Hearsay and circumstances of its admissibility - Statements ...

Learning Outcomes

This article explains statements attributable to a party-opponent under the Federal Rules of Evidence, including:

• How FRE 801 defines hearsay and why certain statements offered against a party are excluded from that definition
• The five categories of opposing-party statements under FRE 801(d)(2)(A)–(E)
• How to analyze whether a statement is being offered “against” a party, especially with multiple parties or claims
• How to distinguish party-opponent statements from true hearsay exceptions, especially statements against interest under FRE 804(b)(3)
• How to recognize adoptive, authorized, agency/employee, and co-conspirator statements in typical MBE fact patterns
• How preliminary facts such as agency and conspiracy are proved under FRE 104(a) and the “no bootstrapping” rule
• How multiple hearsay and non-hearsay uses (effect on listener, verbal acts) interact with party-opponent statements
• How constitutional doctrines (Miranda, the right against self-incrimination, and the Confrontation Clause) can limit the use of party-opponent statements in criminal cases

MBE Syllabus

For the MBE, you are required to understand hearsay and circumstances of its admissibility, with a focus on the following syllabus points:

• Distinguish opposing-party statements (non-hearsay under FRE 801(d)(2)) from hearsay exceptions such as statements against interest under FRE 804(b)(3)
• Identify when a party’s own words are admissible as FRE 801(d)(2)(A) statements
• Analyze when a party has adopted another person’s statement, including by silence, under FRE 801(d)(2)(B)
• Determine whether a statement was made by someone authorized to speak for the party under FRE 801(d)(2)(C)
• Assess the admissibility of statements by agents or employees concerning matters within the scope of their relationship, made during that relationship, under FRE 801(d)(2)(D)
• Apply the requirements for admitting co-conspirator statements made during and in furtherance of the conspiracy under FRE 801(d)(2)(E)
• Apply FRE 104(a) to preliminary questions of agency and conspiracy and the prohibition on pure bootstrapping
• Evaluate multiple hearsay within party-opponent statements and distinguish statements offered for their truth from those offered for effect on the listener or as verbal acts

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following statements, offered against Defendant Dan in his criminal trial, would be classified as non-hearsay under FRE 801(d)(2)?
   1. Testimony from Witness Wendy that Dan's friend Fred told her, "Dan confessed everything to me."
   2. A written statement signed by Dan admitting he was at the scene of the crime.
   3. Testimony from Police Officer Paula that Dan's co-defendant Carl, while being interrogated, said, "Dan was the orchestrator."
   4. A business record prepared by Dan's employee detailing routine inventory, offered by Dan himself.
2. Plaintiff Pam sues Driver Dave for injuries from a car accident. At trial, Pam offers testimony from Witness Will that immediately after the accident, Will heard Bystander Betty shout, "Wow, Dave just ran that red light!" Dave remained silent. Under what theory might Betty's statement be admissible against Dave as non-hearsay?
   1. As an excited utterance.
   2. As a statement against interest made by Betty.
   3. As an adoptive statement by Dave.
   4. It is inadmissible hearsay.
3. To be admissible against a party as a statement by that party's agent under FRE 801(d)(2)(D), the statement must have been made:
   1. With the specific authorization of the party-principal.
   2. While the agent was under oath.
   3. During the existence of the agency relationship and concerning a matter within the scope of that relationship.
   4. Against the agent's own interest at the time it was made.

Introduction

The starting point for any MBE hearsay question is the basic definition:

Key Term: Hearsay
An out-of-court statement offered in evidence to prove the truth of the matter asserted in the statement.

Ordinarily, hearsay is inadmissible unless an exception applies. The Federal Rules, however, carve out several categories of statements that are defined as not hearsay at all. One of the most heavily tested categories is statements offered against an opposing party under FRE 801(d)(2).

Key Term: Party-Opponent Statement
Any statement that falls within FRE 801(d)(2)(A)–(E) and is offered against a party in the case, including that party’s own words and certain statements by persons sufficiently aligned with that party.

Key Term: Opposing Party’s Statement
The modern FRE label for what is often called a party-opponent admission: any statement described in FRE 801(d)(2) offered against the party.

These statements are often called admissions, but that label is potentially misleading. They need not be “admissions” in an everyday sense; they do not have to be damaging, and they do not need to have been against the party’s interest when made. Their admissibility rests on the adversarial system: a party cannot fairly complain about the inability to cross-examine when the statement is the party’s own, or is attributable to the party through a close relationship (authorization, agency, conspiracy).

