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Guest Blawger Ben Trachtenberg on hearsay and its exceptions

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Welcome and thanks to guest blawger Ben Trachtenberg, who sent an email of such high quality about yesterday’s blogpost on cops using “magic language” that I asked him for permission to post it here, or for him to update it to a guest blawg entry, which he did. Ben is a visiting assistant professor at Brooklyn Law School. Following is Ben’s verbatim posting:

The Exception Swallowing the Hearsay Rule: Coconspirators, “Coventurers,” and the Confrontation Clause

By Ben Trachtenberg 

I appreciate the chance to post at Underdog as a guest.  I have a law review article in the works (Hastings Law Journal, forthcoming Feb. 2010) that might interest lawyers whose practice involves the Coconspirator Exception to the hearsay rule. The article is the result of research conducted during my first year at Brooklyn Law School, where I teach criminal law and environmental law.  You can read the abstract (and even download the current working draft) here: https://ssrn.com/abstract=1358530

In short, the article describes a trend wherein prosecutors have been arguing that a “conspiracy” for purposes of Fed. R. Evid. 801(d)(2)(E)—which provides that “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy” is not hearsay—need not involve illegal conduct.  See United States v. Gewin, 471 F.3d 197, 200-01 (D.C. Cir. 2006) (rejecting defendant’s claim “that Rule 801(d)(2)(E) of the Federal Rules of Evidence requires, before admission of co-conspirators’ out-of-court statements, a showing of an unlawful conspiracy, not merely action in concert toward a common goal” because circuit “precedents hold that the doctrine is not limited to unlawful combinations”). Civil litigators have already begun using Gewin to get “coventurer” statements (that is, statements made in furtherance of lawful ventures) admitted under the coconspirator exception.  As one federal judge in Washington put it:  “[Defendants] contend Gewin ‘is contrary to the plain language of Rule 801(d)(2)(E) and Supreme Court precedent. … Whatever else it may be, however, Gewin is binding precedent to which this Court must adhere.”  Miller v. Holzmann, 563 F. Supp. 2d 54, 86 n.29 (D.D.C. 2008).

The article cites examples of prosecutors in other jurisdictions (including the Southern District of New York) seeking to apply Rule 801(d)(2)(E) to lawful ventures.  I critique this attempt to broaden the hearsay exception.  The article details a survey of thousands of court decisions, including the earliest English and American cases concerning the Exception as well as approximately 2,500 federal court opinions discussing the Exception since its federal codification in 1975, that makes clear that a “conspiracy” under the Exception must involve wrongful acts.  First, courts and commentators have for centuries described the Exception as concerning illegal or illicit conduct.  Second, because the drafters of the Federal Rules of Evidence (and analogous state codes) intended to adopt the common law understanding of the Exception when codifying it in Rule 801(d)(2)(E), encroachment beyond the historical boundaries of the Exception violates existing rules of evidence.  Third, such revisionism also violates the Confrontation Clause of the Sixth Amendment, which allows admission in criminal trials of evidence pursuant to hearsay exceptions “well established” at the time the Amendment was ratified but jealously restricts any broadening of those exceptions.

I think (or at least hope) that if judges think carefully about the proposed application of the Coconspirator Exception to lawful combinations, the expansion will rejected.  I hope the article proves useful to attorneys encountering the issue.

Thanks, again, to Ben Trachtenberg for submitting the foregoing guest blawgpost.