[27 Pa.B. 1282]
[Continued from previous Web Page] 1. The judgment of conviction is conclusive, i.e., estops the party convicted from contesting any fact essential to sustain the conviction.2. The judgment of conviction is admissible as evidence of any fact essential to sustain the conviction, if and only if offered against the party convicted.3. The judgment of conviction is admissible as evidence of any fact essential to sustain the conviction when offered against any party (this is the federal rule with respect to a felony, except that the Government cannot offer somebody else's conviction against the defendant in a criminal case, other than for purposes of impeachment).4. The judgment of conviction is neither conclusive nor admissible as evidence to prove a fact essential to sustain the conviction (common law rule).
With respect to a felony or other major crime, Pennsylvania takes approach number one. In subsequent litigation, the convicted party is estopped from denying or contesting any fact essential to sustain the conviction. Once a party is estopped from contesting a fact, no evidence need be introduced by an adverse party to prove it. This is collateral estoppel. Pennsylvania applies it both offensively and defensively.
The leading case is Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965), an action to recover money extorted from plaintiff by defendant, a labor leader. Defendant had previously been convicted in federal court of violating the Hobbs Anti-Racketeering Act, 18 U.S.C. § 1951. Extortion from plaintiff was a fact essential to sustain the criminal conviction. The Court, affirming a directed verdict for plaintiff, held that defendant was estopped from contesting the alleged extortion.
See also, Folino v. Young, 523 Pa. 532, 568 A.2d 171 (1990), a suit for personal injuries arising out of a motor vehicle accident. At a previous criminal trial defendant was convicted of (1) driving at an unsafe speed (summary offense), and (2) homicide by vehicle (misdemeanor of first degree). The Court held that defendant was estopped from contesting the allegation that he was driving at an unsafe speed at the time of the accident. Thus he was guilty of negligence per se. Though a summary offense is not, in and of itself, a serious enough offense to trigger collateral estoppel, it does so when a conviction thereof is a necessary operative fact in a simultaneous conviction of a more serious crime.
The Slayer's Act prohibits any person who participates in the wilful and unlawful killing of any other person from profiting financially thereby. 20 Pa.C.S. § 8801 et seq. It also provides that a record of conviction of having participated in such a killing ''shall be admissible in evidence'' against the slayer in a civil action. 20 Pa.C.S. § 8814.
In In re Kravitz Estate, 418 Pa. 319, 211 A.2d 443 (1965), the widow of Max Kravitz, who was shot and killed, made claim under his will. The Court, interpreting similar language in the preceding Slayer's Act, held that admission of the record of the widow's conviction of the second degree murder of her husband estopped her from denying that she wilfully and unlawfully killed her husband. Therefore, the Slayer's Act prevented her from inheriting from his estate.
A judgment of conviction of a felony or other major crime estops the party convicted from contesting any fact essential to sustain the conviction, whether or not an appeal is pending. The judgment is considered final unless or until it is reversed. See Shaffer v. Smith, 543 Pa. 526, 673 A.2d 872 (1996).
With respect to a minor offense, Pennsylvania takes approach number four, i.e., it applies the common law rule. Evidence of a conviction thereof is inadmissible to prove a fact necessary to sustain the conviction. See Loughner v. Schmelzer, 421 Pa. 283, 218 A.2d 768 (1966), a suit for personal injuries arising out of a motor vehicle accident. The Court held it reversible error to admit evidence that plaintiff was convicted of a traffic violation (failing to drive on the right side of the road).
On analysis, evidence of a criminal conviction, if offered to prove a fact essential to sustain the conviction, is double hearsay, i.e., hearsay on two levels.
The first level of hearsay is the assertion of judge or members of a jury that a fact necessary to sustain a finding of guilty is true. This assertion is not only excludable as hearsay, it is excludable for other reasons.
Assume, for example, that Zilch is convicted by a jury of murder. If one of the jurors were called as a witness in a subsequent case and asked whether Zilch poisoned his wife, the juror's testimony would be excludable under Pa.R.E. 602 because the juror had no personal knowledge of the matter. If the juror's testimony on this point is considered opinion, it would be excludable under Pa.R.E. 701 and 702, since the juror does not qualify as an expert witness.
The second level of hearsay is the testimony of one or more witnesses for the prosecution, who testified to facts inculpating the defendant. It is the testimony of one or more of these witnesses that is being introduced, second-hand, via evidence of the criminal conviction. This constitutes former testimony, which is excludable unless it qualifies for exception to the hearsay rule under Pa.R.E. 804(b)(1).
Note: A plea of guilty to a crime is excepted to the hearsay rule as an admission of all facts essential to sustain a criminal conviction thereof, but only when offered against the pleader by a party-opponent. See Pa.R.E. 803(25).
A plea of guilty to a crime may also qualify for exception to the hearsay rule as a statement against penal interest, if the declarant is unavailable to testify at trial. See Pa.R.E. 804(b)(3).
(23) [See Comment].
Comment Pennsylvania has not adopted F.R.E. 803(23), which reads as follows:
Judgment as to Personal, Family, or General History, or Boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.This is a minor exception to the hearsay rule. It was not recognized at common law. It is not recognized in Pennsylvania.
The Comment to Pa.R.E. 803(22) applies here, also.