Key Term: Evidentiary Admission
A party-opponent statement under FRE 801(d)(2) that is admissible as evidence against the party, but is not conclusive; the party may explain or contradict it.

Key Term: Judicial Admission
A statement made by a party in a formal judicial setting (for example, pleadings, formal responses to requests for admission, or stipulations in the current case) that is binding and conclusive on that party in that proceeding.

Evidentiary admissions (the focus of FRE 801(d)(2)) are simply pieces of evidence: they can be weighed, explained, or contradicted. Judicial admissions—such as a fact admitted in a pleading—are different: they remove the fact from dispute altogether.

Key Term: Verbal Act
Words that themselves have independent legal significance (for example, the words of a contract, defamatory words, words constituting an offer or acceptance). When offered to prove that the words were spoken, not that they were true, they are not hearsay.

Key Term: Effect on the Listener
A non-hearsay purpose for which a statement is introduced to show its impact on a listener or reader (such as notice, knowledge, or motive), rather than to prove the truth of what was said.

Statement Must Be Offered Against an Opposing Party

A threshold requirement for any FRE 801(d)(2) statement is that it must be offered against a party.

• A party cannot offer their own out-of-court statement under 801(d)(2) to prove its truth.
• The same statement, however, can be offered by the other side as a party-opponent statement.
• The “opposing party” requirement applies claim by claim; a statement that helps one defendant and hurts another can be used by the harmed defendant as an opposing-party statement.

This is a common exam trap: the defendant tries to introduce his own exculpatory statement (“I told the police I was innocent”) as non-hearsay. That does not qualify under 801(d)(2) because it is not being offered against him.

Similarly, in civil litigation with multiple parties:

• A plaintiff’s statement can be used by any defendant against that plaintiff.
• One defendant’s statement cannot automatically be used against a co-defendant; you analyze each party separately. A co-defendant is not, just by that status, an “agent” or “co-conspirator.”
• Cross-claims and third-party claims may realign who is “opposing” whom for purposes of 801(d)(2).

Exam tip: On the MBE, when you see a party trying to introduce an out-of-court statement, ask immediately: “Who made the statement? Who is offering it? Against whom?” If declarant and the party against whom it is offered do not align in one of the 801(d)(2) relationships, the rule does not apply.

Related but distinct is the rule of completeness (FRE 106). If one side introduces a portion of a party’s statement, the opponent may sometimes require admission of other parts needed for fairness or context. That does not convert the added portions into party-opponent statements; they may be admitted for limited purposes, even if not independently admissible for their truth.

With this background in place, we turn to the five categories of party-opponent statements.

Types of Party-Opponent Statements

FRE 801(d)(2) identifies five kinds of statements that, when offered against a party, are defined as non-hearsay:

• The party’s own statement.
• A statement the party has adopted.
• A statement by someone authorized to speak for the party.
• A statement by the party’s agent or employee (within scope, during the relationship).
• A statement by a co-conspirator (during and in furtherance of the conspiracy).

Each category has distinct requirements that the MBE frequently tests.

1. The Party's Own Statement – FRE 801(d)(2)(A)

A statement made by the party, in an individual or representative capacity, and offered against that party, is the most straightforward party-opponent statement.

Key features:

• No personal knowledge requirement: The party need not have personal knowledge of the facts stated; a party can be hoisted by speculation or rumor as easily as by firsthand observations.

• Need not be against interest when made: The statement can be boastful, neutral, or mistaken; it need not have been incriminating or against the party’s pecuniary interest at the time.

• Opinions are admissible: A party’s opinions (“I think the brakes are unsafe”) are admissible as party-opponent statements and may also be admissible under the lay opinion rule.

• Representative capacity: A corporate officer speaking on behalf of the company, or a trustee speaking as trustee, can make statements admissible against the entity in that representative capacity.

Key Term: Authorized Statement
A statement made by a person whom the party has expressly or impliedly empowered to make statements on a particular subject on the party’s behalf. These are covered specifically by FRE 801(d)(2)(C), but an authorized spokesperson’s statements are also often described as the party’s own in a representative capacity.

Within this category, it is useful to distinguish formal from informal statements.

