The Construction of Admissions of Fault through American Rules of Evidence: Speech, Silence and Significance in the Legal Creation of Liability




Chapter 8

The Construction of Admissions of Fault through American Rules of Evidence: Speech, Silence and Significance in the Legal Creation of Liability


Janet Ainsworth


Law is an inherently normative enterprise (Schlag 1991), and nowhere is that truer than in its normative approach to what may seem to be purely procedural matters such as the rules governing the admission of evidence in court. This chapter examines the way in which unexamined norms of language usage and meaning implicature are embedded within common law legal system through an examination of two American rules of evidence: one in which the law expressed a normative preference for speaking and consequently penalizes those who instead remain silent, and one in which the law expresses a normative preference for silence and legally penalizes those who instead speak. In both instances, the law’s normative approach is empirically baseless and linguistically naive.


The United States, like other common law nations, uses evidence that can be introduced from the English adversarial trial advocacy system as gatekeeping rules, determining the admissibility of testimonial evidence can be introduced in a trial. The overarching standard for admissible evidence requires that it be both reliable—that is, worthy of credibility—and probative—that is, tending to prove some material fact at issue in the case. The emphasis on reliability explains the preference in common law hearsay evidence rules for the testimony of firsthand direct observers over second-hand reports of someone else’s observations. The relevance rule, similarly, is grounded in the common law’s privileging of testimony that has some tendency, even if slight, to prove a fact that the law deems to be material in resolving the dispute at hand. Evidence rules are seen in law as a gatekeeper ensuring reliability and probative power in admitted testimony. However, a critical examination of how the evidence rules operate exposes the ways in which common law rules of evidence are grounded in assumptions about human nature and behavior that are neither empirically grounded nor, candidly, even anecdotally persuasive as believable accounts of communicative performance.


A few examples suffice to make this point. For example, while ordinarily out-of-court utterances are excluded under the hearsay rules because it is impossible to assess their credibility, statements made by those who believe they are on the point of death are admissible in court as reliable evidence. The theory justifying the admission of this evidence is that deathbed utterances must be reliable because no one who believed they were about to die would willingly do so with a lie on their lips. This justification may once have been persuasive, perhaps, but it is difficult to believe today. Might a person, knowing that death is near, be tempted to take a last opportunity to shade the truth in order to make him or herself look better or to secure last-minute revenge on an enemy? Likewise, what a patient says to a doctor for purposes of obtaining medical treatment is legally considered to be reliable and thus admissible evidence because the law presumes that no one would intentionally lie to a doctor. Yet the law’s assumption that such statements are reliable and true flies in the face of what we know about typical patient behavior. Certainly, patients have reason to be less than candid with their doctors about aspects of their behavior—what they eat; whether they indulge in the consumption of alcohol, tobacco and drugs; whether they engage in risky sexual practices; how often they exercise—because they wish to evade potential disapproval of their lifestyle choices. Again, the assumptions behind the rules of evidence appear outdated and naive upon examination. The presumptions underlying the rules of evidence have never been subject to empirical testing by behavioral scientists. Even on non-scientific, commonsense reflection, they seem implausible as a description of actual human motivation and behavior. Despite the strained plausibility of the justifications for these evidentiary rules, the situations described nevertheless lead to admissible testimony on the basis of unexamined beliefs encoded in law about how the “reasonable man” behaves. In other words, the evidence rules acknowledge that the “reasonable man” might lie at times in his life when it is in his interest to do so, but never when he is on the point of Judgment Day. Likewise, the “reasonable man” presumably never evades the truth with his doctor, even when it would expose embarrassing or unflattering aspects of his lifestyle to medical disapproval.


A closer examination of two other evidence rules based on similar unexamined assumptions about behavior and language exposes the implausibility of the behavioral assumptions upon which they are grounded. In the first example considered here, the rules of evidence construe a person’s silence in the face of accusation as admissible evidence of admission of wrongdoing, presuming that the “reasonable man” would not remain silent under such circumstances. In the second example analyzed in this chapter, the rules of evidence construe any apologetic language used by a person to constitute admissible evidence of an admission to legal responsibility for the circumstance to which the apologetic language referred. In each case, the law assumes that the linguistic behavior which it constructs as that of the “reasonable man” is an adequate and appropriate basis for considering evidence to be both reliable and probative, and hence admissible in court.


