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 See                  U.S. v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988).

An accused’s right to confront adverse witnesses is not violated by the testimony of a witness identifying the defendant as the perpetrator, even though the witness had no independent recollection of the events and could not remember the basis for his testimony, because the defendant had “an opportunity for effective cross-examination.”

Manocchio v. Moran, 708 F. Supp. 473 (D.R.I. 1989) (Government can’t admit an autopsy report without affording the defendant an opportunity to confront and cross-examine the medical examiner).

But see            Lawson v. Murray, 837 F.2d 653 (4th Cir. 1988) (defense witness who repeatedly invokes his Fifth Amendment privilege against self-incrimination may have all his testimony stricken).


 See                  Barker v. Page, 390 U.S. 719 (1968) (testimony at preliminary hearing [where defendant represented by counsel] inadmissible unless the witness is unavailable at trial);

Mancusi v. Stubb, 408 U.S. 204 (1972) (testimony at former trial that was subject to cross-examination is admissible) Specifically where:

  • witness is unavailable, and
  • there is additional indicia of

Mississippi v. Parker, 514 F.2d 767 (Miss. 1986), cert. denied, 427 U.S. 911 (1988) (stating prior testimony exculpating defendant, although impeached at that prior trial, was admissible in the defendant’s trial).

But see            Thomas v. U.S., 530 A.2d 217 (D.C. App. 1987) (en banc) (“The common-law hearsay exception for former testimony requires four criteria: (1) unavailability of the declarant, (2) testimony was given under oath in a legal proceeding, (3) substantial similarity of the issues in the two proceedings, and (4) the party against whom the testimony is offered had the opportunity to cross-examine the declarant at the former proceeding.” The evidence that remained was not sufficient to convict after the prior testimony was held inadmissible as the same was not subjected to adequate cross-examination even though counsel for co-defendants had cross- examined witness).

See also           California v. Green, 399 U.S. 149 (1970).


 FED. R. EVID. R. 104(b)

As to preliminary questions of admissibility the court “…is not bound by the rules of evidence.”

U.S. v. Matlock, 415 U.S. 164 (1974) (at a suppression hearing hearsay may be considered by the federal district court in determining probable cause or consent).

Historically, Texas law dictated that the Rules of Evidence applied with equal force to Motions to Suppress. TEX. R. CRIM. EVID. 1101 (d)(4). McVickers v. State, 874 S.W.2d 662 (Tex. Cr. App. 1993). Therefore, in a suppression hearing in Texas, hearsay is inadmissible. A subsequent amendment to the Rules of Evidence omitted this provision, relegating Motions to Suppress to the realm of “preliminary questions concerning the . . . admissibility of evidence.” TEX. R. EVID. 104(a); see also Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002). This has created the possibility of a motion to suppress decided solely on the papers – a hearing based exclusively on police reports, affidavits, and other documentary evidence. Ford v. State, 305 S.W.3d 530 (Tex. Crim. App. 2009) (“Although the trial judge was clearly not required to believe the information contained within [the police report], the document itself is a government record and of a type that a trial judge may consider reliable in a motion to suppress hearing, even though it is hearsay and is not admissible at a criminal trial on the merits.”).


 RULE 104(a)

 Both the Texas and Federal Rules provide that preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege or, the admissibility of evidence, must be determined by the court.  Rule 104(c).

Typically to be admissible, circumstantial evidence that is the only proof of an offense element must be only consistent with the theory of guilt and must not be reconcilable with the theory of innocence. However, at least one court has held hat the rule just stated is not required by the Constitution. York v. State, 858 F.2d 322 (6th Cir. 1988)

Applying Rule 104(a) to the admissibility of co-conspirator’s statements the Fifth Circuit had required the trial judge to employ a two-tiered test of “substantial independent” evidence sufficient to “support a jury verdict” for initial admissibility, and a “preponderance of the evidence” standard applied retrospectively when all the evidence is closed.

“We conclude that …a declaration by one defendant is admissible against other defendants only when there is a ‘sufficient showing, by independent evidence, of a conspiracy among one or more other defendants and the declarant and if the declaration at issue were in furtherance of that conspiracy’ …and that as a preliminary matter, there must be substantial, independent evidence [to that effect]”.

“At the End of the Trial …on appropriate motion at the conclusion of all the evidence the court must determine as a factual matter whether the prosecution has shown by a preponderance of the evidence in dependent of the statement itself (1) that a conspiracy existed, (2) that the coconspirator and the defendant against whom the coconspirator’s statement is offered were members of the conspiracy, and (3) that the statement was made during the course and in furtherance of the conspiracy.”

