, below. 

1(e).  As Circumstantial Evidence

Admissions have been held to be circumstantial evidence because they require the jury to not only believe that the statement was made, but also to infer that the statement is true.{footnote}People v. Gould, 54 Cal. 2d 621, 277 (1960).{/footnote}  Nonetheless, it has been held that the standard instructions on circumstantial evidence in criminal cases are not applicable to evidence of extrajudicial admissions.{footnote}Gould, 54 Cal. 2d at 277.{/footnote}  See CIRCUMSTANTIAL EVIDENCE.
 

1(f).  Party-Opponent’s Right to Admit Other Relevant Portions

Where only a portion of a conversation has been introduced as an admission, the party-opponent against whom the evidence is used may introduce other relevant portions of the conversation necessary to provide proper context, even if the other portions are self-serving.{footnote}State v. Castonguay, 590 A.2d 901, 907 (Conn. 1991). {/footnote}

1(g).  Undue Prejudice

Admissions by a party opponent  may  be excluded where their probative value is substantially outweighed by the danger of unfair prejudice,{footnote}Precision Piping and Instruments, Inc. v. E.I. de Pont de Nemours and Co., 951 F.2d 613 (4th Cir. 1991); McAlinney v. Marion Merrell Dow, Inc., 992 F.2d 839 (8th Cir. 1993)(surreptitious microcassette recording of conversation between employee, supervisor and others excluded).{/footnote} though such objections are generally overruled.{footnote}E.g., Mahlandt v. Wild Canid Survival & Research Center, 588 F.2d 626, 631 (8th Cir. 1978).
State v. Woodson, 629 A.2d 386, 394 (Conn. 1993) (arson defendant’s threat to burn down other buildings properly admitted).{/footnote}

2.  Admissions By Omission

In an suit to recover overtime wages, it was held that the employee’s failure to mention any claim for overtime in his letter to and conversations with the employer at the time of severance was a party admission admissible to show the employee’s understanding at the time of his severance.{footnote}Moylan v. Meadow Club, Inc., 979 F.2d 1246, 1250 (7th Cir. 1992).{/footnote}

3.  Admissions by Conduct

Conduct may also be deemed an admission by a party.{footnote}United States v. Jacobowitz, 877 F.2d 162 (2d Cir. 1989)(refusal to give handwriting exemplar); United States v. Guerrero, 756 F.2d 1342 (9th Cir. 1984)(carrying false identification).
But see Smith v. Stratus Omputer, Inc., 40 F.3d 11 (1st Cir. 1994)(supervisor’s shrug in response to question held not to be admission of discrimination due to wording of question).{/footnote}  Conduct which manifests an awareness of liability or guilt, for example, may be introduced under this rule over a hearsay objection, subject to exceptions based on public policy (See, e.g., CONCEALING EVIDENCE; DEMEANOR; DESTRUCTION OF EVIDENCE; ESCAPE; FLIGHT; MEDICAL EXPENSES; REMEDIAL MEASURES).  See also HEARSAY–Inferring Matters not Asserted; SILENCE.

4.  Adoptive Admissions

4(b).  Generally

Where a party knowingly and voluntarily adopts or ratifies a hearsay statement which is inconsistent with that party’s case, the hearsay statement and the party’s response are admissible as an adoptive admission.{footnote}FRE 801 (d)(2)(B); United States v. Shulman, 624 F.2d 384, 390-91 (2d Cir. 1980); United States v. Costanzo, 581 F.2d 28, 34 (2d Cir. 1978), cert. denied, 439 U.S. 1067 (1979);  Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996 (3d Cir. 1994), cert. denied, National Decorating Products Ass’n, Inc., 115 S.Ct. 1691, 131 L.Ed.2d 556 (statements by association’s president published in association newsletters admissible as adoptive admissions); U.S. v. Jinadu, 98 F.3d 239 (6th Cir. 1996) (responses of “yes” to statements of customs agent); United States v. Rollins, 862 F.2d 1282 (7th Cir. 1988) (police informant’s side of telephone conversations with defendant admissible where defendant agreed with informant and participated in conversations), cert. denied, 490 U.S. 1074 (1989); Marshall v. Young, 833 F.2d 709, 716 (7th Cir. 1987); Berrisford v. Wood, 826 F.2d 747, 751 (8th Cir. 1987), cert. denied, 484 U.S. 1016 (1988); Pillsbury Co. v. Cleaver-Brooks Div. of Aqua-Chem, Inc., 646 F.2d 1216, 1218 (8th Cir. 1981); United States v. Weaver, 565 F.2d 129, 135 (8th Cir. 1977), cert. denied, 434 U.S. 1074 (1978)
Cal. § 1221, 1230; Tex. R. Crim. Evid. 801(e)(2)(B); State v. Kobylarz, 130 A.2d 80, 84 (N.J. Super. Ct. App. Div. 1957); Tucker v. State, 771 S.W.2d 523, 535 n.5 (Tex. Crim. App.), cert. denied, 492 U.S. 912 (1989).{/footnote}  For example, FRE 801(d)(2) provides that a statement is not hearsay if “The statement is offered against a party and is. . . (B) a statement of which the party has manifested an adoption or belief in its truth[.]”

Sometimes the words or actions of the party-opponent are ambigous, and their meaning disputed.  If it is disputed whether the party-opponent’s words or conduct were truly a manifestation of adoption or belief in the statement, the trial court must make a preliminary finding on this issue.{footnote}New Hope v. Duplessie, 231 N.W.2d 548 (Minn. 1975).{/footnote}  Some courts have held that this is a preliminary question of fact for the trial judge to decide under FRE 104(a),{footnote}State v. Carlson, 808 P.2d 1002, 1008 (Ore. 1991) (holding that defendant’s head-shaking in response to wife’s incriminiating statements about drug use inadmissible).
See also Wright & Graham, 21 Federal Practice and Procedure 260, § 5053 (judge determines issues including the admissibility of hearsay).{/footnote} others that this is a question of conditional relevancy under FRE 104(b).{footnote}United States v. Barletta, 652 F2d 218, 219-20 (1st Cir 1981); United States v. Sears, 663 F2d 896, 905 (9th Cir. 1981), cert denied, 455 U.S. 1027 (1982).
See also Graham, Handbook of Federal Evidence 784, § 801.20 (3d ed 1991); McCormick, at 799 n. 14, § 269.{/footnote}

