California Civil Jury Instructions (CACI) (2017)

213. Adoptive Admissions

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213.Adoptive Admissions
You have heard evidence that [name of declarant] made the following
statement: [describe statement]. You may consider that statement as
evidence against [name of party against whom statement was offered] only
if you find that all of the following conditions are true:
1. The statement was made to [name of party against whom statement
was offered] or made in [his/her] presence;
2. [Name of party against whom statement was offered] heard and
understood the statement;
3. [Name of party against whom statement was offered] would, under
all the circumstances, naturally have denied the statement if [he/
she] thought it was not true;
3. AND
4. [Name of party against whom statement was offered] could have
denied it but did not.
If you decide that any of these conditions are not true, you must not
consider for any purpose either the statement or [name of party against
whom statement was offered]’s response.
[You must not consider this evidence against any other party.]
New September 2003; Revised December 2012
Directions for Use
Under Evidence Code section 403(c), the court must instruct the jury to disregard
the evidence of an adoptive admission if it finds that the preliminary facts do not
exist.
For statements of a party opponent, see CACI No. 212, Statements of a Party
Opponent. Evasive conduct falls under this instruction rather than under CACI
No. 212.
Sources and Authority
• Determination of Preliminary Facts. Evidence Code section 403.
Adoptive Admissions. Evidence Code section 1221.
• “When a person makes a statement in the presence of a party to an action under
circumstances that would normally call for a response if the statement were
untrue, the statement is admissible for the limited purpose of showing the
party’s reaction to it. His silence, evasion, or equivocation may be considered as
a tacit admission of the statements made in his presence.” (In re Estate of
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Neilson (1962) 57 Cal.2d 733, 746 [22 Cal.Rptr. 1, 371 P.2d 745].)
• In order for the hearsay evidence to be admissible, “it must have been shown
clearly that [the party] heard and understood the statement.” (Fisch v. Los
Angeles Metropolitan Transit Authority (1963) 219 Cal.App.2d 537, 540 [33
Cal.Rptr. 298].) There must also be evidence of some type of reaction to the
statement. (Ibid.) It is clear that the doctrine “does not apply if the party is in
such physical or mental condition that a reply could not reasonably be expected
from him.” (Southers v. Savage (1961) 191 Cal.App.2d 100, 104 [12 Cal.Rptr.
470].)
• “[T]here may be admissions other than statements made by the party himself;
that is, statements of another may in some circumstances be treated as
admissions of the party. The situations are (1) where the person who makes the
statement is in privity with the party against whom it is offered, as in the case
of agency, partnership, etc.; and (2) where the statement of the other is adopted
by the party as his own, either expressly or by conduct. Familiar examples of
this second situation are the admissions by silence, where declarations of third
persons made in the presence of a party give rise to admissions, the conduct of
the party in the face of the declaration constituting the adoption of the statement
to form an admission.” (In re Estate of Gaines (1940) 15 Cal.2d 255, 262 [100
P.2d 1055].)
• “The basis of the rule on admissions made in response to accusations is the fact
that human experience has shown that generally it is natural to deny an
accusation if a party considers himself innocent of negligence or wrongdoing.”
(Keller v. Key System Transit Lines (1954) 129 Cal.App.2d 593, 596 [277 P.2d
869].)
• If the statement is not accusatory, then the failure to respond is not an
admission. (Neilson, supra, 57 Cal.2d at p. 747; Gilbert v. City of Los Angeles
(1967) 249 Cal.App.2d 1006, 1008 [58 Cal.Rptr. 56].)
• Admissibility of this evidence depends upon whether (1) the statement was
made under circumstances that call for a reply, (2) whether the party understood
the statement, and (3) whether it could be inferred from his conduct that he
adopted the statement as an admission. (Gilbert, supra, 249 Cal.App.2d at p.
1009.)
Secondary Sources
1 Witkin, California Evidence (4th ed. 2000) Hearsay, §§ 102–105
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 3.23–3.30
Cotchett, California Courtroom Evidence, § 21.09 (Matthew Bender)
2 California Trial Guide, Unit 40, Hearsay, § 40.31 (Matthew Bender)
214. Reserved for Future Use
CACI No. 213 EVIDENCE
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