In an excessive force civil rights suit, defendant could not proffer statement made by the civil plaintiff’s attorney in a related criminal trial that “we still don’t know” who injured the plaintiff as a statement by a party agent under FRE 801(d)(2)(C); in context, the statement was “calling attention to” the defendant’s “inexplicable absence” and not confessing that the plaintiff in fact “did not know who caused his injuries,” in Gill v. Maciejewski, 546 F.3d 557 (8th Cir. Nov. 4, 2008) (Nos. 07-3451, 07-3482, 07-3630)
In appropriate circumstances, counsel statements within the scope of employment by the client may be admissible against the client under FRE 801(d)(2)(C) or FRE 801(d)(2)(D). See, e.g., United States. v. Rice, 449 F.3d 887, 895 (8th Cir. 2006) (“testimony describing the conduct of [defendant] Rice’s loan counsel and recounting the actual statements made by Rice’s loan counsel do not constitute hearsay”) (citing FRE 801(d)(2)(C)-(D) (admissions of agents of party-opponent generally are not hearsay)); Hanson v. Waller, 888 F.2d 806, 814 (11th Cir. 1989) (FRE 801(d)(2)(C) “applied to allow in evidence statements made by attorneys in a representational capacity”; admitting letter of prior counsel to opposing counsel attaching photographs, which was not an offer of settlement).
In one case, the Eighth Circuit cautioned that the context in which the proffered statements were made by the agent is important in assessing the applicability of the party admission rule. In the case, plaintiff Gill clamed to be a victim of excessive force by defendant police officer Maciejewski. The defendant allegedly appeared at the scene of where other officers had subdued the plaintiff after a New Year’s Eve bar fight. While “restrained” prostrate on the ground by bar security, Gill claimed that the defendant cracked his skull by executing a “knee drop” to the plaintiff’s head.
Initially, plaintiff Gill was prosecuted for obstructing legal process but was acquitted. He brought a civil rights excessive force suit against the officer. At that civil trial, the defendant objected to the trial court’s exclusion of his attempt to introduce a statement made in the plaintiff’s criminal trial by the plaintiff’s attorney. At the criminal trial, the plaintiff’s attorney stated:
“So almost four months after this incident [leading to plaintiff’s arrest] we still don’t know if it was Officer Maciejewski or Sergeant Reineke or Officer Hermes who did the knee drop. No one has accepted responsibility.”
Gill, 546 F.3d at 563. The trial court rejected the defendant’s effort to admit Gill’s attorney’s statement during Gill’s criminal trial. The statement was not one by the plaintiff’s agent under FRE 801(d)(2)(C) – (D) reasoned the trial judge. The civil trial ended in a verdict for the plaintiff and the defendant appealed based in part on exclusion of the statement.
The Eighth Circuit affirmed the trial court’s exclusion of this statement. Viewed in context, the statement was not an admission against interest but was an argument by counsel in response to the defendant officer’s failure to testify at the plaintiff’s criminal trial:
“During the criminal trial, Gill’s lawyer stated: ‘So almost four months after this incident we still don’t know if it was Officer Maciejewski or Sergeant Reineke or Officer Hermes who did the knee drop. No one has accepted responsibility.’ Maciejewski argues the statement adheres to the evidentiary rule that ‘statement[s] by a person authorized by the party to make a statement concerning the subject’ are admissions against interest. Fed. R. Evid. 801(d)(2)(C)-(D). Maciejewski, however, takes unwarranted liberties with the context of the statement. It is clear from the transcript counsel’s statement was prompted by Maciejewski’s failure to attend and testify at Gill’s criminal trial. Gill’s lawyer was calling attention to Maciejewski’s inexplicable absence-not suggesting Gill did not know who caused his injuries. Accordingly, the district court properly excluded the statement.”
Gill, 546 F.3d at 563.
As illustrated by Gill, the party admission rule is not formalistic in application. The alleged admission must be considered in context and not simply by its plain words. The rule requires a determination that there was indeed a statement made by the party that communicated the authorized statement.
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