FRE 801(d)(2) and the Sovereign as a Party

by Mac McCall*

Out-of-court statements are routinely introduced into evidence for their truth against criminal defendants under the aegis of the admissions doctrine. At the same time, many courts refuse to apply the doctrine with equal severity in admitting similar statements against the government as a prosecuting party. Some courts insist that the doctrine is uniquely inapplicable against governmental parties,¹ while others require proponents of such evidence to clear heightened hurdles for admission. State and federal courts should bring order and equity to this corner of evidence law by adhering to the following three principles. First, the admissions doctrine is just as conceptually applicable to governments as any other party. Second, the legislatively articulated rules of evidence are sufficient to govern questions of admissibility for this kind of evidence without the assistance of extraneous judicially imposed restrictions. Finally, courts should take note of functional and formal realities in determining the extent of the “opposing party” when the government is in play.

The Federal Rules of Evidence (“FRE”) prohibit the use of hearsay, which constitutes out-of-court statements introduced to prove the truth of the matter asserted at trial. The admissions doctrine in FRE 801(d)(2) provides that “Opposing Party’s Statement[s]” are excluded from the operation of the rule against hearsay. This regularly and invariably operates against criminal defendants (and parties to civil litigation), permitting their own out-of-court declarations as well as the out-of-court declarations of others to be introduced against them.² In applying the doctrine against governments as prosecuting parties, however, courts have become stuck in a doctrinal quagmire. Some courts find the doctrine categorically inapplicable to governmental parties.³ Other courts require criminal defendants seeking to introduce such evidence to clear additional judicially imposed hurdles.⁴ Others have found the doctrine generally applicable to sovereign parties but differ as to what constituent parts of the relevant government should be considered the “Opposing Party.”⁵ As a result, this corner of evidence law has become highly fragmented.

Courts navigating such issues of admissibility should start by recognizing that the admissions doctrine is generally applicable to governmental parties. Courts that have found otherwise cite to the common law rule, which considered the doctrine uniquely inapplicable to such parties.⁶ The rationales behind the common law rule are by turns untrue or inapposite. The first of these is the contention that government agents are “supposedly disinterested in the outcome” of trials.⁷ This tepid language already hints at a lack of judicial confidence in the conclusion, and many more recent rulings have abandoned it altogether, basing their decisions on other reasoning.⁸ Government agents are motivated by the carrots and sticks of promotion and discipline just like any other human being; to insist that they are somehow disinterested in the successful performance of duties from which they derive their livelihoods is to be in denial of material reality.⁹ Show me a prosecutor who will claim to a superior that they are uninterested in the outcome of their trials, and I will show you a soon-to-be ex-prosecutor. Furthermore, if this rationale were applied to its logical extent it would effectively render the agent/employee component of the admissions doctrine meaningless; there is no meaningful conceptual difference between private and public employees when it comes to their personal stake in the outcome of litigation involving their employer.¹⁰

The more oft-cited rationale for the common law approach is the idea that the acts of government agents and employees cannot “bind the sovereign.”¹¹ Reliance does not beget reliability, however. The proposition is both inaccurate and inapplicable to the question at hand. Many actions taken by prosecutors “may serve to bind the government to a course of action or outcome.”¹² For example, a prosecutor may stipulate to facts in a criminal trial and that stipulation will be binding upon the government, i.e., the sovereign.¹³ Prosecutors may likewise “bind the sovereign” on many other matters, including plea deals.¹⁴ More fundamentally, the proposition that government agents may not “bind the sovereign” is simply not a relevant response to the question of whether evidence may be introduced against the government at trial.¹⁵ “The question worth asking is not whether an agent can bind the government, but whether what an agent of the government says can be admitted against the government.”¹⁶ Judges keep using these words (“bind the sovereign”), but ritualistic citation to this irrelevant snippet of legal jargon should be abandoned.

More critically, for cases governed by the federal rules and their state analogues, the wholesale exclusion of governmental parties from the operation of FRE 801(d)(2) inexcusably ignores the plain text of the provision.¹⁷ The language of FRE 801 is universally applicable, containing no exceptions.¹⁸ Despite this clarity, courts continue to insist that the common law rule survives.¹⁹ The rules of statutory construction apply to the FRE.²⁰ Moreover the rules of statutory construction hold that “[w]hen a statute includes particular language in one section of a statute, but omits it in another section of the same act, courts generally presume that the statute’s drafter acted intentionally and purposefully in the including [of] the language in one provision and omitting it from another.”²¹ The FRE explicitly preserved the common law in some circumstances, notably for privileges.²² By comparison, nothing in FRE 801(d)(2) indicates an intent to preserve common law rules.²³ Adherence to a common law rule where the federal rules or an equivalent have been enacted defies the plain language of the rule without any support in the statute at large or its legislative history.