• Formal judicial admissions:
  Statements in pleadings, responses to requests for admission, or stipulations in the current proceeding are binding and conclusive for that case. The party cannot later introduce evidence contradicting a formal judicial admission without first obtaining leave to amend.

• Informal judicial admissions:
  Statements made by the party in prior proceedings (for example, testimony at an earlier trial or deposition) are evidentiary admissions. They can be used against the party but are not conclusive; the party can explain or contradict them.

Statements made by the party in non-judicial settings—emails, text messages, social media posts, recorded phone calls, interviews—are classic 801(d)(2)(A) material when offered by the opposing party.

Worked Example 1.1

Plaintiff sues Defendant for negligence after a car accident. In Defendant’s answer, Defendant admits that he “failed to stop at the red light.” At trial, Defendant tries to testify that the light was actually yellow.

Answer:
Defendant’s statement in the answer is a formal judicial admission and is conclusively binding in this case. The court should prevent Defendant from contradicting it unless the pleading is amended. If the statement had been made in a prior, different proceeding, it would be an evidentiary admission—admissible under FRE 801(d)(2)(A) but not conclusive.

Effect of Constitutional Limits

In criminal cases, many of the prosecution’s party-opponent statements are the defendant’s own statements to police. Two constitutional doctrines matter:

• Miranda and the Fifth Amendment:
  A defendant’s own statements obtained in violation of Miranda may be inadmissible in the prosecution’s case in chief, even though they fit 801(d)(2)(A). They may still be admitted only to impeach the defendant if he testifies inconsistently.

• Voluntariness:
  If the statement was involuntary (coerced), it is inadmissible for any purpose, despite being a party-opponent statement.

Thus, FRE 801(d)(2) tells you that a statement, if admissible, is not hearsay. Other rules—constitutional and evidentiary—can still keep it out.

2. Adoptive Statements – FRE 801(d)(2)(B)

A party can be held to have “made” someone else’s statement by adopting or manifesting a belief in its truth.

Key Term: Adoptive Statement
A statement made by someone else that a party expressly or implicitly accepts as true, so that it is treated as the party’s own assertion.

Adoption can occur in several ways:

• Express adoption: The party explicitly agrees with or endorses the statement.

  • “Yes, that’s exactly what happened.”
  • Emailing back: “I agree with everything you said below.”
  • Signing someone else’s written statement.

• Adoption by conduct: The party behaves in a way that clearly signals acceptance of the statement’s truth:

  • Nodding in agreement to another’s description of events.
  • Forwarding an accusatory email to others with the comment “This is accurate; please fix these problems.”
  • Paying a bill that expressly states the basis for the charge, when the context suggests acceptance of that basis.

• Adoption by silence: Silence can be treated as adoption only if:

  • The party heard and understood the statement.
  • The party had the ability and opportunity to deny it.
  • The circumstances are such that a reasonable person in the party’s position would have denied the accusation if it were untrue.

Adoption by silence is fact-sensitive and limited. Ordinary social situations where someone is accused of serious wrongdoing often support adoption by silence. But several contexts are exam traps:

• In noncustodial settings (for example, a conversation among friends at a party), silence in the face of an accusation can readily be treated as adoption.
• Once a suspect is in custody and given Miranda warnings, using the suspect’s post‑warning silence as an adoptive admission generally violates due process and the privilege against self-incrimination.
• Pre‑arrest, pre‑Miranda silence is more complex; constitutional limits are narrower, but exam questions usually signal when constitutional concerns bar use of silence.

Worked Example 1.2

During a backyard barbecue, Friend says loudly to Dan, within earshot of several guests, “We all know you were going 90 miles per hour when you hit that cyclist.” Dan looks at Friend, says nothing, and changes the subject. The statement is offered by the cyclist against Dan in a civil suit.

Answer:
A jury could treat Dan’s silence as an adoptive statement. He heard and understood the accusation; nothing prevented him from denying it; and a reasonable person would be expected to deny an accusation of such serious misconduct. This is a noncustodial social setting, so constitutional protections against using silence do not bar admission.

Now compare with custodial silence after Miranda.

Worked Example 1.3

During police questioning after receiving Miranda warnings, Detective tells Suspect, “Your friend told us you drove the getaway car.” Suspect remains silent. At trial, the prosecution seeks to offer Suspect’s silence as an adoptive statement.

