CO-CONSPIRATOR STATEMENTS
See also: ADMISSIONS–Vicarious Admissions.
1. Generally
Statements made by a party-opponent’s co-conspirator during the course of a conspiracy and in furtherance of the conspiracy are deemed admissions and are not barred by the hearsay rule.{footnote} FRE 801(d)(2)(E) provides:
A statement is not hearsay if –
[t]he statement is offered against a party and is . . . (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
See also, e.g., Colo. R. Evid. 801(d)(2)(E) ; Fla. Stat. § 90.803(18)(e) (1993); Hawaii R. Evid. 803(a)(2)(C) (1985); Mich. R. Evid. 801(d)(2)(E) (requiring “independent proof of the conspiracy"); Ohio R. Evid. 801(d)(2)(E) (requiring “independent proof of the conspiracy"); Tex. R. Crim. Evid. 801(e)(2)(E); Butler v. United States, 481 A.2d 431, 439 (D.C. 1984), cert. denied, 470 U.S. 1029 (1985) (adopting FRE 801 (d)(2)(E) as controlling); People v. Tran, 603 N.E.2d 950, 955 (N.Y. 1992); People v. Owusu, 652 N.Y.S.2d 914 (N.Y. App. Div. 1996).
Cal. Evid. Code § 1223 provides:
Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: (a) The statement was made by the declarant while participating in a conspiracy to commit a crime … in furtherance of the objective of that conspiracy; (b) The statement was made prior to or during the time that the party was participating in that conspiracy; and (c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court’s discretion as to the order of proof, subject to the admission of such evidence.{/footnote} In order to admit a statement under this rule, the proponent must show: the existence of a conspiracy (§ 2), that the declarant and the defendant were members of the conspiracy (3), that the statement was made during the conspiracy (§ 4), and that the statement was in furtherance of the conspiracy (5).{footnote}E.g., Bourjaily v. United States, 483 U.S. 171, 179 (1987) (listing elements).
See also People v. Sanders, 905 P.2d 420 (Cal. 1995); Harris v. State, 1997 Del. LEXIS 184; Holiday v. U.S., 683 A.2d 61 (D.C. App. 1996).{/footnote} These elements must be proven by a preponderance of the evidence (7). Statements which are not offered for their truth need not satisfy this rule in order to be admissible.{footnote}People v. Noguera, 842 P.2d 1160 (Cal. 1992) (false statements to police and private attorney admissible to prove existence of conspiracy; not offered for their truth); People v. Tran, 603 N.E.2d 950, 955 (N.Y. 1992) (verbal acts).{/footnote}
2. Existence of a Conspiracy
The proponent of evidence offered under this rule must first establish the existence of a conspiracy.{footnote}E.g., People v. Hardy, 825 P.2d 781 (Cal. 1992) (prima facie evidence of conspiracy to fraudulently obtain insurance proceeds proven).{/footnote} The proponent must show that two or more persons engaged in a common scheme to accomplish a criminal goal or to achieve a lawful objective by criminal means.{footnote}E.g, People v. Martinez, 662 N.E.2d 473, 478 (Ill. Ct. App. 1996).{/footnote} The existence of a conspiracy may be established by circumstantial evidence.{footnote}United States v. Cruz, 910 F.2d 1072, 1081-83 (3d Cir. 1990), cert. denied, 112 L. Ed. 2d 698, 111 S. Ct. 709 (1991).
People v. Martinez, 662 N.E.2d 473, 478 (Ill. Ct. App. 1996) (conspiracy may be shown from “surrounding facts and circumstances”).
{/footnote} Timing, circumstances, and one or more meetings may suffice,{footnote}Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358 (3d Cir. 1992).
{/footnote} but a conspiracy cannot be proven by mere association.{footnote}Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358 (3d Cir. 1992).
People v. Duckworth, 536 N.E.2d 469 (Ill. Ct. App. 1989) (mere appearance at scene of drug transaction insufficient to establish conspiracy).
But see People v. Jackson, 666 N.E.2d 854 (Ill. Ct. App. 1996) (“While evidence of gang affiliation alone is generally insufficient to show that the gang members were working in concert, such evidence in this case was relevant to show that the gang members were motivated to act in concert….”){/footnote}
Whether statements are admissible under this exception does not depend on the existence of, let alone the disposition of, a formal charge of conspiracy. Thus, statements may be admitted under this rule even though the indictment or complaint contains no charge of conspiracy,{footnote}United States v. Doulin, 538 F.2d 466, 471 (2d Cir. 1976); United States v. Samples, 713 F.2d 298 (7th Cir. 1983).
