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GUDE TO NEW YORK EVIDENCE
ARTICLE 8: HEARSAY
TABLE OF CONTENTS
8.00 DEFINITION OF HEARSAY
8.01 ADMISSIBILITY OF HEARSAY
8.02 ADMISSIBILITY LIMITED BY CONFRONTATION CLAUSE
8.03 ADMISSION BY A PARTY
8.05 ADMISSION BY ADOPTED STATEMENT OR SILENCE
8.07 ANCIENT DOCUMENTS
8.08 BUSINESS RECORDS
8.09 COCONSPIRATOR STATEMENT
8.11 DECLARATION AGAINST INTEREST
8.13 DECLARATION OF FUTURE INTENT
8.15 DYING DECLARATION
8.17 EXCITED UTTERANCE (rev. May 2018) 8.19 FORFEITURE BY WRONGDOING 8.21 HEARSAY IN HEARSAY 8.22 IMPEACHMENT OF HEARSAY DECLARANT 8.23 JUDICIAL ADMISSIONS: INFORMAL & FORMAL 8.24 MARKET RECORDS 8.25 PAST RECOLLECTION RECORDED 8.27 PEDIGREE 8.29 PRESENT SENSE IMPRESSION 8.31 PRIOR CONSISTENT STATEMENT 8.33 PRIOR INCONSISTENT STATEMENT 8.35 PRIOR JUDGMENT OF CONVICTION 8.36 PRIOR TESTIMONY IN CIVIL PROCEEDING 8.36.1 PRIOR TESTIMONY IN CRIMINAL PROCEEDING 8.37 PROMPT OUTCRY 8.39 REPUTATION EVIDENCE 8.41 STATE OF MIND 8.43 STATEMENT FOR DIAGNOSIS or TREATMENT
ARTICLE 8. HEARSAY
8.00. Definition of Hearsay
(1) Hearsay is an out of court statement of a
declarant offered in evidence to prove the truth of the
matter asserted in the statement.
(2) The declarant of the statement is a person who is
not a witness at the proceeding, or if the declarant is a
witness, the witness uttered the statement when the
witness was not testifying in the proceeding.
(3) A statement of the declarant may be written or
oral, or non-verbal, provided the verbal or
non-verbal conduct is intended as an assertion.
Note This section sets forth the definition of hearsay which is generally applied by the courts. ( See People v Nieves , 67 NY2d 125, 131 [1986] [the statements in issue “constituted hearsay evidence, as they were made out of court and were sought to be introduced for the truth of what she asserted. Accordingly, they were admissible only if the People demonstrated that they fell within one of the exceptions to the hearsay rule” (citations omitted)]; see also People v Caviness , 38 NY2d 227, 230 [1975]; Felska v New York Cent. & Hudson Riv. R.R. Co. , 152 NY 339, 342 [1897].) Hearsay admitted without objection may properly be considered by the trier of fact and can be given such probative value as under the circumstances it may possess. ( See Matter of Findlay , 253 NY 1, 11 [1930]; Ford v Snook , 205 App Div 194, 198 [4th Dept 1923], affd 240 NY 624 [1925].) However, the Appellate Division may in the interest of justice reverse or modify a judgment for error in admitting hearsay even though no objection was made at trial. ( See Alexander v State of New York, 36 AD2d 777, 778 [3d Dept 1971] [“It is well established that in the interest of justice we have the right to reverse a judgment and grant a new trial where there is fundamental trial error, even though no objection was taken at the trial”]; People v Clegg , 18 AD2d 694 [2d Dept 1962]; CPL 470.15 [3] [c]; [6] [a].) The Court of Appeals review power is much more limited as it is precluded from reviewing a claim of error when no proper objection was made at trial except where the claim falls within “the narrow class
- A statement of the victim of a crime describing the purported perpetrator of the crime. ( See People v Huertas , 75 NY2d 487 [1990]; People v Smith , 22 NY3d 462 [2013].)
- A statement which provides an explanation of the conduct of a police investigation or simply completes the narrative of events leading to the defendant’s arrest. ( See People v Gross , 26 NY3d 689, 695 [2016]; People v Ludwig , 24 NY3d 221, 231 [2014].)
- A statement which has a legally operative effect under the substantive law ( see People v Caban , 5 NY3d 143, 149-150 [2005] [“verbal act”]); or where conduct is ambiguous, which, accompanies the conduct and tends to explain or characterize it ( see People v Salko , 47 NY2d 230, 239 [1979] [“verbal part of an act”]).
