A hypothetical: Defendant is involved in a motor vehicle accident which results in the death of victim. Victim’s family has commenced a wrongful death action against the defendant and a grand jury has indicted defendant, charging him with criminally negligent homicide. At both the civil and criminal trials a witness will testify that at the scene of the accident defendant told the witness he was texting while driving. As such a statement by defendant constitutes an admission, the witness’s testimony recounting that statement will be admissible under New York’s party admissions hearsay exception.1 Assume now that the witness approaches the defendant right after the accident and says to defendant in a loud voice: “The accident is all your fault. You were texting.” May the witness testify to what the witness said to defendant? On these facts the witness may not since the testimony, being offered for its truth, would be barred by the hearsay rule.2 The question that now arises is whether the statement can be deemed one made by the defendant and thus admissible under the exception?
New York law has long recognized that a statement to fall within the exception need not always be made by the party against whom it is being offered. Rather, a statement made by another person may be admissible provided the party has adopted it, bringing it within New York’s adoptive admission rule as embraced within the party admissions exception. As stated by the Court of Appeals, an adoptive admission occurs “when a party acknowledges and asserts to something already uttered by another person, which thus becomes effectively the party’s own admission.”3 Notably, this adoptive admissions rule is firmly entrenched in both civil and criminal proceedings.4
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