State v. McGriff, 871 P.2d 782 (Haw. 1994); People v. Ramey, 647 N.E.2d 946 (Ill. 1992); Meador v. State, 812 S.W.2d 330 (Tex. Crim. App. 1991).{/footnote} though in such cases the participants are sometimes referred to as "joint venturers" or as "acting in concert."{footnote}See, e.g., United States v. Clark, 613 F.2d 391, 404 (2d Cir. 1979); 4 Weinstein & 801(d)(2)(E) [01], at 801-230 and n. 5 (1985).{/footnote} Similarly, the consipracy on which admissibility of the statement is based need not be the same as the conspiracy charged in the indictment.{footnote}U.S. v. Munson, 819 F.2d 337 (1st Cir. 1987).{/footnote} Co-conspirator statements are also admissible even though there has been an acquittal as to the crime of conspiracy,{footnote}United States v. Carroll, 860 F.2d 500, 506 (1st Cir. 1988); United States v. Clark, 613 F.2d 391, 402-04 (2d Cir. 1979); United States v. Stanchich, 550 F.2d 1294, 1299 (2nd Cir. 1977); United States v. Cravero, 545 F.2d 406, 419 (5th Cir. 1976), cert. denied, 430 U.S. 983 (1977); United States v. Bass, 472 F.2d 207, 213-14 (8th Cir.), cert. denied, 412 U.S. 928 (1973); United States v. Peralta, 941 F.2d 1003, 1006 (9th Cir. 1991); United States v. Kincaid, 714 F.2d 1064, (11th Cir. 1983).{/footnote} or the statute of limitations on the crime of conspiracy has lapsed.{footnote}State v. Jones, 873 P.2d 122 (Idaho 1994).{/footnote}
3. During the Conspiracy
The proponent of evidence under this rule must show that the hearsay statement was made in the course of the conspiracy.{footnote}United States v. Local 560 (I.B.T.), 974 F.2d 315 (3d Cir. 1992).{/footnote} Once the existence of a conspiracy has been established, it will be presumed to have continued until the opposing party proves its termination.{footnote}United States v. Local 560 (I.B.T.), 974 F.2d 315 (3d Cir. 1992); U.S. v. Walker, 796 F.2d 43 (4th Cir. 1986).{/footnote} Whether a conspiracy has terminated is determined by the scope of the original agreement. Statements made after an offense has been committed but during the course of a continuing conspiracy are admissible.{footnote}People v. Leach, 541 P.2d 296 (Cal. 1975), cert. denied sub nom. Kramer v. California, 424 U.S. 926 (1976).{/footnote} Thus, where the conspiracy involves a payment or receipt of money for illicit goods or services, the conspiracy will be deemed continuing until final payment has been made.{footnote}U.S. v. Ibern-Maldonado, 823 F.2d 698 (1st Cir. 1987) (conspiracy not ended until payment for transporting marijuana divided up).
People v. Noguera, 842 P.2d 1160 (Cal. 1992) (where conspiracy was to commit murder and share insurance proceeds, statement made after murder but before proceeds received held admissible); People v. Hardy, 825 P.2d 781 (Cal. 1992) (where conspiracy was to commit murder for purpose of obtaining insurance proceeds, conspiracy continued after murder up through and including the time of trial, because proceeds not yet received); State v. Jones, 873 P.2d 122 (Idaho 1994) (where conspiracy was to commit murder for pay, statement made after murder but before final payment admissible); People v. Ramey, 603 N.E.2d 519 (Ill. 1992) (where conspiracy was to invade home, steal electronic equipment and then sell it, conspiracy continued until stolen property sold); People v. Bushard, 508 N.W.2d 745 (Mich. 1993) (where conspiracy was to commit murder for pay, statement made after murder but before final payment admissible).
But see People v. Leach, 541 P.2d 296 (Cal. 1975), cert. denied sub nom. Kramer v. California, 424 U.S. 926 (1976) (a conspiracy to commit murder does not "necessarily entail[] a second conspiracy to collect the insurance proceeds which will be paid as a matter of course upon the successful commission of the contemplated offense.”){/footnote}
Statements made after the conspiracy has ended are inadmissible.{footnote}Krulewich v. United States, 336 U.S. 440 (1949) (statements made after commission of crime which was purpose of conspiracy inadmissible; reversing conviction); United States v. Coe, 718 F.2d 830 (7th Cir. 1983).