While the ultimate determination of this issue in the Fifth Circuit under James was made on a “preponderance of the evidence” standard, it must be remembered that the court expressly requires the latter reviewed only “on appropriate motion at the conclusion of all the evidence.” U.S. v. James, 590 F.2d 575, 582-83 (5th Cir.) (en banc), cert. denied, 442 U.S. 917 (1979) (emphasis added). Failure to re-urge same has been held to result in a waiver of that issue on appeal.

See                  U.S. v. Stroupe, 538 F.2d 1063, 1065-1066 (4th Cir. 1976) (“substantial independent evidence of conspiracy, at least enough to take the question to the jury”);

U.S. v. Jackson, 327 F.2d 1198, 1219 (D.C. Cir. 1980) (“clear preponderance”);

U.S. v. Towery, 542 F.2d 623, 627 (3d Cir. 1976) (“more likely than not”);

U.S. v. Stanchich, 550 F.2d 1294, 1298 (2d Cir. 1977);

U.S. v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978) (“substantial independent evidence”);

U.S. v. Avila-Macias, 577 F.2d 1384 (9th Cir. 1978);

U.S. v. Gutierrez, 576 F.2d 269, 275 (10th Cir. 1978), cert. denied, 439 U.S. 954 (a “prima-facia showing”);

U.S. v. King, 552 F.2d 833, 849 n.23 (9th Cir. 1976);

U.S. v. Rosales, 584 F.2d 870 (9th Cir. 1978).

Some treatises had suggested an even more stringent test.

WEINSTEIN & BERGER, WEINSTEIN’S EVIDENCE ¶104[05] 105-44 (supporting a “beyond a reasonable doubt” standard).

This higher standard would appear more appropriate both because 104(a) requires the court in effect to “determine” that the requirements of 801(d)(2)(E) have been met (including the existence of a conspiracy), and because as the Advisory Committee Notes to Rule 801(d)(2)(E) point out “the agency theory of conspiracy (upon which the rule is premised) is at best a fiction and ought not to serve as a basis for admissibility beyond that already established.”

However, the Supreme Court recently adopted a “preponderance of the evidence” standard rejecting any higher standard such as “clear and convincing or beyond a reasonable doubt.

“We find ‘nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard.” Bourjaily v. U.S., 483 U.S. 171, 97 L.Ed.2d 144, 152-3, 107 S.Ct. 2775 (1987).


 Previously courts had held that in making this determination, the trial court should look only to non-hearsay evidence “independent of the statement itself.”

U.S. v. James, 590 F.2d 575, 582 (5th Cir.) (en banc), cert. denied, 442 U.S. 917 (1979) (emphasis added);

U.S. v. Nixon, 418 U.S. 683, 701 (1974);

U.S. v. Ziegler, 583 F.2d 77, 80 (2nd Cir. 1978);

Glasser v. U.S., 315 U.S. 60 (1942);

U.S. v. Bell, 573 F.2d 1040 (8th Cir. 1978);

U.S. v. McPartlin, 595 F.2d 1321 (7th Cir. 1979);

U.S. v. Stroupe, 538 F.2d 1063, 1065 (4th Cir. 1976) (stating “otherwise hearsay would lift itself by its own boot straps to the level of competent evidence”).

“Although Rule 104(a) provides that the court ‘is not bound by the Rules of Evidence except those with respect to privileges’ we do not construe this language as permitting the court to rely upon the content of the very statement whose admissibility is at issue. We adhere to our requirement …that fulfillment of the condition of admissibility must be established by evidence independent of the conspirator statement itself. This construction of Rule 104(a) comports with earlier Supreme Court pronouncements that admissibility must depend upon independent evidence in order to prevent this statement from ‘lift[ing] itself by its own boot straps to the level of competent evidence’.” U.S. v. James, 590 F.2d at 581.

Contra             U.S. v. Martrano, 561 F.2d 406 (1st Cir. 1977), cert. denied, 435 U.S. 922.

The Supreme Court has held that in making a preliminary factual determination of the existence of a conspiracy involving the declarant and the defendant, a court may examine the hearsay statements sought to be admitted. Bourjaily v. U.S., 483 U.S. 171, 97 L.Ed.2d 144, 156, 107 S.Ct. 2775 (1987) (however, there was other corroborating evidence independent of the incriminating hearsay statement sufficient to establish the existence of the conspiracy).

The Fifth Circuit has also permitted the use of the hearsay statement, but it must “be considered along with the other evidence in determining whether the hearsay declarant was the defendant’s co-conspirator.”