It has been held that the introduction of adoptive admissions against the defendant in a criminal case does not violate the Confrontation Clause.{footnote}U.S. v. Jinadu, 98 F.3d 239 (6th Cir. 1996) (responses of “yes” to statements of customs agent); Berrisford v. Wood, 826 F.2d 747, 751 (8th Cir. 1987), cert. denied, 484 U.S. 1016 (1988); United States v. Lemonakis, 158 U.S. App. D.C. 162, 485 F.2d 941, 949 (D.C. Cir. 1973).
People v. Silva, 754 P.2d 1070, 1079-80 (Cal. 1988).
But see U.S. v. Monks, 774 F.2d 945, 950 (9th Cir. 1985) (adoptive admissions do not automatically satisfy Confrontation Clause; no violation found on facts of case).{/footnote}

Where the declarant is the defendant’s accomplice, it has been held unnecessary to instruct the jury that the accomplice’s statement must be viewed with distrust.{footnote}People v. Silva, 754 P.2d 1070, 1080 (Cal. 1988).{/footnote}  See also ACCOMPLICES.

4(b).  Tacit Admissions By Failure to Deny

A party-opponent may be held to have adopted a statement by virtue of the fact that after hearing the statement made in his or her presence, the party was  silent, responded equivocally or evasively, or made an equivocal gesture or motion.{footnote} FRE 801(d)(2)(B); United States v. Williams, 577 F.2d 188 (2d Cir. 19–) (defendant did not deny statement made by coconspirator); United States v. Central Gulf Lines, Inc., 974 F.2d 621 (5th Cir. 1992), cert. denied, 507 U.S. 917 (cargo carrier’s failure to object to survey reports of damage to cargo); U.S. v. Monks, 774 F.2d 945, 950 (9th Cir. 1985) (defendant did not deny description of robbery, and commented on how easy it was); United States v. Joshi, 896 F.2d 1303 (11th Cir. 1990), cert denied, 111 S. Ct 523 (nodding); U.S. v. Carter, 760 F.2d 1568, 1580 (11th Cir. 1985) (silence); Franklin v. Duckworth, 530 F. Supp. 1315, 1319-20 (N.D. Ind. 1982) (equivocal response).
Cal. § 1221; People v. Medina, 799 P.2d 1282, 1294-96 (Cal. 1990) (silence); Dincare v. Tamayose, 182 Cal. Rptr. 855, 860-61 (Ct. App. 1986) (plaintiff’s failure to respond to accusations made by defendant’s nurse); People v. Browning, 45 Cal App 3d 125, 119 Cal Rptr 420 (1975) (laughter), ovrld on other grounds, People v. Williams, 547 P.2d 1000 (19__); State v Taft (1991) 25 Conn App 149, 593 A2d 973, app den 220 Conn 918, 597 A2d 343 (silence); Dill v. Widman, 109 N.E.2d 765, 769 (Ill. 1953) (widow’s silence on reading of will admissible); People v. Morgan, 358 N.E.2d 280 (Ill. App. 1976) (laughing, shrugging, asking "How do you know I did it?"); Bell v. McDonald, 308 Ill. 329, 139 N.E. 613 (1923)(failure to respond to request for payment on note); House v. State, 535 N.E.2d 103, 109-110 (Ind. 1989) (silence); Wickliffe v State (1981, Ind) 424 NE2d 1007 (nodding and grinning); Doherty v. Edwards, 290 N.W. 672, 676 (Iowa 1940) (statement by fatally injured passenger not denied by defendant); Henry v. State, 596 A.2d 1024 (Md. App. 1991) (laughing, cheering); State v Roan (1995, Minn) 532 NW2d 563 (gesture indicating gun to the head); State v Shoop (1989, Minn) 441 NW2d 475 (nodding); State v Gibbs (1994, Mo App) 875 SW2d 159 (silence); State v. Kobylarz, 130 A.2d 80, 86-87 (N.J. Super. Ct. App. Div.) (silence), certif. denied, 133 A.2d 395 (1957); ________, 899 P.2d 576, 586 (N.M. 1995) (equivocal resposponse); People v. Sennon, 566 N.Y.S.2d 327, 328, app. denied 78 N.Y.2d 926 (1991) (defendant responded to codefendant’s statement regarding crime by asserting that no one saw him); State v Hunt (1989) 325 NC 187, 381 SE2d 453 (glaring at declarant); People v. Silva, 754 P.2d 1070, 1079 (Cal. 1988) (smiling without denying another’s description of murder); State v Rupe (1984) 101 Wash 2d 664, 683 P2d 571 (stammering, looking surprised); State v. Lounsbery, 445 P.2d 1017 (Wash. App. 1968) (after child’s mother accused defendant of child abuse, he saw psychiatrist as recommended by motion, and said he was being persecuted for “one mistake”); State v. Browning, 1997 W. Va. LEXIS 37 (W. Va. 1997) (silence); 22A C.J.S. Criminal Law, § 734(1) at 1068-69 (1961); Annot., 55 A.L.R. 406.
But see Fuson v. Jago, 773 F.2d 55 (6th Cir. 1985), cert den, 106 S Ct 3334 (shrugging of shoulders inadmissible).
But see People v. Lebell, 152 Cal. Rptr. 840, 845 (Cal. Ct. App. 1979) (holding that defendant’s presence on a telephone extension during phone conversation between others was not sufficient to support a finding of an adoptive admission); Secor v. Brown, 156 A.2d 225, 227 (Md. 1959), ("M]ere silence in the face of an accusation does not always permit an inference of guilt, or that the statement is true."); Klever v. Elliott, 320 P.2d 263, 265 (Or. 1958) (refusing to admit statement of bystander to defendant in an accident).
Cf. § 3. Admissions by Conduct, supra.{/footnote}  The rule is based upon the maxim, “qui tacet non utique fatetur, sed tamen verum est eum non negare” (“he who is silent does not indeed confess, but yet it is true that he does not deny”).{footnote}People v. Morgan, 358 N.E.2d 280 (Ill. App. 1976), quoting Annot., 115 A.L.R. 1510, 1511 (1938).{/footnote}  The requirements for tacit admissions vary,  but generally the proponent must show: (1) the statement was made out-of-court, in the presence of the party-opponent;{footnote}Ex Parte Marek, 556 So. 2d 375, 382 (Ala. 1989) (statement inadmissible because not made in defendant’s presence; court went on to abolish tacit admission rule in criminal cases).{/footnote} (2) the nature of the statement was such that a reasonable, innocent person would have denied it;{footnote}State v. Browning, 1997 W. Va. LEXIS 37 (W. Va. 1997).
See also United States v. Hale, 422 U.S. 171, 176 (1975):