Courts should also eschew placing additional judicially imposed restrictions on governmental admissions beyond what the federal rules or their state equivalents have anticipated. Such approaches are without textual support from the federal rules and run counter to the principles behind the admissions doctrine.²⁴ While deeming the admissions doctrine nominally applicable against the government in McKeon, the Second Circuit imposed a number of restrictions on the introduction of prosecutorial opening statements from prior trials for their truth by criminal defendants.²⁵ The McKeon court largely rested upon concerns about the reliability of admissions in general.²⁶ While these concerns may be valid, the legislatively articulated policy behind the admissions doctrine is unconcerned with reliability, instead basing their admission upon principles of adversarial fairness. The admissions doctrine exists because “the party said the words and should be stuck with them, regardless of their accuracy.”²⁷ As the Tenth Circuit has also noted, “[a]dmissions by a party-opponent 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 rule. No guarantee of trustworthiness is required in the case of an admission.”²⁸ Furthermore, many of the other concerns articulated in McKeon are already addressed in the legislatively articulated rules of evidence, particularly the rules of relevance (FRE 401) and undue prejudice (FRE 403).²⁹ Once it is determined that a statement falls within the scope of the admissions doctrine, courts should not impose additional hurdles on its introduction beyond what is contemplated by the federal rules or their equivalent. These additional judicially imposed limitations on the application of the admissions doctrine to the government are unsupported on policy grounds and have been supplanted by the enactment of the federal rules and their state analogues, where applicable.

Finally, in determining the extent of the “Opposing Party,” courts should pragmatically consider the formal structure and functional reality of government units with an eye to the underlying rationale behind the admissions doctrine.³⁰  Considering the entire federal government an opposing party for the purposes of FRE 801(d)(2) is a bit of a stretch, as many branches of the federal government share nothing administratively besides the unifying authority of the President.³¹ For example, in a federal criminal prosecution, where a case is being prosecuted by the U.S. Department of Justice (DOJ), the U.S. Department of Veterans Affairs should not be considered part of the opposing party as there are no other functional ties between the two agencies.³² On the other hand, in-court statements by a DOJ prosecutor should be admissible for truth as governmental admissions.³³ This approach would allow for the ad hoc application of the admissions doctrine to the unique circumstances of sovereign parties while preserving the legislatively articulated rationale.

The inconsistent application of the admissions doctrine to sovereign parties has been a confusing and inequitable area of the law since the adoption of the federal rules. State and federal courts confronting issues of admissibility under the doctrine should remedy this by (1) abandoning the unjustifiable common law approach, (2) relying upon the federal rules and their equivalents, and (3) using a combined functional and formal approach to determine who the true opposing party is in a criminal prosecution.

* Mac McCall is a 3L at New York University School of Law. The views expressed in this piece do not necessarily reflect the views of the author.

1. See, e.g., United States v. Garza, 448 F.3d 294, 299 (5th Cir. 2006) (finding that a report prepared by a U.S. Department of Justice investigator on the credibility of a police officer to whom defendant allegedly confessed did not constitute a party admission).

2. Fed. R. Evid. 801(d)(2), inter alia, excludes from the operation of the rule against hearsay statements “offered against an opposing party” and (A) “made by the party in an individual or representative capacity,” (B) “one the party manifested that it adopted or believed to be true,” (C) “made by a person whom the party authorized to make a statement on the subject,” (D) “made by the party’s agent or employee on a matter within the scope of that relationship and while it existed,” or (E) “made by the party’s coconspirator during and in furtherance of the conspiracy.”

3. See, e.g., United States v. Martinez-Saavedra, 372 F. App’x 463, 464–65 (5th Cir. 2010) (citing Garza, 448 F.3d at 298–299 & nn. 14–16) (“We have previously declined to apply Rule 801(d)(2)(D) to a statement made by a government agent because the statements of individual agents do not bind the sovereign except in rare circumstances.”). See also United States v. Prevatte, 16 F.3d 767, 779 n.9 (7th Cir. 1994) (“We see no reason to disturb this long-standing [common law] rule.”).

4. See, e.g., United States. v. Salerno, 937 F.2d 797, 811 (2d Cir.1991) (holding that if an assertion of fact during a prior argument is inconsistent with similar assertions at the present trial, the statements were testimonial, and the court has determined by a preponderance that the comparison is fair, the government agent’s statement is admissible).

5. See Bellamy v. State, 941 A.2d 1107, 1114 (Md. 2008) (discussing the split in decisions on this issue by circuit courts).

6. See, e.g., United States v. Kampiles, 609 F.2d 1233, 1246 (7th Cir. 1979) (“Nothing in the Federal Rules of Evidence suggests an intention to alter the traditional rule and defendant has cited no truly contrary case indicating such a trend.”).

7. Id.

8. E.g., Martinez-Saavedra, 372 F. App’x at 464–65 (finding no abuse of discretion where the district court had refused to admit the statement of a federal agent, because, inter alia, “statements of individual agents do not bind the sovereign except in rare circumstances”).