Moreover, there is an additional reason for rejecting Federal Rule of Evidence 803(23). Judgments in divorce, custody, and other domestic relations cases are often the result of a stipulation of facts, agreement not to contest, and general collusion between the parties. The facts essential to support these judgments are less trustworthy than hearsay in general, not more so, and thus do not qualify for exception to the hearsay rule under generally accepted criteria therefor.
(24) [See Comment].
Comment Pennsylvania has not adopted F.R.E. 803(24) which reads as follows:
Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.The Federal Rule is inconsistent with Pennsylvania law, which does not recognize a catch-all exception to the hearsay rule.
OPTION I (25) Admission by Party-Opponent. The statement is offered against a party and is (A) the party's own statement in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
Comment Pa.R.E. 803(25) is the same as F.R.E. 801(d)(2). The federal rules, though, call an admission by a party-opponent an exception to the definition of hearsay, and place it in rule 801 under the heading of ''Definitions.'' Pennsylvania calls an admission by a party-opponent just what it is called at common law, an exception to the hearsay rule, and places it in rule 803 along with other exceptions to the hearsay rule in which the availability of the declarant is immaterial. The difference between the federal and Pennsylvania formulations is organizational, not ideological.
No assertion made by a party, if offered in evidence by a party-opponent, may be excluded as hearsay. It may be excluded because it is irrelevant, or privileged, or unduly prejudicial, or for other reasons, but never because it is hearsay.
An assertion made by a party in the pleadings, requests for admission, pretrial memoranda, or certain other documents that are prepared in accordance with court rules, is called a ''judicial admission.'' If offered in evidence by a party-opponent, it is conclusive. It estops the party from denying or contradicting the assertion.
See Nasim v. Shamrock Welding Supply Co., 387 Pa. Super. 225, 563 A.2d 1266 (1989), in which the court held it reversible error to permit defendant to introduce evidence refuting an assertion that it made in a petition to join an additional defendant. Defendant had asserted in the petition that it was the supplier of a product that plaintiff alleged was defective.
Cf. General Equipment Manufacturers v. Westfield Insurance Co., 430 Pa. Super. 526, 635 A.2d 173 (1993), in which the court held that an averment in a party's pleading was not admissible when offered by a party-opponent who had denied the averment in a responsive pleading. Apparently the two conflicting judicial admissions canceled each other out.
A party's plea of guilty to a crime is an admission, and may be offered in evidence by a party-opponent. See Cromley v. Gardner, 253 Pa. Super. 467, 385 A.2d 433 (1978), a wrongful death suit arising out of a motor vehicle accident. The court held that defendant's plea of guilty to a charge of driving under the influence in a prior criminal action was admissible when offered against him by plaintiff as an admission by him that he was driving while drunk, evidence that the jury was entitled to take into account in determining whether he was negligent.
However, a plea of guilty that is later withdrawn, a plea of nolo contendere, or assertions made in connection with plea discussions, may not be admissible for public policy reasons. See Pa.R.E. 410.
A statute provides that a plea of guilty or nolo contendere to a summary offense under the Pennsylvania Motor Vehicle Code is not admissible in a civil case arising out of the same incident. 42 Pa.C.S. § 6142.
Most of the evidential problems that arise with admissions by a party-opponent concern vicarious admissions, i.e., assertions made by A that are offered as admissions against B. Vicarious admissions include admissions by adoption, by agent, and by a coconspirator.
It is sometimes said that a vicarious admission ''binds'' a party, or that a principal is ''bound'' by an agent's admission. This is incorrect. An admission (other than a ''judicial admission,'' which is discussed above) is just one item of evidence to be considered by the trier of fact, along with other evidence of record, to resolve matters at issue. An admission may be denied, explained, contradicted, or otherwise attacked by the party against whom it is offered, just like any other item of evidence introduced against the party.
An admission by a party-opponent qualifies for exception to the hearsay rule whether it be an assertion of fact or opinion, and whether or not the declarant had personal knowledge of the matter asserted.
See, e.g., Salvitti v. Throppe, 343 Pa. 642, 23 A.2d 445 (1942), a personal injury case arising out of a motor vehicle accident. Defendant was not present at the accident, but was the owner of a truck involved therein. After the accident he visited the plaintiffs and admitted that the accident was his driver's fault. The Court, affirming a jury verdict for plaintiffs, approved admission of this evidence and said ''[p]ersonal knowledge . . . is not required in the case of an admission by a party.'' Id. at 644, 23 A.2d at 446.
An admission by a party-opponent is sometimes referred to, inappropriately, as an ''admission against interest.'' When an admission by a party-opponent is offered in evidence, it was usually contrary to the interest of the declarant at the time that it was made, but there is no requirement that this be so. (There is a separate, more limited, exception to the hearsay rule for a statement against interest. See Pa.R.E. 804(b)(3)).
A. Party's Own Statement A party's own assertion, in either an individual or a representative capacity, is the most typical kind of admission by a party-opponent. If the party is a representative, such as a trustee, or guardian, or personal representative of an estate, there is no need to determine in what capacity the party was acting when making the assertion, at least for hearsay purposes. This is consistent with prior Pennsylvania decisional law dealing with a real party in interest.
