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«What if my words were meant for deeds. ? George Elliott' Words are also actions, and actions are a kind of words. 2 Ralph Waldo Emerson CONTENTS ...»

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Christopher B. Mueller*

What if my words were meant for deeds... ?

George Elliott'

Words are also actions, and actions are a kind of words.


Ralph Waldo Emerson





A. English Origins and American Adoption....... 325 B. The Exception in Theory

C. The Exception Applied


II. THE 340 III. 348


A. Theory and Practice Revisited............... 348 B. The Persistent Problem of Reliability......... 355 IV. 363 THE PROCEDURAL THICKET

A. Admitting and Excluding

1. Functions of Judge and Jury............. 365 * Professor of Law, University of Illinois. A.B. 1966, Haverford College. J.D. 1969, Uni- versity of California (Berkeley). The author wishes to thank the Illinois Bar Foundation and Amax Foundation, Inc., whose research grants made this article possible. The author would also like to thank his colleagues at Illinois, Wayne R. LaFave and Richard L. Marcus, who read an earlier draft of the manuscript of this article and made helpful suggestions. Finally, research assistant Michael H. McCabe, a third year student at Illinois who conscientiously checked and read text and footnotes, and rendered invaluable assistance.

1. G. ELIOT, THE SPANISH GYPsY 277 (1868).

2. R. EMERSON, The Poet, in ESSAYS 14 (1st & 2nd series 1883).


2. Independent Evidence

3. Sequence

4. Standard of Persuasion.................. 377

5. Instructing the Jury

Coconspirator statements have been admissible in federal criminal cases for more than a century and a half, and for all that time a hearsay exception (now "firmly established"$) has paved the way for

their use as proof of what they assert. The exception seems timeless:

Rule 801(d)(2)(E) sets out the modern version in terms which Thomas Starkie and Joseph Story would have found congenial. It seems important too: In conspiracy prosecutions it is a lethal weapon for the government, and in appellate opinions it commands constant attention.

Yet the exception is fraught with problems. In terms of theory, it is an embarrassment. Its requirements seem substantive rather than evidential; it seems to have been created by accident, and the one traditional explanation which survives does not convince. In terms of procedure, the exception is tangled in a thicket. Modern federal opinions have cut a path through, but the undergrowth threatens to encroach again, and cannot be cleared away entirely.

This article examines the coconspirator exception in the context in which it finds its greatest use-the conspiracy prosecution, where a statement by one alleged conspirator is offered in evidence against another. Part I considers the almost accidental English origin of the exception and its adoption by federal courts, and expounds the explanations first offered, including the substantive agency theory and its modern revision, and the evidential "res gestae" theory. This Part suggests that the agency theory may never have been intended to support a hearsay use of coconspirator statements, and that the "res gestae" theory actually contained useful insights, though they were not well developed and were obscured by indiscriminate use of the Latinism. This Part concludes with a survey of modern practice

3. Krulewitch v. United States, 336 U.S. 440, 443 (1949).


1984] under rule 801(d) (2) (E).

Part II considers different varieties of coconspirator statements.

They are relevant in different ways, and they implicate the hearsay doctrine differently. These differences bear importantly upon the sound application of the exception and upon the procedures followed in administering it.

Part III presents a critical examination of the modern exception. It argues that the agency theory, though often cited, has neither an appreciable impact upon application of the exception nor any real value in explaining the hearsay use of coconspirator statements. It argues further that there are two better explanations, one arising out of the verbal act doctrine and the other turning upon conduct by the declarant. Finally, Part III suggests that these explanations too are only partial, and that where they do not apply courts should (and often do) look for other factors bearing upon reliability.

Part IV takes up procedural issues, arguing that federal courts have arrived at the best solution to intractable problems, though failing adequately to articulate the reasons for doing so. This Part attempts to set out those supporting reasons and to explain the problems that remain.

Finally, Part V suggests by way of conclusion that the exception should be amended to require a finding of reliability before coconspirator statements are received for hearsay use, and suggests an approach designed to aid in the sensible application of the exception.



A. English Origins and American Adoption The coconspirator exception made its first appearance in English treason trials in the late eighteenth century, where defendants were charged with trying to import the French Revolution to English soil. While there are earlier cases in which coconspirator statements were received,4 the later trials of sympathizers with the French Revolution have special importance. The idea of conspiracy as a punishable offense, consisting (as it does in modern law) of an agreement to commit an unlawful act or a lawful act by unlawful means,

–  –  –

had long since gained a secure foothold in English criminal law. 5 And a general rule barring proof by hearsay, while later in coming and slower in developing, had become a central feature of English evidence law. 6 It was in the late eighteenth century treason trials that judges first confronted the possibility that the law of criminal conspiracy and the evidential doctrine of hearsay might conffict: The law of conspiracy necessarily implies that sometimes statements by one alleged conspirator will be provable against another charged with conspiring, while the hearsay doctrine points in the opposite direction.

There are four striking features in the attempt at reconciliation

made by the English judges:

The first is a clear recognition that coconspirator statements are sometimes hearsay, and sometimes not. In the trial of Thomas Hardy in 1794,7 Chief Justice Eyre offered the simplest possible illustration of this point: If three persons are prosecuted for conspiracy, the conversation in which they plan the venture and agree to participate is not hearsay, and the words spoken by each may be proved against all, but a later statement by one of them admitting his involvement would be hearsay if offered against the others to prove that point.8 Unfortunately this important observation apparently blinded the early judges and commentators to the possibility that coconspirator statements might have both hearsay and nonhearsay significance. In fact, many coconspirator statements do, and understanding this point is critical to the sensible application of the coconspirator exception.