Silence is commonly thought to lack probative value on the question of whether a person has expressed tacit agreement or disagreement with contemporaneous statements of others.  Silence gains more probative weight where it persists in the face of accusation, since it is assumed in such circumstances that the accused would be more likely than not to dispute an untrue accusation.
(citations omitted).{/footnote} and (3) the party-opponent was capable of hearing, understanding and responding to the statement.{footnote}See generally McCormick on Evidence § 270, at 800-01 (Edward W. Cleary ed., 3d ed., 1984) and cases cited in n. ___ [after “gesture or motion.”]
See also U.S. v. Sears, 663 F.2d 896, 904 (9th Cir. 1981) (statement admissible despite defendant’s alleged hearing impairment).
 See also People v. Edelbacher, 766 P.2d 1, 17 (Cal. 1989) (must be "fair opportunity to deny the accusation"); People v. Lourido, 516 N.E.2d 1212 (N.Y. 1987) (shrugging of shoulders inadmissible where defendant did not speak English); Check Osborne v. United States, 371 F.2d 913 (9th Cir. 1967).{/footnote}  It has also been held that in order to be deemed to have adopted a statement, a party must have personal knowldge of the matter asserted,{footnote}White Indus., Inc. v. Cessna Aircraft Co., 611 F. Supp. 1049 (W.D. Mo. 1985); McCormick on Evidence § 270, at 800-01 (Edward W. Cleary ed., 3d ed., 1984) .
Contra Grundberg v. Upjohn Co., 137 F.R.D. 365 (D. Utah 1991).{/footnote} since otherwise they may have no grounds to admit or deny the statement. Failure to respond to an accusatory letter is not necessarily an admission of its contents.{footnote}Southern Stone Co. v. Singer, 665 F.2d 698 (5th Cir. 1982); Wigmore § 1073.{/footnote}  On the use of a defendant’s silence or invokation of the privilege against self-incrimination in response to police questioning, see SILENCE.

The modern trend is to abolish the “tacit admission” rule insofar as it permits criminal defendants’ silence while in the presence or custody of police to be used against them.{footnote}See SILENCE.
See also State v. Kelsey, 201 N.W.2d 921, 927 (Iowa 1972) (tacit admission rule abolished in criminal cases; statement held inadmissible even though not made in presence or custody of police)
But see Commonwealth v. Cull, 656 A.2d 476, 481 (Pa. 1995) (statement not made while in police custody or presence admissible as tacit admission against defendant).{/footnote} The United States Supreme Court has not abolished the rule, but has stated that "in most circumstances silence is so ambiguous that it is of little probative force."{footnote}United States v. Hale, 422 U.S. 171, 176 (1975).{/footnote}

5.  Admissions by Employees and Other Agents

5(a).  Generally

A statement need not be made by the party-opponent personally in order to be deemed an admission.  Under certain circumstances, statements by a party-opponent’s agent, such as an employee, may be used against the party.  The proponent bears the burden of establishing: (1) the existence of the agency relationship, (2) that the statement was made during the existence of that relationship, and (3) that the statement relates to a matter within the scope of that agency.{footnote}Pappas v. Middle Earth Condominium Ass’n, 963 F.2d 534, 537 (2d Cir. 1992); Davis v. Mobil Oil Exploration & Producing Southeast, Inc., 864 F.2d 1171, 1173-74 (5th Cir. 1989); Oki Am., Inc. v. MicroTech Int’l, Inc., 872 F.2d 312, 314 (9th Cir. 1989).
Shuck v. Texaco Refining & Marketing, Inc., 872 P.2d 1247, 1250 (Ariz. App. 1994) (applying Ariz. R. Evid. 801(d)(2)D); State v. Ogden, 640 A.2d 6 (Vt. 1993) (holding statement not made within scope of agency, applying Vt. R. Evid. 801(d)(2)).{/footnote}  The proponent need not establish that the declarant is unavailable.{footnote}Pappas v. Middle Earth Condominium Association, 963 F.2d 534, 538 (2d Cir. 1992).{/footnote}  As with admissions generally, no specific indicia of trustworthiness need be shown by the proponent.{footnote}Pappas v. Middle Earth Condominium Association, 963 F.2d 534, 538 (2d Cir. 1992).{/footnote}

