concluding that whether a party has adopted a statement through conduct, such that the statement is admissible as a party-opponent admission under OEC 801(4)(b)(B), is a preliminary question of fact under OEC 104(1)
How later courts described this case
- concluding that whether a party has adopted a statement through conduct, such that the statement is admissible as a party-opponent admission under OEC 801(4)(b)(B), is a preliminary question of fact under OEC 104(1)
- stating that, “[w]hen it is claimed ... that a party-litigant has manifested an adoption or a belief by nonverbal conduct and the conduct is susceptible of more than one interpretation, the analysis is more complex”
- concluding that compelling circumstances did not result merely because an officer, in the course of responding to a report of a domestic dispute, asked the defendant about needle marks on his arm
- wording of OEC 104(1) and commentary to it suggest that the issue whether the defendant’s nonverbal reaction to his wife’s accusatory statement manifested his intention to adopt the statement was a preliminary question of fact for the trial judge under OEC 104(1)
Written by the judges who cited it.
The opinion
GRABER, J.,
concurring.
I agree with the result that the majority reaches and with its reasoning except on one point. I write separately to disavow a part of the opinion that addresses the question whether the foundation for evidence offered under OEC 801(4)(b)(B) falls under OEC 104(1) or OEC 104(2).
To support the holding that the intent to adopt or agree with another’s statement is a preliminary question of fact under OEC 104(1), the majority offers four reasons. First, the wording of the rule suggests that result, because the party’s intent is a preliminary question concerning “the *220 admissibility of evidence,” which generally belongs in the trial judge’s province. Second, the Legislative Commentary broadly interprets the scope of OEC 104(1) and includes analogous illustrations. Third, OEC 104(2) relates to the relevance, as distinct from the competence or admissibility, of evidence. 311 Or at 211. Although the intent to adopt or agree with another’s statement is what makes an adoptive admission relevant, it also can properly be classified as a preliminary requirement for admissibility.
In my view, those reasons suffice. I cannot concur, however, in the majority’s fourth explanation: that the capacity for mischief of a hearsay statement is so great “that judicial intervention is required to prevent improper use of evidence.” 311 Or at 213.
The majority’s discussion of the policy reasons for its result suggests a distrust for juries, which I do not share. The danger that a jury may misuse evidence that turns out to be inadmissible, or that is admissible for a limited purpose, exists in many trials and in many contexts. Ordinarily, we expect the trial court to give appropriate limiting or cautionary instructions, 1 and we also presume that jurors follow those instructions. 2 There is no reason to suppose that jurors are less capable of following proper instructions, if needed in a particular case, when the question is one of conditional relevance under OEC 104(2), than of following other evidentiary instructions.
As the majority acknowledges, adoptive admissions need not be “admissions” or against the party’s interest, 3 so there is nothing inherently more damaging about these statements than about other conditionally relevant evidence that jurors might hear. What is different about adoptive admissions is that, in the absence of the intent to adopt or agree with them, the statements are hearsay. The majority believes, then, that jurors cannot be expected to sort the wheat from the chaff themselves or to follow instructions that might be given on conditional relevance, when the conditionally relevant evidence is a hearsay statement. That belief *221 overlooks, not only the common sense of jurors, but also the common place that hearsay has in everyday life. Whatever may be the reasons for the hearsay rule, historically and today, they are not enough to justify the selection of OEC 104(1) for foundation questions under OEC 801(4)(b)(B).
Gillette, J., joins in this concurring opinion.
See, e.g., OEC 105 (Hmiting instructions).
State v. Smith, 310 Or 1, 26 , 791 P2d 836 (1990).
311 Or at 205 n 4.