See Geelen v. Pennsylvania Railroad Co., 400 Pa. 240, 161 A.2d 595 (1960), a wrongful death action by the administrator of the estate of a motorist who was struck and killed by defendant's train at a grade crossing. After a jury verdict for plaintiff, the trial court awarded defendant a new trial. The Court, affirming, held that the trial judge committed reversible error when he refused to allow the railroad to introduce as substantive evidence a statement signed by the motorist's widow about two months after the accident reciting various details concerning the manner of the occurrence. The court said,
Decedent's widow, while technically not a party of record in her individual capacity, was a party beneficially and directly interested and her prior admissions or statements concerning material facts constituted substantive evidence. Such statements, thus proven, should be admitted as substantive proof of the facts asserted therein . . . .Id. at 245, 161 A.2d at 598.
B. Adoptive Admission On occasion a party will, expressly or impliedly, manifest a belief in the truth of an assertion made by another. The party thereby adopts the other's assertion as the party's own, at least for purposes of the hearsay rule. This is an adoptive admission. Its exception to the hearsay rule is consistent with prior Pennsylvania decisional law.
See Geelen v. Pennsylvania Railroad Co., 400 Pa. 240, 161 A.2d 595 (1960), a wrongful death action arising out of a grade crossing accident. A claims agent for the defendant railroad wrote a statement about the accident. The decedent's widow signed it, thus adopting it as her own. The Court held it admissible as substantive evidence, upon offer by the railroad, as an admission by a party-opponent.
A party may adopt another's assertion verbally or behaviorally. For example, a party may adopt another's assertion by replying, ''I agree.'' Or the party may adopt another's assertion by nodding his head in assent. See United States v. Joshi, 896 F.2d 1303 (11th Cir. 1990).
A party may also adopt another's assertion behaviorally by remaining silent in the face of accusation in circumstances in which the party would be expected to deny the accusation were it not true, i.e., when assent appears to be the most reasonable explanation for silence. See United States v. Hale, 422 U. S. 171, (1975); Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981).
See also, Burton v. Horn & Hardart Baking Co., 371 Pa. 60, 88 A.2d 873 (1952), in which the Court said that silence in the face of accusation constitutes assent ''only when no other explanation is equally consistent with silence.'' Id. at 63--4, 88 A.2d at 875.
And see Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963), a civil assault and battery case. The Court, affirming a jury verdict for plaintiff, said that defendant's silence in the face of an accusation that he struck plaintiff was properly admitted as an admission of a party-opponent.
Caveat: In a criminal case, a suspect's silence in the face of accusation, after the suspect has received Miranda warnings, cannot be introduced against the suspect as an adoptive admission without violating the due process clause of the United States Constitution. See Doyle v. Ohio, 426 U. S. 610, 617--18, 96 SCt 2240, 49 LEd2d 91 (1976).
Moreover, in Pennsylvania a defendant's post arrest silence cannot be used substantively, or even to impeach credibility if defendant elects to testify at trial, regardless of whether Miranda warnings were given. See Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982). The Court based this ruling on Art I, § 9, of the Pennsylvania Constitution, which provides that an accused ''cannot be compelled to give evidence against himself.''
See also, Commonwealth v. Easley, 483 Pa. 337, 396 A.2d 1198 (1979).
C. Statement by Authorized Agent An assertion made by an agent, if authorized to speak for the principal, may be introduced against the principal by a party-opponent as an admission. This is consistent with prior Pennsylvania decisional law.
Lawyers are agents of their clients with, on occasion, authority to speak for them. See McGarity v. New York Life Insurance Co., 359 Pa. 308, 59 A.2d 47 (1948), in which the executors of a decedent's estate sued to collect accidental death benefits under life insurance policies. The insured died without regaining consciousness after an automobile accident in which the car that he was driving went out of control and crashed against a house. Thereafter, plaintiffs' lawyers wrote a letter to the lady who owned the damaged house, denying that the decedent was liable therefor, and asserting that he had been seen to slump at his wheel, apparently unconscious from a heart seizure, prior to the accident. The Court, holding that this improvident assertion by their lawyers was admissible against plaintiffs as an admission, explained,
Counsel were clearly acting within the scope of their authority in making such a statement, and therefore, it being pertinent to the present issue, it was admissible in evidence with the same force and effect as if it had been made directly by plaintiffs themselves . . . .Id. at 314, 59 A.2d at 50.
Very few agents, though, have authority to speak for their principals. They may have authority and responsibility to do many things, but seldom authority to represent their principals in speaking to others about them. Thus an exception to the hearsay rule for an assertion made by an agent only when the agent was authorized by the principal to speak about the matter has only limited application.
D. Statement by Agent Concerning Matter Within Scope of Agency An assertion made by an agent may be introduced against the principal if (1) it concerns a matter within the scope of the agency, and (2) it was made during the existence of the agency. This is a departure from prior Pennsylvania law, but not a surprising one for the following reasons:
1. The old common law, which would not permit an agent's assertion to be admitted against the principal unless the agent was authorized to speak on the principal's behalf, has often been criticized on the ground that it leads to unjust results. For example, after a bad traffic accident, a bus driver may admit to an investigating policeman that the accident was his fault and that he ran a red light. The common law rule would preclude an injured party from introducing the bus driver's assertions against the bus company. The bus company, the theory goes, hired the bus driver to drive a bus, not to speak for the bus company.