5(b).  Subject of Admission as Affecting Admissibility

Admissions by agents or employees may be in the form of opinions,{footnote}MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081 (7th Cir.), cert. denied, 464 U.S. 891 (1983); Shields v. Oxnard Harbor Dist., 46 Cal. App. 2d 477 (1941); State v. Worthen, 765 P.2d 839, 848 (Utah 1988).
See also Kohler v. Leslie Hindman, Inc., 80 F.3d 1181, 1185 (7th Cir. 1996) (auction house employee’s deposition testimony as to consignor’s contract rights constituted legal conclusion and was therefore inadmissible).{/footnote} although there is some authority that opinions expressed by low-level employees without management responsibility should not be deemed admissions by their employers.{footnote}See MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081, 1143 (7th Cir. 1983) (dicta, finding declarants were in high-level management positions), citing U.S. v. Siemens, 621 F.2d 499, 508 (2d Cir. 1980) (“The  opinions  of lower level employees without management responsibility, absent some indication that the senior management has seriously considered and endorsed those views, simply do not constitute evidence of a corporate intent…”)
But see Union Mut. Life Ins. Co. v. Chrysler Corp., 793 F.2d 1, 8 (1st Cir. 1986) (declarant need not be management-level employee; accountant’s letter regarding lease held admissible).{/footnote}  The declarant need not have personal knowledge of the matter asserted.{footnote}Brookover v. Mary Hancock Memorial Hospital, 893 F.2d 411, 418 (1st Cir. 1990); Union Mut. Life Ins. Co. v. Chrysler Corp., 793 F.2d 1, 8-9 (1st Cir. 1986); Pappas v. Middle Earth Condominium Association, 963 F.2d 534, 537 (2d Cir. 1992); United States v. Southland Corp., 760 F.2d 1366, 1376-77 n. 4 (2d Cir.), cert. denied, 474 U.S. 825 (1985); MCI Communications Corp. v. AT & T, 708 F.2d 1081, 1143 (7th Cir. 1983), cert. denied, 464 U.S. 891 (1984); Russell v. United Parcel Serv., 666 F.2d 1188, 1190 (8th Cir. 1981); Mahlandt v. Wild Canid Survival & Research Center, 588 F.2d 626, 630-31 (8th Cir. 1978); In re A.H. Robins Co., 575 F. Supp. 718, 723-25 (D. Kan. 1983); Helbing v. Unclaimed Salvage, 489 F. Supp. 956, 959 (E.D. Pa. 1980).
Shuck v. Texaco Refining & Marketing, Inc., 872 P.2d 1247, 1251 (Ariz. App. 1994) (applying Ariz. R. Evid. 801(d)(2)D)); Metropolitan Dade County v. Yearby, 580 So. 2d 186, 188 (Fla. App. 1991) (applying Fla. Stat. § 90.803(18)(d)); McCormick on Evidence § 259, at 162 (John W. Strong ed., 4th ed. 1992).
But see Litton Systems, Inc. v. AT& T, 700 F.2d 785, 816-17 (2d Cir. 1983) (notes by company attorney summarizing what some employees said about other employees’ misconduct held not to be within scope of agnecy or employment); Rock v. Huffco Gas & Oil Co., Inc., 922 F.2d 272 (5th Cir. 1991) (accident reports held inadmissible where defendant’s employees were recounting, but not adopting, plaintiff’s assertions as to cause of accident); 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence 801(d)(2)(D)[01], at 801-298 (1993) (noting that FRE 801(d)(2)(D) does not contain an express requirement of personal knowledge but concluding that "such a requirement should be read into [the] rule as mandated by Rules 805 and 403").
{/footnote}

5(c).  Persons Authorized to Make Statements

Every jurisdiction admits statements made by an agent or employee who has been authorized by a party-opponent to make statements on the subject.{footnote}FRE 801(d)(2)(C); Michaels v. Michaels, 767 F.2d 1185 (7th Cir. 1985).
Braswell v. New York C. & St. L.R., 60 Ill. App. 2d 120, 208 N.E.2d 358 (5th Dist. 1965) (patient authorized doctor to write letter stating that he was able to return to work).{/footnote}  The authority need not be express, but may be implied or apparent.{footnote}Kingsley v. Baker/Beech-Nut Corp., 546 F.2d 1136, 1141 (5th Cir. 1977).{/footnote}

