Black-letter propositions
- 01
A party's own statement is usable against that party without personal knowledge or against-interest requirements.
- 02
Adoption requires manifestation of agreement; silence can adopt when a reasonable person would deny and the party heard, understood, and could respond.
- 03
Authorized and employee statements require proof of the relationship; an employee statement must concern its scope and be made during employment.
- 04
Coconspirator statements require a conspiracy and statement during and in furtherance, with supporting proof beyond the statement as required.
- 05
A testifying, cross-examinable witness's prior sworn inconsistency, qualifying consistency, or identification can be substantive.
Use this attack sequence under time
Frame the issue
Identify party against whom offered.
Resolve the next checkpoint
Choose personal, adoptive, agency, employment, or conspiracy route.
Resolve the next checkpoint
Prove relationship and timing.
Finish the conclusion
For prior witness statements, confirm testimony and cross-examination.
Common wrong turns
- A party statement need not have been self-damaging when made.
- An employee must speak about work scope during the relationship.
- Post-conspiracy boasting is not in furtherance.
Worked example
During employment, a routing supervisor emails the company about an accident within her duties.
The email may be an employee opposing-party statement because it concerns her work scope and was made during employment, even without final speaking authority.
Practice this topic
Statements that are not hearsay by definition
Rule 801(d)(1) covers a declarant-witness's prior statement when the declarant testifies and is subject to cross-examination about it. The statement qualifies if it is inconsistent with the testimony and was given under penalty of perjury at a proceeding or deposition. It also qualifies if it is consistent and offered to rebut a charge of recent fabrication or improper influence, or to rehabilitate credibility, or if it identifies a person the declarant perceived earlier.
Rule 801(d)(2) covers an opposing party's statement offered against that party. It includes the party's own statement, a statement the party adopted or believed true, a statement by a person the party authorized, a statement by an agent or employee within the scope of the relationship while it existed, and a coconspirator's statement during and in furtherance of the conspiracy.
Limits on establishing authority
The rule says the statement must be considered but does not by itself establish the declarant's authority under (C), the existence or scope of the relationship under (D), or the conspiracy under (E). A proponent needs independent support for those foundations.
Notice the last sentence of Rule 801(d)(2). If a party's claim, defense or potential liability is directly derived from a declarant or the declarant's principal, a statement that would be admissible against the declarant or the principal is also admissible against that party.
Frequently asked questions
What is the controlling rule for opposing-party and prior witness statements?+
Opposing-party statements are nonhearsay when the specified personal, adoptive, agency, employment, or conspiracy relationship is proved.
When is a prior inconsistent statement not hearsay?+
When the declarant testifies and is subject to cross-examination and the statement was given under penalty of perjury at a trial, hearing, other proceeding or deposition, per Rule 801(d)(1)(A).
When is a prior consistent statement not hearsay?+
When offered to rebut a charge of recent fabrication or improper influence or motive, or to rehabilitate credibility when attacked on another ground, under Rule 801(d)(1)(B).
What is an opposing party's statement?+
A statement offered against an opposing party that was made by the party, adopted by it, made by an authorized person, made by an agent or employee within the scope of the relationship, or by a coconspirator.
Does an agent's statement need to be under oath?+
No. Rule 801(d)(2)(D) covers a statement made by the party's agent or employee on a matter within the scope of that relationship while it existed.
Does the statement alone prove the coconspirator relationship?+
No. Rule 801(d)(2) says the statement must be considered but does not by itself establish the existence of the conspiracy or participation in it.