4/16/24: Helpful decision on the hearsay exception for statements of a party opponent

In United States v. Mirabal, --- F.4th ---, No. 22-50217 (9th Cir. 2024), the Court vacated Gabriel Mirabal’s conviction by jury trial for two counts of assaulting a federal officer resulting in bodily injury, in violation of 18 U.S.C. § 111, and remanded for further proceedings.

The Court held the district court abused its discretion in excluding the sworn statement of a government attorney as hearsay at Mirabal’s trial because, in a criminal case, the sworn statement of a government attorney in a plea agreement or sentencing memorandum is a party admission, excluded from the definition of hearsay under Federal Rule of Evidence 801(d)(2).

Today, we examine the application of . . . Rule 801(d)(2) in the context of government attorney statements. Doing so, we hold that, in a criminal case, the sworn statement of a government attorney in a plea agreement or sentencing memorandum is a party admission, excluded from the definition of hearsay under Rule 801(d)(2).

There is no question that, as our decision in Van Griffin implies, “the Federal Rules clearly contemplate that the federal government is a party-opponent of the defendant in criminal cases. Nor can it be seriously disputed that, as the Department of Transportation in Van Griffin was the “relevant and competent section of the government” when it came to highway safety, so is the Department of Justice with respect to criminal prosecutions. The logic of our decision in Van Griffin comfortably encompasses formal, signed statements made by a government attorney in filings before a court, such as plea agreements and sentencing memoranda. We therefore hold that when a criminal defendant seeks to introduce such statements at trial, they fall within Rule 801(d)(2)’s hearsay exclusion for statements made by an opposing party.

We do not determine how far Rule 801(d)(2) extends to other government employees. And exactly which departments of the federal government are a party-opponent will depend on a case’s factual circumstances. Today, we hold only that “in criminal cases, the Justice Department certainly should be considered” a party-opponent of criminal defendants.