As in other areas of the common law, evidence rules are predicated on beliefs about the behavior—in this case, the linguistic behavior—of what the law traditionally called the “reasonable man.” As a general matter, the construct of the “reasonable man” sets the standard in law for legally privileged behavior and activity in the application of substantive legal doctrines, where acting as the law assumes the “reasonable man” would do insulates the actor against both civil and criminal liability. The power of the “reasonable man” construct in law extends beyond the substantive law of torts and criminal law, however, and extends its reach into the procedural realm of evidence law as well. The “reasonable man” has long dominated the common law legal imagination (see, for example, Vaughn v. Menlove 1837). As described within legal opinions, the “reasonable man” is the embodiment of middle-class values, sensibilities and practices—in the words of one judge, “the man who takes the magazines at home and in the evening pushes the lawnmower in his shirt sleeves” (Hall v. Brooklands Auto Racing Club 1933, 224). In recent years, the law’s “reasonable man” has morphed into the “reasonable person” in an attempt to render the standard more universal and less particularly masculine. Legal scholars have expressed skepticism as to whether this terminology change has effectuated any substantive changes in the behavior expected by the law of this newly gender-neutral “reasonable person” (Bender 1988, 22; Cahn 1992, 1, 405). Rather, the use of this gender-neutral standard may well serve only to impose a superficial mask of purported universality onto the unchanged behavioral norms and values incorporated in that original “reasonable man” standard (Graddol and Swann 1989, 110).


The influence of the assumed characteristics of the “reasonable man” in law can be seen in the workings of the rules of evidence at issue here. Specifically, the rules of evidence construe a person’s silence in some circumstances as though it were in effect a confession of wrongdoing. Federal Rule of Evidence 801 (d) (2) (B) provides that if a person is confronted with an accusatory statement by someone else under circumstances in which a “reasonable man” would rebut that statement, and instead the hearer remains silent, that silence is admitted as an adoptive admission of the truth of the accusation. Before silence can be taken as a confession, the accused person must have heard and understood the accusatory utterance in question, must have had the opportunity to object to it, and the context must be one in which it would be reasonable to expect that there be a response to the accusation (Wigmore 1904, 102). Once these threshold requirements are met, silence in the face of someone’s accusation is treated by the rules of evidence as the legal equivalent to an actual confession to the charge. The presumption behind the rule is that, when faced with an accusation of wrongdoing that is untrue, the “reasonable man” can have only one reasonable response—to explicitly and unequivocally deny it. This evidence rule, then, can be seen to be squarely premised on assumptions about how the “reasonable man” will express himself in situated discourse. The legally constructed “reasonable man” speaks directly, clearly, bluntly and without qualification, hesitation or mitigation (Ainsworth 1993, 302–6, 315–17). He never shrinks from confrontation, regardless of the circumstances. Moreover, he must maintain constant vigilance in his discursive interactions in case someone might use insulting or accusatory language in his presence—vigilance needed so that he spring into action and immediately rebut any implication of wrongdoing on his part.


When articulated in that fashion, the adoptive admission evidentiary rule seems to be based on a caricature of discursive behavior that is unconvincing. Indeed, a handful of courts over the years have suggested that silence in the face of arguable accusation should not necessarily be treated as tantamount to confession (see, for example, People v. Bigge 1939; State v. Clark 2008). Nevertheless, the vast majority of American appellate courts have endorsed these supposed adoptive admissions unreflectively. Worse, courts not infrequently apply the adoptive admission doctrine even in cases in which the foundational facts required by the rule for admissibility are highly questionable. The adoptive admissions rule makes no sense unless, at the very least, the party in question has actually heard the supposed accusation. In some cases, however, it is unclear from the evidence adduced at trial that the defendant even heard the statement in question because he may not have been in the room when the supposed accusation was uttered (Alvarado v. State 1995) or he was in the back seat of a car when a person sitting in the front seat supposedly made an accusation in a conversation with another front seat passenger (US v. Carter 1985). In other cases, the person who was said to have used accusatory language in the defendant’s presence was unable in their courtroom testimony to recall whether or not the defendant remained silent upon hearing the purported accusatory statement, but the adoptive admission was used against the defendant none the less (Commonwealth v. Braley 2007).