Akins v. U.S., 679 A.2d 1017 (D.C. App. 1996) (statement made after conspiracy ended held inadmissible); Deeb v. State, 815 S.W.2d 692 (Tex. Crim. App. 1991) (trial court erroneously admitted statement made by coconspirator while coconspirator was in jail after termination of the conspiracy). {/footnote} Generally, a conspiracy terminates upon success or failure of the principal objective of the original agreement.{footnote}Krulewitch v. United States, 336 U.S. 440, 442-43 (1949) (conviction reversed where statements admitted under this rule were made after commission of crime which was purpose of conspiracy, and after princopals had been arrested).
Smith v. State, 647 A.2d 1083 (Del. 1994) (where assaut was object of conspiracy, statement made after assault inadmissible); Burnside v. State, 656 So. 2d 241 (Fla. Ct. App. 1995) (where object of conspiracy was to commit murder, incriminating statement made after murder attempt had failed and shooter had fled out of state inadmissible).{/footnote} Statements made for the purpose of concealment are admissible only if specific evidence is introduced indicating that the scope of the original agreement included acts taken to conceal the criminal activity.{footnote}Lutwak v. United States, 344 U.S. 604, 616 (1953):
[T]here is no evidence in the record to establish as a part of the conspiracy [to defraud the government] that the conspirators agreed to conceal the conspiracy by doing what was necessary and expedient to prevent its disclosure. There was a statement of Munio Knoll in the record to one witness Haberman that indicated Munio’s purpose to cover up and conceal the conspiracy. This is not evidence that the conspiracy included the further agreement to conceal. It is in the nature of an afterthought by the conspirator for the purpose of covering up.
Krulewitch v. United States, 336 U.S. 440, 442-43 (1949):
The Government now asks us to expand this narrow exception to the hearsay rule and hold admissible a declaration, not made in furtherance of the alleged criminal transportation conspiracy charged, but made in furtherance of an alleged implied but uncharged conspiracy aimed at preventing detection and punishment. No federal court case cited by the Government suggests so hospitable a reception to the use of hearsay evidence to convict in conspiracy cases.
But see U.S. v. Carter, 760 F.2d 1568 (11th Cir. 1985) (statements made by drug smugglers after unloading plane load of marijuana and while trying to escape from law enforcement officers admissible; “Arriving undetected, or in the alternative escaping, is a primary objective in every drug smuggling operation.”)
But see People v. Hardy, 825 P.2d 781 (Cal. 1992) (where conspiracy was to commit murder for purpose of obtaining insurance proceeds, statements made after murder in effort to conceal crime held in furtherance because conspiracy continued until insurance proceeds received).
CHECK People v. Parmly (1987), 117 Ill. 2d 386, 111 Ill. Dec. 576, 512 N.E.2d 1213.{/footnote}
4. Declarant and Party Opponent Must Be Members of Conspiracy
The proponent of evidence under this exception must show that both the declarant and the party against which the evidence is offered were members of the conspiracy.{footnote}United States v. Local 560 (I.B.T.), 974 F.2d 315 (3d Cir. 1992).{/footnote} Once a conspiracy is shown, the prosecution need only present “slight evidence” connecting the defendant to the conspiracy.{footnote}United States v. Provenzano, 620 F.2d 985, 999 (3d Cir.), cert. denied, 449 U.S. 899 (1980); United States v. Beasley, 545 F.2d 403, 405 (5th Cir. 1977); United States v. Crespo De Llano, 838 F.2d 1006, 1017 (9th Cir. 1987). {/footnote} There is no requirement that the defendant be shown to have authorized the statement in question.{footnote}4 D. Louisell & C. Mueller, § 427, at 363.{/footnote} This rule allows the admission of statements made before the defendant joined the conspiracy,{footnote}U.S. v. Masse, 816 F.2d 805 (1st Cir. 1987); U.S. v. Badalamenti, 794 F.2d 821 (2d Cir. 1986); U.S. v. Osgood, 794 F.2d 1087 (5th Cir.), cert. denied, 107 S.Ct. 596 (1986); U.S. v. Davis, 809 F.2d 1194 (6th Cir.), cert. denied, 107 S.Ct. 3234, 3235 (1987); U.S. v. Liefer, 778 F.2d 1236 (7th Cir. 1985).
