Washington Law Review


Norman B. Page


This note will compare the Washington courts' application of the common law vicarious admissions exception to the broad rule embodied in Federal Rule 801(d)(2)(D). Furthermore, it will identify and analyze the policies upon which the vicarious admissions rule is grounded and will compare the effectiveness of the common law rule and the federal or "broad" rule in fulfilling those policies. It will demonstrate how, in focusing on the substantive law of agency rather than directly on those circumstances which tend to assure a statement's trustworthiness, both rules share a fundamental flaw and, as a result, accomplish only imprecisely the basic purpose of admitting the maximum amount of reliable evidence. Finally, this note will suggest a third formulation of the rule which inquires directly into the against-interest nature of an agent's admission, the feature most commonly emphasized as the basis of such statements' reliability.

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