Under the Delaware rules, admissions by a party-opponent are totally excluded from the category of hearsay.10 The Delaware courts, prior to the adoption of the formal rule, treated admissions by a party-opponent as an exception to the hearsay rule. Language in earlier Delaware cases suggested that the admission had to be one “against interest.”11 The present rule, however, requires only that the admission be a “statement” and that it be made or adopted by the party or by specified categories of persons deemed authorized to speak for the party. The rule contains no requirement that the statement be against interest or that it be a statement of fact as opposed to a statement of opinion or that it be made on firsthand knowledge. None of these things is required as a prerequisite to admissibility of the statement. Such statements are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay exception. There is no requirement of any assurance of the trustworthiness of an admission.12 Such statements may only be admitted for the truth of their contents, however, when offered against the party making the admission.12.1 Thus, a party may not introduce his or her own prior statements.
In the case of a claim of coercion or duress, Wigmore’s view is that duress is not a ground to exclude the admission or confession of a party-opponent from evidence, as the opponent could attempt to explain or discredit the statement on any ground that would serve to impeach it.13 He takes the same view as to competency and mental capacity of the person who made the admission.14
Where the trial is by the court without a jury, it would seem to make no practical difference whether the court hears the evidence as part of the trial or as part of a preliminary determination as to the admissibility of the statement: In either case the evidence will be before the court as to the value of the admission. In the case of a jury trial, whether the jury hears the admission and also any evidence as to coercion or does not hear it all because it has been excluded from admission into evidence by the court may make a significant difference in the jury’s view of the matter.
The Delaware courts have not yet addressed the issue of the admissibility in civil cases of coerced admissions or on a requirement of a showing of mental or other competency. In a non-jury case, the issue of admissibility may not be as significant, since the trier of fact will in any event hear the offered evidence. However, in jury trials in civil cases, it may be desirable for one side or the other to exclude an admission altogether from evidence. In such a case, the party seeking to exclude the evidence should seek a preliminary ruling in advance of trial by motion in limine15 or during the trial but outside the hearing of the jury.16
The rule lists five categories of statements for which a party-opponent is deemed to be responsible and which therefore are admissible in evidence against that party. The first is a party’s own statement, made in either a personal or representative capacity.17 If the party had a representative capacity and was speaking of matters relevant to representative affairs, the statement is admissible against the party in that capacity. There need be no inquiry into whether that party was acting in the representative capacity in making the statement. All that is required is that the statement be relevant to representative affairs.18
The second category relates to any statement of which a party has manifested his or her adoption or belief in its truth.19 This category is fact intensive. Adoption may be by express words, by conduct or by silence,20 and a judgment must be made in each case by the court and by the trier of fact. The mere fact that the declarant was talking with a third party, however, does not of itself indicate that the declarant adopted or believed what the third party said. Rather, there must be some words or communication by the declarant indicating that the declarant accepted and incorporated the third party’s statement.21 Knowledge of the underlying facts may not be required, as where the party expresses complete confidence in the reliability of the person making the statement.22
The third category relates to any statement made by a person authorized by the party to make a statement concerning the subject.23
The fourth category relates to any statement made by an agent or servant of the party acting within the scope of the agency or employment and made during the existence of the relationship. This includes statements by expert witnesses who are also acting in the capacity of agents for a party.23.1 This formulation appears to be in accord with the traditional Delaware view.24 Statements of low level employees of a party may constitute admissions of a party if the subject of the statements concern a matter within the scope of their employment.24.1 A report by an expert for a witness is deemed to be an admission by the party who retained the expert.24.2 A travel agent can be an agent for the purpose of this rule, if the evidence shows that the travel agent was authorized to act as an agent for a party.24.3
The fifth category relates to any statement by a co-conspirator of a party made during the course and in furtherance of the conspiracy, provided that the court is first satisfied that the conspiracy and the participation of the party and the person whose statement is being offered have been established by a preponderance of the evidence.25 A statement qualifies if the offering party can show by a preponderance of the evidence that: (1) a conspiracy existed; (2) the co-conspirator and the defendant against whom the statement is offered were members of the conspiracy; and (3) the statement was made during and to further the conspiracy.25.1 For the purpose of determining whether a statement was made during and in furtherance of the conspiracy, a conspiracy is deemed to continue beyond the commission of the acts for which the conspiracy was created and includes subsequent activity relating to the conspiracy, such as determining how the proceeds of the conspiracy are to be distributed.26
In a civil case, since an admission of a party-opponent is not hearsay, it is admissible in nearly all cases and will be barred only where other rules of evidence or other considerations are applicable. Such an admission, however, is admissible only when introduced by an adverse party. The party may not introduce his or her own prior statement.27
It may be necessary to make a preliminary determination whether a statement may actually be attributable to the party-opponent. Where the statement was actually made by someone other than the party-opponent but is sought to be attributed to the party-opponent, it will be necessary to determine whether the statement made by another was adopted by the party-opponent or whether the declarant was authorized by the party-opponent to make the statement or was the agent or co-conspirator of the party-opponent. In addition to the relationship between the declarant and the party-opponent, the ability to attribute a statement of another to a party-opponent may also be subject to limitations based on the content of the statement. For example, whether a party-opponent is bound by the statement of his or her counsel may depend on whether counsel’s statement is intended to be factual or intended to be theoretical argument.28 Also, a statement arguably may not be attributable to the declarant if it was made when the declarant was incompetent or under sufficient duress as not to be voluntary. These preliminary questions may be determined upon voir dire outside the hearing of the jury.29 If the statement is received into evidence as an admission, it is open to the opponent to present evidence to refute the alleged admission and argue its weight to the jury.30
10. D.R.E. 801(d)(2). See also Winston v. State, No. 179, 1991, slip op. at 10, Holland, J. (Del. Jan. 11, 1993) (ORDER), disposition reported at 620 A.2d 859 (Del. 1993); Klair v. Philadelphia, B. & W. R. Co., 78 A. 1085, 1093 (Del. Super. 1910).
