Section 16.9 Declaration of Co-Conspirator

• Library: Evidence 2017

D. (§16.9) Declaration of Co-Conspirator

Out-of-court statements of a co-conspirator may be admitted if there is independent proof of the existence of the conspiracy and independent proof that the statement was made in the course of and in furtherance of the conspiracy. State v. Ferguson, 20 S.W.3d 485, 496 (Mo. banc 2000). The foundational evidence does not need to be conclusive. It may be established by circumstantial evidence, and it only needs to be shown by a preponderance of the evidence. Id.; State v. Frederickson, 739 S.W.2d 708, 711 (Mo. banc 1987). In Missouri, the statements themselves cannot be used to establish the existence of the conspiracy. Ferguson, 20 S.W.3d at 496. This is not a federal constitutional requirement, however. Bourjaily v. United States, 483 U.S. 171, 181–82 (1987). In federal court, these statements may be used to prove the existence of the conspiracy.

Statements by a co-conspirator made after the commission of the underlying crime has been completed may still be admissible if the conspiracy continues for another purpose, such as covering up the crime or preventing or defeating prosecution—hardly a difficult task to prove. See Ferguson, 20 S.W.3d at 496–97 (statements made while disposing of rings stolen from the murder victim); Coday v. State, 179 S.W.3d 343, 357–58 (Mo. App. S.D. 2005) (statements about a charged crime made while planning the commission of the same type of crime against a future victim). And, the confession of a codefendant is not admissible if the codefendant does not testify at trial or if the codefendant exercises the right not to testify under the Fifth Amendment because there is no opportunity for cross-examination. Bruton v. United States, 391 U.S. 123, 126 (1968).

Frederickson, 739 S.W.2d 708, is a typical example of a co-conspirator’s admission. The defendant, an alleged madam at a house of ill repute, was charged with promoting prostitution. The State sought to admit the testimony of an undercover police officer as to statements made by the defendant’s employees. The undercover agent testified that the defendant gave him a “rundown” of the prices with the declarants present and watched while he had sex with the declarants. In addition, another witness who worked there testified that she performed acts of prostitution and that the declarants “did ‘the same thing.’” Frederickson, 739 S.W.2d at 711. This was more than sufficient evidence of a conspiracy to commit acts of prostitution, and thus, the...