- A “flow diagram” offered as an aid to the jury to understand a doctor's testimony that he had followed a set of guidelines. (See Hinlicky v Dreyfuss , 6 NY3d 636 [2006].) Subdivision (2). While no Court of Appeals decision has set forth a definition of “declarant,” the term, in accord with its normal meaning, has been commonly used by the Court to mean a person who makes an extrajudicial statement. ( See People v James , 93 NY2d 620, 630-631 [1999]; People v Settles , 46 NY2d 154, 166-167 [1978].) In connection with this definition, the courts have recognized that while the usual situation will involve the offered testimony of a witness who will testify about what he or she heard someone else say at a time prior to the trial or hearing, a declarant for purposes of the hearsay rule may also be a witness who seeks to testify about his or her own pre-trial statement. ( See People v Buie, 86 NY2d 501 [1995] [witness permitted to testify to a statement she made prior to trial because it was admissible under the present sense impression hearsay exception].) It should also be noted that since the declarant is defined to be a “person,” any statement generated from mechanical sources, other than data inputted by humans and subsequently retrieved, will not constitute hearsay. ( See People v Towsley , 85 AD3d 1549 [4th Dept 2011] [canine tracking evidence not barred by hearsay rule]; People v Stultz , 284 AD2d 350 [2d Dept 2001] [testimony regarding the telephone caller ID number displayed on victim’s telephone not barred by hearsay rule since the number as displayed was not made by a person].) Subdivision (3). As recognized by the courts, a statement within the hearsay definition can be verbal, written or oral, or non-verbal, provided the verbal or non-verbal conduct is intended as an assertion, e.g., an expressive communication. ( See e.g. People v Salko, 47 NY2d 230, 238-241 [1979] [the hearsay rule has, “as a general rule, no application to an act which is not intended to serve as an expressive communication”]; see also People v Spicola, 16 NY3d 441, 452 n 2 [2011] [infant’s flushed skin and elevated heart rate, as testified to,
not “statements”]; People v Madas, 201 NY 349, 354 [1911] [identifying perpetrator by pointing to him a communicative gesture and therefore hearsay but admissible as a dying declaration]; Roche v Brooklyn City & Newtown R.R. Co. , 105 NY 294 [1887] [involuntary expressions and exclamations of pain not hearsay].)
laws. The judicially created exceptions are part of New York’s common law of evidence. ( See Fleury v Edwards , 14 NY2d 334, 340 [1964 Fuld, J., concurring] [“The common law of evidence is constantly being refashioned by the courts of this... jurisdiction( ) to meet the demands of modern litigation. Exceptions to the hearsay rule are being broadened and created where necessary.”]; see also People v Lynes, 64 AD2d 543 [1978], affd 49 NY2d 286 [1980] [the determination of preliminary questions of fact on the admissibility of evidence “is not restricted by the ordinary exclusionary rules of evidence”].) Subdivision (1) (b). The applicability of a hearsay exception may be dictated by the Constitution of New York or the United States, which both recognize that “a [criminal] defendant has a constitutional right to present a defense.” ( People v Hayes , 17 NY3d 46, 53 ([2011]; Chambers v Mississippi , 410 US 284, 294 [1973]), and a “[criminal] defendant’s right to due process requires admission of hearsay evidence when [the] declarant has become unavailable to testify and ‘the hearsay testimony is material, exculpatory and has sufficient indicia of reliability’” ( People v Burns , 6 NY3d 793, 795 [2006]), quoting People v Robinson , 89 NY2d at 650 , supra [emphasis omitted]). Subdivision (1) (c). This subdivision makes it clear that New York has not approved of a “residual exception” similar to Federal Rules of Evidence rule
- ( See People v Nieves , 67 NY2d 125, 131 [1986] [“we are not prepared at this time to abandon the well-established reliance on specific categories of hearsay exceptions in favor of an amorphous ‘reliability’ test, particularly in criminal cases where to do so could raise confrontation clause problems”].) Subdivision (2). This subdivision restates New York's well established rule, as stated in Tyrrell v Wal-Mart Stores (97 NY2d 650, 652 [2001]), that “[t]he proponent of hearsay evidence must establish the applicability of a hearsay-rule exception.” Subdivision (3). This subdivision states expressly that which is implicit from the definition of hearsay set forth in Guide to New York Evidence rule 8. (1). ( See People v Ricco, 56 NY2d 320, 328 [1982] [“a relevant extrajudicial statement introduced for the fact that it was made rather than for its contents... is not interdicted by the hearsay rule”].)