11. E.g., Kennedy v. Emerald Coal & Coke Co., 42 A.2d 398, 407 (Del. 1944); Klair v. Philadelphia, B. & W. R. Co., 78 A. 1085, 1093 (Del. Super. 1910).
12. Fed. R. Evid. 801(2)(d) advisory committee’s note.
12.1. In re Walt Disney Co. Derivative Litigation, C.A. No. 15452, slip op. at 2, Chandler, C. (Del. Ch. Feb. 4, 2005).
13. 3 Wigmore on Evidence § 815 (Chadbourn rev. ed. 1970). As pointed out by Wigmore, the authority is scarce and conflicting.
14. 4 Wigmore on Evidence § 1053 (Chadbourn rev. ed. 1972). See also 2 McCormick on Evidence § 255 (4th ed. 1992).
15. See § 2:10 for a discussion of motions in limine.
16. D.R.E. 103(c).
17. D.R.E. 801(d)(2)(A).
18. Fed. R. Evid. 801(d)(2)(A) advisory committee’s note.
19. D.R.E. 801(d)(2)(B).
20. See § 17:2.
21. State v. Hynson, Cr. A. No. IN 89-12-1033-1043, slip op. at 7-8, Toliver, J. (Del. Super. Dec. 9, 1992).
22. See Fed. R. Evid. 801(d)(2)(B) advisory committee’s note.
23. D.R.E. 801(d)(2)(C).
23.1. ONTI, Inc. v. Integra Bank, C.A. No. 14514, Chandler, C. (Del. Ch. Aug. 25, 1998).
24. D.R.E. 801(d)(2); Barnesville Mfg. Co. v. Love, 52 A. 267, 268 (Del. 1902); Cerchio v. Mullins, 138 A. 277, 279 (Del. Super. 1922); Klair v. Philadelphia, B. & W. R. Co., 78 A. 1085, 1093 (Del. Super. 1910); William S. Hansell & Sons v. Levy, 10 Del. 407, 5 Houst. 407, 409 (Del. Super. 1878); Geylin v. Dc Villeroi, 7 Del. 311, 2 Houst. 311, 318-19 (Del. Super. 1860); Joseph v. Shell Oil Co., C.A. No. 7450, slip op. at 5, Hartnett, V.C. (Del. Ch. May 29, 1985); Collins & Aikman Corp. v. Compo Indus., Inc., C.A. No. 6098, slip op. at 5, Brown, V.C. (Del. Ch. Oct. 27, 1981); Ramada Inns, Inc. v. Dow Jones & Co., Inc., C.A. No. 83C-AU-56, slip op. at 4, Poppiti, J. (Del. Super. Feb. 8, 1980).
24.1. Mentore v. Metropolitan Restaurant Management Co., No. 226, 2007, Jacobs, J. (Del. Jan. 8, 2008), disposition reported at 941 A.2d 1019 (Del. 2008) (TABLE).
24.2. Brandt v. Rokeby Realty Co., C.A. No. 97C-10-132-RFS, slip op. at 3, Stokes, J. (Del. Super. Aug. 3, 2007); ONTI, Inc. v. Integra Bank, C.A. No. 14514, Chandler, C. (Del. Ch. Aug. 25, 1998).
24.3. Princess Hotels Intern., Inc. v. Delaware State Bar Ass’n, C.A. No. 95C-01-062, Lee, J. (Del. Super. Mar. 10, 1998).
25. D.R.E. 802(d)(2)(E); Lloyd v. State, 534 A.2d 1262, 1264 (Del. 1987); State v. Hackett, Cr. A. Nos. IN96-09-0031-0037 & IN96-08-0401-0403, slip op. at 4, Carpenter, J. (Del. Super. May 8, 1998).
25.1. Reyes v. State, 819 A.2d 305, 312 (Del.), cert. denied, 540 U.S. 862 (2003); Harris v. State, 695 A.2d 34, 42 (Del. 1997); Lloyd v. Statem 534 A.2d 1262, 1264 (Del. 1987).
26. Williams v. State, 494 A.2d 1237, 1242 (Del. 1985).
27. Smith v. State, 669 A.2d 1, 4 (Del. 1995).
28. See Electropure Sales Corp. v. Foremost Dairies, Inc., 31 A.2d 792, 795 (Del. Ch. 1943). But see Kennedy v. Emerald Coal & Coke Co., 42 A.2d 398, 407 (Del. 1944), cert. denied, 324 U.S. 872 (1945) (statement of counsel, not intended to be a qualitative description of client’s product, is not admissible in an independent proceeding involving different issues).
29. D.R.E. 103(c), 104(a),(c).
30. D.R.E. 104(e).
© 2010 David L. Finger