Wednesday, May 8, 2013
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.
As the language of this Rule and the recent opinion of the Supreme Court of New Hampshire in State v. Rodriguez, 2013 WL 1800059 (N.H. 2013), make clear, Rule 801(d)(2)(E) does not apply to post-arrest statements.
In Rodriguez, Hector Rodriguez was convicted of burglary, conspiracy to commit burglary, first degree assault, accomplice to first degree assault, and conspiracy to commit first degree assault. After he was convicted, Rodriguez appealed, claiming that the trial court erred in deeming several post-arrest statements by alleged co-conspirators admissible under New Hampshire Rule of Evidence 801(d)(2)(E).
The Supreme Court of New Hampshire agreed with him, finding that many of these statements were post-arrest statements and that
post-arrest statements of co-conspirators are not admissible under this rule.[FN1]
FN1. See 29A Am.Jur.2d Evidence § 858, at 149–50 (2008) ("[W]here coconspirators were in custody when they made their confessions, the objects of the conspiracy were complete, and the coconspirators were not attempting to conceal the crime or their cohorts, the statements were not made in furtherance of the conspiracy."); United States v. Meises, 645 F.3d 5, 18, n. 21 (1st Cir.2011) ("There is no question that the hearsay exception for co-conspirator statements made during the course and in furtherance of the conspiracy, does not apply to...post-arrest statements." (quotation and citation omitted)).
This, of course, makes sense. Post-arrest statements are not made during the course of a conspiracy. They are made after the conspiracy is over, after the jig is up. Moreover, such statements are not in furtherance of the conspiracy. They are giving up the conspiracy.