Assessing the Amendment to the Rule of Evidence Covering Prior Party Statements

Federal Rule of Evidence 801(d)(2) used to provide that

A statement that meets the following conditions is not hearsay:

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Pursuant to an amendment that took effect in December 2024, there is now a second sentence at the end of the Rule. It states the following:

So, what is the significance of this amendment?

Let’s look at this by considering some hypotheticals:

Hypothetical 1: Dagwood’s Sandwich Shop is a national chain with over 500 shops across the country. Its CEO makes a statement in Advertising Weekly that its “five dollar footlongs” sales strategy was a marketing boon, even as it was a bit of a literal stretch because their subs are only 11 inches long. Customers across the country then bring a false advertising action against the sub shop. Two months before trial, private equity company Pinkstone completes a takeover of Dagwood’s after months of falling profits. Previously, courts were split over whether the CEO’s statement would be admissible against Pinkstone. With the amendment, it is now clear that the CEO’s statement would be admissible against Pinkstone because Pinkstone’s potential liability is directly derived from Dagwood and its principal.

Hypothetical 2: Paula buys a home in Columbia, South Carolina from Sally. Her property is bordered on the west by a property owned by Wendy and on the east by a property owned by Edith. All three properties back onto a lake, with there being a dock in Paula’s backyard. Paula brings a civil trespassing action against Wendy after she keeps entering her backyard and using the dock. While talking with her friend, Felicia, Wendy says that she knows that the easement she had with Sally to use the dock didn’t transfer when Paula bought her property but that she never thought Paula would sue her. After a trial, the jury finds for Paula. Later, Paula brings a civil trespassing action against Edith after she keeps using the dock. At trial, Edith claims that she has an easement to use the dock. Does this amendment mean that Wendy’s statement would be admissible against Edith? According to the Agenda Book of the Evidence Committee, the answer should be “no.” According to the Committee:

Three: Dagwood’s Sandwich Shop faces criminal charges related to the company’s involvement in foodborne illness outbreaks. Dagwood’s CEO issues a press release admitting the company’s fault in connection with these charges. Subsequently. Pinkstone again completes a takeover of Dagwood’s after months of falling profits. Under the new language of Rule 801(d)(2), the CEO’s statement should now be admissible against Pinkstone, again because Pinkstone’s potential liability is directly derived from Dagwood and its principal. This is another deviation from Rule 804(b)(3). The language about “predecessor-in-interest” in Rule 804(b)(3) noted above only applies in civil cases. On the other hand, the new language in Rule 801(d)(2) contains no limitation to civil cases and therefore seems to apply in both civil and criminal cases.

-CM