A Party Wishing To Offer Its Own Exculpatory Statements Must Testify

The bar against party admission of its own exculpatory statements through other witnesses is noted in United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000)

A recurring evidence issue concerns efforts by a party to introduce their own statements at trial through other witnesses. The rules provide that unless the opposing party seeks to introduce a party’s statement against the party, then the introduction of a party’s statement by the party is hearsay.

One leading case considering a myriad of evidence challenges is United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000). In Ortega, the defendant claimed on appeal that the trial court erroneously excluded his exculpatory statements, violating FRE 106 (rule of completeness), the Confrontation Clause, FRE 801(d)(2) (admissions against a party opponent), and FRE 807 (residual exception).

The defendant went to trial on drug and firearm charges. Before trial, the court granted the government’s motion to exclude the defendant’s exculpatory statements, which were made during his confession to an officer along with inculpatory statements. For example, the defendant told the officer that his cousin gave him the pistol and drugs that were seized and he was unaware of methamphetamine found in the garage. During the trial, an officer testified about inculpatory statements the defendant made but omitted the defendant’s non-inculpatory statements. The defendant later took the stand and denied knowledge about a drug transaction and that the firearm and drugs belonged to his cousin.

After his conviction, the Ninth Circuit upheld the exclusion of the defendant’s “non-self-inculpatory statements,” and held:

First, Ortega's nonself-inculpatory statements are inadmissible even if they were made contemporaneously with other self-inculpatory statements. The self-inculpatory statements, when offered by the government, are admissions by a party-opponent and are therefore not hearsay, see Fed. R. Evid. 801(d)(2), but the non-self-inculpatory statements are inadmissible hearsay. If the district court were to have ruled in his favor, Ortega would have been able to place his exculpatory statements ‘before the jury without subjecting [himself] to cross-examination, precisely what the hearsay rule forbids.’ United States v. Fernandez, 839 F.2d 639, 640 (9th Cir. 1988). Thus the district court did not abuse its discretion when it limited Ortega's ability to elicit his exculpatory hearsay statements on cross-examination.

“Second, the rule of completeness, see Fed. R. Evid. 106 (requiring that the redacted version of a statement not distort the meaning of the statement), applies only to written and recorded statements. See United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996) (finding that "rule 106`does not compel admission of otherwise inadmissible hearsay evidence'"). Because the officer's testimony concerned an unrecorded oral confession, the rule of completeness does not apply. Even if the rule of completeness did apply, exclusion of Ortega's exculpatory statements was proper because these statements would still have constituted inadmissible hearsay.

“Third, a court may impose reasonable limits on crossexamination without violating the Confrontation Clause. Precluding Ortega from eliciting inadmissible hearsay on crossexamination, given that he testified to the statements himself, is not the type of severe limitation on cross-examination that violates the Confrontation Clause. The officer's testimony did not distort the meaning of Ortega's statements because Ortega testified to the statements not mentioned by the officer: that his cousin supplied Ortega with the pistol and that the same cousin gave Ortega the methamphetamine. Furthermore, Ortega's testimony did not infringe upon his Fifth Amendment right not to testify because he had already testified prior to the officer's testimony. Ortega should not be allowed to use the Confrontation Clause as a means of admitting hearsay testimony through the "back door" without subjecting himself to crossexamination."

United States v. Ortega, 203 F.3d at 682 (other citations omitted).

The bottom line is that a party who seeks to admit exculpatory statements made by the party must elect to testify subject to cross-examination.


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Federal Rules of Evidence