9. See 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:56 (2023) (“Both private and public employees face pressure from their superiors, and both are likely to want to please people above them.”).

10. See Bellamy, 941 A.2d at 1118 n.18 (quoting 4 David W. Louisell & Christopher B. Mueller, Federal Evidence § 426, at 328 (1980)) (“To the suggestion that government agents are ‘uninterested personally’ in the outcome of government litigation, it may be replied that much the same may usually be said of agents employed by private entities.”).

11. See, e.g., United States v. Edwards, No. 16-20070-01-CM, 2019 WL 5196614, at *14 (D. Kan. Oct. 15, 2019) (quoting Martinez-Saavedra, 372 F. App’x at 464–65) (Hearsay statements by U.S. Postal Service employees cannot be admitted against the government in a criminal cause because, inter alia, statements of individual agents do not “bind the sovereign.”).

12. Id. at 1118.

13. Id. at 1118 (citing Irving Younger, Sovereign Admissions: A Comment on United States v. Santos, 43 N.Y.U. L. Rev. 108, 109 (1968)) (“In either criminal or civil cases, counsel for the government may make a concession or enter into a stipulation with respect to the facts.”).

14. See id. at 1118 (“All of the . . . pleadings . . . made by a prosecutor in a criminal case may serve to bind the government to a course of action or outcome.”).

15. See id. at 1118 n. 19 (“A binding admission forecloses the need for any more inquiry into the issue. The issue is formally conceded. When a statement of a party opponent is admitted into evidence, the opponent remains free to argue a position contrary to that taken in the statement.”).

16. 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:56 (2023).

17. See United States v. Yildiz, 355 F.3d 80, 81 (2d Cir. 2004) (noting that FRE 801(d)(2) makes no distinction between governmental and other parties).

18. Id.

19. See Kampiles, 609 F.2d at 1246 (“Nothing in the Federal Rules of Evidence suggests an intention to alter the traditional rule and defendant has cited no truly contrary case indicating such a trend.”); State v. Therriault, 485 A.2d 986, 992 (Me. 1984) (“We find nothing in the Federal Rules of Evidence nor in Maine’s adoption of M.R. Evid. 801(d)(2) suggesting an intent to alter the rule as explained in Powers and Santos.”).

20. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163 (1988) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987)) (“Because the Federal Rules of Evidence are a legislative enactment, we turn to the ‘traditional tools of statutory construction,’ . . . in order to construe their provisions.”).

21. United States v. Ganadonegro, 854 F. Supp. 2d 1088, 1118 (D.N.M. 2012). (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62–63 (2006)).

22. Fed. R. Evid. 501 (“The common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court.”)

23. See Ganadonegro, 854 F. Supp. 2d at 1118  (“Nothing in rule 801 of the Federal Rules of Evidence, the rule defining hearsay and nonhearsay, expresses an intent to preserve the common law.”).

24. See id. at 1125 (“Placing additional hurdles to the admission of this evidence would run counter to the policies behind the rule governing admissions by party opponents.”)

25. United States v. McKeon, 738 F.2d 26, 32–33 (2d Cir. 1984).

26. See id. at 32 (“Why probative value and reliability carry so little weight in the case of the admissions rule is not clear, particularly since the use of admissions may be the trial equivalent of a deadly weapon. In all probability, these aspects of the rule are derived vestigially from an older, rough and ready view of the adversary process which leaves each party to bear the consequences of its own acts, no matter how unreliable these acts may be as proof.”).

27. United States v. Ballou, 59 F. Supp. 3d 1038, 1074 (D.N.M. 2014) (citing Stephen A. Saltzburg, Michael M. Martin & Daniel J. Capra, Federal Rules of Evidence Manual §801.02(6)(f)(ii), 801-50 (2011)).

28. Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 667 (10th Cir. 2006) (quoting United States v. Pinalto, 771 F.2d 457, 459 (10th Cir. 1985)).

29. See Ganadonegro, 854 F. Supp. 2d at 1125.

30. See Ballou, 59 F. Supp. 3d at 1075 (The Court should look “at who the real party is, i.e., what government unit—defined both by formal administrative compartmentalization and the extent to which the unit is unified by a common function—the United States is representing.”).

31. See id. at 1074 (defining the entire federal government as an “opposing party” does not serve the interests behind FRE 801); see also United States v. Van Griffin, 874 F.2d 634, 638 (9th Cir. 1989) (“We do not say that every publication of every branch of government of the United States can be treated as a party admission by the United States under Fed. R. Evid. 801(d)(2)(D).”).

32. Ballou, 59 F. Supp. 2d at 1074.

33. See Bellamy, 941 A.2d at 1119 (reasoning that all federal circuits have admitted government attorneys’ statements made in a court proceeding for their truth).