5(d).  Employees Generally

Statement’s by an employee of a party-opponent concerning a matter within the scope of the declarant’s employment are deemed non-hearsay.{footnote}FRE 801(d)(2)(D); Woodman v. Haemonetics Corp., 51 F.3d 1087 (1st Cir. 1995)(statement by supervisor suggesting employer’s discriminatory employment practices); Cook v. Arrowsmith Shelbourne, Inc., 69 F.3d 1235 (2d Cir. 1995).{/footnote}  For the statements of an employee to be introduced as an admission of the employer, the proponent must first establish by independent evidence the existence of an employement relationship.{footnote}Pappas v. Middle Earth Condominium Association, 963 F.2d 534, 538 (2d Cir. 1992) (statement itself cannot be relied upon to establish relationship); United States v. Portsmouth Paving Corp., 694 F.2d 312, 321 n.12 (4th Cir. 1982); DCS Sanitation Management, Inc. v. Occupational Safety and Health Review Com’n, 82 F.3d 812 (8th Cir. 1996)(statements admissible where employees stated that they were employees and were brought by employer to be interviewed by investigators); Murphy Auto Parts Co. v. Ball, 249 F.2d 508 (D.C. Cir 1958).
Shuck v. Texaco Refining & Marketing, Inc., 872 P.2d 1247, 1250 (Ariz. App. 1994) (applying Ariz. R. Evid. 801(d)(2)D)); Taylor v. Checker Cab Co., 339 N.E.2d 769 (Ill. App. 1975) (cab driver not shown to be employee of cab company); Annot., 3 ALR 598; {/footnote}  The agency relationship, and the fact that the declarant was acting within the scope of that releationship, need not be proven through direct testimony,{footnote}Shuck v. Texaco Refining & Marketing, Inc., 872 P.2d 1247, 1250 (Ariz. App. 1994) (applying Ariz. R. Evid. 801(d)(2)D)). {/footnote} but may be shown through circumstantial evidence,{footnote}Pappas v. Middle Earth Condominium Association, 963 F.2d 534, 538 (2d Cir. 1992); United States v. Portsmouth Paving Corp., 694 F.2d 312, 321-22 (4th Cir. 1982) (circustantial evidence showed unidentified secretary relaying message from employer acting within scope of authority).
Shuck v. Texaco Refining & Marketing, Inc., 872 P.2d 1247, 1250-51 (Ariz. App. 1994) (applying Ariz. R. Evid. 801(d)(2)D)).{/footnote} including hearsay if admissible under another exception.{footnote}Murphy Auto Parts Co. v. Ball, 249 F.2d 508, 512 (D.C. Cir. 1957) (holding declarant’s statement that he was on an errand for employer properly admitted as excited utterance to show that he was acting within scope of employment at time of accident), cert. denied, 355 U.S. 932 (1958).
Shuck v. Texaco Refining & Marketing, Inc., 872 P.2d 1247, 1251 (Ariz. App. 1994) (applying Ariz. R. Evid. 801(d)(2)D)).{/footnote}  Under the federal rules, the statement itself need not have been authorized,{footnote}  FRE 801(d)(2); Woodman v. Haemonetics Corp., 51 F.3d 1087 (1st Cir. 1995);  Pappas v. Middle Earth Condominium Association, 963 F.2d 534, 538 (2d Cir. 1992); In re Sunset Bay Associates, 944 F.2d 1503 (9th Cir. 1991) (loan officer’s statements regarding chief lending officer’s instruction to concel fraudulent scheme admissible).
Accord Shuck v. Texaco Refining & Marketing, Inc., 872 P.2d 1247, 1250 (Ariz. App. 1994) (applying Ariz. R. Evid. 801(d)(2)D)); B & K Rentals And Sales Co., Inc. v. Universal Leaf Tobacco, 596 A.2d 640 (Md. 199) (adopting appraoch of FRE 801(d)(2)(D)); Ruszcyk v. Secretary of Public Safety, 517 N.E.2d 152 (Mass. 1988); Reisman v. Great American Recreation, Inc., 628 A.2d 801 (N.J. SUPER. 1993) (applying N.J. Evid.R. 63(9)); Mercurdo v. County of Milwaukee, 264 N.W.2d 258, 263 (Wis. 1978) (applying Wis. Stat. § 908.01(4)(b)4).
See also 4 Weinstein & Berger, at 801-281 (stating that Rule 801(d)(2)(D) grew out of dissatisfaction with the traditional "speaking authority" requirement]   because it "frequently caused courts to exclude an agent’s highly probative statement on the theory that the principal had not authorized the agent to make damaging remarks about him"); 2 McCormick on Evidence at 158 ("Typically the agent is well informed about acts in the course of the business, the statements are offered against the employer’s interest, and while the employment continues, the employee is not likely to make the statements unless they are true.").{/footnote} as was traditionally required at common law.  It is enough that a statement is "concerning" something within the scope of the declarant’s employment.{footnote}FRE 801 (d)(2)(D); Union Mut. Life Ins. Co. v. Chrysler Corp., 793 F.2d 1, 8 (1st Cir. 1986) (accountant’s letter regarding lease held admissible where he was responsible for billing inquiries); Corley v. Burger King Corp., 56 F.3d 709 (5th Cir. 1995)(statement by restaurant manager after he was involved in traffic accident that he was delivering product to restaurant held admissible); Purrington v. University of Utah, 996 F.2d 1025 (10th Cir. 1993)(statements by university professors with respect to plaintiff’s treatment by university held inadmissible in employment discrimination suit, as having been made outside scope of agency or employment); Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560 (11th Cir. 1991)(statement by cabin steward regarding sliding glass door on deck inadmissible where steward not permitted to be on deck); Process Control v. Tullahoma Hot Mix Paving Co., 79 F.R.D. 223, 225-26 (E.D. Tenn. 1978)
Accord Shuck v. Texaco Refining & Marketing, Inc., 872 P.2d 1247, 1250 (Ariz. App. 1994) (applying Ariz. R. Evid. 801(d)(2)D)); Reisman v. Great American Recreation, Inc., 628 A.2d 801 (N.J. SUPER. 1993) (applying N.J. Evid.R. 63(9)).
But see Sorensen v. City of Aurora, 984 F.2d 349 (10th Cir. 1993)(statement by deputy fire chief regarding firing of dispatcher inadmissible because deputy not shown to be acting within scope of his agency); City of Long Beach v. Standard Oil Co. of California, 46 F.3d 929 (9th Cir. 1995) (employee’s notes from meeting properly excluded where employee not shown to be acting within scope of agency).{/footnote}  The statement need not be made while the agent is actually engaged in his or her duties,{footnote}Reisman v. Great American Recreation, Inc., 628 A.2d 801 (N.J. Super. 1993) (applying N.J. Evid.R. 63(9)).{/footnote} so long as the relationship has not yet terminated.  Where the statement regards corporate decision-making with which the declarant had no involvement, the statement is generally inadmissible.{footnote}Strauch v. United States, 637 F.2d 477, 481 (7th Cir. 1980); Breneman v. Kennecott Corp., 799 F.2d 470, 473 (9th Cir. 1986); Rovtar v. Union Bank of Switzerland, 852 F.Supp. 180 (S.D.N.Y. 1994)(statement by lower-level bank employees inadmissible in discrimination suit where employees not authorized to speak for bank); Shepley V. E. I. Dupont De Nemours and Company, Inc., 722 F. Supp. 506, 514 (C.D. Ill. 1989).
See also Cedeck v. Hamiltonian Federal Savings & Loan Association, 551 F.2d 1136, 1138 (8th Cir. 1977) (statement by bank branch manager as to reasons for plaintiff’s termination inadmissible because prefaced by “I was told that . . . “, rendering statement double hearsay).{/footnote}  Whether the statement concerned something within the scope of the declarant’s employment may be proven by circumstantial evidence.{footnote}Pappas v. Middle Earth Condominium Association, 963 F.2d 534 (2d Cir. 1992) (unidentified condominium management company’s employee’s statement after slip-and-fall admissible where circumstantial evidence showed employee was responsible for removal of snow and ice).
Shuck v. Texaco Refining & Marketing, Inc., 872 P.2d 1247, 1250 (Ariz. App. 1994) (applying Ariz. R. Evid. 801(d)(2)D)).{/footnote}

