California Civil Jury Instructions (CACI)

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

  • Evidence Code section 1220 provides: “Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.”

    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.)
  • Evidence Code section 403(a)(4) provides: “The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact when [t]he proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself.”

  • 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 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

3 Witkin, 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)