2. The federal courts and over eighty percent of the states have abandoned the common law view in favor of the view expressed in F.R.E. 801(d)(2)(D). This is now, by far, the majority rule, and experience with it throughout the country has been good.
3. The Pennsylvania Supreme Court has not had occasion to visit the issue for decades. The last reported case in which it applied the old common law rule was Murray v. Siegel, 413 Pa. 23, 195 A.2d 790 (1963). It did so there, without discussion, in two short sentences at the end of its opinion, citing cases from 1886 and 1930.
4. Pennsylvania has not been consistent in its application of the common law rule. See, e.g., Treon v. W.A. Shipman & Son, 275 Pa. 246, 119 A 74 (1922), a suit for personal injuries. Plaintiff, a pedestrian, was hit by a car driven by a partner in the defendant undertaking business. Defendant denied lilability on the ground that the partner was on a personal errand, not partnership business, at the time of the accident. Plaintiff and his wife testified that sometime after the accident the partner (driver) appeared at plaintiff's home and told them that he was going to the casket works on business at the time of the accident. The Court, reversing a judgment n.o.v., and reinstating a jury verdict for plaintiff, held that the partner's statement was admissible against the partnership as an admission by its agent. The Court mentions nothing about any showing that the partner had authority to speak for the partnership when he visited the injured plaintiff at his home.
5. In Carswell v. SEPTA, 259 Pa. Super. 167, 393 A.2d 770 (1978), Judge Spaeth, in a plurality opinion, proposed a new exception to the hearsay rule for vicarious admissions, outside the framework of party admissions.
6. In DeFrancesco v. Western Pennsylvania Water Co., 329 Pa. Super. 508, 478 A.2d 1295 (1984), the Superior Court, in a lengthy, analytic opinion, referred to the ''often harsh results'' of the common law rule, reluctantly applied it to the case at hand, and urged the Pennsylvania Supreme Court to undertake ''a forthright appraisal'' of the subject, and consider adoption of a less restrictive exception to the hearsay rule for vicarious admissions.
E. Statement by a Co-conspirator. An assertion made by a co-conspirator of a party may be introduced against the party as the party's own admission if the assertion was made in the course of and in furtherance of the conspiracy. This is consistent with prior Pennsylvania decisional law.
An assertion by a co-conspirator is nothing more than a special kind of assertion by a partner (agent), which is admissible against a fellow partner (principal) as an admission. As Justice Oliver Wendell Holmes explained in United States v. Kissel, 218 U. S. 601, 608 (1910), ''[a] conspiracy is a partnership in criminal purposes.''
Like the partners that they are, coconspirators are considered agents one for another, so that the assertion of one, made in the course and scope of the conspiracy, is the admission of all. In Anderson v. United States, 417 U. S. 211, 218 n.6, (1974), the Supreme Court said:
The rationale for both the hearsay-conspiracy exception and its limitations is the notion that conspirators are partners in crime . . . . As such, the law deems them agents of one another. And just as the declarations of an agent bind the principal only when the agent acts within the scope of his authority, so the declaration of a conspirator must be made in furtherance of the conspiracy charged in order to be admissible against his partner.Moreover, when a person joins an existing conspiracy, the person thereby adopts all the prior assertions of the conspirators that were made during the course and in furtherance of the conspiracy. These prior assertions are excepted to the hearsay rule when offered in evidence by a party-opponent. See United States v. Gypsum Co., 333 U. S. 364 (1948). This principle of law was explained graphically in United States v. Baines, 812 F.d 41, 42 (1st Cir 1987):
[A] conspiracy is like a train. When a party knowingly steps aboard, he is part of the crew, and assumes conspirator's responsibility for the existing freight-or conduct-regardless of whether he is aware of just what it is composed. . . . Fed.R.Evid. 801(d)(2)(E) does not change the common law. . . .In order to qualify an out-of-court assertion for exception to the hearsay rule as a statement of a coconspirator, the offerer must prove, to the satisfaction of the court, five things:
1. That a conspiracy existed;
2. That the party against whom the evidence is offered participated in the conspiracy;
3. That the declarant participated in the conspiracy;
4. That the assertion was made in the course of the conspiracy; and
5. That the assertion was made in furtherance of the conspiracy.
In Bourjaily v. United States, 483 U. S. 171 (1987), the Supreme Court, interpreting Federal Rule of Evidence 104(a), said that (1) the trial judge must determine whether the above five foundational factors exist, (2) the judge must make this determination by a preponderance of the evidence, and (3) the judge may consider the proffered hearsay assertion itself in determining whether the foundational factors exist to support its introduction in evidence.
The Supreme Court expressly declined, though, to decide whether the trial judge can rely solely on the proffered out-of-court assertion, without corroborative extrinsic evidence. Since then lower federal courts have consistently held that such corroborative extrinsic evidence is necessary. Such holdings are consistent with prior Pennsylvania decisional law. See, e.g., Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981). See Pa.R.E. 104(a), and Comment thereto.
The United States Supreme Court has held that this exception to the hearsay rule, as applied in the federal courts, does not encompass assertions made by a coconspirator after the central purpose of the conspiracy has been accomplished, i.e., when the miscreants are in the process of covering up the crime and taking care to escape detection. See Krulewitch v. United States, 336 U. S. 440 (1949); Grunewald v. United States, 353 U. S. 391 (1957).