5(d)(i).  Government Employees

Statements of government employees have been held admissible against the government in civil cases.{footnote}Murrey v.  United States, 73 F.3d 1448 (7th Cir. 1996)(statements made by secretary for veteran affairs and representatives of department as to reasons for VA patient’s deaths admissible in medical malpractice action); Skaw v. United States, 740 F.2d 932, 937 (Fed. Cir. 1984); United States v. AT&T Co., 524 F. Supp. 1331, 1333-34 (D.D.C. 1981) (Department of Defense study concluding that divestiture of the Bell system would be harmful to national security held admissible); Burkey v. Ellis, 483 F. Supp. 897, 911 n.13 (N.D. Ala. 1979) (government agent’s inconsistent out-of-court statements made in the course of exercising his authority and within scope of that authority held admissible and binding upon government in civil cases); Corrigan v. United States, 609 F. Supp. 720, 727 n.3 (E.D. Va. 1985), rev’d, 815 F.2d 954 (4th Cir.), cert. denied, 484 U.S. 926 (1987) (statement by government-employed bartender at a military club held admissible).
Metropolitan Dade County v. Yearby, 580 So. 2d 186, 188 (Fla. App. 1991) (applying Fla. Stat. § 90.803(18)(d)).{/footnote}  The majority of courts hold that statements by prosecutors and law enforcement officers cannot be used as vicarious admissions in criminal cases,{footnote}United States v. Santos, 372 F.2d 177 (2d Cir. 1967) (affidavit of narcotics agent that persons other than defendant were responsible for assault); Lippay v. Christos, 996 F.2d 1490, 1497 (3d Cir. 1993); United States v. Kapp, 781 F.2d 1008, 1014 (3d Cir. 1986), cert. denied, 106 S. Ct. 1220 (1986); United States v. Pandilidis, 524 F.2d 644, 650 (6th Cir. 1975) (statements of an IRS agent that he believed defendant guilty of nothing more than a civil offense), cert. denied, 424 U.S. 933 (1976); U.S. v. Prevatte, 16 F.3d 767, 779 (7th Cir. 1994); United States v. Kampiles, 609 F.2d 1233, 1246 n.16 (7th Cir. 1979) (CIA agent), cert. denied, 446 U.S. 954 (1980); United States v. Powers, 467 F.2d 1089, 1095 (7th Cir. 1972) (statement of IRS agent that proceeds were taxable income of co-defendant); United States v. American Cyanamid Co., 427 F. Supp. 859, 867 (S.D.N.Y. 1977); United States v. D.K.G. Appaloosas, Inc., 630 F. Supp. 1540, 1564 (E.D. Tex. 1986)
State v. Jurgensen, 681 A.2d 981 (Conn. App. 1996) (dicta; holding informant not to be an agent of police); State v. McDaniel, 647 N.E.2d 266 (Ill. 1995); State v. Therriault, 485 A.2d 986, 992 (Maine 1984) (applying Me. R. Evid. 801(d)(2)); State v. Asbridge, 555 N.W.2d 571, 575-76 (N.D. 1996) (applying N.D. R.  Evid. 801(d)(2)).
2 J. Strong, McCormick on Evidence, @ 259, at pp. 168-169 (4th ed. 1992); Note, Vicarious Admissions by Agents of the Government: Defining the Scope of Admissibility in Criminal Cases, 59 B.U.L. REV. 400, 400 (1979)
See also United States v. Powers, 467 F.2d 1089, 1097-98 & n.1 (7th Cir. 1972), cert. denied, 410 U.S. 983, 93 S. Ct. 1499, 36 L. Ed. 2d 178 (1973) (prior government statement held inadmissible because not necessarily inconsistent with position taken in later case); United States v. American Cyanamid Co., 427 F. Supp. 859, 867 (S.D.N.Y. 1977) (statement held inadmissible under the residual exception; citing Santos).
See also State v. Ogden, 640 A.2d 6 (Vt. 1993) (not deciding issue because statements of informant held not to be within scope of agency). {/footnote} although there is some authority applying FRE 801(d)(2) in such circumstances.{footnote}United States v. Morgan, 581 F.2d 933, 937-38 n.11 (D.C. Cir. 1978) ("no indication in the history of the rules that the draftsmen meant to except the government from operation of Rule 801(d)(2)(D) in criminal cases.").
Freeland v. U.S., 631 A.2d 1186, 1192-93 (D.C. App. 1991) (statements by Assistant U.S. Attorney in one jurisdiction held admissible against U.S. Attorney for D.C.)
See also United States v. Kattar, 840 F.2d 118, 130-31 (1st Cir. 1988) (brief and memorandum filed by Dept. of Justice in other cases admissible against prosecution as adoptive admissions); 4 D. Louisell & C. Mueller, § 426, at 328 (1980) ("Certainly nothing on the face or in the history of Rule 801(d)(2) suggests that the admissions doctrine does not apply to statements by government agents."); S. Saltzberg & K. Redden, Federal Rules of Evidence Manual, rule 801, at 776 (4th ed. 1986) ("The reasoning [of U.S. v. Kampiles, supra] is suspect, since no corporate defendant in a criminal case wants agents’ statements used against it either; but they are so used."); Randolph N. Jonakait, The Supreme Court, Plain Meaning, and the Changed Rules of Evidence, 68 Tex. L. Rev. 745, 774-78 (1990).{/footnote}  McCormick has observed:

The cases ruling against admissibility involve statements by agents at the investigative level, with statements by government attorneys after the initiation of proceedings being held admissible.{footnote}McCormick, § 267, at 795.
Accord State v. Worthen, 765 P.2d 839, 848 (Utah 1988).{/footnote}

A government-issued publication has been held properly admitted against the government in a criminal case as a party admission.{footnote}U.S. v. Van Griffin, 874 F.2d 634, 638 (9th Cir. 1989) (DOT pamphlet setting out correct procedures for sobriety tests).{/footnote}

5(d)(ii).  Unidentified Employees

Statements have been admitted under this rule even where the declarant has not been identified.{footnote}  Pappas v. Middle Earth Condominium Association, 963 F.2d 534, 538 (2d Cir. 1992); O’Neal v. Morgan, 637 F.2d 846, 851 (2d Cir. 1980), cert. denied, 451 U.S. 972 (1981); United States v. Portsmouth Paving Corp., 694 F.2d 312, 321-22 (4th Cir. 1982) (unidentified secretary relaying message from employer); Davis v. Mobil Oil Exploration and Producing S.E., Inc., 864 F.2d 1171, 1174 (5th Cir. 1989) (declarant wore Mobil hard hat and two witnesses testified that he was "a Mobil company man"); M.C.I. v. AT & T Co., 708 F.2d 1081, 1143 (7th Cir. 1983) (dicta, finding declarants were in high-level management positions);
Shuck v. Texaco Refining & Marketing, Inc., 872 P.2d 1247, 1250 (Ariz. App. 1994) (applying Ariz. R. Evid. 801(d)(2)D)); Labis v. Stopper, 11 Cal. App. 3d 1003, 89 Cal. Rptr. 926 (1970); Chaney v. Winn Dixie Stores, Inc., 605 So. 2d 527, 529 (Fla. App. 1992) (applying Fla. R. Evid. 801(d)(2)(D); testimony that declarant wore store name tag and "was in [plaintiff’s] checkout lane" held sufficient to establish employment relationship); Platt v. Olympic Ice, Inc., 308 S.E.2d 704, 705 (Ga. App. 1983) (sufficient that declarant with ice-skating class identified herself as the instructor, and manager testified that only employees authorized to be instructors); Reisman v. Great American Recreation, Inc., 628 A.2d 801 (N.J. Super. 1993) (applying N.J. Evid.R. 63(9)); Nobero Co. v. Ferro Trucking, Inc., 258 A.2d 713 (N.J. Super. 1969) (statement made by unidentified employee of tenant regarding cause of fire admissible).
But see Zaken v. Boerer, 964 F.2d 1319 (2d Cir.), cert. denied, 506 U.S. 975 (1992) (statement ruled inadmissible because declarant not identified); Gulbranson v. Duluth, Missabe and Iron Range Ry. Co., 921 F.2d 139 (8th Cir. 1990)(statements in minutes of railroad safety committee meeting inadmissible where, among other things, specific speakers not identified).{/footnote}  As one court has stated:

