BLOG BULLETS:

• Rule 801(d)(2) of the Federal Rules of Evidence on admissions of a party-opponent can be used to introduce statements by government prosecutors and agents.
• Other limiting rules of evidence, like rules limiting opinion evidence and the rule excluding hearsay, don’t apply, so statements made by prosecutors in closing argument and statements made by prosecutors or agents in affidavits or pleadings filed in court can be introduced.
• The rule can also allow introduction of statements in government agency reports, so long as the agency that prepared the report is the relevant agency.

NOW THE BLOG:

We all know the basic rules of evidence and how they apply in general, but every now and then we run across a little nugget in the application of a general rule that we maybe hadn’t thought of. This week and perhaps over the next two or three weeks – unless something more current comes up – I thought I’d share a few of the nuggets that have come up for me over the years which I hadn’t thought of in my general learning of the rules.

The first nugget I’ll talk about, in this week’s post, has to do with the evidence rule governing admissions of a party-opponent. We tend to think of this as a bad rule because it’s usually getting used against us when our client thought he’d be better off talking than keeping his mouth shut. But every now and then, it can be a good rule. Because sometimes thegovernment makes a “confession.” Or if not an outright confession, at least an admission, which is all that’s needed for the admission of a party-opponent rule to apply. That rule, you’ll recall, which is Rule 801(d)(2) of the Federal Rules of Evidence, allows an opposing party to offer any “statement” of the opposing party, with no requirement that it have seemed incriminating or otherwise problematic at the time it was made.See Fed. R. Evid. 801(d)(2).

Of course, the “government” isn’t a person that can make statements itself, but admissions don’t have to be made by the party itself to be admissible under Rule 801(d)(2). They can also be made by “a person whom the party authorized to make a statement on the subject,” Fed. R. Evid. 801(d)(2)(C), or “the party’s agent or employee on a matter within the scope of that relationship and while it existed,” Fed. R. Evid. 801(d)(2)(D). And who might these people be when the government’s a party? Maybe law enforcement agents? There seems to be an exact word match there – with the word “agent” in Rule 801(d)(2)(D). And what about prosecutors? What do they typically say about themselves in court, in filed documents, and often even in their correspondence with you? Don’t they love to call themselves “the government”? And I assume they’re, in the words of Rule 801(d)(2)(C) quoted above, “authorized” to make their statements on behalf of the government. They’re also certainly, to look to Rule 801(d)(2)(D), “employee[s]” of the government. And what prosecutors say during a prosecution seems squarely “within the scope of that [employment] relationship.”

There’s also the basic principle that an entity – perhaps especially our government – shouldn’t be able to talk out of two sides of its mouth. As one court opined:

We agree with Justice (then Judge) Stevens that the assertions made by the government in a formal prosecution . . . “establish the position of the United States and not merely the views of its agents who participate therein.”United States v. Powers, 467 F.2d 1089, 1097 n.1 (7th Cir. 1972) (Stevens, J., dissenting). (Footnote and additional citation omitted.) The government cannot indicate to one federal court that certain statements are trustworthy and accurate, and then argue to a jury in another federal court that those same assertions are hearsay.

United States v. Kattar, 840 F.2d 118, 131 (1st Cir. 1988).

Bringing statements within the admissions rule also has the wonderful effect of negating most of the other limiting rules of evidence. As our own District Judge Dean Pregerson explained in another wonderful opinion he wrote:

The theory of admissibility of a statement of a party opponent is that it is “ridiculous for a party-litigant to complain that his or her out-of-court statement is not subject to the safeguard of cross-examination. The party has but to take the stand.” McLaughlin, et al., Weinstein’s Federal Evidence § 801.20[1] (2d ed. 1999).

Based on this theory, ‘[n]o guarantee of trustworthiness is required in the case of an admission.” Fed. R. Evid. 801, 1972 Adv. Comm. Notes. Thus, admissions are exempt from the “restrictive influences of the opinion rule and the rule requiring firsthand knowledge,” which “calls for generous treatment of this avenue to admissibility.” Id.; see alsoMcLaughlin, supra, at § 801.20[2]. (Footnote omitted.)

United States v. Bakshinian, 65 F. Supp. 2d 1104, 1109 (C.D. Cal. 1999) (emphasis added).

In light of this breadth, Judge Pregerson ruled a prosecutor’s closing argument in a codefendant’s separate trial was admissible against the government in the second defendant’s trial. And there’s a wealth of other applications in the reported cases. The rule has been applied to statements made in sworn affidavits submitted to a magistrate. See United States v. Morgan, 581 F.2d 933, 937 (D.C. Cir. 1978). The rule has been applied to statements contained in a statement of facts attached to a criminal complaint. See United States v. Warren, 42 F.3d 647, 655 (D.C. Cir. 1994). The rule has been applied to affidavits submitted in support of a search warrant application and/or an opposition to a suppression motion. See United States v. Lopez-Ortiz, 648 F. Supp. 2d 241, 246 (D.P.R. 2009). The rule has been applied to bills of particulars. See United States v. GAF Corp., 928 F.2d 1253, 1258 (2nd Cir. 1991). The rule has been applied to statements made in sentencing memoranda and briefs filed in other cases. See United States v. Kattar, 840 F.2d at 126. The rule has been applied to statements made in a detention hearing and/or briefing thereon in another case. See United States v. Paloscio, No. 99 CR. 1199(LMM), 2002 WL 1585835, at *1-2 (S.D.N.Y. July 17, 2002). The test suggested by one opinion is whether the statements are “statements in which the government has manifested its ‘adoption or belief’ [or are] mere out-of-court assertions by a government agent.” Morgan, 581 F.2d at 938. And one way this test can be satisfied is when the government “has submitted [the statements] to . . . federal courts to show the truth of the matter contained therein.”Kattar, 840 F.2d at 131.

And don’t limit yourself to statements made in court cases. The Ninth Circuit has applied the rule to reports by government agencies that have nothing to do with a particular case. InUnited States v. Van Griffin, 874 F.2d 634 (9th Cir. 1989), the court held that a manual published by the National Highways Traffic Safety Administration on the proper procedure for administering a sobriety test was admissible against the government as an admission of a party-opponent. While cautioning that “not . . . every publication of every branch of government of the United States can be treated as a party admission by the United States,” the court held the report at issue there was a party admission because “the government department . . . was the relevant and competent section of the government.” Id. at 638.

So government prosecutors, agents, and agencies can stay stupid things – or maybe just insightful things that they’d later like to disavow – that can come back to haunt them just like defendants can. Keep this in mind when the government tries to get two-faced on you.