The second feature is the insight that some coconspirator statements suggest the operation of a conspiracy, hence necessarily its existence, but not that defendant is involved, while other such statements expressly implicate him in the venture. It followed, of course, that some coconspirator statements had to be "brought home" to the defendant (or "connected" to him, as a modernist would say) by other proof.9 This discovery exposed an issue which has plagued the

5. D. HARRISON, CONSPIRACY AS A CRIME AND AS A TORT IN ENGLISH LAW 3-47 (1924); 3 W. HOLDSWORTH, HISTORY OF ENGLISH LAW 401-07 (3d ed. 1923); 8 id. at 378-84 (1926).

6. 9 W. HOLDSWORTH, supra note 5, at 214-19 (1926).

7. 24 How. St. Tr. 200 (1794).

8. Id. at 474.

9. Id. at 438 ("in a general charge of conspiracy," the action of one of its members "is evidence to prove a circumstance in that conspiracy," but whether it will ultimately be "brought home" to the accused is "another consideration") (remarks by Lord Chief Justice


1984] coconspirator exception ever since: If a coconspirator statement must be "brought home" to the defendant, who is to decide whether the connection has been made, judge or jury, and how? And if a statement on its face implicates the defendant (and need not be "brought home" to him), who decides whether the statement may be used against him, and how?1 0 To put it another way, what are the appropriate roles of judge and jury when coconspirator statements are offered? The judges in the English treason trials heard arguments on the problem, but failed to resolve it."1 The third remarkable feature in these trials is that the judges were quick to reconcile the apparent conflict between the law of conspiracy and the hearsay doctrine by suggesting that a coconspirator statement may be admitted when it is "in furtherance of" the conspiracy, and not otherwise.1 2 Not, in other words, when the stateEyre); Trial of William Stone, 25 How. St. Tr. 1155, 1273 (1796) (drawing upon Lord Chief Justice Eyre's remarks in the Hardy trial, counsel Erskine suggests that in conspiracy trials the evidence has "two branches," one of which shows "that a specific conspiracy existed," and the other of which shows "that the prisoner was a member of it").

10. The question whether an act by one alleged conspirator has been "brought home" or "connected" to a defendant charged with conspiring is, in Rules terms, one of "conditional relevancy" which the judge should pass to the jury pursuant to FED. R. EVID. 104(b), if there is sufficient evidence to permit reasonable persons to find the necessary connection. The same is true of statements made by one alleged conspirator, insofar as they have no hearsay significance in the case and are offered only as verbal acts. See infra notes 149-50 and accompanying text.

A different question is presented when a statement by one alleged conspirator is offered against another under FED. R. EVID. 801(d)(2)(E) as proof of what it asserts. Here, the question is one of "admissibility," to be answered by the trial judge alone pursuant to FED. R.

EvID. 104(a). See infra notes 145-49 and accompanying text.

11. See, e.g., Trial of William Stone, 25 How. St. Tr. 1155, 1272-75 (1796) (The defense conceded that a letter conveying intelligence to the enemy tended to prove a conspiracy, as well as the sender's involvement, but argued that it should not be admitted because it was not connected to the defendant; the prosecutor replied at length that the jury should resolve this issue, citing an example of a murder prosecution, "where a man holds horses at a gate, and the murder is committed in the field," and arguing that "the acts in the field are to be given in evidence against the man who stands at the gate," since "it is for the jury to consider, whether the standing at the gate, holding the horses, is an act done in execution of one common purpose with those who in his absence are murdering").


ed. 1830) (speaking of "a declaration made by one conspirator at the time of doing an act in furtherance of the general design... " and concluding that it "is for the Court to judge whether a sufficient connection has been established to affect one person with the acts of others") with 1 S. PHILLPPS, A TREATISE ON THE LAW OF EVIDENCE 199 n.5 (3d ed. 1849) (suggesting that acts by one coconspirator may be proved against another charged with conspiring, hence that statements by the latter may also be proved, and concluding that in "such cases it is necessary, that there should be given, at some period of the trial, sufficient evidence to go to the jury, of concert and connection on the part of the prisoner").

12. E.g., Trial of Thomas Hardy, 24 How. St. Tr. 199, 454 (1794).

HOFSTRA LAW REVIEW [Vol. 12:323 ment is a "mere recital."13 The judges were quick to explain that such "furthering" statements were admissible because the "transactions" of a conspiracy, which meant the acts and words of the schemers carrying out the plot, were to be "imputed" to all conspirators, hence provable against them. 14 Thus, the early judges arrived at a definition and an explanation that are very close to those which prevail today, and it is little exaggeration to say that the coconspirator exception was born full grown at that time, at least insofar as definitions and reasons count for anything.

The fourth remarkable point is that most of the statements offered in the treason trials had no hearsay significance at all, 15 and those that did were excluded, or only admitted under instructions forbidding hearsay use.16 Therefore, while the English judges arrived at a close approximation of what was to become the modern coconspirator exception, they did not apply it as an exception. Yet their definition was to become a true hearsay exception in modern law-a rule that permits the use of coconspirator statements as proof of what they assert.

Drawing upon these treason trials, the nineteenth century English scholars March Phillipps and Thomas Starkie announced the "established rule" that "a declaration made by one conspirator at the time of doing an act in furtherance of the general design, is evidence against the other conspirators." 7 Given their source material, it comes as no surprise that Starkie and Phillipps did not seem to

13. Id. at 451.

14. E.g., id. at 451-54, 474-78.

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