You may have heard the expression “anything you say can be used against you,” perhaps on TV, when a detective asks a suspect to give a “statement.”
But this concept applies in the civil courts, as well.
Many Things Constitute a “Statement”
A “statement” can take many forms, beyond sitting down in the office of an investigator. It also includes:
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- a recorded statement, over the phone, or via Zoom or otherwise,
- words said to a friend, privately, or
- things you “say” when you are entirely alone. Examples include a post on social media from your living room.
And yet each of these things — done however “innocently” — can have a profound effect on the declarant, by binding her to certain “facts” — or to impeach her character as a witness — all based on words that she might not recall having uttered. This article describes when giving a statement — of any kind — can amount to a horribly bad idea and conversely, when it can be necessary to advance the declarant’s interests.
Let’s start with the law governing the effect of a “statement” in state and federal court.
The Law Governing a Statement
Works spoken out-of-court are typically considered hearsay, and are not admissible at all. However, the law carves three major exceptions to (or exclusions from) the hearsay rule: (1) admissions by a party opponent and (2) a statement against interest, and (3) prior inconsistent statements.
1. Statement By a “Party Opponent”
A “party opponent” is a party to an existing case or one not yet filed. For example, let’s say you post online that your neighbor’s “tree” (singular) is leaning into your yard. Then, later that day, you file suit against him, claiming that, all along, three (3) of his trees had been leaning onto your property Your earlier post online — that only one tree presents a problem — is an admission. It’s admissible against you, even though it pre-dates the filing of suit.
Plus, the rule is the same in federal court (Federal Rule of Evidence 803) and in the Commonwealth of Pennsylvania. Pennsylvania Rule of Evidence 803(25), which tracks the federal rules, provides for the admissibility of: “An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true.
Even worse, one’s statement can bind not only the declarant, but others as well, if the statement at issue was:
(C) was made by a person whom the party authorized to make a statement on the subject; or
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.
Thus, Pa.R.E. 803(25) can bind not only you — as a party to an action — but also others for whom you are authorized to speak, such as an elderly parent. All that said, an “admission by a party opponent” only applied to actual parties to a suit. It does not apply to witnesses who are not parties to the action. For statements to bind non-parties – or to at least entangle the declarant in the litigation of another — enter the concept of “Statement Made Against Interest.”
2. Statement Made Against Interest
So let’s say you posted something online. However, this time, it’s relevant to someone else’s case, not yours. Will your statement be admissible in court? The law is: generally no, because statements made out of court are inadmissible hearsay. OK good, you think, because you really hate the idea of testifying “under oath.”
However, if your statement had been against your interest when made — as contrary to the declarant’s proprietary or pecuniary interest, it will meet the hearsay exception of Rule 804(b)(3) in the Pennsylvania Rules of Evidence, which tracks the federal rule. But this only applies if the declarant is “unavailable.” I.e., the witness is unable to come to trial or a deposition for use at trial. Ergo, your statement online can get you dragged into court either way. In fact, any statement you make online — whether in against your interest or not — can result in you receiving a subpoena to testify at a deposition.
Thus, once again, your “statement” online or to a friend — even relating to another’s case — can result in you receiving a subpoena to testify at trial or at a deposition for use at trial.
3. Prior Inconsistent Statements
For any witness — whether a party or not — giving a prior and formal statement can have massive consequences. By “formal” statement we mean, a setting (such as a deposition) where the witness:
- must be subject to cross-examination concerning the statement; and
- The statement must have been made under penalty of perjury during proceedings, such as a deposition, prior trial.
Thus, this narrow hearsay exception only applies to statements made when the witness’s guard is already up. But the consequences in both state (Pa.R.E. 803.1(1)) and federal court (FRE 801(d)(1)(A)) are:
- The statement can be used to impeach the witnesses, and
- The prior inconsistent statement can be used as substantive evidence — as to the truth of what you said, giving the party the great incentive to drag you into both state and federal court to to talk about your prior inconsistent statement.
In fact, in PA, a witness’s prior statement can be used as evidence (not just to impeach) so long as the witnesses is subject to cross exam at trial. Here, the prior statement need not have made under oath. Com. v. Brady, 507 A.2d 66, 510 Pa. 123 (1986).
When Giving a Statement Can Have Great Value
There are certain instances when you should speak out of court — without a lawyer — and even though you know civil litigation will be coming. Sounds preposterous?
Not really.
Reporting Crimes
The first instance is, when you’re reporting criminal or nearly criminal behavior. Here, having a lawyer present can “look bad.” It can make it appear that you seek “criminal justice” to get money in your coming civil case. For example, let’s say you hire a home improvement contractor, and he not only fails to complete the work, he stole money from your kitchen “emergency fund.” Call the police. You’re OK in terms of “admissions” so long as you report “just the facts.” Having your civil lawyer there makes it look purely “civil” in nature.
Reporting to Administrative Agencies
Let’s say the same contractor also violated PA’s Home Improvement and Consumer Protection Law (“HICPA”), by failing to put the home improvement contract with you in writing. Here, you should definitely use the PA Attorney General’s link to report a HICPA violation. Once again, you’ll have nothing to worry about, so long as you refrain from speculation. Keep it to just the verifiable facts and you’ll be fine: dates of work, scope of work, the fact of no written contract, etc.
No Legal Options & Acts of Desperation
Sometimes your legal case will have no hope — or little chance of a recovery, at best. For example, let’s say you’re the victim of a landslide, you lost your entire home, but the uphill parties are either penniless or immune from suit. Then what? Well, your best option might be to seek charity from crowdfunding, such as GoFundMe or https://www.gofundme.com/. There, speaking to the media — with or without your lawyer present — may present your best option to collection money, it it can draw attention to your GoFundMe account.
When Giving a Statement Isn’t “Good” But “Can’t Hurt”
Lastly, there are certain situations where you’ve already said too much, but it will never be admissible in court. This typically occurs when courts either (a) want to encourage people to speak on certain topics and/or (b) don’t want the witnesses involved in litigation for some reason. Examples include:
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- Your offer to pay an injured party’s medical expenses: the court’s want to encourage generous behavior,
- Your compromise offers, negotiations, or statements made during a settlement conference, if the parties agreed it would be conducted pursuant to Rule 408 of the Pennsylvania and Federal Rules of Evidence. Here, the courts seek to encourage attempts to resolve disputes outside the civil courts.
- Statements made by one spouse about the other spouse. Here, the courts seek to preserve the institution of marriage via the concept of “spousal immunity.”
- Statements made to your clergy (in confession) or medical doctor for treatment, unless you place at issue the statement, such as bringing a claim as to your medical condition.
Let’s Get Started!
While nothing in this article constitutes legal advice — and you should talk to a lawyer before giving any statement to anyone — our goal is to help you know what questions to ask your lawyer. No two cases are exactly alike, so some or all of the comments above may fail to relate to your case in any way. But call our lawyers any time for a free consultation about any personal injury matter. Otherwise, we charge a low fixed fee ($200 for up to one hour) for other engagements to help you fully understand your rights.
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