Evidence - Rule 801(d)(2)(B) – Adopted Admissions

United States v. Lafferty, 503 F.3d 293 (3rd Cir. 2007)

If a defendant invokes his Miranda right to remain silent, her subsequent failure to deny an accusation, either by the police, or a co-defendant who is in the interrogation room, may not be introduced against the defendant as an adopted admission.

United States v. Williams, 445 F.3d 724 (4th Cir. 2006)

The defendant’s friend thought he was acting oddly and asked, “Did you kill somebody or what?” The defendant did not respond, “He was blank.” The government argued that the defendant’s non-response was an adopted admission of the friend’s statement. The Fourth Circuit disagreed. If someone questions the defendant, “Why did you rob the bank?” the failure to respond by denying that he robbed the bank could be treated as an adopted admission. But the question in this case was no so accusatory, so there was no admission by failing to respond.

United States v. Hove, 52 F.3d 233 (9th Cir. 1995)

A suspect’s refusal to testify before a grand jury cannot amount to an admission by silence under Rule 801(d)(2)(B). Also, an agent’s accusation which is not denied by a suspect (who responded that he wanted to investigate the matter) was not an admission by silence. Instructing the jury that they could infer an admission by the defendant’s silence was an abuse of discretion on the part of the trial court.

United States v. Joshi, 896 F.2d 1303 (11th Cir. 1990)

Undercover officers were introduced to the defendant by a co-conspirator; the co-conspirator stated that the defendant was a long time friend and partner in the smuggling operations. The defendant simply nodded. The government introduced this nod under Rule 801(d)(2)(B). When a statement is offered as an adoptive admission, two criteria must be met: First, the statement must be such that an innocent defendant would normally be induced to respond; Second, there must be sufficient foundational facts from which the jury could infer that the defendant “heard, understood, and acquiesced in the statement.” Though this is a close case, the court finds that the evidence was admissible here. The court notes, however, that the prosecution should first provide some evidence of the two foundational prerequisites before introducing the adoptive admissions, and not rely on “linking it up” in the future.