See                  U.S. v. Perez, 823 F.2d 854, 855 (5th Cir. 1987).

U.S. v. Valdez, 561 F.2d 427, 432 (5th Cir. 1988), reh’g denied en banc.

Every court considering this issue had held that there must be other non-hearsay evidence to meet each of Rule 801(d)(2)(E)’s requirements “otherwise hearsay would lift itself by its own bootstraps to the level of competent evidence.”

U.S. v. Stroupe, 538 F.2d 1063, 1065 (5th Cir. 1976);

Glasser v. U.S., 315 U.S. 60, 74-5 (1942).

See also           U.S. v. Petrozziello, 548 F.2d 20, 223 (1st Cir. 1977);

U.S. v. James, 590 F.2d 575, 578-80 (5th Cir.) (en banc), cert. denied, 442 U.S. 917 (1979);

U.S. v. Santiago, 582 F.2d 1128, 1133 (7th Cir. 1978)

U.S. v. Bell, 573 F.2d 1040, 1043-44 (8th Cir. 1978);

U.S. v. Jackson, 627 F.2d 1198, 1217-18 (D.C. Cir. 1980);

U.S. v. Nixon, 418 U.S. 683, 701 n.14 (1974).

Recently, the Supreme Court held that the trial court may consider the co-conspirator’s hearsay statement itself in deciding its admissibility. That is, the Court has sanctioned looking to what is by definition, unreliable evidence, to determine its reliability.

“Congress has decided that courts may consider hearsay in making these factual determinations… But petitioner nevertheless argues that the bootstrapping rule, as most Courts of Appeals have construed it, survived this apparently unequivocal charge in the law unscathed and that Rule 104, as applied to the admission of co- conspirator’s statements, does not mean what it says. We disagree.” Bourjaily v. U.S., 483 U.S. 171, 97 L.Ed.2d 144, 154, 107 S.Ct. 2775 (1987).

If the Rules of Evidence are not applicable to this determination, query, whether this would allow one coconspirator’s hearsay statement to be considered for the purpose of establishing the admissibility of another. One would hope not, lest prosecutors will begin breaking down such testimony sentence by sentence, arguing that one boot can be pulled up by the straps of another.

Courts have as well held that any independent evidence of a conspiracy need not demonstrate, by itself, the illegal nature of the combination.

U.S. v. Jackson, 627 F.2d 1198 (D.C. Cir. 1980);

Hitchman Coal and Coke Co. vs. Mitchell, 245 U.S. 229 (1917).

“The element of illegality may be shown by the declarations themselves.”

U.S. v. Jackson, 627 F.2d 1198, 1216 n.35 (D.C. Cir. 1980).

Contra             Romani v. State, 542 So.2d 984 (Fl.S.Ct. 1989) (rejecting Bourjaily rule because it “would frequently lead to the admission of statements which are not reliable”).


 While the James en banc court appeared to require only that the government “order their proof” wherever “reasonably practicable” in order to lay the predicate under Rule 801(d)(2)(E),

See also           U.S. v. Jackson, 627 F.2d 1198, 1218 (D.C. Cir. 1980);

U.S. v. Macklin, 573 F.2d 1046, 1049 n.3 (8th Cir. 1978).

Two recent Fifth Circuit panels have given lip service to the fact that “[S]uch a hearing is mandated by U.S. v. James.”

U.S. v. Grassi, 616 F.2d 1295, 1300 (5th Cir.), cert. denied, 449 U.S. 956 (1980);

U.S. v. Perry, 624 F.2d 29, 31 (5th Cir. 1980) (allowing the government an “interlocutory appeal” under 18 U.S.C. § 3731 from an unfavorable ruling).

Contra             U.S. v. Hawkins, 661 F.2d 426 (5th Cir. 1981).

“Defendants challenge the trial court’s decision not to hold a hearing pursuant to U.S. v. James to determine the admissibility of co- conspirator statements. Under James, decided by this Court sitting en banc, a co-conspirator’s hearsay statement is not admissible unless the trial court determines the Government has established by a preponderance of the evidence independent of the statement itself that a conspiracy existed, that the co-conspirator and the defendant against whom the statement is offered were members of the conspiracy, and that the statement was made during the course of the conspiracy. The Court in James held that a hearing on this issue was preferred but not required.” U.S. v. Hawkins, 661 F.2d at p. 449 (5th Cir. 1981).

The James court, however, took pains to note that a hearing is the “preferred” course, and that in any event, their opinion established only the “minimum standard for admissibility of co- conspirator statements” and that “[N]othing stated [in the opinion] shall prevent a trial judge from requiring more meticulous procedures.” U.S. v. James, 590 F.2d at 583.