Cal. Evid. Code § 1223.
CHECK United States v. Baines, 812 F.2d 41 (1st Cir.1987); United States v. Jannotti, 729 F.2d 213 (3rd Cir.1984), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984); United States v. Tombrello, 666 F.2d 485 (11th Cir.1982), cert. denied, 456 U.S. 994, 102 S.Ct. 2279, 73 L.Ed.2d 1291 (1982).{/footnote} but not statements made after the defendant has withdrawn.{footnote}Krulewich v. United States, 336 U.S. 440 (1949) (statements made after commission of crime which was purpose of conspiracy inadmissible).{/footnote}
Statements are admissible under this exception even though made to persons outside the conspiracy,{footnote}United States v. Trotter, 529 F.2d 806, 812-13 (3d Cir. 1976) (statement to storage company employee that goods belonged to defendant admissible); United States v. Sears, 663 F.2d 869, 905 (9th Cir. 1981) (intimidating statements to outsiders admissible); United States v. Taylor, 656 F.2d 1326, 1333 (9th Cir. 1981).{/footnote} such as an informant.{footnote}United States v. Rodriguez, 689 F.2d 516, 519 (5th Cir. 1982) (coconspirator’s statement to informant that he intended to kill DEA agentadmissible).{/footnote} Moreover, the declarant need not be shown to have personal knowledge of the matter asserted,{footnote}United States v. Ammar, 714 F.2d 238, 254 (3d Cir.), cert. denied, 464 U.S. 936 (1983); U.S. v. Goins, 11 F.3d 441 (4th Cir. 1993); United States v. McLernon, 746 F.2d 1098, 1106 (6th Cir. 1984).
4 Jack B. Weinstein, Weinstein’s Evidence § 801(d)(2)(C)[01], at 801-277-801280; McCormick on Evidence, § 263, at 778-79 (Edward W. Cleary ed., 3d ed. 1984).{/footnote} and need not even be identified.{footnote}United States v. Cruz, 910 F.2d 1072, 1081-83 (3d Cir. 1990), cert. denied, 112 L. Ed. 2d 698, 111 S. Ct. 709 (1991).
Contra U.S. v. Mouzin, 785 F.2d 682 (9th Cir.), cert. denied, 107 S.Ct. 574 (1986).{/footnote}
5. The "In Furtherance" Requirement
Statements to be admissible under this exception must have been in furtherance of the conspiracy.{footnote}E.g., People v. Sanders, 905 P.2d 420 (Cal. 1995); Akins v. U.S., 679 A.2d 1017 (D.C. App. 1996) (statement made after conspiracy ended and not in furtherance of conspiracy held inadmissible).{/footnote} This element is construed broadly.{footnote}United States v. Lewis, 759 F.2d 1316, 1340 (8th Cir.), cert. denied, 474 U.S. 994 (1985); United States v. James, 510 F.2d 546, 549 (5th Cir.) (requirement not to be construed "too strictly"), cert. denied, 423 U.S. 855 (1975).
Williams v. U.S., 655 A.2d 310 (D.C. App. 1995) (“[O]nce the statements are found to have been made in the course of the conspiracy, the test for whether they furthered an objective of the conspiracy is not an onerous one.”)
4 J. Weinstein & M. Berger, Weinstein’s Evidence § 801 (d)(2)(E)[01], at 801-313 & n.44 (1994).{/footnote} Co-conspirator statements need not actually further the conspiracy to be admissible, so long as they were intended to furher it.{footnote}United States v. Hamilton, 689 F.2d 1262, 1269-70 (6th Cir. 1982) (statements admissible even though government investigation made actual furtherance of the conspiracy impossible), cert. denied, 459 U.S. 1117 (1983); United States v. Reyes, 798 F.2d 380, 384 (10th Cir. 1986).
