That’s Using Your Head! Head Shaking, Nodding, and Smiling as Evidentiary Admissions

Authored by: Marc D. Ginsberg

Abstract

Studying and teaching the law of Evidence requires a significant focus on hearsay, hearsay exceptions, and hearsay exemptions or exclusions. This Article focuses on Federal Rule of Evidence 801(d)(2), the opposing party’s statement, and, specifically, 801(d)(2)(B), the opposing party’s statement by adoption.

At common law, the opposing party’s statement was characterized as an “admission,” suggesting that the statement must be inculpatory, made by a party and offered against the party at trial. The opposing party’s statement, however, is broader, and need not be inculpatory. It can encompass any relevant statement made by a party, so long as it is offered against the party at trial. An opposing party’s statement is “admissible, not because [it is] inherently more reliable as a class than hearsay generally. Rather, [it is] admissible by virtue of the nature of the adversary system.” The opposing party’s statement is defined in Federal Rule of Evidence 801(d)(2).

There are basic requirements of the adoptive admission. While the adoptive admission may be most likely encountered when an accusatory statement is made to another (in a civil or criminal context) to which the listener does not respond, this Article concentrates on the adoptive admission by head and facial gestures: the head shake, head nod and smile. The reason for this focus is that these gestures may implicate psychological considerations of which courts may not be aware.