8.02 Admissibility Limited by Confrontation Clause ( Crawford )^1
(1) Confrontation rule in a criminal prosecution. A
“testimonial statement” of a person who does not
testify at trial is not admissible against a defendant for
the truth of the statement, unless the witness is
unavailable to testify and the defendant had a prior
opportunity for cross-examination, or the defendant
engaged or acquiesced in wrongdoing that was
intended to and did procure the unavailability of the
witness.
(2) Testimonial statement, in general.
A hearsay statement is testimonial when it consists of:
(a) prior testimony at a preliminary hearing,
before a grand jury, or at a former trial;
(b) an out-of-court statement in which
(i) state actors are involved in a formal,
out-of-court interrogation of a witness to
obtain evidence for trial; or
(ii) absent a formal interrogation, the
circumstances demonstrate that the
“primary purpose” of an exchange was to
procure an out-of-court statement to prove
criminal conduct or past events potentially
relevant to a later criminal prosecution, or
otherwise substitute for trial testimony.
(3) Statement to police.
A statement made to the police is not testimonial when
made in the course of a police interrogation under
circumstances objectively indicating that the primary
purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. The
defendant’s blood, or identifies the defendant
through a fingerprint analysis or through a DNA
analysis of incriminating evidence.
(b) A testimonial forensic report entitles a
defendant to be confronted, as defined in
subdivision one, with either the person who
made the forensic report or with a person who is
a trained analyst who supervised, witnessed or
observed the testing, even without having
personally conducted it.
(c) Nontestimonial reports include:
(i) an autopsy report prepared by a
medical examiner and describing only the
observations and measurements of the
deceased that does not link the commission
of a crime to a particular person;
(ii) documents pertaining to the routine
inspection, maintenance, and calibration
of a breathalyzer machine; and
(iii) a report setting forth raw data of a
DNA profile generated from an item in the
contents of a rape kit before the defendant
was a suspect in the crime.
(7) “Opening the door evidence.” Unconfronted
testimonial hearsay is not admissible in response to
evidence introduced by a defendant in a criminal case
that is misleading even though the misleading evidence
would be subject to correction by the unconfronted
testimonial hearsay.
Note Subdivision (1). The Confrontation Clause of the US Constitution Sixth Amendment requires that “[i]n all criminal prosecutions, the accused shall enjoy
the right... to be confronted with the witnesses against him.” That Clause applies to the states through the Fourteenth Amendment of the US Constitution ( Pointer v Texas , 380 US 400, 406 [1965]), and therefore limits the admissibility of “testimonial” hearsay statements that may otherwise be admissible under state law. The parameters of “confrontation” are defined in subdivision (1) in accord with Crawford v Washington (541 US 36, 42 [2004]) and Giles v California ( US 353, 367 [2008]). In Crawford , the Supreme Court held that “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law.... Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination” ( Crawford v Washington , 541 US at 68). Crawfor d, however, does not extend to a testimonial statement admitted “for purposes other than establishing the truth of the matter asserted” ( Crawford v Washington , 541 US at 59 n 9; Williams v Illinois , 567 US 50, 57-58 [2012] [plurality op], and at 125-126 [dissenting op]; People v Garcia , 25 NY3d 77, 86 [2015]; People v Reynoso , 2 NY3d 820, 821 [2004]). Nor does Crawford apply to the admission of testimonial statements at a sentencing proceeding ( People v Leon , 10 NY3d 122, 125-126 [2008]), or in a grand jury proceeding. Last, a defendant may forfeit the right of confrontation where the defendant engaged or acquiesced in wrongdoing that was intended to and did procure the witness’s unavailability ( Giles ; see also Guide to NY Evid rule 8.19, Forfeiture by Wrongdoing, http://www.courts.state.ny.us/judges/evidence/8-HEARSAY/8.19_ FORFEITURE%20BY%20WRONGDOING.pdf; Fed Rules Evid rule 804 [b] [6]; see also People v Geraci , 85 NY2d 359, 366 [1995] [“out-of-court statements, including Grand Jury testimony, may be admitted as direct evidence where the witness is unavailable to testify at trial and the proof establishes that the witness’s unavailability was procured by misconduct on the part of the defendant”]). Subdivision (2) (a) is derived from Crawford’ s declaration that “[w]hatever else the term [testimonial evidence] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial” ( Crawford , 541 US at 68). Subdivision (2) (b) (i ) is derived from Crawford (541 US at 68), which itself directly held inadmissible a witness’s statement obtained by formal station house interrogation (541 US at 68); and Michigan v Bryant (562 US 344, 358
