The Use of Co-Conspirator Statements Under the Rules of Evidence: A Revolutionary Change in Admissibility

• Author: by Major Fredenc L. Boreh III
• Pages: 04

I. INTRODUCTION

The United States Supreme Court decisions of United States v

Inadt' and Bourja~ly 0. United States* dramatically alter rule of Evidence SOl[d)(Z)(E),' which governs the admissibility of coanspirator hearsay. First, B O W J ~ ~ abolishes an old common law rule that had been considered to be a part of Rule SOI(d)(Z)(E). This rule provided that statements of co-conspirators were admissible only if evidence independent of them proved the existence of the conspiracy and the accused's membership in it. Second, Inadi and B O W J ~ Y in concert

'Judge Advocate Generds Carps, United States Army Currently assigned ab Federal Felony Prosecufar. XYIlI Airborne Corps and Fort Bragg, Fort Bragg, North Carohna. Formerly ars>gned 8 8 Senior Defmse Counsel, 211t Support Command. Kaaerslautern, Germany, 1985-1987, Battalion Judge Advocate. 4th Bartalion 325th lnfantv Reglment IAirbornel. Vleenrs, Italy. 1983.1986. Legal Aimstance Offieer, 'mal C o w l , md Adrmnistrafive Hw

Mflcer, Fort Bennmg. Geargla. 1980-1983,

U S

Military Pentathlon Team. Fort Sam Hountan, Texas 1978.1979 A B , Dawdron Col-lag8, 1976. J D , Unlrersity of North Carallna at Chapel HdI.

1979. LL Y magna cum laud

W~oponsand the

Laws of Warfare Army, Aug 1985, at 39 Tmming the Combat Soldm ~n the Lorn of War, The Amy Lawyer. Nov 1984. at 39. Note, SCM L Langis Foods, Lfd Rigiafru-t~onofFarizggn Trodemads zn the Unmd Slates. 2 N C J Inr'l L & Camm Reg 179 (19771 This an~ele

LS based on B eamhmafm of the author'. Writing far Pubheation and Research Paper requiremmts while a atudsnt m the 36th Judge Advocate Officer Graduate Course

The relevam text reads "A statement E not hsarsa) dthea~atementiaofferedagam.r apsrty andin a.farcm.nthyaeo-ranspirarorof

B party duriw the course and in furtherance of the ~onspiracy

"

end the need for co-conspirator hearsay proffered under Rule 801(d)(Z)(E) to be analyzed in terms of the mxth amendment's right to confrontation. The Supreme Court's abolition of these two sigmficant requirements-both of which had acted as barriers to the admissibility of out-of-court statements of non-testifying eoanspirators-is nothing short of revolutionary. Inadi and BOWJ& have so altered the traditional reqmrements for admisability under Rule 801(d)(Z)(El

88 to now permit nearly all statements which satisfy the literal language of Rule 801(d)(Zi(EI to be received into evidence.

This article examines this revolutionary change m the law of em-dence It IS divided into two parts. The first part examines co-conspirator statements and Rule 801(d)(Z)(EI m general terms and addresses the common law requirement for independent evidence of the existence of the conspiracy and the accused's participation ~n It 88

a prerequisite for admissibility of ca.consprator hearsay 8s substantive evidence The continuing applicability of the independent em-dence rule to federal and military law after the adoption of the Feder-al Rules of Evidence (FREI and Military Rules of Evidence (MREI 1s

examined Next, the end of the independent eridence requirement after Bougrady IS addressed, and the effect of this change on the operation ofRule 801(d)(Z)(E)

LS analyzed Finally, there is a discussion of whether this change is correct 88 a matter of law and umas a

The second part of this article examines the sixth amendment's right to confrontation as applied to co-conspirator hearsay It begins with a look st the confrontation clause generally. Next, it examinee the right of confrontation as applied to co-conspirator hearsay and Rule 801(d)(2)(E) pnor to Znedr and Boiirjaily. Finally, it looka at the demise of any confrontation clause analysis under Rule 801(d)fZ)(E) after Znedi and B o u ~ J ~ ~ .

After discussing the abolition of the independent evidence require- ment and the demise of the sixth amendment's applicability to co. conspirator itatements offeered under Rule 801(dI(Z)(EI, thls artlele coneludes with a look at the practical effect of thia revolutionary change in admissibility in criminal prosecutions. In particular, It addresaes the new nbility of tnal coumel to utilize Rule SOl(d)(ZIIEI to gain admissibility for statementa which otherwise might be admit. red under other hearsay exceptions-present sense mpresslons, statements against penal mntereat, excited utterances, or statements of famd history-but which now are more easily admitted under

Ei The effect that this revolutionary change in admm sibility under Rule 801(diiZXE) may have on the farness of the judicial ayetern E also explored

matter of policy

19891 CO-CONSPIRATOR STATEMENTS

11. CO-CONSPIRATOR HEARSAY AND RULE OF EVIDENCE 801(d)(2)(E) A. GENERALLY

FRE 801(d)(2)lE1 provides that "a statement is not hearsay if the statement 18 offered against a party and is . . a statement by a co-conspirator of a party during the coume and in furtherance of the conspiracy."' MRE 801(d!IZl(E) is identical!