Pennsylvania decisional law holds that an assertion made by a conspirator in an attempt to conceal a completed crime may be admitted against coconspirators when the concealment of the crime was an integral part of the common design to which the conspirators agreed. See, e.g., Commonwealth v. Mayhue, 536 Pa. 271, 639 A.2d 421 (1994).
OPTION II (25) Admission by Party-Opponent. The statement is offered against a party and is (A) the party's own statement in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
Comment Pa.R.E. 803(25) is similar to F.R.E. 801(d)(2). The federal rules, though, call an admission by a party-opponent an exception to the definition of hearsay, and place it in rule 801 under the heading of ''Definitions.'' Pennsylvania calls an admission by a party-opponent just what it is called at common law, an exception to the hearsay rule, and places it in rule 803 along with other exceptions to the hearsay rule in which the availability of the declarant is immaterial. The difference between the federal and Pennsylvania formulations is organizational, not ideological. Pa.R.E. 803(25) also differs in that there is no exception for ''a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.'' This provision of the Federal rule is inconsistent with Pennsylvania law that admits statements by agents only when the agent has been authorized to speak on behalf of the principal. See Murray v. Siegal, 413 Pa. 23, 195 A.2d 790 (1963); Durkin v. Equine Clinics, Inc., 376 Pa. Super. 557, 546 A.2d 665 (1988); appeal denied, 524 Pa. 608, 569 A.2d 1367 (1989); DeFrancesco v. Western Pennsylvania Water Co., 329 Pa. Super. 508, 478 A.2d 1295 (1984).
No assertion made by a party, if offered in evidence by a party-opponent, may be excluded as hearsay. It may be excluded because it is irrelevant, or privileged, or unduly prejudicial, or for other reasons, but never because it is hearsay.
An assertion made by a party in the pleadings, requests for admission, pretrial memoranda, or certain other documents that are prepared in accordance with court rules, is called a ''judicial admission.'' If offered in evidence by a party-opponent, it is conclusive. It estops the party from denying or contradicting the assertion.
See Nasim v. Shamrock Welding Supply Co., 387 Pa. Super. 225, 563 A.2d 1266 (1989), in which the court held it reversible error to permit defendant to introduce evidence refuting an assertion that it made in a petition to join an additional defendant. Defendant had asserted in the petition that it was the supplier of a product that plaintiff alleged was defective.
Cf. General Equipment Manufacturers v. Westfield Insurance Co., 430 Pa. Super. 526, 635 A.2d 173 (1993), in which the court held that an averment in a party's pleading was not admissible when offered by a party-opponent who had denied the averment in a responsive pleading. Apparently the two conflicting judicial admissions canceled each other out.
A party's plea of guilty to a crime is an admission, and may be offered in evidence by a party-opponent. See Cromley v. Gardner, 253 Pa. Super. 467, 385 A.2d 433 (1978), a wrongful death suit arising out of a motor vehicle accident. The court held that defendant's plea of guilty to a charge of driving under the influence in a prior criminal action was admissible when offered against him by plaintiff as an admission by him that he was driving while drunk, evidence that the jury was entitled to take into account in determining whether he was negligent.
However, a plea of guilty that is later withdrawn, a plea of nolo contendere, or assertions made in connection with plea discussions, may not be admissible for public policy reasons. See Pa.R.E. 410.
A statute provides that a plea of guilty or nolo contendere to a summary offense under the Pennsylvania Motor Vehicle Code is not admissible in a civil case arising out of the same incident. 42 Pa.C.S. § 6142.
Most of the evidential problems that arise with admissions by a party-opponent concern vicarious admissions, i.e., assertions made by A that are offered as admissions against B. Vicarious admissions include admissions by adoption, by agent, and by a coconspirator.
It is sometimes said that a vicarious admission ''binds'' a party, or that a principal is ''bound'' by an agent's admission. This is incorrect. An admission (other than a ''judicial admission,'' which is discussed above) is just one item of evidence to be considered by the trier of fact, along with other evidence of record, to resolve matters at issue. An admission may be denied, explained, contradicted, or otherwise attacked by the party against whom it is offered, just like any other item of evidence introduced against the party.
An admission by a party-opponent qualifies for exception to the hearsay rule whether it be an assertion of fact or opinion, and whether or not the declarant had personal knowledge of the matter asserted.
See, e.g., Salvitti v. Throppe, 343 Pa. 642, 23 A.2d 445 (1942), a personal injury case arising out of a motor vehicle accident. Defendant was not present at the accident, but was the owner of a truck involved therein. After the accident he visited the plaintiffs and admitted that the accident was his driver's fault. The Court, affirming a jury verdict for plaintiffs, approved admission of this evidence and said ''[p]ersonal knowledge . . . is not required in the case of an admission by a party.'' Id. at 644, 23 A.2d at 446.
An admission by a party-opponent is sometimes referred to, inappropriately, as an ''admission against interest.'' When an admission by a party-opponent is offered in evidence, it was usually contrary to the interest of the declarant at the time that it was made, but there is no requirement that this be so. (There is a separate, more limited, exception to the hearsay rule for a statement against interest. See Pa.R.E. 804(b)(3)).