Answer:
The silence is not admissible as an adoptive statement. Post‑Miranda silence cannot ordinarily be used against a defendant; the warnings carry an implicit assurance that remaining silent will not be penalized, and using that silence as evidence would violate due process.

Exam tip: Be ready to separate evidence law from constitutional law. FRE 801(d)(2)(B) would treat silent adoption as non-hearsay, but Miranda and the Fifth Amendment may still exclude the evidence in a criminal case.

3. Authorized Statements – FRE 801(d)(2)(C)

A statement is admissible against a party if it is made by a speaker authorized by the party to speak on the subject.

Key Term: Authorized Statement
A statement made by a person whom the party has expressly or impliedly empowered to make statements on a particular subject on the party’s behalf.

Typical authorized speakers include:

• Attorneys speaking for clients in court, depositions, or formal negotiations.
• Partners making statements on behalf of a partnership.
• Corporate spokespersons or public-relations officers designated to communicate on specific issues.
• Insurance adjusters authorized to negotiate or describe claims on behalf of an insurer.

Points to remember:

• The authority must relate to the subject matter of the statement. A corporate spokesperson authorized to address marketing strategy is not necessarily authorized to speak about the company’s tax compliance.
• Authority may be shown by formal designation (job title, engagement letter) or by the party’s conduct (such as consistently sending this person to speak for them on similar matters).

Statements by lawyers are particularly important:

• A lawyer’s statement in court or in a formal pleading is normally a judicial admission.
• A lawyer’s factual assertions in informal contexts (for example, a letter to opposing counsel) are admissible against the client as authorized statements, subject to other rules such as settlement-negotiation exclusions (FRE 408).

Worked Example 1.4

A corporation is sued for securities fraud. During a press conference, its designated investor-relations officer states, “We overstated last year’s revenues and will restate our financials.” The statement is offered against the corporation.

Answer:
The statement is admissible under FRE 801(d)(2)(C) as a statement by a person authorized to speak for the corporation on financial disclosures. The officer is an authorized spokesperson on that subject.

4. Agent or Employee Statements – FRE 801(d)(2)(D)

Under FRE 801(d)(2)(D), a statement is admissible against a party if it is made by the party’s agent or employee, concerning a matter within the scope of that relationship, and during the existence of the relationship.

Key Term: Agent/Employee Statement
A statement made by a party’s agent or employee about a matter within the scope of the agency or employment, while that relationship exists, offered against the party.

Important elements:

• Scope requirement: The statement must relate to matters the agent or employee is employed or authorized to handle. A truck driver’s statement about how the accident happened is within the scope of his driving duties; his speculation about the company’s tax strategy is not.

• Timing requirement: The statement must be made during the agency or employment. Once the relationship ends, later statements do not qualify under this subsection.

• No special speaking authority needed: Unlike authorized statements, the employee need not be designated as a spokesperson. Routine statements about work-related matters often qualify.

• Independent contractors: Independent contractors generally do not qualify as “employees” for 801(d)(2)(D) purposes, absent unusual control or other facts showing an agency relationship.

This is broader than many students expect. For example:

• A store clerk’s statement to a customer, “We never salt this sidewalk even when it ices,” made while on duty, is within scope; it can be offered against the store.
• A nurse’s statement to a patient, “Our doctor always ignores lab results,” made during employment, is within scope and admissible against the hospital.

Worked Example 1.5

Truck Driver, employed by Delivery Corp, has an accident while making a delivery. Immediately after, Driver tells Bystander, “My brakes failed; I told the company they needed fixing last week!” Delivery Corp fires Driver the next day. Two weeks later, Driver tells Plaintiff (injured in the accident), “Yeah, the company knew those brakes were bad.”

Answer:
The first statement is admissible against Delivery Corp under FRE 801(d)(2)(D): Driver was an employee, speaking about the condition of the truck during his delivery, and the statement was made while he was still employed. The second statement is not admissible under this subsection because it was made after he was fired; the agency relationship had ended. The second statement might still be admissible for impeachment or under a hearsay exception, but not as an agent/employee admission.

5. Co-conspirator Statements – FRE 801(d)(2)(E)

FRE 801(d)(2)(E) covers statements by one conspirator offered against another conspirator.

Key Term: Co-conspirator Statement
An out-of-court statement made by one member of a conspiracy, during the course of the conspiracy, and in furtherance of its objectives, offered against another member.