Subdivision (3 ) is derived from Davis v Washington (547 US at 822) which decided two cases. In the first case, a 911 caller’s statements relating to an ongoing assault, including the identification of her assailant, were not testimonial, given that the “primary purpose” of the statements was to obtain help ( People v Nieves- Andino , 9 NY3d 12, 17 [2007]; People v Bradley , 8 NY3d 124, 127 [2006]). In the second case, the police, responding to a “domestic disturbance” call, found no ongoing emergency, and thus statements in response to their questions as to what happened were testimonial. ( See Michigan v Bryant , 562 US at 349 [where the police found a mortally wounded person lying on the ground in a parking lot of a gas station, the victim’s statement identifying his assailant, in response to police questions, was admissible because the “ ‘primary purpose of the interrogation’ was ‘to enable police assistance to meet an ongoing emergency’ ”].) Subdivision (4 ) is derived from People v Hardy (4 NY3d 192 [2005]) and People v Douglas (4 NY3d 777 [2005]). Subdivision (5) (a) is derived from Ohio v Clark (576 US at 249- [“(M)andatory reporting (obligations)... cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution. It is irrelevant that the teachers’ questions and their duty to report the matter had the natural tendency to result in Clark’s prosecution”]). Subdivision (5) (b) is derived from People v Duhs (16 NY3d 405, 408- [2011] [a child’s responses to a medical doctor questioning the child for purposes of treatment was not testimonial]). Subdivision (6) (a) is derived from Melendez-Diaz v Massachusetts ( US 305 [2009] [drug analysis]); Bullcoming v New Mexico (564 US 647 [2011] [blood-alcohol content]); People v Rawlins (10 NY3d 136, 157 [2008] [fingerprint report]); People v John (27 NY3d at 307-308 [DNA report that linked the defendant to possession of the weapon he was charged with possessing]); and People v Austin (30 NY3d 98, 104 [2017] [buccal swab was obtained and the resulting profile was compared with the DNA profile generated from the burglaries “with the primary (truly, the sole) purpose of proving a particular fact in a criminal proceeding—that defendant... committed the crime for which he was charged”]). Subdivision (6) (b) is derived from Bullcoming (564 US at 651 [holding that a surrogate analyst who was familiar with the laboratory’s testing procedures, but “had neither participated in nor observed the test,” did not satisfy the Confrontation Clause requirement]); and People v Hao Lin (28 NY3d 701, 705 [2017]) from which the language of subdivision (6) (b) is taken. In Hao Lin , a retired officer performed the “breath test” and the officer who testified observed him “perform all of the steps on the checklist and saw the breathalyzer machine print out the results. Based upon his personal observations, Mercado—as a trained and certified operator who was present for the entire testing protocol—was a
suitable witness to testify about the testing procedure and results in defendant’s test. Inasmuch as Mercado testified as to his own observations, not as a surrogate for Harriman, there was no Confrontation Clause violation.” ( Id. at 707; see People v John , 27 NY3d at 314 [“(T)he claim of a need for a horde of analysts is overstated and a single analyst, particularly the one who performed, witnessed or supervised the generation of the critical numerical DNA profile, would satisfy the dictates of Crawford and Bullcoming ”].) Subdivision (6) (c) (i) is derived from People v Freycinet (11 NY3d 38, 42 [2008] [an autopsy report]). Caveat: Contrary to Freycinet , the United States Court of Appeals for the Second Circuit has held that an autopsy report was a testimonial document, regardless of whether it linked the defendant to a crime. ( Garlick v Lee , 1 F4th 122 [2d Cir 2021], cert denied 595 US —, 142 S Ct 1189 [2022].) Subdivision (6) (c) (ii) and (iii) are derived from People v Pealer (20 NY3d at 455-456 [with respect to a breathalyzer machine, the Court noted that “ Melendez- Diaz recognized the possibility that records ‘prepared in the regular course of equipment maintenance’—precursors to an actual breathalyzer test of a suspect— ‘may well qualify as nontestimonial records’ (557 US at 311 n 1). It may reasonably be inferred that the primary motivation for examining the breathalyzer was to advise the... Police Department that its machine was adequately calibrated and operating properly”]); People v Meekins (10 NY3d 136, 159-160 [2008] [decided with Rawlins ]); and People v Brown (13 NY3d 332, 340 [2009] [a DNA raw data profile before the defendant was a suspect]). In People v John , however, the Court cautioned that “our focus in both of