The unfairness of the adoptive admissions doctrine is compounded by the fact that it is often applied in contexts in which the inferential link between the fact of silence and a presumed admission of guilt is extraordinarily unpersuasive as a matter of common sense. For example, in many cases, the supposedly accusatory language is not made in an interaction in which the accused person is a party, but instead merely made within his earshot in a conversation to which he is not a party. Apparently, the law insists that the “reasonable man” must monitor any conversation that happens to be within his hearing, and police it for direct or indirect accusations of wrongdoing, whether he is an addressee of that conversation or not. The “reasonable man” must moreover be particularly alert to ambiguous language that could potentially be interpreted as an accusation against him, especially if someone is using pronouns of ambiguous referential scope such as “we” (People v. Sneed 1995) or “they” (People v. Riel 2000) in describing someone’s actions. Statements that are ambiguous, if they have any potentially available interpretation that could be construed as possibly accusatory, are especially fraught with the peril of an inadvertent tacit admission of wrongdoing. According to the adoptive admissions rule, innocent-sounding remarks with multiple potential meanings that might conceivably have an incriminating implication must be objected to, or else risk an admission to the incriminating interpretation. For example, in a conversational exchange between two corporate officers, the statement by one of them that “I’ll see if we can get anything for this work” was construed to be an agreement that an illegal bid rigging be arranged. Despite the fact that this statement is entirely consistent with an attempt to procure business in a lawful manner, the defendant’s failure to anticipate and object to an interpretation of his statement that implied unlawful bid rigging was considered by the court as an admission that he was aware of the illegal nature of the bid (US v. Basic Construction Co. 1983).


Even a failure to object to innocuous, non-accusatory statements can result in adoptive admissions when, after the conversation has concluded, those statements—innocent in the context in which they were made—turn out to be inculpatory. For example, when a stranger referred to the defendant as “John” to another without objection by the defendant, the court held his lack of protest to be an admission that the defendant went by that name (State v. Wallingford 2001). In another case, the defendant’s failure to object to another person’s claim that she usually carried a gun was construed as an admission that not only did she usually carry a gun, but also that she was in possession of a gun at the time of a crime that occurred long after the conversation in question. Apparently, according to this court’s analysis, she should have foreseen that failure to object to this characterization of her habitual behavior would constitute an “admission” of a fact concerning a crime that had not even occurred at the time (State v. Browning 1997). In other words, the law’s imagined “reasonable man” is supposed to be alert to the possibility that inaccurate statements made in his presence—however inconsequential they might appear at the time—could turn out to incriminate him for crimes that might occur at some time in the future.


According to this legal doctrine, a “reasonable man” doesn’t simply ignore name-calling, but instead must object to it, or be held to have agreed with the characterization. In one such case, when the defendant was called a “butcher,” his failure to argue with the name-caller was later held by the court to be an admission of that fact (State v. Gorrell 1996). Similarly, ducking a rude, point-blank question about impropriety can result in the court construing a refusal to engage with the questioner as adoptive admission of guilt, as when a corporate executive, asked by a reporter at a press conference if the corporation had been “cooking the books,” responded by saying, “Next question, please.” Although one plausible interpretation of this response is that the executive merely had no intention of engaging the reporter hounding him, the court instead found that his failure to deny the allegation constituted an admission on his part. In the court’s view, the “reasonable man” in such a situation would have directly rebutted the reporter’s claim without attempting to avoid it (US v. Henke 2000). Even reacting angrily to an accusation may not be sufficient to avoid the adoptive admission trap, as when a frustrated and angry defendant told an accuser to “shut the f— up.” This angry outburst was insufficiently responsive to the accusation, in the opinion of the reviewing court, and actually constituted an admission that the accusation was correct (State v. Gilmore 1999).


At times, even an explicit denial of an accusation may not be adequate to avoid an imputed adoptive admission if the defendant fails to repeat the denial each time the accusation is made. For example, in one case the defendant was asked if he had committed the crime, and he explicitly denied it. The questioner responded to this denial by telling him that a third party thought that he had done it. Instead of repeating the denial anew, the defendant in this case reacted by turning his head and staring out the window. The court could easily have characterized this response as shock or dismay that someone could think that he had committed the crime, but instead construed it as an adoptive admission because he failed to repeat the denial that he had made just seconds before (State v. Gomez 2004).


Cases involving recorded telephone conversations pose special problems for appropriate implicated meaning because each conversant’s inability to see the other person’s facial expressions or body language can give rise to implicature that is not intended, including a false impression of acquiescence to an accusation. For instance, in one such case, a defendant’s silence during a recorded jailhouse telephone conversation while a friend read to him a newspaper account of the crime was admitted as an adoptive admission of the facts as set out in the news story, on the theory that the “reasonable man” would have objected during the recitation of the newspaper’s version of the crime (US v. Higgs 2003). In another case involving a recorded jailhouse conversation, the defendant was told by the other party to the conversation that the police had asked that party “twelve times” whether he had seen the defendant shoot the victims, to which the defendant replied, “Oh man, twelve times.” From this response, the court concluded that the defendant had admitted to being the shooter because his response did not include a specific denial of that fact. Of course, there was no reason for him have objected in this conversation to the police theory that he was the shooter, because the other party gave no indication that he shared that police belief.

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