707.2Admission of Party Opponent [Rule 801(d)]

The Basic Rule

Rule 801(d) – Hearsay: Admission of a Party-Opponent

G.S. 8C-801(d) (re-formatted for clarity).

Legal Overview

As explained in the preceding entry on Rules of Evidence 801 and 802, a declarant’s statement made at a time or place other than while testifying at the trial or hearing and offered for the truth of the matter asserted is “hearsay” and is not admissible in evidence unless another rule or exception allows it. See G.S. 8C-801, 802.

However, Rule 801(d) is an exception that allows for the introduction of hearsay if it is an admission of a party-opponent (e.g., the defendant in a criminal prosecution) and the statement is being offered against that party. See G.S. 8C-801(d). The rule sets forth five types of statements that are admissible under this rationale.

Party’s Own Statement – 801(d)(A)

“With respect to category (A), a party’s own statement is the classic example of an admission.” G.S. 8C-801(d), Official Commentary; State v. Tilley, 292 N.C. 132 (1977) (party’s own admissions are admissible as a hearsay exception because “the declarant or actor cannot be heard to complain about not having a right to cross-examine himself”).

In criminal cases, this exception allows the state to offer the defendant’s own statement (oral, written, or nonverbal communication) against him or her by introducing the statement through a witness who heard or observed it, such as the officer who took the defendant’s confession during a custodial interview, or a witness who overheard the defendant discussing the crime. See, e.g., State v. Graham, 223 N.C. App. 150 (2012) (“defendant’s admission that he touched five to ten other boys is an admission under Rule 801(d)(A)”); State v. Laney, 178 N.C. App. 337 (2006) (“defendant's statement that he would ‘be guilty’ was admissible under the hearsay exception N.C. Gen. Stat. § 8C–1, Rule 801(d)(A)”); State v. Al-Bayyinah, 359 N.C. 741 (2005) (an admission under this rule is understood to be “a statement of pertinent facts which, in light of other evidence, is incriminating” (quoting State v. Lambert, 341 N.C. 36 (1995)).

This rule applies when a statement is “offered against a party.” G.S. 8C-801(d). Thus, it does not allow a non-testifying defendant to offer his own self-serving statements into evidence through another witness who heard the statement. See State v. Portillo, 247 N.C. App. 834 (2016) (no error in excluding “inadmissible self-serving hearsay of the defendant who has not testified”); State v. Wiggins, 159 N.C. App. 252 (2003) (non-testifying defendant’s statements were properly excluded where “the statements were self-serving, were sought to be admitted for the truth of the matter asserted, and were not evidence of defendant's state of mind”); State v. Lovin, 339 N.C. 695 (1995); State v. Weeks, 322 N.C. 152 (1988); State v. Maness, 321 N.C. 454 (1988); State v. Stanton, 319 N.C. 180 (1987).

The state’s witnesses are normally not a “party” to the criminal case, so this exception does not authorize the introduction of hearsay statements by those witnesses. See State v. Shoemaker, 80 N.C. App. 95 (1986) (“An adverse witness, even the complaining witness in a criminal trial, is not a party to the action. Thus, the witness was properly prohibited from testifying about a hearsay statement.”). An exception may apply for a law enforcement officer acting as an “agent” of the state under Rule 801(d)(D), which is discussed in Section 4 below.

Adopted Statement – 801(d)(B)

A hearsay statement is admissible as an admission of a party-opponent if the party has “manifested his adoption or belief in its truth.” G.S. 8C-801(d)(B). The party’s adoption of or agreement with the statement “may be manifested in any appropriate manner.” G.S. 8C-801, Official Commentary. An affirmative act by the party-opponent, such as a statement or gesture by the party directly indicating his adoption or belief in the declarant’s statement, generally supports the use of the exception. See, e.g., State v. Weaver, 160 N.C. App. 61 (2003) (defendant’s responses, such as “whatever it takes” and “we can do it,” demonstrated affirmative adoptions of incriminating statements made by declarant); State v. Thompson, 332 N.C. 204 (1992) (defendant adopted the declarant’s statements about committing a murder when declarant asked if defendant had the money to pay him for doing it, and defendant responded “yeah”); State v. Hunt, 325 N.C. 187 (1989) (“the jury could have reasonably found that the defendant's affirmative actions amounted to conduct manifesting his adoption of West's statements or his belief in their truthfulness”).

