California Civil Jury Instructions (CACI) (2017)

212. Statements of a Party Opponent

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212.Statements of a Party Opponent
A party may offer into evidence any oral or written statement made by
an opposing party outside the courtroom.
When you evaluate evidence of such a statement, you must consider
these questions:
1. Do you believe that the party actually made the statement? If
you do not believe that the party made the statement, you may
not consider the statement at all.
2. If you believe that the statement was made, do you believe it was
reported accurately?
You should view testimony about an oral statement made by a party
outside the courtroom with caution.
New September 2003
Directions for Use
Under Evidence Code section 403(c), the court must instruct the jury to disregard a
statement offered as evidence if it finds that the preliminary facts do not exist. For
adoptive admissions, see CACI No. 213, Adoptive Admissions.
Sources and Authority
• Determination of Preliminary Facts. Evidence Code section 403.
Statements of Party. Evidence Code section 1220.
The Law Revision Commission comment to this section observes that “[t]he
rational underlying this exception is that the party cannot object to the lack of
the right to cross-examine the declarant since the party himself made the
statement.”
• There is no requirement that the prior statement of a party must have been
against his or her interests when made in order to be admissible. Any prior
statement of a party may be offered against him or her in trial. (1 Witkin,
California Evidence (4th ed. 2000) Hearsay § 93.)
• The cautionary instruction regarding admissions is derived from common law,
formerly codified at Code of Civil Procedure section 2061. The repeal of this
section did not affect decisional law concerning the giving of the cautionary
instruction. (People v. Beagle (1972) 6 Cal.3d 441, 455, fn. 4 [99 Cal.Rptr. 313,
492 P.2d 1].)
• The purpose of the cautionary instruction has been stated as follows:
“Ordinarily there is strong reasoning behind the principle that a party’s
extrajudicial admissions or declarations against interest should be viewed with
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caution. . . . No class of evidence is more subject to error or abuse inasmuch
as witnesses having the best of motives are generally unable to state the exact
language of an admission and are liable, by the omission or the changing of
words, to convey a false impression of the language used.” (Pittman v. Boiven
(1967) 249 Cal.App.2d 207, 214 [57 Cal.Rptr. 319].)
• The need to give the cautionary instruction appears to apply to both civil and
criminal cases. (See People v. Livaditis (1992) 2 Cal.4th 759, 789 [9
Cal.Rptr.2d 72, 831 P.2d 297] (conc. opn. of Mosk, J.).)
Secondary Sources
1 Witkin, California Evidence (4th ed. 2000) Hearsay, §§ 90–93, 125
3Witkin, California Evidence (4th ed. 2000) Presentation at Trial, § 113
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 3.7–3.22
2 California Trial Guide, Unit 40, Hearsay, § 40.30 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.76 (Matthew
Bender)
CACI No. 212 EVIDENCE
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