But see In re Sunset Bay Associates, Inc., 944 F.2d 1503 (9th Cir. 1991) (in excluding co-conspirator’s statement relating to past conduct, noting that, if anything, the statement frustrated the conspiracy).{/footnote}
Statements by co-conspirators have been held admissible under this exception where they were made to:
· enlist the listener’s participation in the conspiracy{footnote}United States v. Dorn, 561 F.2d 1252, 1256-57 (7th Cir. 1977); United States v. Jackson, 549 517, 533-34 (8th Cir. 1977); United States v. Layton, 720 F.2d 548, 556 (9th Cir. 1983).{/footnote}
· keep a fellow conspirator informed{footnote}United States v Maldonado-Rivera, 922 F2d 934, 958-959 (2d Cir. 1990); United States v. Rahme, 813 F.2d 31, 36 (2d Cir. 1987); United States v. Mangan, 575 F.2d 32, 44-45 (2d Cir.), cert. denied, 439 U.S. 931 (1978); United States v Gibbs, 739 F2d 838, 845 (3d Cir. 1984), cert. denied, 469 U.S. 1106 (1985).{/footnote} or encourage his continued participation{footnote}United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969); United States v. Eaglin, 571 F.2d 1069, 1083 (9th Cir. 1977).{/footnote}
· prompt someone else to do something in furtherance of the conspiracy{footnote}United States v. Kendall, 665 F.2d 126, 133 (7th Cir. 1981); United States v. Layton, 720 F.2d 548, 556 (9th Cir. 1983).{/footnote}
· reassure a buyer of contraband{footnote}United States v. Mason, 658 F.2d 1263, 1269 (9th Cir. 1981).{/footnote}
· set in motion transactions that are an integral part of a conspiracy.{footnote}United States v. Eubanks, 591 F.2d 513, 520 (9th Cir. 1979). CHECK United States v. Birmbaum, 337 F.2d 490 (2d Cir. 1964); Salazar v. United States, 405 F.2d 74 (9th Cir. 1968).{/footnote}
Statements by a co-conspirator have been held not admissible under this exception where they were merely:
· idle conversations between co-conspirators{footnote}United States v. Maldonado-Rivera, 922 F.2d 934, 958-959 (2d Cir. 1990); United States v. Mangan, 575 F.2d 32, 44-45 (2d Cir. 1978) (boasts or idle gossip not admitted). United States v. Dorn, 561 F.2d 1252, 1256 (7th Cir. 1977), 4 Weinstein & 801(d)(2)(E)[01] at 801-171 (1981); United States v. Layton, 720 F.2d 548, 556 (9th Cir. 1983) ("casual admission[s] to someone the conspirator had decided to trust" excluded); United States v. Tarantino, 846 F.2d 1384, 1412 (D.C. Cir. 1988) (casual comments to people outside or inside the conspiracy not in furtherance), quoting United States v. Snider, 720 F.2d 985, 992 (8th Cir. 1983), cert. denied, 465 U.S. 1107 (1984)), cert. denied, 488 U.S. 867 (1988).
See also People v. Noguera, 842 P.2d 1160 (Cal. 1992) ({/footnote}
· recounting past conduct or events{footnote}In re Sunset Bay Associates, Inc., 944 F.2d 1503 (9th Cir. 1991) (statements relating to past conduct, if anything, frustrated conspiracy); United States v. Haldeman, 559 F.2d 31, 110 (1976), cert. denied, 431 U.S. 933 (1977).
People v. Miller, 470 N.E.2d 1222 (1984).{/footnote}
or otherwise did not advance the objectives of the conspiracy.{footnote}People v. Roberts, 826 P.2d 274 (Cal. 1992).{/footnote}
6. Procedural Issues
6(a). The Burden of Establishing Admissibility
The proponent has the burden of establishing any necessary facts bearing on admissibility under this exception by a preponderance of the evidence.{footnote}Bourjaily v. United States, 483 U.S. 171, 179 (1987); United States v. Local 560 (I.B.T.), 974 F.2d 315 (3d Cir. 1992).
People v. Montoya, 753 P.2d 729 (Colo. 1988); Foster v. State, 679 So. 2d 747 (Fla. 1996); People v. Martinez, 662 N.E.2d 473, 478 (Ill. Ct. App. 1996); In re DeCamp, 511 N.W.2d 616, 621 (Iowa 1994).
