EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, February 7, 2018

Court of Appeals of New York Finds Statements Before a Defendant Enters a Conspiracy & After His Active Participation Are Admissible Against Him

Federal Rule of Evidence 801(d)(2)(E) provides that

A statement that meets the following conditions is not hearsay:...

The statement is offered against an opposing party and:...

was made by the party’s coconspirator during and in furtherance of the conspiracy.

So, let's say that Al and Bob agree to rob a bank and make statements in furtherance of the conspiracy (e.g., "Let's rob the bank on the corner of State and Main."). Later, they enlist Dan to drive them to the bank so that they can rob it, with the plan to be picked up by a getaway driver, Greg, after the robbery. Then, after the robbery, while being driven by Greg, Al and Bob make more statements in furtherance in the conspiracy (e.g., "Let's hide the money in that cabin in the woods."). 

If Dan is being prosecuted for his role in the conspiracy/robbery, (1) are the statements made before he entered the conspiracy admissible against him under Rule 801(d)(2)(E); and (2) are the statements made after his active participation admissible against him under Rule 801(d)(2)(E)? In a case of first impression, the Court of Appeals of New York answered both questions in the affirmative in People v. Flanagan, 49 N.Y.S.3d 50 (N.Y. 2017).

According to the court,

This is an issue of first impression in our Court. We now hold that when a conspirator subsequently joins an ongoing conspiracy, any previous statements made by his or her coconspirators in furtherance of the conspiracy are admissible against the conspirator pursuant to the coconspirator exception to the hearsay rule. This holding is in line with precedent of the Supreme Court of the United States, as well as with the vast majority of federal circuit courts, which have held, pursuant to the Federal Rules of Evidence, that “previous statements made by co-conspirators are admissible against a defendant who subsequently joins the conspiracy."...Here, that is certainly the case where defendant a high-ranking officer in the NCPD, joined the conspiracy after a discussion with coconspirator Parker in which Parker informed defendant of what had transpired and enlisted his help to prevent the criminal case from proceeding against Z.P.

We further conclude, in line with federal case law, that statements made after a conspirator's alleged active involvement in the conspiracy has ceased, but the conspiracy continues, are admissible unless this conspirator has unequivocally communicated his or her withdrawal from the conspiracy to the coconspirators....Here, defendant makes no argument that such a communication was made. Therefore, we conclude that the trial court made no error in admitting any of the coconspirator statements.




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