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February 15, 2011
D.C. Cab: DDC Denies Motion For Pretrial Hearing On Admissibility Of Co-Conspirator Admissions In Cab Corruption Case
Federal Rule of Evidence 801(d)(2)(E) provides that
A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
So, let's say that the prosecution wants to admit alleged co-conspirator admissions against a defendant. Should the court allow the prosecution to introduce these alleged admissions only after it establishes that the declarant was a co-conspirator of the defendant and that the statements were made during the course and in furtherance of the conspiracy? Or should the prosecution be able to introduce these alleged admissions contingent upon its subsequent introduction of evidence sufficient to satisfy the Rule's requirements, with the court declaring a mistrial or instructing the jury to disregard the statements if such evidence is not presented? According to the recent opinion of the United States District Court for the District of Columbia in United States v. Loza, 2011 WL 340290 (D.D.C. 2011), the answer is "no." I disagree, at least in cases in which the court only instructs the jury after it determines the the alleged admissions are inadmissible.
In Loza, Ted Loza, a former chief of staff of member of Council of the District of Columbia, was charged in connection with his alleged involvement in a conspiracy whose goals included corruptly obtaining taxicab company licenses and influencing legislation. Loza thereafter moved for a pretrial hearing on the admissibility of alleged co-conspirator admissions, alleging that at least some of the subject statements were not made as part of a conspiracy in which he participated.
The United States District Court for the District of Columbia disagreed. It did acknowledge that "[t]he court of appeals has suggested in the past that it is "the better practice" for the trial court to determine the admissibility of statements offered pursuant to Rule 801(d)(2)(E) before the statements are presented to the jury. That said, the court then went on to note that
Nevertheless, the court of appeals acknowledged in the same opinion that "it is just impractical in many cases for a court to comply strictly with the preferred order of a proof," and as a consequence, "the court is vested with considerable discretion to admit particular items of evidence 'subject to connection.'"...In this district it is common practice for a court to avoid a "disfavored 'mini-trial' of the evidence" by deferring its determination regarding the admissibility of alleged co-conspirator statements until after the close of the government's case.
And, according to the court, "If, after the close of the government's case, 'or at any other critical point,'the court determines that the government has failed to prove the necessary factual predicate for admissibility, the court may either declare a mistrial or strike and instruct the jury to disregard any inadmissible statements."
The court then decided to follow the "common practice" and denied Loza's motion for a pretrial hearing. And I have no problem with that ruling, assuming that the court was prepared to declare a mistrial in the event that the statements were later determined to be inadmissible. But I disagree with the position that a court cure any problems created by the erroneous admission of co-conspirator admissions, at least in some cases, by instructing the jury to ignore them.
As the Supreme Court concluded in Bruton v. United States, 391 U.S. 123 (1968), courts generally presume that jurors follow instructions, but that trust can only go so far. Therefore, under the Bruton doctrine, jurors in joint trials are presumed not to have followed an instruction that the confession of a non-testifying co-defendant that implicates other defendants is only evidence of the co-defendant's guilt. I think that the same should apply to co-conspirator admissions that are erroneously admitted. These admissions establish that there was a conspiracy and (often) that the defendant was involved in it. Simply telling jurors after they have heard such powerfully incriminatory evidence that they should ignore what they have heard seems to be a flight of fancy that courts simply cannot take.
February 15, 2011 | Permalink
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