In the context of a statement allegedly made by an unidentified employee, there always looms a fertile field for fabrication and fraud.  However, in the final analysis, this question focuses upon the credibility of the particular witness, and that, undoubtedly, is an issue which is best left to be resolved by the trier of fact.{footnote}Reisman v. Great American Recreation, Inc., 628 A.2d 801 (N.J. Super. 1993) (applying N.J. Evid.R. 63(9)).{/footnote}

5(d)(iii).  Admissibility Against Other Employees

 Where the statement is made by a corporate employee and is being offered against a fellow employee, not against the corporation, its admissibility will depend on whether an agency relationship existed between the two employees.{footnote}Zaken v. Boerer, 964 F.2d 1319 (2d Cir. 1992), cert. denied, 506 U.S. 975, 113 S.Ct. 467, 121 L.Ed.2d 375 (statement by vice president of sales as to reasons for discharge of employee’s predecessor admissible against chief executive officer; another statement ruled inadmissible because declarant not identified); Lippay v. Christos, 996 F.2d 1490, 1498 (3d Cir. 1993) (dicta); Crawford v. Garnier, 719 F.2d 1317 (7th Cir. 1983) (per curiam) (statement held admissible); Nekolny v. Painter, 653 F.2d 1164, 1171 (7th Cir. 1981), cert. denied, 455 U.S. 1021 (1982); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1440 (9th Cir. 1990); Boren v. Sable, 887 F.2d 1032, 1039 (10th Cir. 1989); United States v. Young, 736 F.2d 565, 567 (10th Cir. 1983) (per curiam), rev’d on other grounds, 470 U.S. 1 (1985); Boren v. Sable, 887 F.2d at 1039; United States v. Paxson, 274 U.S. App. D.C. 71, 861 F.2d 730, 734-35 (D.C. Cir. 1988). {/footnote}  Courts have admitted statements by subordinates against their superiors where the subordinate declarant reported directly and regularly to the superior.{footnote}Nekolny v. Painter, 653 F.2d 1164, 1171 (7th Cir. 1981), cert. denied, 455 U.S. 1021 (1982); United States v. Young, 736 F.2d 565, 567 (10th Cir. 1983) (per curiam), rev’d on other grounds, 470 U.S. 1 (1985); United States v. Paxson, 274 U.S. App. D.C. 71, 861 F.2d 730, 734-35 (D.C. Cir. 1988).{/footnote}  One court stated in excluding a subordinate’s statement, "mere occupation of a subordinate position in the corporate chain of command" does not establish an agency relationship with the party-opponent.  The party-opponent must be shown to have "controlled the daily performance of [the declarant] at the time he made the alleged ‘admissions.’"{footnote}Boren v. Sable, 887 F.2d 1032, 1040 (10th Cir. 1989).{/footnote}

5(e). Agents Other than Employees

Under the federal rules, out-of-court statements of an agent may be introduced as admissions against the principal if made during the agency relationship{footnote}  Walsh v. McCain Foods Ltd., 81 F.3d 722 (7th Cir. 1996)(in suit by one former co-owner of business against purchaser of business, admissions by other former owner of company through failure to respond to discovery inadmissible against plaintiff  where admissions occurred after sale to defendant-purchaser, and after any agency relationship between co-owners had terminated).{/footnote} and concerning a matter within the scope of the agency.{footnote}FRE 801(d)(2).{/footnote} 

For the statements of an agent to be introduced as an admission of the principal, the proponent must first establish by independent evidence the agency relationship.{footnote}E.E.O.C. v. Watergate at Landmark Condominium, 24 F.3d 635 (4th Cir. 1994), cert. denied, 115 S.Ct. 185, 130 L.Ed.2d 119 (condominium residents who were members of committees created by condominium association board of directors held to be agents); Murphy Auto Parts Co. v. Ball, 249 F.2d 508 (D.C. Cir 1958). 

{/footnote}  Agency cannot be proved merely by the statements of the alleged agent.{footnote}C.L. Maddox, Inc. v. Royal Ins. Co. of America, 567 N.E.2d 749, 752 (Ill. App. 1991).{/footnote}  Under the federal rules, it is enough that a statement is "concerning" something within the scope of the declarant’s agency.{footnote}FRE 801 (d)(2)(D); Martin v. Savage Truck Line, Inc., 121 F. Supp. 417 (D.D.C. 1954) (truck driver’s statement to police at scene of accident as to his speed before collision held admissible against truck owner).