Key requirements:

• Existence of a conspiracy: The court must find, by a preponderance of the evidence, that:
  • A conspiracy existed.
  • Both the declarant and the party against whom the statement is offered were members.

The judge decides this preliminary question under FRE 104(a) and may consider the statement itself, but cannot rely solely on it. There must be some independent evidence of the conspiracy—pure “bootstrapping” is not permitted.

• During the conspiracy: The statement must be made while the conspiracy is ongoing. Statements made after the conspiracy’s objectives have been achieved or abandoned (for example, after all conspirators are arrested) generally do not qualify.

• In furtherance of the conspiracy: The statement must advance the conspiracy’s objectives, such as:

  • Planning or coordinating activities.
  • Seeking to recruit participants or secure resources.
  • Concealing the conspiracy from detection (for example, “Hide the money in the garage so the police don’t find it”).

Mere narrative descriptions of past events, bragging, or idle chatter typically do not satisfy the “in furtherance” requirement.

Key Term: Bootstrapping (No Bootstrapping Rule)
The principle that the court may consider the content of an alleged co-conspirator or agent statement in deciding whether the foundational relationship exists, but may not base that finding solely on the statement itself; some independent evidence is required.

Worked Example 1.6

Alice and Bob agree to rob a bank. Before the robbery, Alice tells Carol, “Bob and I are going to rob First National Bank on Friday; can you drive the getaway car?” Carol declines. After the robbery, Bob tells his roommate, “Alice and I robbed First National last week.”

Alice is tried alone. The prosecution offers both statements against Alice under FRE 801(d)(2)(E).

Answer:
Alice’s statement to Carol is admissible as a co-conspirator statement. The judge can find by a preponderance that a conspiracy existed between Alice and Bob, and the statement—seeking a getaway driver—was made during and in furtherance of the conspiracy. Bob’s post‑robbery boast to his roommate is not admissible under 801(d)(2)(E) because it is a mere narrative of past events, made after the crime, and not in furtherance of the conspiracy.

Exam tip: Co-conspirator statements can be admitted even if conspiracy is not charged as a crime. Evidence law asks only whether a conspiracy, broadly defined, existed for hearsay purposes.

Additional Worked Example: Agency versus Co-conspirator

Worked Example 1.7

Officer stops a car containing Dan (driver) and Evan (passenger). In the trunk, the police find a large quantity of drugs. Before any Miranda warnings, Evan blurts out, “Those are Dan’s drugs—he’s the one who brought them.” Dan is prosecuted for drug trafficking. The prosecution offers Evan’s statement against Dan.

Answer:
Evan’s statement is not a party-opponent statement under 801(d)(2) because Evan is not a party and his statement is not shown to be adopted, authorized, within an agency relationship, or made in furtherance of a conspiracy with Dan. Unless a separate hearsay exception applies (for example, Evan testifies and is subject to cross, or the statement qualifies as a statement against interest with unavailability), Evan’s out-of-court accusation is hearsay and inadmissible for its truth.

This is a common MBE pattern: a co-arrestee’s accusatory statement is often not admissible against the defendant under 801(d)(2).

Preliminary Questions and the “No Bootstrapping” Rule

When deciding whether a statement fits FRE 801(d)(2)(C)–(E) (authorized speaker, agent/employee, or co-conspirator), the court must resolve preliminary factual questions:

• Did an agency or employment relationship exist?
• Did the speaker have authorization to speak on that subject?
• Did a conspiracy exist, and was the party a member?

Under FRE 104(a):

• The judge decides these preliminary issues by a preponderance of the evidence.
• The judge may consider the contents of the statement, but cannot rely solely on those contents to establish the necessary relationship or conspiracy. There must be some additional evidence (for example, other acts, documents, or testimony) supporting the relationship.

Key Term: Bootstrapping (No Bootstrapping Rule)
The rule that the court may not establish agency or conspiracy based only on the alleged agent’s or co-conspirator’s own statement; some independent corroboration is required.

This “no bootstrapping” rule is an important exam detail, especially in co-conspirator questions. If the fact pattern expressly says that the only evidence of a conspiracy is the very statement the proponent seeks to admit, 801(d)(2)(E) is not satisfied.

Distinguishing Party-Opponent Statements from Statements Against Interest

A frequent MBE trap is confusing party-opponent statements under FRE 801(d)(2) with statements against interest under FRE 804(b)(3).

