admissions

Agent’s Out-of-Court Statements Could Constitute Admissions by a Party Opponent

Posted by David Adelstein on March 05, 2016
Evidence / Comments Off on Agent’s Out-of-Court Statements Could Constitute Admissions by a Party Opponent

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Below is an example in a criminal trial of the exception to the hearsay rule referred to as admissions against party opponents when a party’s agent makes an out-of-court statement. Check out this article and this article for more on this important hearsay exception embodied in Florida Statute s. 90.803(18).

In Osorio v. State of Florida, 41 Fla.L.WeeklyD547b (Fla. 4th DCA 2016), the police used a confidential informant to make an arrest in a drug case. The confidential informant happened to be a co-worker of the defendant (that had previously been arrested on an unrelated drug charge and turned into an informant to obtain credit in his prosecution). The defendant was relying on an entrapment defense. During the defendant’s cross-examination of a detective at trial, the court refused to allow the detective to testify about an issue that the co-worker / informant relayed to the detective. Then, when the defendant took to stand to testify, the trial court refused to allow the defendant to testify about statements his co-worker / informant made. The court precluded this testimony based on the hearsay rule since both the detective and defendant would be testifying about out-of-court statements from the co-worker / informant offered for the truth of the matter asserted.

Could the co-worker / informant, acting as an agent of the police, be classified as a party-opponent to fall within the hearsay exception known as admissions against party opponents.   The court said yes!

“[A]n agent is one who consents to act on behalf of some person, with that person’s acknowledgment, and is subject to that person’s control.” Osorio, supra, citing Goldschmidt v. Holman, 571 So.2d 422, 424, n.5 (Fla. 1990).

The court held that the co-worker / informant was serving as an agent since the police encouraged his involvement including setting up the drug-buy that led to the defendant’s arrest in furtherance of obtaining credit in his prosecution.  As an agent, the co-worker / informant’s out-of-court statements did fall within the hearsay exception known as admissions against a party opponent. The statements made by the co-worker / informant were statements by the party’s [the state / police] agent concerning a matter within the scope of his agency and made during the existence of the relationship.   See Fla. Stat. s. 90.803(18).  The court held it was error not to allow the defendant to introduce these out-of-court statements that restricted the defendant’s ability to put on his entrapment defense.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Admissions Against Party Opponent (Hearsay Exception) Does Not Need to be Based on Party’s Personal Knowledge

Posted by David Adelstein on April 25, 2015
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An admission against a party opponent is an important exception to the hearsay rule. I previously discussed this hearsay exception in detail because it is an exception that routinely applies in order to admit testimony / evidence at trial.

Recently, the case of Jones v. Alayon, 2015 WL 1545005 (Fla. 4th DCA 2015) discussed the applicability of this exception. This case was a wrongful death action brought by the decedent’s daughter as personal representative of the estate stemming from an automobile accident caused by an off-duty police officer that originally fled the scene of the accident. The jury awarded the plaintiff less damages than the plaintiff desired and the plaintiff appealed. One issue, amongst others, that the plaintiff argued on appeal was that the trial court abused its discretion by allowing hearsay evidence to come in that the decedent’s current wife spent decedent’s money on drugs and alcohol.

Prior to trial, the defense moved in limine to prevent evidence coming in at trial that the defendant was an off-duty police officer arguing that the prejudice of this evidence outweighs its probative value. The plaintiff argued that this evidence was relevant to damages and proffered testimony from the decedent’s current wife that she was traumatized to learn that the accident was caused by an off-duty police officer that originally fled the scene. The trial court denied the motion in limine and allowed this evidence to come in.

During trial, the defense cross-examined the decedent’s daughter (personal representative of the estate) and asked whether she ever told her sister (decedent’s other daughter that resided out of state) that decedent’s current wife spent money on drugs and alcohol. The decedent’s daughter testified no.   Then, during the defense’s case, the defense read into evidence, over a hearsay objection by the plaintiff, a portion of the deposition transcript from the sister where she testified that decedent’s daughter (personal representative of estate) told her that decedent’s current wife did not work and was spending decedent’s money on drugs and alcohol.   The plaintiff objected that this statement constituted hearsay within hearsay in that (a) the sister was relaying something said to her by decadent’s daughter (hearsay) and (b) what decedent’s daughter told her sister was obviously told to her by the decedent (hearsay) and decedent’s daughter had no personal knowledge of this fact. The defense countered that this testimony was admissible as an admission by a party opponent. The trial court agreed with the defense and overruled the plaintiff’s objection since decedent’s daughter was the personal representative of the decedent’s estate (the party plaintiff) and, thus, the statement fell within the admission by a party opponent exception to the hearsay rule.

