§ 32.10 Co-Conspirator Admissions: FRE 801(d)(2)(E)
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A co-conspirator's statement made during and in furtherance of a conspiracy is admissible as substantive evidence if offered against another conspirator.105
Rationale. Commentators have criticized the theory underlying the co-conspirator exemption, a rationale that "is not altogether easy to grasp."106 One went so far as to state that, "in terms of theory, the rule is an embarrassment. It seems to have been created by accident, and the one traditional explanation which survives does not convince."107 Unlike other hearsay exceptions at common law, co-conspirator statements were not "regarded as carrying some particular guarantee of trustworthiness."108 The agency theory—"partners in crime"—is a fiction. The federal drafters acknowledged this fact but failed to provide an alternative theory to justify admissibility.109
Co-conspirator admissions sometimes run against the penal interest of the declarant, but nothing in the rule requires this to be so.110 Moreover, Rule 804(b)(3) now recognizes an exception for such statements, and thus there is no need for a separate co-conspirator exemption if the "against interest" notion is the underlying rationale. That exception, however, is more demanding than the co-conspirator exemption because it requires the unavailability of the declarant.
Some commentators candidly admit that the principal justification for the exception is "necessity,"111 but necessity may exist in the absence of reliability, meaning that the most crucial evidence may be the least trustworthy. In any event, the evidence rule is heavily influenced by the substantive crime of conspiracy.112
Requirements. There are three conditions for admissibility: (1) there must have been a conspiracy in which the defendant and declarant participated; (2) the statement must have been made during the conspiracy; and (3) the statement must have been made in furtherance of the conspiracy. If the statement was part of the initial agreement (the actus reus of conspiracy), it may be admissible under the verbal acts doctrine, and resort to this rule is unnecessary.113
Conspiracy charge. The crime of conspiracy need not be charged in the indictment.114Indeed, the rule also applies in civil cases.115 In addition, an acquittal of the conspiracy charge does not affect admissibility.116
[A] Proof of Conspiracy
Rule 801(d)(2)(E) applies only if the offering party establishes the existence of a conspiracy: an agreement between two or more persons (the actus reus) with an intent to commit a crime. With one exception, the statement must have been made while both the declarant and the defendant were members of the conspiracy.117 Hence, if the defendant withdraws from the conspiracy before the objectives are achieved or abandoned, statements made by other conspirators after the withdrawal are not admissible against the defendant.
The arrest of the declarant usually terminates his participation in the conspiracy and makes his post-arrest statements to the police inadmissible against the defendant.118Similarly, the defendant's arrest usually terminates his participation in the conspiracy and makes subsequent statements by co-conspirators inadmissible against him. A conspiracy, however, could continue even while a defendant is incarcerated.
[B] "During the Conspiracy" Requirement
Rule 801(d)(2)(E) requires that the statement be made "during the conspiracy," a requirement recognized at common law. Statements of co-conspirators made after the conspiracy ends (i.e., "concealment phase" statements) are generally not admissible. In other words, statements made after the objectives have been achieved or abandoned, but while the conspirators are attempting to avoid detection, are inadmissible.119 There is some leeway for the prosecutor to define the objectives of the conspiracy. For example, "unlike most other criminal conspiracies, concealment is actually one of the main criminal objectives of an arson-for-profit scheme, because it facilitates the primary objective of fraudulently acquiring insurance proceeds."120 Thus, the conspiracy does not end with arson; it continues until the insurance is collected.
This rule does not govern the admissibility of acts engaged in during the concealment phase. Such acts may be admissible if relevant to prove the existence of the conspiracy.121
[C] "In Furtherance" Requirement
The statement must be made "in furtherance of the conspiracy."122 A "statement is not in furtherance of the conspiracy unless it advances the ultimate objects of the conspiracy."123 Statements that are only casual remarks or merely inform the listener of the declarant's activities are not made in furtherance of the conspiracy. It is often stated that "mere idle chatter" does not further a conspiracy and is, hence, inadmissible.124Statements that provide assurance, serve to maintain trust and cohesiveness among the conspirators, or inform each conspirator of the current status of the conspiracy do further the ends of the...
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