Key Term: Statement Against Interest
A hearsay exception under FRE 804(b)(3) for a statement that was against the declarant’s pecuniary, proprietary, or penal interest when made, such that a reasonable person would not have made it unless believing it to be true, and the declarant is now unavailable.

Key differences:

• Party-opponent statements (FRE 801(d)(2)):

  • Defined as non-hearsay, not as an exception.
  • Offered against a party.
  • No requirement that the statement was against the declarant’s interest when made.
  • No requirement that the declarant be unavailable.
  • No corroboration requirement.

• Statements against interest (FRE 804(b)(3)):

  • True hearsay exception.
  • Declarant need not be a party.
  • At the time of the statement, it must be so contrary to the declarant’s pecuniary, proprietary, or penal interest that a reasonable person would not have made it unless it were true.
  • Declarant must be unavailable.
  • In criminal cases, exculpatory statements (implicating someone other than the defendant) require corroborating circumstances clearly indicating trustworthiness.

On the MBE, if the declarant is the opposing party, and the statement is offered against them, the correct analysis almost always runs through FRE 801(d)(2), not 804(b)(3), even if the statement is clearly self-inculpatory.

Worked Example 1.8

Defendant is tried for arson. The prosecution offers Defendant’s confession to a friend: “I got paid to set that fire.” Defendant does not testify. The friend testifies to the confession.

Answer:
The confession is admissible as a party-opponent statement under FRE 801(d)(2)(A). The prosecution does not need to show unavailability, that the statement was against Defendant’s interest when made, or corroborating circumstances. FRE 804(b)(3) is irrelevant because 801(d)(2)(A) already applies.

In contrast, if a non-party declarant says “I, not the defendant, committed the crime,” and the defense offers it, 801(d)(2) does not apply. The defense must rely on 804(b)(3) and satisfy its strict requirements, including unavailability and corroboration.

Multiple Hearsay Within Admissions

Party-opponent statements can themselves contain hearsay within hearsay. Each level must be supported by an exclusion or exception if it is being used for its truth.

Example:

• Dan emails his friend: “My mechanic told me the brakes were completely shot, but I drove anyway.” The plaintiff offers the email against Dan.

Analysis:

• Dan’s email is a party-opponent statement under FRE 801(d)(2)(A).
• The embedded statement (“my mechanic told me…”) is another layer of hearsay. If offered to prove the brakes were “completely shot,” it must fit an exception (for example, business record, present sense impression), or the court may allow it only for a non-hearsay purpose (for example, to show Dan’s notice, not the truth about the brakes).

If the embedded statement is offered to show its effect on Dan (notice of the risk), not to prove the brakes were in fact defective, then it is not hearsay at that second level.

Careful attention to each level is critical:

• Level 1: Email by party – 801(d)(2)(A).
• Level 2: Mechanic’s assertion – hearsay unless offered for a non-hearsay purpose or a separate exception applies.

Non-Hearsay Uses and Party Admissions

Sometimes a statement that could be treated as a party-opponent statement is offered for a non-hearsay purpose, such as:

• To show the statement’s effect on the listener (for example, notice, knowledge, motive, fear).
• As a verbal act (for example, words of offer, acceptance, defamation, extortion, perjury) where the legal significance lies in the fact that the words were spoken.

In those cases, the statement is admissible even without invoking FRE 801(d)(2) because it is not being offered for its truth.

Worked Example 1.9

Insurer denies coverage, claiming it had no notice of the accident. Plaintiff offers a letter she sent to Insurer stating, “On January 1, your insured rear-ended my car.”

Answer:
The letter is admissible to show that the insurer received notice of the accident (effect on listener), a non-hearsay purpose. FRE 801(d)(2) is unnecessary here. If the letter were offered to prove that the accident happened exactly as described, hearsay analysis (and possibly party-opponent status, depending on who wrote it) would become relevant.

Similarly, in a defamation case, the allegedly defamatory statement is admitted not to prove that its content is true, but to prove that it was made and is defamatory. That is a classic verbal act, not hearsay.

Key Term: Verbal Act
A statement offered to prove that the statement itself occurred and has independent legal effect—such as an offer, acceptance, threat, or defamatory remark—so that hearsay rules do not apply.