But see Precision Piping and Instruments, Inc. v. E.I. de Pont de Nemours and Co., 951 F.2d 613 (4th Cir. 1991)(employee’s statement as to employer’s possible decision to stop dealing with contractor held inadmissible because employee not authorized to hire or fire contractors).{/footnote}  The statement itself need not have been authorized, as was generally required at common law.{footnote}  Kapelski v. Alton & Southern R.R., 36 Ill. App. 3d 37, 343 N.E.2d 207 (5th Dist. 1976)(railroad claims agent’s own testimony that he was agent for railroad insufficient to show authority to admit railroad’s responsibility for accident).{/footnote}  As one federal court has stated, "The authority granted in the agency relationship need not include authority to make damaging statements, but simply the authority to take action about which the statements relate.”{footnote}Pappas v. Middle Earth Condominium Ass’n, 963 F.2d 534, 538 (2d Cir. 1992) (finding employee’s statement admissible).
Accord Hoptowit v. Ray, 682 F.2d 1237, 1262 (9th Cir. 1982).
State v. Ogden, 640 A.2d 6 (Vt. 1993) (holding statement not made within scope of agency, applying Vt. R. Evid. 801(d)(2)(D)).{/footnote}

5(e)(1).  Choice of Law

The Federal Rules of Evidence do not define "agent" or "servant," federal courts have looked to the traditional master-servant relationship as understood by common law agency doctrine.{footnote}Lippay v. Christos, 996 F.2d 1490, 1497 (3d Cir. 1993); Boren v. Sable, 887 F.2d 1032, 1038 (10th Cir. 1989).{/footnote}
It has been held that in federal actions, whether there is an agency relationship is determined under federal common law, rather than by reference to the law of the forum state.{footnote}Lippay v. Christos, 996 F.2d 1490, 1497 (3d Cir. 1993).

But see Sanford v. Johns-Manville Sales Corp., 923 F.2d 1142, 1149 (5th Cir. 1991)(looking to Texas law to determine that examining physician was not an agent of asbestos manufacturers).{/footnote}

5(e)(2).  Scope of Agency

Statement must be made by one who, in making the statement, was acting within the scope of his authority as agent.{footnote}C.L. Maddox, Inc. v. Royal Ins. Co. of America, 567 N.E.2d 749, 752 (Ill. App. 1991) (reversing where insurance sales broker’s statement as to validity of insured’s claim improperly admitted against insuror).{/footnote} Whether a statement was made in the scope of the declarant’s agency is a preliminary question of admissibility for the trial court to determine.{footnote}State v. Ogden, 640 A.2d 6 (Vt. 1993) (holding statement not made within scope of agency, applying Vt. R. Evid. 104(a)).{/footnote}

A number of states require that the agent must have had express or implied authority to make statements on behalf of the principal, in order for the agent’s statements to be admissible against the principal.{footnote}E.g., Cal. Evid. Code § 1222(a) (West 1966) (statement must be made "by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement."); Kapelski v. Alton & Southern R.R., 36 Ill. App. 3d 37, 343 N.E.2d 207 (5th Dist. 1976)(railroad claims agent’s own testimony that he was agent for railroad insufficient to show authority to admit railroad’s responsibility for accident).{/footnote}

5(e)(3).  Specific Types of Agents

     Attorneys. The general rule is that statements made by an attorney concerning any matter within the scope of his authority are admissible against the client. See ATTORNEYS—Admissions by an Attorney.{footnote}{/footnote}

     Brokers.  An independent insurance broker has been held not to be an agent for purposes of this rule.{footnote}C.L. Maddox, Inc. v. Royal Ins. Co. of America, 567 N.E.2d 749, 752 (Ill. App. 1991).{/footnote}[295]
Co-conspirators.   See COCONSPIRATOR STATEMENTS.

Expert witnesses.  See EXPERTS–Admissions.

Informants. Statements of informants have generally been held inadmissible against the government.{footnote}United States v. Finley, 708 F. Supp. 906, 910 (N.D. Ill. 1989).
See also Lippay v. Christos, 996 F.2d 1490, 1499 (3d Cir. 1993) (statement inadmissible against law enforcement officer in civil riights action against him personally); United States v. Pena, 527 F.2d 1356, 1361 (5th Cir. 1976) (not reaching issue because the statements made after informant’s relationship with government had ended).
But see State v. Ogden, 640 A.2d 6 (Vt. 1993) (in holding informant’s statement was not made within the scope of any agency relationship, assuming one existed, court wrote, “There is no per se rule that an informant is or is not an agent of the government…”).{/footnote}

 Interpreters.  See INTERPRETERS.

     Public officers.  School board members{footnote}Wilkerson v. Columbus Separate School Dist., 985 F.2d 815 (5th Cir. 1993).{/footnote} and school board presidents{footnote}Wilkerson v. Columbus Separate School Dist., 985 F.2d 815 (5th Cir. 1993).{/footnote} have been held agents of the school district.

6. Parties with Joint Interests

 
Many courts hold that statements of joint tenants, joint obligors or partners of an opposing party are admissible as vicarious admissions.{footnote}Cal. § 1224.
But see Walsh v. McCain Foods Ltd., 81 F.3d 722 (7th Cir. 1996)(in suit by one former co-owner of business against purchaser of business, admissions by other former owner of company through failure to respond to discovery inadmissible against plaintiff  where admissions occurred after sale to defendant-purchaser, and after any agency relationship between co-owners had terminated).
{/footnote}  See also JOINT CONTRACTORS; PARTNERS.

7.  Predecessors in Interest

At common law, courts generally recognize a hearsay exception for out-of-court admissions by persons in privity with a party-opponent.{footnote}McCormick, Handbook of the Law of Evidence 647 (2d ed. 1972).
See generally Huff v. White Motor Corp., 609 F.2d 286, 290 (7th Cir. 1979){/footnote}  Statements by a predecessor in interest relating to ownership, possession or boundaries of property are admissible against a successor in interest if made while the declarant was owner.{footnote}Cal. § 1225.  {/footnote}  See also REAL PROPERTY.  The hearsay exception for statements against interest also applies.  See STATEMENTS AGAINST INTEREST.

8.  Decedents’ Admissions Offered Against Survivors or the Estate

An admission of indebtedness by one now deceased is admissible against the estate,{footnote}Cal. § 1224.  {/footnote} or the surving spouse in a wrongful death action.{footnote}See Huff v. White Motor Corp., 609 F.2d 286 (7th Cir. 1979) (statement describing accident held admissible under residual exception).{/footnote} The hearsay exception for statements against interest also applies.  See STATEMENTS AGAINST INTEREST.  An admission of contributory negligence is likewise admissible against the plaintiff in most jurisdictions.{footnote}Annot., 114 A.L.R. 921 (G); Cal. § 1227.{/footnote}

Bibliography

Comment, Vicarious Admissions, The Admissibility Against His Principal of an Agent’s Extra-Judicial Statement, 10 Kan. L. Rev. 74 (1961)