Circuit Split: Whether Party-Opponent Statements Include A Requirement That The Statement Be Contrary Or Inculpatory

Third Circuit notes that its case law divides with other courts on whether a statement admitted against a party opponent under FRE 801(d)(2)(A) "must be contrary to that party's position at the time of the trial”; circuit concludes that it was unnecessary to "address whether to relax our limitation on the admissibility of a party opponent's statements" given the facts of the case; the issue remains for future reconsideration, in United States v. Ciavarella, 716 F.3d 705 (3d Cir. May 24, 2013) (No. 11-3277)

Under FRE 801(d)(2)(A), a statement admitted against an opposing party is not hearsay if the "statement is offered against an opposing party" and "was made by the party in an individual or representative capacity." The Third Circuit recently noted a circuit split in applying this rule on whether the opposing party's statement "must be contrary to that party's position at the time of the trial”.

District Court Proceedings

The case involved the prosecution of a former state judge on racketeering, honest services mail fraud, money laundering conspiracy, and related charges based on the “Kids for Cash” scheme in which two state judges "were accused of receiving over $2.8 million in three years from a commercial builder ... and an attorney and businessman ... in exchange for helping to construct and operate juvenile detention centers and placing juvenile offenders there." Ciavarella, 716 F.3d at 713. The challenged statement arose at the plea hearing of defendant Mericle. Assistant U.S. Attorney Zubrod distinguished between permissible payments and bribes at the plea hearing:

Referral fees are a common place practice. . . . Fee splitting between the parties, for example, between Judge Ciavarella and Mr. Powell, that kind of fee splitting is also a common practice in the real estate business. . . .

This is not a kickback or a bribe in any sense. It is a common practice. It is not a legal quid pro quo. It is a common practice between businessmen in real estate transactions. Mr. Mericle simply paid a finder‟s fee to the judges in accordance with standard practice. To him, his payment of the fee was what he had done hundreds of times before and was not related to the office that the judges held or any decisions by the judges. . . .

The district court clarified that the intent described by the prosecutor was limited to defendant Mericle and no other defendants:

THE COURT: What you‟re suggesting is that any relationship Mr. Mericle had to the juvenile centers that were constructed by him or his company was entirely different than any relationship that may have existed between Mr. Powell and the two judges that you were referring to; is that correct?

[AUSA] MR. ZUBROD: That‟s correct . . . . [Powell] understood it to be a quid pro quo that he would not get juveniles anymore if he didn‟t pay up the money. . . .

THE COURT: [I]t‟s my recollection that in the case of the two judges you represented that there was a quid pro quo between Mr. Powell and between the judges. That is not the case [as to Mericle‟s intent]; is that correct?

MR. ZUBROD: That's correct, Your Honor. There‟s no quid pro quo.

Ciavarella, 716 F.3d at 725. At trial defendant Ciavarella moved to admit the prosecutor's statements from the plea hearing against the government as a party opponent. The trial court excluded the plea hearing statement as it did not qualify as a party admission under FRE 801(d)(2)(A). However, the trial court allowed [defendant] "Ciavarella to represent that the statements supported Mericle's mental state concerning the payments." Ciavarella, 716 F.3d at 725. After the jury convicted defendant Ciavarella, he challenged the exclusion of the prosecutor's statement on appeal.

Third Circuit Noting Issue

The Third Circuit affirmed the exclusion of the statement. However, in doing so, the circuit identified on open issue in the Third Circuit and split with other courts on the application of FRE 801(d)(2)(A):

We have stated that “[t]o be admissible [under Rule 801(d)(2)], a party’s admission must be contrary to that party’s position at the time of the trial.” United States v. Ferri, 778 F.2d 985, 990-91 n.3 (3d Cir. 1985) (quoting Butler v. S. Pa. Co., 431 F.2d 77, 80 (5th Cir. 1970)). However, other courts have addressed whether the admission must be against the party’s interest and have concluded that Rule 801(d)(2)(A) contains no such limitation. See, e.g., United States v. McGee, 189 F.3d 626, 632 (7th Cir. 1999) (citing cases). Because Ciavarella only argues that Zubrod’s statements should have been admissible because they were contrary to the Government’s position at trial, we need not address whether to relax our limitation on the admissibility of a party opponent’s statements.

Ciavarella, 716 F.3d at 725 n.9.

Seventh Circuit McGee Decision

So what was the analysis of the Seventh Circuit on this issue?

In McGee, a bank robbery case, the defendant challenged the admission of his statement to a detective during which the defendant “provided three different versions of” what transpired on the day of the robbery, claiming his statement was inadmissible “under Rule 801(d)(2) as an admission by a party-opponent because it was not inculpatory.” McGee, 189 F.3d at 631. The Seventh Circuit noted that no Seventh Circuit case supported this position and other circuits considering the issue had rejected it, including the First, Sixth, and Ninth Circuits. According to the Seventh Circuit, the Supreme Court and Eighth Circuit had also suggested there was no “inculpatory” requirement. Two treatises were in accord. As the Seventh Circuit held:

We agree with the other circuits that Rule 801(d)(2)(A) should be interpreted on its face to require only a party's own statement offered against the party. We therefore reject Mr. McGee's contention that the district court erred in admitting his statement to Detective Buschmann. The district court's decision to admit the statement as an admission by a party-opponent is affirmed.

McGee, 189 F.3d at 632.

Other Decisions

While not cited in the Ciavarella opinion, in addition to the Seventh Circuit, at least three other circuits have held that FRE 801(d)(2)(A) does not contain a requirement that the statement be contrary or inculpatory:

  • First Circuit: Marquis Theatre Corp. v. Condado Mini Cinema, 846 F.2d 86, 90 n.3 (1st Cir. 1988) (rejecting claim that party opponent statements are inadmissible unless they were made against the party’s “interest either at the time he made them or at the time of the trial”; “A statement must be against the declarant's interest at the time it was made only when it is introduced as the hearsay exception found at Fed. R. Evid. 804(b)(3), not as an admission excluded from the definition of hearsay in Rule 801(d)(2).”)
  • Sixth Circuit: United States v. Turner, 995 F.2d 1357, 1363 (6th Cir.) (“On its face, Rule 801(d)(2) does not limit an admission to a statement against interest.”; defendant’s statements to two firemen admitted in case concerning destruction of a building by fire), cert. denied, 510 U.S. 904 (1993)
  • Ninth Circuit: United States v. Castro, 887 F.2d 988, 999-1000 (9th Cir. 1989) (concluding statement was admissible under FRE 801(d)(2)(A) and rejecting argument that statement was inadmissible as not exposing the defendant to criminal liability or contrary to pecuniary or proprietary interest under FRE 804(b)(3)); People of the Territory of Guam v. Ojeda, 758 F.2d 403, 408 (9th Cir. 1985) (“For statements to constitute admissions they need only relate to the offense.”)


The Ciavarella opinion suggests the Third Circuit may be willing to consider "whether to relax our limitation on the admissibility of a party opponent's statements," intimating some openness to conforming the Third Circuit position with decisions in other circuits. The "contrary position" requirement does not derive from the express terms of the rule. It seems to be a conflated application of the statement against interest requirement under FRE 804(b)(3). In the meantime, there is a circuit split on this issue. Perhaps an upcoming and appropriate case in the Third Circuit will allow an en banc court to clarify this issue.


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