those cases [ Meekins and Brown ] was that extrajudicial facts were shepherded into evidence by a testifying expert whose subsequent independent analysis of that raw data provided the assurance that the DNA profile generated was accurate. Our sharpest focus was on the final stage of the DNA typing results, to wit, the generated DNA profile” (27 NY3d at 310; see People v Austin , 30 NY3d at 104). Subdivision (7) is derived from Hemphill v New York (595 US —, 142 S Ct 681 [2022]). Contrary to the principle set forth in People v Reid (19 NY3d 382 [2012]) that was applied in People v Hemphill (173 AD3d 471 [1st Dept 2019], affd 35 NY3d 1035 [2020]), the Supreme Court held that the “opening the door to evidence” principle must not permit the introduction of evidence in violation of the Sixth Amendment’s Confrontation Clause. In Hemphill , the defense to a murder indictment rested upon a claimed third party’s culpability; in accord with New York’s then “opening the door to evidence” principle, the trial court allowed the introduction of the third party’s guilty plea when the third party was unavailable to testify. The parties did not dispute that the third party’s guilty plea was “testimonial” hearsay, and the Supreme Court then held its admission to be in violation of the Confrontation Clause. Thus, even if it may be argued that “unconfronted, testimonial hearsay” would respond to a party’s misleading impression on an issue, it is not admissible: “[The Confrontation Clause] admits no exception for cases in which the trial judge believes unconfronted testimonial
8.03 Admission by Party^1
(1) A statement of a party which is inconsistent with
the party’s position in the proceeding is admissible
against that party, if the statement is one of the
following:
(a) made by a party in an individual or
representative capacity and offered against the
party in that capacity, irrespective of the party’s
lack of personal knowledge of the facts asserted
by the party.
(b) made by a person in a relationship of privity
with the party and the statement concerns the
party’s and the person’s joint interest.
(2) A statement offered against an opposing party shall
not be excluded from evidence as hearsay if made by
[a] a person whom the opposing party authorized to
make a statement on the subject or [b] by the opposing
party’s agent or employee on a matter within the scope
of that relationship and during the existence of that
relationship.
The required authorization may be expressly given by
the party or implied from the scope of the agent’s or
employee’s duties or employment. The statement
cannot be used as proof of the agency or employment
relationship, or the claimed authority to make the
statement, or the scope of the agency or employment
relationship, unless it is admissible under another
exception.
Note Subdivision (1) (a) is derived from Reed v McCord (160 NY 330, 341 [1899]) which held that “admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever, or to whomsoever made.” Reed further held that the absence of personal knowledge on the part of the
party making the statement does not preclude the statement’s admissibility under the admission’s exception. ( See Reed v McCord , 160 NY at 341.) Unlike Federal Rules of Evidence rule 801 (d) (2) (A), which permits a party’s statement to be admitted against the party in either the party’s individual or representative capacity, present New York law authorizes the use of a statement made by the party in a representative capacity to be admitted against the party only in that capacity. ( See Commercial Trading Co. v Tucker , 80 AD2d 779 [1st Dept 1981].) Subdivision (1) (b) is derived from a series of Court of Appeals decisions which adopted this privity-based admissions exception. ( See e.g. Murdock v Waterman , 145 NY 55 [1895] [joint obligor]; Chadwick v Fonner , 69 NY 404 [1877] [grantor]; Hatch v Elkins , 65 NY 489 [1875] [principal-surety].) Subdivision (2) contains three sentences. The first sentence restates verbatim CPLR 4549 (enacted by L 2021, ch 833), except for the insertion of paragraph letters, and sets forth two closely related hearsay exceptions for statements made by an agent or employee offered against the principal or agent. When the agent’s or employee’s statement is admitted under either of the exceptions, the statement is treated as a party’s admission ( see Michael J. Hutter, New CPLR 4549: Admissibility of Agent/Employee Statements Against the Principal/Agent , NYLJ, Feb. 16, 2022 at 3, col 1). Paragraph (a) of the first sentence codifies New York’s well established common law “speaking agent” exception, permitting the admission of a statement of a party’s agent or employee against the principal or employer when the party has authorized the statement to be made; paragraph (b) creates a new exception permitting the admission of a statement of a party’s agent or employee against