CACI 212 Statements of a Party Opponent

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.

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 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 (5th ed. 2012) Hearsay, §§ 91–94, 126
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 127
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)