Interplay with Other Rules and Doctrines

Party Admissions and Settlement Negotiations

Even though a party’s statements in settlement discussions could be admissions, FRE 408 excludes many such statements when offered to prove liability or the amount of a disputed claim. On the MBE:

• If a party says, “I know I was partly at fault, I’ll pay you $50,000 to settle,” in settlement negotiations, the statement is not admissible to prove fault or liability, even though it fits the literal terms of 801(d)(2).
• It may be admissible for other purposes (for example, to show bias of a witness) if FRE 408 permits.

Similarly, plea discussions in criminal cases are subject to FRE 410 and related rules, limiting the use of statements made in the course of plea bargaining, even if they would otherwise be party-opponent statements.

Party Admissions and the Confrontation Clause

The Confrontation Clause protects criminal defendants from the admission of testimonial statements by witnesses who do not testify and are not subject to cross-examination. Several points matter:

• A criminal defendant’s own statements (801(d)(2)(A)) do not raise Confrontation Clause issues; a person cannot complain about confrontation with themselves.
• Co-conspirator statements made in furtherance of a conspiracy (801(d)(2)(E)) are generally treated as non-testimonial and thus do not trigger Confrontation Clause concerns.
• Statements by agents or employees may be testimonial (for example, formal reports), but the Clause only protects defendants, not the government.

Thus, on the MBE, Confrontation Clause analysis is usually unrelated to 801(d)(2) when the declarant is the defendant.

Summary

Statements made or adopted by a party, or by closely aligned persons—authorized speakers, agents/employees, and co-conspirators—are defined as non-hearsay when offered against that party under FRE 801(d)(2). They are evidentiary admissions, not conclusive but powerful evidence, and they do not require declarant unavailability or independent reliability.

For each category, you must analyze:

• Whether the statement is offered against a party.
• The relationship between the declarant and that party (none, adoption, authorization, agency, conspiracy).
• Whether timing and scope requirements are met.
• Whether the court has sufficient independent evidence of agency or conspiracy (no pure bootstrapping).
• Whether any constitutional or policy-based rule (Miranda, Confrontation Clause, FRE 408/410) bars use of the statement despite its non-hearsay status.

Distinguishing party-opponent statements from true hearsay exceptions—especially statements against interest—and recognizing multiple hearsay within admissions are common MBE tasks.

Key Point Checklist

This article has covered the following key knowledge points:

• Party-opponent statements under FRE 801(d)(2) are defined as non-hearsay, not as hearsay exceptions.
• Such statements are admissible only when offered against the party; a party cannot introduce their own out-of-court statement under this rule to prove its truth.
• A party’s own statement, whether in an individual or representative capacity, is admissible against that party without any requirement of personal knowledge or “against interest” status.
• Party-opponent statements are evidentiary admissions; formal statements in current pleadings or stipulations are judicial admissions and are conclusive.
• Adoptive statements include express agreement, adoption by conduct, and in limited circumstances adoption by silence; post‑Miranda silence generally cannot be used as adoption in a criminal case.
• Authorized statements require that the speaker be empowered by the party (expressly or impliedly) to speak on the subject, such as attorneys and designated corporate spokespersons.
• Agent/employee statements are admissible when made during the relationship, concerning matters within the scope of agency or employment; no special speaking authority is required.
• Co-conspirator statements are admissible when made by a conspirator, during the conspiracy, and in furtherance of its objectives, against fellow conspirators.
• For agency and conspiracy statements, the court must find the relationship by a preponderance of the evidence and may not rely solely on the statement itself (no pure bootstrapping).
• Party-opponent statements differ from statements against interest (FRE 804(b)(3)), which require unavailability and that the statement was against the declarant’s interest when made.
• Multiple hearsay within a party admission requires an exclusion or exception at each level if offered for its truth.
• Many statements are admissible for non-hearsay purposes (effect on listener, verbal acts) without needing FRE 801(d)(2).
• Constitutional doctrines (Miranda, voluntariness, Confrontation Clause) and policy-based rules (FRE 408, 410) can limit the use of party-opponent statements even when they qualify under 801(d)(2).

Key Terms and Concepts

• Hearsay
• Party-Opponent Statement
• Opposing Party’s Statement
• Evidentiary Admission
• Judicial Admission
• Adoptive Statement
• Authorized Statement
• Agent/Employee Statement
• Co-conspirator Statement
• Statement Against Interest
• Bootstrapping (No Bootstrapping Rule)
• Verbal Act
• Effect on the Listener