Confrontation and Co-conspirators in Colorado
| Publication year | 1985 |
| Pages | 385 |
| Citation | Vol. 14 No. 3 Pg. 385 |
1985, March, Pg. 385. Confrontation and Co-conspirators in Colorado
In People v. Nunez, the Colorado Court of Appeals rejected a defendant's argument that statements of co-conspirators otherwise admissible under Colorado Rules of Evidence ("CRE") Rule 801(d)(2)(E) should not have been admitted because their admission would violate his "constitutional right to confront the witnesses against him."(fn1) The court held that admissibility under the evidence rule per se satisfies confrontation requirements. It also expressed the view that any argument to the contrary was frivolous.(fn2)
The U.S. Courts of Appeals for the Second, Third, Eighth and Ninth Circuits have held, contrary to Nunez, that admissibility under Federal Rules of Evidence ("FRE") Rule 801(d)(2)(E), which is identical to Colorado's rule, does not automatically establish admissibility for Sixth Amendment confrontation clause purposes.(fn3) Indeed, Justice White urged the U.S. Supreme Court to grant certiorari to resolve "substantial confusion surrounding this frequently occurring issue."(fn4) This author believes that if the Colorado Supreme Court were to address the issue, it would reject the per se analysis.
The purpose of this article is to explain the basis for that belief and to argue that per se admissibility is a violation of the Sixth Amendment of the U.S. Constitution and of Article II, § 16 of the Colorado Constitution. The article also urges lawyers and trial judges to develop a trial court record sufficient to permit counsel to pursue this important constitutional issue on appeal.
The Sixth Amendment to the U.S. Constitution affords the accused the right "to be confronted with the witnesses against him." The analogous article in the Colorado Constitution gives the defendant the right "to meet the witnesses against him face to face."(fn5) Although the text of the two provisions is not identical, the Colorado Supreme Court has held that the U.S. Supreme Court's analytical framework for dealing with confrontation issues provides "useful guidance" in analyzing the Colorado provision.(fn6)
An analysis of a co-conspirator's statement under the Sixth Amendment must begin with the case of Dutton v. Evans.(fn7) In Dutton, Defendant Evans was indicted for the murders of three police officers. His conviction was affirmed by the Supreme Court of Georgia,(fn8) and he sought habeas corpus relief in the federal district court, which denied the writ. The Fifth Circuit reversed,(fn9) and the U.S. Supreme Court granted certiorari.
In the Supreme Court, Evans asserted that his confrontation rights had been violated under the Georgia co-conspirator exception to the hearsay rule by the admission of the testimony of a prison-mate, Shaw. Shaw testified that he was a prisoner in a federal penitentiary with Williams, a co-conspirator in the murders, and that subsequent to Williams' arraignment, Williams told him: "If it hadn't been for that dirty son-of-a-bitch Alex Evans, we wouldn't be in this now."(fn10)
The plurality opinion of the Court reiterated its prior statements that, although the hearsay rule and confrontation clause protect similar values, the constitutional provision is not a complete overlap of the hearsay rule and its exceptions.(fn11) The Court said a confrontation violation can occur
even though the statements in issue were admitted under an arguably recognized hearsay exception [and] merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.(fn12)
The Court emphasized that the primary mission of the confrontation clause is to "advance a practical concern for the accuracy of the...
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