Perhaps the most important advantage available to a prosecutor in a criminal conspiracy case is the exception to the hearsay rule for co-conspirator declarations. The exception is widely used and is often a significant part of the government presentation. In essence, it provides that otherwise inadmissible hearsay declarations of coconspirators are admissible at trial against the defendant so long as they were made during the course and in furtherance of the conspiracy. The exception typically arises when an alleged co-conspirator declarant tells the witness (often an undercover police officer) all about the conspiracy, perhaps in the hope of attracting a buyer or a seller of drugs. During the conversation the defendant is identified as a member of the group. The witness then is called to testify at trial about this conversation. Numerous judges and commentators have explored why the exception is so important in a case like this. Basically it is because the declarant is often not available for cross-examination, and the witness is now specifically naming this defendant as having participated in the conspiracy. During the last several years, major changes have taken place which have affected the exception itself, its general application, and proof problems in connection with specific types of conspiracies. While some of these issues have been addressed previously, they have been viewed primarily from the vantage point of persons with expertise in the area of evidence law. Rarely, however, have these problems been analyzed in terms of general criminal law issues such as the quantum of proof required at trial or the procedures to be employed at a conspiracy trial. This article will focus attention on five major aspects of the coconspirator exception shaped considerably by recent events: the structure of the exception, the three elements of the exception, trial procedures utilized in connection with it, confrontation clause challenges to it, and the scope of the conspiracy. Numerous other problems are related to the hearsay exception and indeed can be vital to the trial and appellate practice in conspiracy cases. Nevertheless, such problems have been omitted here either because there have been few recent developments of significance, or because the relation is not close.
7 American Journal of Criminal Law 287-322 (1979)
Marcus, Paul, "Co-Conspirator Declarations: The Federal Rules of Evidence and Other Recent Developments, from a Criminal Law Perspective" (1979). Faculty Publications. 564.