See also ADMISSIBILITY–Burden of Proof.{/footnote} Some courts hold that the proponent must produce prima facie evidence of a conspiracy.{footnote}E.g, People v. Hardy, 825 P.2d 781 (Cal. 1992); People v. Ramey, 647 N.E.2d 946 (Ill. 1992).{/footnote}
Though most often used in criminal prosecutions, the coconspirator rule applies to civil cases as well.{footnote}Schine Chain Theatres Inc. v. United States, 334 U.S. 110, 116-17 (1948); Paul F. Newton & Co. v. Texas Commerce Bank, 630 F.2d 1111, 1120-21 (5th Cir. 1980); Pink Supply Corp. v. Herbert, Inc., 788 F.2d 1313 (8th Cir. 1986); Filco v. Amana Refrigeration, Inc., 709 F.2d 1257, 1267 (9th Cir 1983); Oreck Corp. v. Whirlpool Corp., 639 F.2d 75, 80-81 (2d Cir. 1980).{/footnote} Courts have applied the same "preponderance of the evidence" standard in these cases as is applied in criminal cases.{footnote}State v. Hendrikson Bros., Inc., 840 F.2d 1065 (2d Cir. 1988); In re Japanese Electronic Products, 723 F.2d 238, 262 (3d Cir. 1983).{/footnote}
6(b). May the Statement Bootstrap Itself?
In Bourjaily v. United States, the United States Supreme Court held that the trial court may consider the hearsay statement itself as well as independent evidence when making the requisite findsings under this exception.{footnote}Bourjaily v. United States, 483 U.S. 171, 179 (1987).
See also United States v. Martorano, 557 F.2d 1, 12 (1st Cir. 1977); United States v. Mack, 837 F.2d 254, 258 (6th Cir. 1988); United States v. Garner, 837 F.2d 1404, 1415 (7th Cir. 1987); United States v. Campbell, 845 F.2d 782, 788 (8th Cir. 1988); United States v. Caro, 965 F.2d 1548 (10th Cir. 1992).
Accord In re DeCamp, 511 N.W.2d 616, 621 (Iowa 1994).
Contra Mich. R. Evid. 801(d)(2)(E) (requiring “independent proof of the conspiracy"); Ohio R. Evid. 801(d)(2)(E) (requiring “independent proof of the conspiracy"); Foster v. State, 679 So. 2d 747 (Fla. 1996); People v. Martinez, 662 N.E.2d 473, 478 (Ill. Ct. App. 1996) (foundation must be established by evidence independent of the statement itself); People v. Tran, 603 N.E.2d 950, 955 (N.Y. 1992); People v. Owusu, 652 N.Y.S.2d 914 (N.Y. App. Div. 1996);. {/footnote} See also ADMISSIBILITY–What Evidence May Be Considered. Borjaily did not resolve, however, whether the offered statement standing alone could constitute sufficient foundation.{footnote}Bourjaily, 483 U.S. at ___, 107 S. Ct. at 2781-82 ("We need not decide in this case whether the courts below could have relied solely upon [the] hearsay statements [sought to be admitted] to determine that a conspiracy had been established. . . ."); United States v. Echeverria, 856 F.2d 1020, 1023 n.2 (8th Cir. 1988); United States v. Gordon, 844 F.2d 1397, 1402 n.2 (9th Cir. 1988).
See also Bourjaily, 483 U.S. at ___, (Stevens, concurring) (there must be some independent corroborating evidence).{/footnote} Most courts have held that independent corroborating evidence is required.{footnote}United States v. Sepulveda, 15 F.3d 1161, 1181 (1st Cir.), cert. denied, 129 L. Ed. 2d 840, 114 S. Ct. 2714 (1993); United States v. Daly, 842 F.2d 1380, 1386 (2d Cir.), cert. denied, 488 U.S. 821 (1988); New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1073 (2d Cir. 1988); United States v. Clark, 18 F.3d 1337, 1340-1341 (6th Cir.), cert. denied, 130 L. Ed. 2d 91, 115 S. Ct. 152 (1994); U.S. v. Lindemann, 85 F.3d 1232, 1238 (7th Cir. 1996); United States v. Garbett, 867 F.2d 1132, 1134 (8th Cir. 1989); United States v. Gordon, 844 F.2d 1397, 1402 (9th Cir. 1988); United States v. Martinez, 825 F.2d 1451, 1453 (10th Cir.), cert. denied, 494 U.S. 1059 (1987); United States v. Byrom, 910 F.2d 725, 736 (11th Cir. 1990).
In re DeCamp, 511 N.W.2d 616, 621 (Iowa 1994).
See also People v. Hardy, 825 P.2d 781 (Cal. 1992).
But see U.S. v. Goins, 11 F.3d 441 (4th Cir. 1993) (question not decided in Fourth Circuit). {/footnote} That evidence may consis of the defendant’s own statements or admissions.{footnote}U.S. v. Carter, 760 F.2d 1568 (11th Cir. 1985) (defendant’s adoptive admissions may be considered as independent evidence).{/footnote}
6(c). When Must Foundation Be Laid?
