Like its federal counterpart, New Mexico Rule of Evidence 11-801(D)(2)(e) defines as nonhearsay "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." An article in the Examiner yesterday notes regarding the "balloon boy" brouhaha that
Mayumi Heene told Larimer County investigators that she and her husband, Richard Heene, knew that their 6-year-old son, Falcon, was hiding at their Fort Collins home the entire time, even as police and military scrambled to search for the boy.
The article then concludes that Mayumi's statement to investigators would be admissible in a trial against Richard as a co-conspirator admission. But if you look at the above language from New Mexico Rule of Evidence 11-801(D)(2)(e), I think that you can see why this conclusion is wrong.
Specifically, according to the article,
No doubt Mayumi broke the rule and let the helium out of the balloon in exchange for immunity for the conspiracy charges. Her statements would be admissible as a co-conspirator statement in furtherance of a conspiracy. The officers could certainly testify.
When we look at this conclusion, though, it makes no sense. Initially, it is arguable whether the conspiracy was still active at the time that Mayumi made her statement to investigators. Depending of what you view as the objective of the conspiracy, it could have ended when the balloon fell to earth or when the son was discovered. If either of these were the case, Mayumi's statement was not made during the course of the conspiracy, rendering it inadmissible as a co-conspirator admission. That said, it is arguable that because the goal of the conspiracy was to trick the public and the authorities into believing that there was a "balloon boy," the conspiracy was still active when Mayumi made her statement. Moreover, some courts have found that statements can still qualify as co-conspirator admissions if they are made during the cover up stage of a conspiracy. See, e.g., United States v. Wolf, 839 F2d 1387, 1392 (10th Cir. 1988).
But I am not going to belabor or even resolve this question because it is clear that Mayumi's statement was not in furtherance in the conspiracy. In fact, it was the opposite. When Mayumi made her admission, she was not furthering the conspiracy; she was destroying it. She was giving herself and her husband up. This is the opposite of a co-conspirator admission. If the conspiracy were active when Mayumi spoke with investigators, a co-conspirator admission would have consisted of Mayumi trying to cover up the crime but inadvertently saying something incriminatory. Because Mayumi ostensibly made her statement with the intention of spilling the beans, her statement was not an attempt to further any remaining conspiracy and thus could not qualify as a co-conspirator admission.