At trial, a plaintiff seeks to testify about what the defendant said in a private conversation, captured on an audiotape the plaintiff did not offer into evidence. Is the plaintiff’s testimony admissible?

• A. Yes, because the statement is party-opponent evidence under Rule 801(d)(2)(A).
• B. No, because the audiotape was not introduced as evidence.
• C. Yes, but only if the audiotape is introduced as the best evidence.
• D. No, because the conversation was private and not disclosed.

Answer: (A)

The key idea is that a statement by a party that is offered against that party is not hearsay. Under Rule 801(d)(2)(A), a statement made by the defendant and admitted by the plaintiff as evidence against the defendant is an admission by a party-opponent, and it can be admitted for its truth. So the plaintiff can testify about what the defendant said in that private conversation even if the audiotape itself wasn’t introduced into evidence—the content is admissible as a party admission.

The fact that the recording wasn’t entered into evidence doesn’t deprive the testimony of probative value; the Best Evidence Rule only comes into play if you’re trying to prove the exact contents of a writing or recording by using the recording itself. Here, the witness’s testimony about what was said suffices as an admission. The private nature of the conversation or the tape’s absence doesn’t bar admissibility.