A party’s adoption of a statement may also be implied through silence or acquiescence, if a “person would, under the circumstances, protest the statement made in his presence, if untrue.” G.S. 8C-801, Official Commentary. See, e.g., State v. Marecek, 152 N.C. App. 479 (2002) (“Defendant's reported failure to deny that he killed his wife, along with these incriminating statements, 'manifest […] circumstantially [his] assent to the truth' of Preston's statement that defendant killed his wife”); quoting State v. Sibley, 140 N.C. App. 584 (2000); State v. Williams, 333 N.C. 719 (1993) (defendant’s silence after his accomplice said that “both of them shot both men” was an adopted admission, making the statement admissible against defendant).

Although adoption of a statement can be manifested in “any appropriate manner,” including silence or mere failure to deny the statement at the time it is made, the court must evaluate the admissibility of such a statement “in terms of probable human behavior.” G.S. 8C-801(d), Official Commentary. This has raised “troublesome questions” in criminal cases for several reasons: “(i) the inference is a fairly weak one, to begin with; (ii) silence may be motivated by advice of counsel or realization that ‘anything you say may be used against you’; (iii) unusual opportunity is afforded to manufacture evidence; and (iv) encroachment upon the privilege against self-incrimination seems inescapably to be involved.” G.S. 8C-801(d), Official Commentary (numbers added).

Case interpreting this rule have therefore held that “great caution” should be used when evaluating implied admissions adopted by silence; nevertheless, “if the statement is made in a person's presence by a person having first-hand knowledge under such circumstances that a denial would be naturally expected if the statement were untrue and it is shown that he was in a position to hear and understand what was said and had the opportunity to speak, then his silence or failure to deny renders the statement admissible against him as an implied admission.” State v. Sibley, 140 N.C. App. 584 (2000), quoting State v. Spaulding, 288 N.C. 397 (1975).

Authorized Statement – 801(d)(C)

When a party has authorized another person to speak on his or her behalf (e.g., a spokesperson, family member, or attorney), the statements made by that authorized person “concerning the subject” at issue are admissible against the party as an admission by a party-opponent. See G.S. 8C-801(d)(C), Official Commentary (“No authority is required for the general proposition that a statement authorized by a party to be made should have the status of an admission by the party.”). This rule is used more frequently in civil cases, but can apply in criminal prosecutions as well. See, e.g., State v. McNeill, 371 N.C. 198 (2018) (officer could testify about what defendant’s attorney told him regarding where to find a body since defendant authorized his attorney to make that disclosure on his behalf); State v. McLemore, 343 N.C. 240 (1996) (defendant called his wife, told her he had killed his mother, and asked her to call and tell his father – hearsay testimony from the father about what defendant's wife related in that phone call was admissible as an authorized statement of a party-opponent).

Agent or Servant Statement – 801(d)(D)

A statement made by an agent or servant of the party is admissible as a hearsay exception against the party, as long as the statement was: (i) concerning a matter within the scope of the agency or employment, and (ii) made during the existence of that relationship. See G.S. 8C-801(d)(D). As with “authorized statements,” discussed above, this rule is more commonly used in civil cases, but it remains a valid exception in criminal prosecution if it is supported by the facts. See, e.g., State v. Villeda, 165 N.C. App. 431 (2004) (trooper’s statements to other witnesses were admissible against the state, because as a law enforcement officer the trooper was an agent of the state, the statements were made during the period of his agency, and the statements concerned matters within the scope of his employment, namely “the motivations and circumstances surrounding his traffic stops”); see also United States v. Barile, 286 F.3d 749 (4^th Cir. 2002) (similar holding under federal law, admitting statements made by an FDA employee as an agent of the government).