A. Party's Own Statement A party's own assertion, in either an individual or a representative capacity, is the most typical kind of admission by a party-opponent. If the party is a representative, such as a trustee, or guardian, or personal representative of an estate, there is no need to determine in what capacity the party was acting when making the assertion, at least for hearsay purposes. This is consistent with prior Pennsylvania decisional law dealing with a real party in interest.
See Geelen v. Pennsylvania Railroad Co., 400 Pa. 240, 161 A.2d 595 (1960), a wrongful death action by the administrator of the estate of a motorist who was struck and killed by defendant's train at a grade crossing. After a jury verdict for plaintiff, the trial court awarded defendant a new trial. The Court, affirming, held that the trial judge committed reversible error when he refused to allow the railroad to introduce as substantive evidence a statement signed by the motorist's widow about two months after the accident reciting various details concerning the manner of the occurrence. The court said,
Decedent's widow, while technically not a party of record in her individual capacity, was a party beneficially and directly interested and her prior admissions or statements concerning material facts constituted substantive evidence. Such statements, thus proven, should be admitted as substantive proof of the facts asserted therein . . . .Id. at 245, 161 A.2d at 598.
B. Adoptive Admission On occasion a party will, expressly or impliedly, manifest a belief in the truth of an assertion made by another. The party thereby adopts the other's assertion as the party's own, at least for purposes of the hearsay rule. This is an adoptive admission. Its exception to the hearsay rule is consistent with prior Pennsylvania decisional law.
See Geelen v. Pennsylvania Railroad Co., 400 Pa. 240, 161 A.2d 595 (1960), a wrongful death action arising out of a grade crossing accident. A claims agent for the defendant railroad wrote a statement about the accident. The decedent's widow signed it, thus adopting it as her own. The Court held it admissible as substantive evidence, upon offer by the railroad, as an admission by a party-opponent.
A party may adopt another's assertion verbally or behaviorally. For example, a party may adopt another's assertion by replying, ''I agree.'' Or the party may adopt another's assertion by nodding his head in assent. See United States v. Joshi, 896 F.2d 1303 (11th Cir. 1990).
A party may also adopt another's assertion behaviorally by remaining silent in the face of accusation in circumstances in which the party would be expected to deny the accusation were it not true, i.e., when assent appears to be the most reasonable explanation for silence. See United States v. Hale, 422 U. S. 171, (1975); Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981).
See also, Burton v. Horn & Hardart Baking Co., 371 Pa. 60, 88 A.2d 873 (1952), in which the Court said that silence in the face of accusation constitutes assent ''only when no other explanation is equally consistent with silence.'' Id. at 63--4, 88 A.2d at 875.
And see Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963), a civil assault and battery case. The Court, affirming a jury verdict for plaintiff, said that defendant's silence in the face of an accusation that he struck plaintiff was properly admitted as an admission of a party-opponent.
Caveat: In a criminal case, a suspect's silence in the face of accusation, after the suspect has received Miranda warnings, cannot be introduced against the suspect as an adoptive admission without violating the due process clause of the United States Constitution. See Doyle v. Ohio, 426 U. S. 610, 617--18, 96 SCt 2240, 49 LEd2d 91 (1976).
Moreover, in Pennsylvania a defendant's post arrest silence cannot be used substantively, or even to impeach credibility if defendant elects to testify at trial, regardless of whether Miranda warnings were given. See Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982). The Court based this ruling on Art I, § 9, of the Pennsylvania Constitution, which provides that an accused ''cannot be compelled to give evidence against himself.''
See also, Commonwealth v. Easley, 483 Pa. 337, 396 A.2d 1198 (1979).
C. Statement by Authorized Agent An assertion made by an agent, if authorized to speak for the principal, may be introduced against the principal by a party-opponent as an admission. This is consistent with prior Pennsylvania decisional law.
Lawyers are agents of their clients with, on occasion, authority to speak for them. See McGarity v. New York Life Insurance Co., 359 Pa. 308, 59 A.2d 47 (1948), in which the executors of a decedent's estate sued to collect accidental death benefits under life insurance policies. The insured died without regaining consciousness after an automobile accident in which the car that he was driving went out of control and crashed against a house. Thereafter, plaintiffs' lawyers wrote a letter to the lady who owned the damaged house, denying that the decedent was liable therefor, and asserting that he had been seen to slump at his wheel, apparently unconscious from a heart seizure, prior to the accident. The Court, holding that this improvident assertion by their lawyers was admissible against plaintiffs as an admission, explained,
Counsel were clearly acting within the scope of their authority in making such a statement, and therefore, it being pertinent to the present issue, it was admissible in evidence with the same force and effect as if it had been made directly by plaintiffs themselves . . . .Id. at 314, 59 A.2d at 50.
Very few agents, though, have authority to speak for their principals. They may have authority and responsibility to do many things, but seldom authority to represent their principals in speaking to others about them. Thus an exception to the hearsay rule for an assertion made by an agent only when the agent was authorized by the principal to speak about the matter has only limited application.
D. Statement by a Co-conspirator. An assertion made by a co-conspirator of a party may be introduced against the party as the party's own admission if the assertion was made in the course of and in furtherance of the conspiracy. This is consistent with prior Pennsylvania decisional law.