 

Admission Against Party Opponent — Hearsay Exception

 

 

An admission against a party opponent is set forth in Florida Statute s. 90.803(18):

Admissions.—A statement that is offered against a party and is:

(a) The party’s own statement in either an individual or a representative capacity;

(b) A statement of which the party has manifested an adoption or belief in its truth….

An admission, however, does not need to be based on the party’s personal or firsthand knowledge. Jones, supra, at *3 citing Charles W. Ehrhardt, Florida Evidence, s. 803.18 (2014 ed.) (admission against party opponent does not need to be based on firsthand knowledge because when person makes relevant admissions or speaks against their interests it may be assumed they would not do so without an adequate investigation).

In this case, decedent’s daughter (personal representative of the estate) made a statement to her sister that decedent’s current wife spent decedent’s money on drugs and alcohol. Decedent’s daughter, however, apparently did not have any personal or firsthand knowledge about this fact. But, as the Fourth District expressed: “That it [statement] is based upon what someone else may have told Jones [decedent’s daughter – personal representative of estate] is unimportant, in that she would not make the statement without some investigation or indicia of reliability.” Jones, supra, at *3.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Admissions Against a Party Are Admissible Exceptions to the Hearsay Rule

Posted by David Adelstein on February 20, 2015
Evidence / Comments Off on Admissions Against a Party Are Admissible Exceptions to the Hearsay Rule

 

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Previously, I discussed the business records exception to the hearsay rule (of inadmissible evidence). 

Another exception to the hearsay rule deals with admissions against party opponents.  This is an important exception to the hearsay rule that will apply in civil disputes so that a witness can testify about a statement made by a representative / employee of an opposing party without this statement being deemed inadmissible hearsay.

This hearsay exception in Florida Statute s. 90.803(18) states that the following statements (admissions) are admissible:

(18) Admissions.–A statement that is offered against a party and is:

(a) The party’s own statement in either an individual or a representative capacity;

(b) A statement of which the party has manifested an adoption or belief in its truth;

(c) A statement by a person specifically authorized by the party to make a statement concerning the subject;

(d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship; or

(e) A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.

Businesses operate through people so it is common for a representative of a business or a person acting within the scope of their employment to say something to another person.  This happens all the time.   But, is this statement admissible against the person’s business in a business dispute?  The answer is yes under this hearsay exception.

For example, in Benjamin v. Tandem Healthcare, Inc., 93 So.3d 1076 (Fla. 4th DCA 2012), an estate filed suit against a nursing home for wrongful death when a resident died by choking on her food.  The nursing home argued, among other things, that the resident had not choked.  During trial, the estate offered the testimony of a person that heard the kitchen manager of the nursing home state that the resident choked on coleslaw even though the kitchen manager had not seen the incident.  This was admissible hearsay because the statement of the kitchen manager was an admission offered against a party (the nursing home).  The kitchen manager made the statement concerning a matter within the scope of his employment. And, such a statement is admissible even if the statement is not based on personal knowledge, as was the statement made by the kitchen manager that did not observe the resident choking.

In Scholz v. RDV Sports, Inc., 710 So.2d 618 (Fla. 5th DCA 1998), a former assistant coach filed a lawsuit against the team for wrongful termination. The former assistant testified that he was told by an employee of the team that he was fired because the team wanted to hire a black assistant and that the team had been pressured to hire a black assistant.   The statements made by the team’s employee were admissible hearsay because the statements were made by a person concerning a matter within the scope of their employment and, thus, were admissions offered against a party (the team).

In Troya v. Miami Beach Health Care Group, Inc., 780 So.2d 228 (Fla. 3d DCA 2001), a woman was injured when she slipped and fell at a hospital.  As soon as she fell, she overheard an unidentified hospital employee say there was too much wax on the floor.   This statement was admissible hearsay as an admission against a party opponent.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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