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64. Is the investigator's testimony about the defendant's offer to give information admissible?
A defendant is on trial for bribing a government procurement officer by providing the officer with free vacation facilities. When the defendant was approached by an FBI investigator, the defendant stated that her invitation to the procurement officer to spend his vacation in the defendant's mountain cabin was a favor to a friend, unrelated to his government office. The defendant also said to the investigator that she would reveal some «hot» information on a large-scale fraud in exchange for the investigator's promise to «stop worrying about a little vacation.»
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Under FRE 801(d)(2), a statement by an opposing party (traditionally known as an «admission by a party-opponent») is not hearsay. Under this Rule, when the opposing party's statement is offered against that same opposing party and was made in either an individual or representative capacity, it is admissible.
D is correct. The investigator's testimony about the defendant's offer to give information is admissible against the defendant as an admission by a party-opponent. It was an out-of-court statement, made by the defendant in an individual capacity, now being offered against the defendant. As such, it is admissible.
A is incorrect. When an out-of-court statement made by a party (here, the defendant) is offered against that party, it is exempted as non-hearsay under FRE 801(d)(2) and is admissible.
B is incorrect. Evidence of statements made during plea negotiations is not admissible, so as to promote settlement of disputes. However, in this case, formal plea negotiations had not begun. Therefore, the defendant's statements are not protected by this rule.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the investigator's testimony about the defendant's statement is admissible, it is not based on the legal duty the investigator has to report observations. Even if the investigator had a legal duty to report such a statement, it still could be considered inadmissible hearsay. However, as explained above, because it is an admission, it is admissible.