An assertion by a co-conspirator is nothing more than a special kind of assertion by a partner (agent), which is admissible against a fellow partner (principal) as an admission. As Justice Oliver Wendell Holmes explained in United States v. Kissel, 218 U. S. 601, 608 (1910), ''[a] conspiracy is a partnership in criminal purposes.''
Like the partners that they are, coconspirators are considered agents one for another, so that the assertion of one, made in the course and scope of the conspiracy, is the admission of all. In Anderson v. United States, 417 U. S. 211, 218 n.6, (1974), the Supreme Court said:
The rationale for both the hearsay-conspiracy exception and its limitations is the notion that conspirators are partners in crime . . . . As such, the law deems them agents of one another. And just as the declarations of an agent bind the principal only when the agent acts within the scope of his authority, so the declaration of a conspirator must be made in furtherance of the conspiracy charged in order to be admissible against his partner.Moreover, when a person joins an existing conspiracy, the person thereby adopts all the prior assertions of the conspirators that were made during the course and in furtherance of the conspiracy. These prior assertions are excepted to the hearsay rule when offered in evidence by a party-opponent. See United States v. Gypsum Co., 333 U. S. 364 (1948). This principle of law was explained graphically in United States v. Baines, 812 F.d 41, 42 (1st Cir 1987):
[A] conspiracy is like a train. When a party knowingly steps aboard, he is part of the crew, and assumes conspirator's responsibility for the existing freight--or conduct--regardless of whether he is aware of just what it is composed. . . . Fed.R.Evid. 801(d)(2)(E) does not change the common law. . . .In order to qualify an out-of-court assertion for exception to the hearsay rule as a statement of a coconspirator, the offerer must prove, to the satisfaction of the court, five things:
1. That a conspiracy existed;
2. That the party against whom the evidence is offered participated in the conspiracy;
3. That the declarant participated in the conspiracy;
4. That the assertion was made in the course of the conspiracy; and
5. That the assertion was made in furtherance of the conspiracy.
In Bourjaily v. United States, 483 U. S. 171 (1987), the Supreme Court, interpreting Federal Rule of Evidence 104(a), said that (1) the trial judge must determine whether the above five foundational factors exist, (2) the judge must make this determination by a preponderance of the evidence, and (3) the judge may consider the proffered hearsay assertion itself in determining whether the foundational factors exist to support its introduction in evidence.
The Supreme Court expressly declined, though, to decide whether the trial judge can rely solely on the proffered out-of-court assertion, without corroborative extrinsic evidence. Since then lower federal courts have consistently held that such corroborative extrinsic evidence is necessary. Such holdings are consistent with prior Pennsylvania decisional law. See, e.g., Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981). See Pa.R.E. 104(a), and Comment thereto.
The United States Supreme Court has held that this exception to the hearsay rule, as applied in the federal courts, does not encompass assertions made by a coconspirator after the central purpose of the conspiracy has been accomplished, i.e., when the miscreants are in the process of covering up the crime and taking care to escape detection. See Krulewitch v. United States, 336 U. S. 440 (1949); Grunewald v. United States, 353 U. S. 391, (1957).
Pennsylvania decisional law holds that an assertion made by a conspirator in an attempt to conceal a completed crime may be admitted against coconspirators when the concealment of the crime was an integral part of the common design to which the conspirators agreed. See, e.g., Commonwealth v. Mayhue, 536 Pa. 271, 639 A.2d 421 (1994).
Rule 803.1. Hearsay Exceptions; Testimony of Declarant Necessary.
The following statements, as hereinafter defined, are not excluded by the hearsay rule if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement:
(1). Inconsistent Statement of Witness.
(2). Statement of Identification.
(3). Recorded Recollection.
(1) Inconsistent Statement of Witness. A statement by declarant that is inconsistent with the declarant's testimony, and (a) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (b) is a writing signed and adopted by the declarant, or (c) is a verbatim contemporaneous recording of an oral statement.
Comment Subsection (a) is similar to F.R.E. 801(d)(1)(A), except that Pennsylvania classifies the described inconsistent statement as an exception to the hearsay rule, not an exception to the definition of hearsay. See Comment to Pa.R.E. 801.
Subsections (b) and (c) constitute an expansion of the exception as defined in the federal rule, and are based on recent Pennsylvania decisional law.
An out-of-court statement made by a witness, inconsistent with the witness's testimony at trial, may be offered to impeach the witness's credibility. In such event, it is not hearsay, since it is not offered to prove its truth. It is, instead, circumstantial evidence from which the trier of fact may infer that the witness is not a reliable historian. Its admissibility is governed by principles of relevance, not hearsay. See Pa.R.E. 613.
Until recently Pennsylvania adhered to the common law view that an inconsistent statement of a witness was admissible for impeachment purposes only, never as substantive evidence. See Commonwealth v. Waller, 498 Pa. 33, 39 n.2, 444 A.2d 653, 656 n.2 (1982).
Came then the seminal case of Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), in which defendant was charged with murdering a security guard during the course of a burglary at a plant. Later on the day of the crime, defendant's girl friend gave a recorded statement to the police in which she asserted that she witnessed the murder, and recounted the details thereof. Prior to trial, however, she recanted and said that neither she nor defendant entered the plant or had anything to do with the murder. She so testified, to no one's surprise, when called by the prosecution as a witness at trial. There was no confession, no other eyewitness, and not enough circumstantial evidence to take the case to the jury, unless, i.e., the trial judge would allow the witness's prior inconsistent statement to be introduced as substantive evidence. The trial judge did so. Defendant was convicted.
