A confession or admission can result from conduct as well as words.5 Actions of a party which tend to show a consciousness of guilt or liability or a desire or disposition to conceal wrongdoing may be deemed admissions. Examples using bribery, intimidation or other forms of undue pressure to influence the testimony of a witness or to prevent a witness from testifying, fabrication or destruction of evidence, and flight from custody.6
Silence or inaction may also result in an admission. Statements by third parties of which a party manifests his or her adoption or belief in its truth, either verbally or non-verbally, are admissible as admissions or confessions.7 Thus, if a third party makes an accusation in language and in import that was heard and fully understood by the party and the party, having an opportunity to respond, fails to do so where the circumstances would properly and naturally call for some action or reply from persons similarly situated, the party’s silence may be admissible in civil or criminal actions as evidence of an adoptive admission, or admission by acquiescence.8
Admission by acquiescence also applies to judicial admissions. When an attorney at trial states in open court, in the presence and hearing of opposing counsel, matters of fact deemed admitted by the adverse party, the silence of opposing counsel constitutes an assent to such admissions, and the client is bound thereby.9
5. State v. Blackburn, 75 A. 536, 542 (1892).
6. McCool v. Gehret, 657 A.2d 269 (Del. 1995); Goldsmith v. State, 405 A.2d 109, 113-14 (Del. 1979); Johnson v. State, 312 A.2d 630, 632 (Del. 1973).
7. D.R.E. 801(d)(2)(B). In criminal cases, admissibility is limited to pre-arrest statements. See § 17:3.
8. Mezzatesta v. State, 166 A.2d 433, 437-38 (Del. 1960); Godwin v. State, 74 A. 1101, 1102 (Del. 1910); Nasir v. State, No. 24, 1986, slip op. at 9, Walsh, J. (Del. Sept. 25, 1986) (ORDER), disposition reported at 516 A.2d 482 (Del. 1988) (TABLE); State v. Blackburn, 75 A. 536, 542 (Del. O. & T. 1892); Deputy v. Harris, 40 A. 714, 715 (Del. Super. 1893), rev’d on other grounds sub nom. Grier v. Deputy, 40 A. 716 (Del. Err. & App. 1894). See also Downing v. State, 188 A.2d 224, 227 (Del. 1963) (denial of statement precludes use as an adoptive admission); State v. Bryson, 87 A.2d 640, 642 (Del. Super. 1952) (statement that defendant would respond in court is neither assent nor denial of truth of statement and so not an adoptive admission). In the criminal context, the use of adoptive admissions is limited by the Miranda rules and other constitutional safeguards discussed at § 17.4. See Wainwright v. Greenfield, 474 U.S. 284 (1986) (use of post-arrest silence violates due process).
9. Godwin v. State, 74 A. 1101, 1103 (Del. 1910).
© 2010 David L. Finger