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Evidentiary Admissions of Defense Counsel in Federal Criminal Cases (From Criminal Law Review, P 425-456, 1988, James G Carr, ed. -- See NCJ-114710)

NCJ Number
G S Humble
Date Published
32 pages
With regard to the admissibility of attorney's prior out-of-court statements, the Federal Rules of Evidence have adopted the view that such admissions are a product of the adversary system and are not hearsay.
Although such statements generally are relevant because of their inconsistency with the party-opponent's position at trial, they may be considered for the truth of the matter asserted. While there has been some controversy, it is generally accepted that such admissions are admissible even if the declarant lacks personal knowledge and the statement is merely an opinion, a conclusion, or hearsay. Courts generally have analyzed evidentiary admissions of counsel like the statements of other agents under rules 801(d)(1)(B) and (C), although attorney admissions in criminal cases may raise some unique issues with respect to attorney-client privilege, defense counsel disqualification, work product doctrine, the privilege against self-incrimination, and advocacy in general. It is argued that when a lawyer speaks and acts in a client's behalf, the client should not immunized from the attorney's statements that may be inconsistent with the client's position at trial. The major consideration in such admissions is the inconsistency evidenced by the conflicting statements. Attorney admissions further the search for truth by not permitting defendants to take inconsistent positions on facts. They also discourage bad-faith changes of position because of the prosecutor's ability to introduce earlier positions into evidence. Such attorney admissions may, in many cases, act as a legitimate and effective means of encouraging disclosure of the truth and do not impermissibly infringe upon the constitutional rights of the individual. 183 footnotes.