Coconspirator Statement – 801(d)(E)

Statements made by one member of a criminal conspiracy are admissible at trial against the other members of the conspiracy if certain foundational criteria are met. See G.S. 8C-801(d)(E); State v. Tilley, 292 N.C. 132 (1977) (in the same manner that a party’s own statements are not excluded by the hearsay rules, “by a rule of substantive law, vicarious liability for the same acts and declarations is extended to the declarant or actor's co-conspirators”).

The state must satisfy three requirements for a coconspirator’s statement to be admissible. The state must show that: (1) a conspiracy existed; (2) the acts or declarations were made by a party to the conspiracy and in pursuance of its objectives; and (3) the acts or declarations were made while the conspiracy was active, that is, after it was formed and before it ended. State v. Valentine, 357 N.C. 512 (2003); quoting State v. Lee, 277 N.C. 205 (1970). See, e.g., State v. Bonnett, 348 N.C. 417 (1998); State v. Williams, 345 N.C. 137 (1996); State v. Mahaley, 332 N.C. 583 (1992).

(i)  Conspiracy Existed

The state must make a prima facie showing that a conspiracy existed, and the state must make that showing independently of the statement which the state seeks to offer into evidence based on that conspiracy. See State v. Hagans, 177 N.C. App. 17 (2006); State v. Cotton, 102 N.C. App. 93 (1991); State v. Tilley, 292 N.C. 132 (1977). However, “in establishing the prima facie case, the State is granted wide latitude, and the evidence is viewed in a light most favorable to the State.” State v. Valentine, 357 N.C. 512 (2003); citing State v. Bonnett, 348 N.C. 417 (1998); State v. Brewington, 80 N.C. App. 42 (1986).

The trial judge may conditionally admit a coconspirator statement subject to later proof of the existence of the conspiracy. See State v. Albert, 312 N.C. 567 (1985); State v. Polk, 309 N.C. 559 (1983); State v. Withers, 111 N.C. App. 340 (1993).

(ii)  By a Conspirator, in Pursuance of Objectives

If the state establishes the existence of a conspiracy, then any relevant and otherwise admissible statements made by another member of the conspiracy that relate to achieving the objectives of that conspiracy are admissible against the party on trial. See, e.g., State v. Bonnett, 348 N.C. 417 (1998) (“the statements of codefendant Moore in which the codefendants agreed to “hit this store,” “stick together whatever happen[s],” and to “smoke the old m–––––f–––––,” along with statements made during the robbery and murder, fall well within the hearsay exception for statements made during the course and in furtherance of a conspiracy”); State v. Phillips, 88 N.C. App. 526 (1989), rev’d on other grounds, 325 N.C. 222 (1989); State v. Nichols, 321 N.C. 616 (1988); State v. Fink, 92 N.C. App. 523 (1989).

(iii)  After Conspiracy Formed, and Before it Ended

Finally, to be admissible under Rule 801(d)(E), the statement must have been made during the life of the conspiracy. See State v. Collins, 81 N.C. App. 346 (1986). Statements made before the conspiracy began (e.g., before an agreement was reached to commit the criminal act) or after the conspiracy ended (e.g., after the crime was completed, or after the coconspirator was arrested and began talking to the police) are not admissible under this exception. See, e.g., State v. Stephens, 175 N.C. App. 328 (2006); State v. Gary, 78 N.C. App. 29 (1985); State v. Oliver, 309 N.C. 326 (1983).

Even though the state must make a prima facie showing of the existence of a conspiracy independently of the statement sought to be admitted, the state may use the statement itself for the purpose of establishing when the conspiracy began or ended. See State v. Mahaley, 332 N.C. 583 (1992); State v. Williams, 345 N.C. 137 (1996).