In many jurisdictions, the trial court may conditionally admit the offered statement, allowing the prosecution to later lay the foundation.{footnote}United States v. Reynolds, 828 F.2d 46, 47 (1st Cir. 1987) (district court in drug conspiracy prosecution did not err by conditionally admitting statements subject to introduction of sufficient evidence to support their admission); United States v. Santiago, 582 F.2d 1128, 1131 (7th Cir. 1978); United States v. Harris, 546 F.2d 234, 236 (8th Cir. 1976); United States v. Mabry, 809 F.2d 671, 684 (10th Cir. 1987).
Cal. Evid. Code § 1223 (statement may be offered “in the court’s discretion as to the order of proof, subject to the admission of [foundation] evidence”); People v. Jackson, 666 N.E.2d 854 (Ill. Ct. App. 1996); People v. Castillo, 223 A.D.2d 481, 637 N.Y.S.2d 84 (N.Y. App. Div. 1996).
But see J. Weinstein and M. Berger, Weinstein on Evidence, § 801(d)(2)(e), at 176 (1981):
It is the contention of this treatise that the fair and practicable method of providing protection to the defendant without violating the letter or spirit of the rules lies in insisting on a stringent standard of proof before the court admits a co-conspirator statement in a criminal case.
See also ORDER OF PROOF.{/footnote} If the prosecution fails to lay teh necessary foundation, the trial court should strike the evidence and instruct the jury to disregard it.{footnote}United States v. Geany, 417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied, 397 U.S. 1028 (1970). {/footnote} Alternatively, the court may in its discretion declare a mistrial.{footnote}United States v. Shoffner, 826 F.2d 619, 630 (7th Cir. 1987).{/footnote}
In some jurisdictions trial courts must allow the defendant a pretrial hearing to determine whether there is sufficient proof of a conspiracy to invoke the co-conspirator exception to the hearsay rule.{footnote}United States v. Radeker, 664 F.2d 242 (10th Cir. 1981); United States v. Stipe, 653 F.2d 446, 449 (10th Cir. 1981).
See also People v. Montoya, 753 P.2d 729, 734 (Colo. 1988) (. . . the preferred procedure, in our view, is to require the prosecution to establish the foundational requirements for the admission of a co-conspirator’s statement prior to any offer of the statement into evidence before the jury. . . .).
Contra State v. Jones, 873 P.2d 122 (Idaho 1994) (no right to James hearing).{/footnote} These hearing are sometimes referred to as "James hearings" after the Fifth Circuit opinion in United States v. James, {footnote}____________, 590 F.2d 575 (5th Cir. 1978), cert. denied, 442 U.S. 917 (1979).{/footnote} where the court stated:
Courts have on occasion allowed such statements [i.e., alleged co-conspirator hearsay] to be heard by the jury upon the promise that the prosecutor will "connect it up." Of course, if it is connected up, the defendant suffers no prejudice in the order of proof. If, however, the judge should conclude at the end of the trial that proper foundation has not been laid, the defendant will have been prejudiced from the jury’s having heard the inadmissible evidence. . . .
Both because of the "danger" to the defendant if the statement is not connected and because of the inevitable serious waste of time, energy and efficiency when a mistrial is required in order to obviate such danger, we conclude that the present procedure warrants the statement of a preferred order of proof in such a case. The district court should, whenever reasonably practicable, require the showing of a conspiracy and of the connection of the defendant with it before admitting declarations of a co-conspirator.{footnote}Id. at 581-82.{/footnote}
8. The Confrontation Clause
The Confrontation Clause does not require a showing that the declarant is unavailable as a condition to admitting a co-conspirator statement.{footnote}United States v. Inadi, 475 U.S. 387, 394 (1986).
Contra Vt. R. Evid. 801(d)(2)(E) ("A statement by a co-conspirator may only be admitted if the court finds that the declarant is unavailable …”)
{/footnote} Moreover, because co-conspirator statements fall with a “firmly rooted” hearsay exception, no particular showing of reliability is required.{footnote}Bourjaily v. United States, 483 U.S. 171, 179 (1987).{/footnote}
Bibliography
Annotation, Admissibility of Statement by Coconspirator Under Rule 801(d)(2)(E) of Federal Rules of Evidence, 44 A.L.R. Fed. 627 (1979).