PAINE ON PROCEDURE

Admissions ‘against interest’
By Donald F. Paine

How much longer must I preach this sermon? There ain’t no such thing as admissions “against interest.” The true principle supporting the opposing party admissions exception to the hearsay exclusionary rule is this: Anything the opposing party said or wrote out of court is admissible in court against that party. Whether the statement was disserving or self-serving when made is immaterial.

You computer literati out there need to program your equipment to delete the words “against interest” anytime you type them after the word “admission.” And that goes for some of you judges (you know to whom I refer).

The best example of the lunacy underlying “against interest” arises in a divorce trial between rich folks. A spouse claims poverty during trial proof. But last year that same litigant submitted a financial statement to a bank claiming assets worth over $1 million. Was that statement self-serving when made? Probably. Is it disserving at trial? You bet. Is it admissible? Sure.

Sometimes an extrajudicial statement is made, not by the opposing party, but by the opposing party’s agent or employee. Take a look at Tennessee Rule of Evidence 803(1.2)(D). If you want to offer an agent’s statement against the principal, the agent must have been speaking or writing against his or her own interest. The federal version does not contain this requirement.

Admissions form an important and frequently used hearsay exception. Let’s learn to use it right.

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Donald F. Paine is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, Bickers, and Tillman LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and University of Tennessee College of Law. He is reporter to the Supreme Court Advisory Commission on Rules of Practice and Procedure.