Are Statements of a Co-Conspirator Admissible?

Federal law, FED. R. EVID. 801(d)(2)(E), makes a statement by a co-conspirator during the course of, and in furtherance of, a conspiracy admissible against the defendant. A conspiracy is defined as a separate offense, by which someone conspires or agrees with someone else to do something which, if actually carried out, would amount to another federal crime or offense. A co-conspirator is someone who participates in the conspiracy along with the conspirator.

Thus, a statement made by the co-conspirator during the course of a conspiracy is acceptable in court. However, there are three foundational prerequisites:

1. the offering party must show that a conspiracy existed which involved the declarant and the non-offering party;
2. the declaration must be during the course of the conspiracy; and
3. the declaration must be in furtherance of the conspiracy.

In Bourjaily v. United States, 483 U.S. 171, 175 (1987), these rules were tested. When preliminary facts relevant to the above law are disputed, the offering party must prove them by a preponderance of the evidence. Meaning, with all evidence presented by both sides, if the scale tips toward one side or another, the weightier side will prevail. The court may consider hearsay statements admissible.

In conclusion, if a co-conspirator makes a statement during the course of a conspiracy, such comment is admissible against the defendant ONLY if the co-conspirator offers evidence of a conspiracy during the course of a conspiracy and in furtherance of a conspiracy. These statements cannot be made after the federal crime of offense has been committed.

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