Harry is robbed at knifepoint by two muggers as he leaves his favorite tavern one summer evening. After giving up his money, he and his buddies jump into a car and cruise the neighborhood, looking for the culprits. They spot some people in a vacant lot. Harry says, "That's them." The men pile out of the car and grab a young man and woman. During the struggle, the man says, "The girl made me do it." The woman says something that could be construed as a denial. Harry says, "He already told us you put him up to it."

If the state attempts to call Harry to testify to the man's statement at a trial of the woman, is the statement admissible? Why? Is the woman's response? Is Harry's response to the woman's statement?



Difficult procedural questions arise when statements of an alleged coconspirator are offered against a defendant under Rule 801(d)(2)(E). Under the rule such statements are admissible only if made during and in furtherance of the conspiracy. Thus, a preliminary question that must be answered before the exception becomes applicable is whether a conspiracy existed at the time the statement was made.

This question in turn raises several antecedent questions about the operation of the Federal Rules that were not clearly spelled out in the rules. For example, is the question of whether a conspiracy existed a question for the judge to determine under Rule 104(a), or is it a 104(b) question of conditional relevancy for the jury to determine like any other issue of conditional relevancy? If this question is a 104(b) issue, is the standard of proof of a conspiracy that must be satisfied before the hearsay is allowed any different from the standard of proof of conspiracy that the judge must apply if this is a 104(a) question? Regardless of whether this is a 104(a) or 104(b) issue, may the hearsay statement itself be considered on the preliminary issue of whether a conspiracy existed? If the court decides that the existence of a conspiracy is a 104(a) question, must it hear all the proof regarding existence or nonexistence of the conspiracy and make its decision as to whether a conspiracy existed before allowing in the hearsay statement whose admissibility depends on a finding of a conspiracy? If the court concludes that the existence of a conspiracy is a 104(b) issue, or if the court concludes it is a 104(a) issue but allows the hearsay evidence in before ruling on the preliminary issue of the existence of a conspiracy, and it turns out that the proof of the existence of a conspiracy is insufficient, what corrective options are available to the court?

Many cases raising these issues created a thriving appellate practice for criminal defense lawyers and prosecutors until in 1987 the Supreme Court stepped into the fray. In Bourjaily v. United States, 483 U.S. 171 (1987), the Court held:

1. The existence of a conspiracy and the accused's participation in it are preliminary questions of fact that must be resolved by the Court under Rule 104(a);

2. When the preliminary facts are disputed, the offering party must prove them by a preponderance of the evidence (rejecting a higher standard and citing Lego v. Twomey, 401 U.S. 477, 488 (1972)); and

3. In determining whether a conspiracy exists and whether the defendant was a part of it, the court may "bootstrap," that is, may consider the hearsay statement itself sought to be admitted.

The Court declined to express an opinion on

1. The proper order of proof that trial courts should follow in an ongoing trial in making the preliminary factual determination of the existence of a conspiracy; and

2. Whether a preliminary finding of a conspiracy could be based solely on the contested hearsay statement.

Although seemingly clarifying many controversial issues, Bourjaily did little to stem the tide of appellate opinion-writing on Rule 801(d)(2)(E). Silverman, which follows Bourjaily at page 449, is an example of the continuing struggle to administer the rule.

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