One of the exceptions to the res inter alios acta rule and hence excluded from the hearsay rule is the statement of a conspirator. Such out-of-court statement is admissible against a co-conspirator as a vicarious admission pursuant to Section 31, Rule 130 of the Rules of Evidence, as amended in 2019, and which reads as follows:
“Sec. 31. Admission by conspirator. – The act or declaration of a conspirator in furtherance of the conspiracy and during its existence may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act of declaration. (30a)” [Emphasis supplied]
Section 31 should be of special interest to prosecutors and criminal defense lawyers since in many criminal cases involving conspiracy, such as murder, robbery, drugs offenses, and large-scale estafa, the prosecution often employs co-conspirators’ statements to prove the crime.
For a conspirator’s statement to be admissible against a co-conspirator, it must be shown that (1) a conspiracy existed, (2) the accused against whom the statement is offered was a member of the conspiracy, and (3) the statement was made during and in furtherance of the conspiracy.
The 2019 amendment consists of replacing “relating to” with “in furtherance of.”1 The phrase “in furtherance of the conspiracy” requires that the act or declaration should advance the ends of the conspiracy rather than simply “relate” to the conspiracy. The phrase provides some assurance that the statement fits circumstantially the aims apparently motivating the conspirators, which provides some indication that it can be trusted. The requirement also expresses in evidential terms. the agency theory underlying the substantive notion of conspiracy.2
To prove that a statement was made in furtherance of a conspiracy, the proponent is not required to show that the statement actually advanced the objectives of the conspiracy; it is enough to show that the statement was intended to advance such objectives.3 Section 31 of Rule 130 explicitly says that the statements need be “in furtherance of the conspiracy”, not that they “further the conspiracy.”4 The U.S. federal courts have read the requirement liberally, interpreting it to encompass such evidence as declarations of future intent and statements unwittingly made to law enforcement officials. For example, narrative statements relating past events are not considered to have been made in furtherance of a conspiracy. Additionally, statements which are conversational or mere bragging do not satisfy the requirement.5
Though the phrase “in furtherance of the conspiracy” is broadly interpreted, a statement that simply informs the listener of the declarant’s criminal activities is not made in furtherance of the conspiracy.6 A mere narrative does not satisfy the requirement, and the term “narrative” denotes statements relating events or describing responsibilities where the statements serve no conspiratorial purpose. A statement to an outsider such as a spouse or friend or companion is often viewed in this light.7 A rule of thumb is that the statement must be made to a co-conspirator or to someone involved in the criminal enterprise; otherwise, it would be a stretch to say that it is in furtherance of the conspiracy.
Nevertheless, a statement may further a conspiracy even if the speaker talks to a law enforcement agent working undercover without knowing his identity, and even if the speaker knew it but hoped to put him off the scent of an ongoing venture. However, statements amounting to confessions to known law enforcement agents fail the furtherance requirement, particularly where the speaker tries to advance his individual interest in avoiding prosecution or getting favorable treatment by helping detect a conspiracy, identify its members, or otherwise build a case for the government.8
The difference between “relating to” and “in furtherance of” the conspiracy is illustrated by the following hypothetical:
Prosecution of B and C for the murder of X. During the existence of the conspiracy to kill X, B (a co-conspirator) told his friend D that he (B) and C have hatched a plan to kill X. The prosecution offers in evidence the testimony of D regarding B’s statement. Assume that there is evidence of the conspiracy besides B’s statement. (a) Is B’s statement admissible against him? (b) Is B’s statement admissible against C?
(a) B’s statement is admissible against him. The reason is that the statement is an admission of B and thus is not barred by the res inter alios acta rule and the hearsay rule.
(b) Under the former Section 30, Rule 130 of the Rules on Evidence, B’s statement would have been admissible against C as a vicarious admission of a co-conspirator. The reason is that it is a statement “relating to” the conspiracy.
However, under the present Section 31, Rule 130 of the Rules of Evidence, the statement would not be admissible against C over objection that it is res inter alios acta and hearsay. While the statement may have been in relation to the conspiracy to kill X, it was not in furtherance thereof. A statement that simply informs an outsider of the declarant’s criminal activities is not made in furtherance of the conspiracy.
In a case against the accused for selling marijuana, the prosecution presented as witness W, a marijuana supplier. W testified that during the course of his marijuana dealings with D, the latter had said that the marijuana was being purchased for the accused. D’s statements were in furtherance of the conspiracy to sell marijuana. Although the phrase “in furtherance of the conspiracy” has a talismanic ring to it, the phrase must not be applied too strictly, or the purpose of the exception would be defeated. The statements were made by one conspirator to a fellow conspirator identifying yet another conspirator as the ultimate purchaser of the marijuana. While the statements may not have been necessary to the conspiracy, they were intended to further the conspiracy. From the statements, W could infer that he was dealing with an agent rather than the principal and that the operation he was supplying could be larger than expected. Certainly, such information could have been intended to affect future dealings between the parties.9
Bourjailly Rule
Section 31 of Rule 130 provides that a statement “may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.” (Emphasis supplied). What does the phrase “other than” mean”? One view is that the statement itself may not be used to prove the conspiracy and that there must be independent evidence of the conspiracy other than the statement. Another view is that the statement may be used to prove the conspiracy provided that there is evidence of the conspiracy besides the statement.
In the United States, the latter view prevails by virtue of the U.S. Supreme Court’s decision in Bourjaily v. United States, 483 U.S. 171 (1987). The Bourjaily ruling was codified in Rule 801(d)(2) of the Federal Rules of Evidence which provides that the statement must be considered but does not by itself establish the existence of the conspiracy. It is submitted that the Bourjaily ruling is applicable in our jurisdiction because Section 31 of Rule 130 was adopted substantially from Rule 801(d)(2)(E) of the Federal Rules of Evidence.
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- Surprisingly, many books published after 2020 still refer to the old phrase in discussing the co-conspirator admission. ↩︎
- Supreme Court Rules Committee Explanatory Notes 21, footnote 41, citing Mueller and Kirkpatrick. ↩︎
- United States v. Hamilton, 689 F.2d 1262, 1269-1270 (6th Cir. 1982). ↩︎
- Id. ↩︎
- Daniel R. Rizzolo, Testing the Reliability of Coconspirators’ Statements Admitted under Federal Rule of Evidence 801(d)(2)(E): Putting the Claws Back in the Confrontation Clause, 30 Vill. L. Rev. 1565 [1985]. ↩︎
- United States v. McKay, 431 F.3d 1085, 1093 (8th Cir. 2005). ↩︎
- CHRISTOPHER MUELLER, LAIRD KIRKPATRICK, & LISA RICHTER, EVIDENCE 873 (6th ed.). ↩︎
- Id. ↩︎
- United States v. Patton, 594 F.2d 444, 447 (5th Cir. 1979). ↩︎
