Sovereign Speech in Troubled Times: Prosecutorial Statements as Extrajudicial Admissions
100 Pages Posted: 15 Jan 2020 Last revised: 14 May 2021
Date Written: 2019
On its face, Federal Rule of Evidence 801(d)(2) is elegantly simple. Distinguishing between neither private persons nor public entities, it renders admissible out-of-court statements made by an agent “authorized to make a statement on the subject” and by an agent or employee “on a matter within the scope of... [its] relationship” to the party per subparagraph (C) and (D), respectively. More colloquially, Evidence Rule 801(d)(2)(C) permits the introduction of an authorized representative’s statements into a case’s evidentiary record, and Evidence Rule 801(d)(2)(D) does the same for statements uttered by certain agents and employees. History partly vindicated the former, while a substantial trend favored the latter, at their official release in 1975.
Yet, to this day, an intractable doctrinal battle has raged over whether a federal prosecutor’s statements, from the initiation of a criminal investigation through a trial’s conclusion, fall within either subdivision. Invoking filaments of policy, a seeming majority has concocted a complicated test to avoid any chance of ready admission. Conjuring history, a minority has rejected the rule’s application out of deference to the sovereign’s historic role and hallowed prerogatives. A negligible handful have heeded neither and applied the rule according to its plain terms, their persuasiveness perpetually undercut by patent tentativeness. Unfortunately, due to this interminable contest, the common law’s historic ills, from stultifying formalism to maddeningly technical prohibitions, have been replicated in a world traversed by more modern codes and enamored of more flexible theories. Behind the scenes, a truth once loudly trumpeted enthralls, its effective dethronement ignored by one and all.
This article wades into this debate, making three contributions to an oft-opaque literature and a maddeningly indecisive jurisprudence. First, it summarizes the relevant ethical, constitutional, and statutory provisions, so as to dispel the mist induced by too many one-side perorations. Strangely enough, no such updated compendium exists. Second, this article collects and refines the relevant arguments and draws a necessary conclusion founded on every relevant rule, statute, and code, including a thorough examination of the interlocking nature of the federal rules in toto. Despite its length, it thereby achieves a comprehensiveness and a brevity sorely missing from extant authority. Lastly, it touches upon the utterly overlooked significance of the parties’ powers and duties during criminal discovery.
In short, in the pages herein, the holistic analysis required by modern precedent and neglected by courts and scholars in weighing the application of Evidence Rule 801(d)(2) to prosecutorial statements finally appears. Notably, it is one that may yet be extended to other federal rules and other fields with little difficulty. With that objective achieved, the debate that has deformed an unambiguous mandate and defied modernity’s rightful demands can finally end. In other words, by this piece’s end, the past has been mined, the present understood, and the future laid out, all as hoary justice and plain meaning compel.
Keywords: Evidence Rule 801, Federal Rules of Evidence, Federal Rules of Criminal Procedure, Federal Rules of Civil Procedure, Criminal Discovery, Plea Bargain, Civil Discovery, United States Attorneys' Manual, admissions, prosecutorial abuse, discretion, Batson, Blackstone, Admissions, Hearsay, Nonhearsay
JEL Classification: K00, K10, K14, K20, K22, K23, K29, K30, K39, K40, K41, K42, K49
Suggested Citation: Suggested Citation