Thus, before the out-ofaurt statement of a nan-testifying co-conspiratar can be admitted under Rule 801(d)(2)(E), the government must prove that. 11 the conspiracy existed, and the accused and the non-testifying co-conspirator were both members of it; and 2) the proffered Statement we8 uttered during the course of and in furtherance of the conspiracy.' Once these two requirements are met, statements of a "on-testifying co-conspirator uttered "dunng the courseand in furtherance of the eonsp~racy"~may be used without the maker of the statements ever appearing in court to testify under oath

B. THE INDEPENDENT EVIDENCE REQUIREMENT

I . Ca-Conspirator Statements and the Zndependent Eoidence Requirement Prior to the Rules of Euidenee

Prior to the adoption of the Federal Rules of Evidence by federal civilian courts 1915, the common law governed the admissibility of evidence in federal criminal trials. Similarly, the admissibility of ev1-dence in the military before the adoption of the Military Rules of Evidence in 1980 was governed by general common law principles as codified in successive Manual8 for Courts-Martial

The prevailing rule in both federal and military courts was that independent evidence of the compiracy's existence, Separate and apart from the proffered coanspirator's statements, was required as a prerequisite for receiving the statements into evidence The authority for this rule was the 1942 United States Supreme Court cam of

'Id'Id Mil R End BOl(d1lZ1IE~ 18 modsled afrer Ita federal eounfsrpan'Case law and eammsntators agree that the content af the proffered EO-cansplratar statements itself can be emsidered in pmvmg that the statements were uttered dunng the CUYTS~of and m furtherance of the ~onsplrac). See Brieffor Petitioner sf 25, Bour-jally Y United States 107 S Ct 2775 119871 (No 85-67211. Brief for tha United Srafea at 17. Bounaily v United States, 107 3 Ct 2175 119871 (No 85.6721,

'Fed R End 80l(d)(2)

Glosser c L'nited Stotea In Glasser the court decided that the declarations of a "on-testifying co-conspirator were admissible agamet the accused co-conspirator who was not present when the statements were made "only if there 18 proofoliunde that he is connected wlth the conspiracy [Oltherwme hearsay would lift itself by its own bootstrap to the level of competent endenee '"

In the 1974 case of United States v X ~ x o n ' ~ the Supreme Court

again stated in dictum that declarations by one co-conapirator may be admitted against another co-conspirator only "upon sufficient showing by independent evidence of a conspiracy among one or more other co.consprators. There must he substantd independent evidence of a conspiracy ''11 This language reaffirmed the Court's holding ~n Glos-sei some twentyfive years earlier.

The Manuals for Court8.Martml of 1951" and 1969" did not address bootstrapping. but military practice clearly followed the rule in Glosser In the 1962 case of United States ii LoBoss~erel~the accused was charged wlth conspiracy to commit larceny of government property. The pro~ecutmn sought to prove LaBasaere's participation in the cnrnmal agreement through the statements of B "on-testifying co-conspirator The court held that "bootstrapping of this sort 1s

impermissible ''l' Quoting from its decision in Umted States o Mounts,I6 the muit stated: "It would be faulty and circuitous mason-ing with a vengeance to permit the questioned declaration itself to furnish the essential basis far its own guaranty.""

In 1974 the Air Force Court of Military Review cited LaBossiere m stressing that independent evidence wa8 still required. Thus It wm

erroneous for the judge to have relied on a non-testifying coconspirator's "conversations with the vanou3 witnesses to establish the existence of a conspiratorial agreement with the accused Bootstrapping of this sort has long been held to he impermissible ''la

Scholarly l~teratureon military law a p e d that the law was well.

settled One commentator. writing in the Military Law Recreu in 1971, stated that "the general rule 1s that each accused must he con- 'Glaiaer ,

Omfed States 316 US 60 11942

Duff? 19 C \I R 206 210 8.4 F C 41 R 1974'

19891 CO-CONSPIRATOR STATEMENTS

neeted with the alleged conspiracy by evidence independent of the statements of co-conspirators before these statements are admissible against him.""

A final point germane to a discussion of the pre-Rules prohibition an bootstrapping was the issue of whether the judge or the jury determined the existence of the conspiracy. The prevailing practice in both the federal and military courts was for the judge to decide the issue. In UnLted States U. DennisZo Judge Learned Hand stated that the judge, not the jury, should determine the conspiracy's existence In Carbo D. United States" the court held that the Judge was to decide the issue 88 a preliminary question To hold athenviae would nsk confusion. Because proof of the conspiracy by independent evidence is a preliminary question not requiring proof beyond a reasonable doubt, to expect the jury "not only to compartmentalize the evidence...