The Pennsylvania Supreme Court, affirming the conviction, overturned close to two centuries of decisional law in the Commonwealth and held that the witness's recorded statement, inconsistent with her testimony at trial, was properly admitted as substantive evidence, and was excepted to the hearsay rule.
In Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992), the Court fleshed out and clarified the exception to the hearsay rule that it had adopted in the Brady case. Pa.R.E. 803.1(1) is drafted in accordance therewith.
In Commonwealth v. Halsted, 542 Pa. 318, 666 A.2d 655, 661 (1996), a majority of the Supreme Court (concurring opinion by Justice Zappala, joined by Justices Flaherty, Cappy and Castille) said that ''a verbatim contemporaneous recording of an oral statement'' qualifies for this exception to the hearsay rule only if it is an audiotape or videotape recording. It cannot be a police officer's handwritten notes.
Permitting some prior inconsistent statements of witnesses to be introduced as substantive evidence, excepted to the hearsay rule, has had an ancillary effect on Pennsylvania trial practice. A party may now ''set up'' a witness, i.e., call a witness whom the party knows will testify adversely to the party for the sole purpose of introducing the witness's prior inconsistent statement as substantive evidence. This is what the prosecuting attorney did in the Brady case, supra.
See also, Commonwealth v. Carter, 443 Pa. Super. 231, 661 A.2d 390, 392 (1995).
However, if extrinsic evidence of a prior inconsistent statement is introduced in evidence, the witness must usually be confronted with it and given an opportunity to explain or deny it. See Pa.R.E. 613(b).
(2) Statement of Identification. A statement by a witness of identification of a person or thing, made after perceiving the person or thing, provided that the witness testifies to the making of the prior identification.
Comment Pa.R.E. 803.1(2) differs from F.R.E. 801(d)(1)(C) in several respects:
1. Pa.R.E. 803.1(2) classifies a statement of identification as an exception to the hearsay rule, not an exception to the definition of hearsay. See Comment to Pa.R.E. 801.2. Pa.R.E. 803.1(2) is broader than its federal counterpart in that it includes identification of a thing, in addition to a person.3. Pa.R.E. 803.1(2) is more restrictive than its federal counterpart in that it requires the witness to testify to making the identification.Pa.R.E. 803.1(2) appears to be consistent with prior Pennsylvania decisional law, though we have found no reported cases dealing with prior identification of a thing, as distinguished from a person.
Testimony by a witness that the witness previously identified a person is often offered in evidence, particularly in criminal cases. If the witness makes an in-court identification, the previous identification is a prior consistent statement, and may be admissible as corroborative or rehabilitative evidence. See Pa.R.E. 613(c).
If a witness cannot make an in-court identification, the witness's prior statement of identification may be a prior inconsistent statement. Such a statement is usually admissible for impeachment purposes only, but if offered as substantive evidence will sometimes qualify for exception to the hearsay rule. See Pa.R.E. 803.1(1).
More importantly, evidence of a witness's prior statement of identification, if the witness testifies to making the identification, may be offered and admitted as substantive evidence under this exception to the hearsay rule.
It is a lamentable, but indisputable, fact of life: memory fades with the passage of time. Experience teaches us that a statement of identification made a short time after an encounter is likely to be more reliable than one made a long time thereafter.
For example, a woman who was robbed may not, a year or so later, in the unfamiliar surroundings of a courtroom, be able to identify the robber, who may have altered his physical appearance and attire for the purpose of avoiding recognition. But that same woman may be able to testify with great assurance that she positively identified the person who robbed her shortly thereafter at the station house, or in a lineup, or from a photograph presented to her by the police. This fresh identification by the witness, when testified to by a police officer or other observer, has substantially greater indicia of reliability than hearsay in general, thus justifying its exception to the hearsay rule.
If the woman who was robbed had promptly thereafter drawn a sketch of the robber, or provided details for the drawing of a sketch by a police artist, the sketch would be excepted to the hearsay rule as the witness's recorded recollection, in the absence of a sufficient current recollection. See Pa.R.E. 803.1(3). Thus the exceptions to the hearsay rule for a prior statement of identification and that for recorded recollection are complementary.
The rationale for excepting a prior statement of identification to the hearsay rule is well explained in the seminal case of People v. Gould, 54 Cal.2d 621, 626, 354 P.2d 865, 867, 7 Cal Rptr 273, 275 (1960):
Evidence of an extra-judicial identification is admissible, not only to corroborate an identification made at the trial . . . but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached . . . evidence of an extra-judicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind. . . . The failure of the witness to repeat the extra-judicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances. The extra-judicial identification tends to connect the defendant with the crime, and the principal danger of admitting hearsay evidence is not present since the witness is available at the trial for cross-examination.Pennsylvania decisional law first recognized an exception to the hearsay rule for a prior statement of identification in Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956), though without much explanation.
More recently, in Commonwealth v. Ly, 528 Pa. 523, 532, 599 A.2d 613, 617 (1991), the Court said that ''where witnesses are in court and subject to cross-examination, a police officer may testify concerning pre-trial identification by the witness.''
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