the party principal or employer when the statement concerns a matter within the scope of the agency or employment irrespective of whether the statement was authorized or not. Before the enactment of CPLR 4549, New York’s common law did not recognize a hearsay exception for an agent’s or employee’s statement concerning the relationship when the agent or employee had no speaking authority. The operative element of the “speaking agent” exception is that the agent or employee has been given authority to make the statement in issue ( see e.g. Tyrrell v Wal-Mart Stores , 97 NY2d 650, 652 [2001] [“The Appellate Division correctly concluded that plaintiff failed to establish that the unidentified employee was authorized to make the alleged statement; thus, the statement did not constitute an admission binding on the employer”]; Loschiavo v Port Auth. of N.Y. & N.J. , 58 NY2d 1040, 1041 [1983] [“(T)he hearsay statement of an agent is admissible against his employer under the admissions exception to the hearsay rule... if the making of the statement is an activity within the scope of his authority”]; Merchants’ Natl. Bank, of Gardner, Kennebec County, Me. v Clark , 139 NY 314, 319 [1893] [“Hearsay evidence of this character is only permissible when it relates
The subdivision’s third sentence addresses foundational requirements, specifying that the agent’s or employee’s statement cannot be used as proof of the agency or employment relationship, or the claimed authority to make the statement, or the scope of the agency or employment relationship unless it is admissible under another exception. Proof of those foundation elements must be made by independently admissible evidence, i.e., evidence other than the statement being offered into evidence. This requirement is derived from present law governing the “speaking agent” exception (Martin, Capra & Rossi, NY Evidence Handbook § 8.3.2 [2d ed]). No principled reason suggests that it should not also apply to the newly created exception. Of note, Federal Rules of Evidence rule 801 (d) (2) provides that the agent’s or employee’s statement may be considered along with other evidence to establish the agency relationship. An agent’s or employee’s lack of personal knowledge of the facts underlying an otherwise admissible statement does not under existing New York law preclude the statement’s admissibility (Martin, Capra & Rossi, supra at 715; see also Reed , 160 NY at 341). This rule does not bar the admission of an employee’s statement that is admissible on other grounds. See, for example, the rules on declaration against interest ( Kelleher v F.M.E. Auto Leasing Corp. , 192 AD2d 581, 583 [2d Dept 1993]); excited utterance ( Tyrrell , 97 NY2d at 652 [recognizing potential but finding insufficient foundation for its admissibility]); and verbal act ( Giardino v Beranbaum , 279 AD2d 282 [1st Dept 2001]). For the rule on “informal judicial admissions” and “formal judicial admissions” by a party see Guide to New York Evidence rule 8.23. (^1) In June 2022, this rule and Note were amended for the purpose of incorporating CPLR 4549, enacted in 2021. Subdivision (1) (c) was deleted, and subdivision (2) was added to incorporate portions of former subdivision (1) (c) and CPLR 4549.
8.05 Admission by Adopted Statement^1
(1) A person who understands and clearly expresses
assent in word or conduct to a statement of another
that is inconsistent with that person’s position in the
proceeding adopts that statement as his or her own and
the statement is thus admissible in evidence as that
person’s adopted admission.
(2) Except as provided in subdivision three, an out-of-
court statement made by a person that is inconsistent
with a party’s position in the proceeding is admissible
against that party if the party heard and understood
the statement and provided an equivocal or evasive
response or remained silent when he or she would
reasonably have been expected to deny the statement
and had an opportunity to do so.
(3) In a criminal proceeding when, before or after a
defendant’s arrest, the defendant is silent following a
statement made to the defendant by a person the
defendant knows to be a member of law enforcement,
during the performance of his or her duties, the
defendant’s silence is not admissible as an admission or
to impeach the defendant’s testimony, except as
provided in paragraphs (a) and (b).
(a) The silence of a defendant, who at the time
was a law enforcement officer, in the face of an
accusation of criminal conduct by a fellow officer
is admissible if the defendant was under a duty
to inform his or her superiors of his or her
activities.
(b) A defendant who, prior to trial, makes a
voluntary statement relating to the criminal
transaction at issue and then provides testimony
at a criminal proceeding with respect to that
transaction may be impeached by the
defendant’s omission of critical details from the
