MBE Rules · Evidence
Non-hearsay — opposing party statement
FRE 801(d)(2)
The rule
A statement offered against an opposing party is non-hearsay if: (A) made by the party in individual or representative capacity; (B) one the party adopted/manifested belief in; (C) made by authorized agent; (D) made by party's agent/employee on a matter within scope, during employment; (E) made by co-conspirator during and in furtherance of conspiracy.
In plain English
If someone says something that can be used against them in court, it's not considered hearsay if they or someone connected to them made the statement.
Worked example
During a fraud trial, an email from the defendant's employee admitting to false billing is used as evidence. The email isn't hearsay because it was made by the employee during their job.
Memory hook
Opposing Party's Own Words: Not Hearsay. If it's their talk, it can walk into court.
The trap
Students think: Any statement by a party is non-hearsay. Wrong, because it must be used against them. The actual test is whether it's offered by the opponent.
How examiners test it
Test setup: employee's statement during work. Trap: assuming any employee statement qualifies. Must be within job scope and during employment.
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