CACI 213 Adoptive Admissions

California Civil Jury Instructions CACI

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/nonbinary pronoun] 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/nonbinary pronoun] thought it was not true;


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.]

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 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 (5th ed. 2012) Hearsay, §§ 103–106
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)