With the abolition of the James constraints for determining the admissibility of coo- conspirator’s statements, its effect on requiring an independent hearing is in doubt.

Compare         U.S. v. Perez, 823 F.2d 854, 855 (5th Cir. 1987);

U.S. v. Valdez, 861 F.2d 427, 432 (5th Cir. 1988) (acknowledging that requirements of James, other than the standard of proof requisite, remain viable).

See also           Williams v. State, 815 S.W.2d 743 (Tex. App. –Waco 1991), reversed on other grounds, 829 S.W.2d 216 (Tex. Cr. App. 1992) (noting good demonstration and analysis of federal requirements for admissibility of co-conspirator’s statement, as well as the procedure used to determine its admissibility).

In Williams, the trial court held a hearing outside the presence of the jury to determine admissibility.


 It must be borne in mind that the mere showing that a conspiracy in fact existed and that both the defendant and the declarant had voluntarily become members of that conspiracy does not meet the requisites of Rule 801(d)(2)(E). “In addition to requiring a showing that a conspiracy existed and the Defendant voluntarily participated, Rule 801(d)(2)(E) requires that the particular statement offered have been made both “during the course” and “in furtherance” of the conspiracy.


U.S. v. Postal, 589 F.2d 862 (5th Cir. 1979), cert. denied, 444 U.S. 832;

U.S. v. Caro, 569 F.2d 411 (5th Cir. 1978);

U.S. v. Wilkerson, 469 F.2d 963, 968 (5th Cir. 1972), cert. denied, 410 U.S. 986 (1973);

U.S. v. Williamson, 450 F.2d 585, 590-91 (5th Cir. 1971), cert. denied, 405 U.S. 1026;

U.S. v. Green, 600 F.2d 154 (8th Cir. 1979);

U.S. v. Eubanks, 591 F.2d 513 (9th Cir. 1979);

U.S. v. Lang, 589 F.2d 92 (2d Cir. 1978);

U.S. v. Holder, 652 F.2d 449, 450 (5th Cir. 1981);

U.S. v. Portier, 623 F.2d 1017, 1020 (5th Cir. 1980).


 Thus, there is a “general rule that the arrest of the co-conspirator puts an end to the conspiracy” and a co-conspirator’s subsequent “statement incriminating the other defendants [is] not admissible at their trial.”

U.S. v. Meacham, 626 F.2d 503, 510-511 n.8 (5th Cir. 1980).

See also           U.S. vs. Palow, 777 F.2d 52, 57 (1st Cir. 1985) (noting that co-conspirator statements made as to defendant, after the conspiracy objectives either failed or were completed, are inadmissible).


 Although Rule 801(d)(2)(E) expressly requires that a co-conspirator’s statement is only admissible if it was made “during the course” of a conspiracy, at least one court has held that a statement regarding the possibility of the defendant’s entry into a conspiracy (obviously made before the conspiracy was entered into) was nevertheless admissible under the rule.

U.S. v. Baines, 812 F.2d 41 (1st Cir. 1987) (co-conspirator’s rule does not’ mean what it says).


 Similarly, statements made by a fellow co-conspirator who is also a paid government informer to a known government agent are not admissible under the “co-conspirator’s exception” to the hearsay rule because, recognizing the “agency fiction” underlying this rule, such individual is at that time acting not as the agent of his co-conspirators, but as the agent of the government and the hearsay statements were not made “in furtherance of the conspiracy but rather to frustrate it.”

U.S. v. Wilkerson, 469 F.2d 963, 968 (5th Cir. 1972);

U.S. v. Williamson, 450 F.2d 585, 590-1 (5th Cir. 1981), cert. denied, 405 U.S. 1026 (1972).

See also           U.S. v. Summers, 598 F.2d 450 (5th Cir. 1979);

U.S. v. Palow, 777 F.2d at 57.

Mere puffing, bravado or braggadocio, even by one who has been shown to have become a member of the conspiracy, does not fit the requirements of Rule 801(d)(1)(E), where the statement could not be said to have been made to further some conspiratorial goal.

U.S. v. Fielding, 645 F.2d 719 (9th Cir. 1981).

However, puffing, boasts and braggadocio are admissible when the declarant uses them to obtain the confidence of one in the conspiracy.

U.S. v. Santiago, 837 F.2d 1545, 1549 (11th Cir. 1988);

U.S. v. Miller, 664 F.2d 94, 98 (5th Cir. Unit B, 1981), cert. denied, 549 U.S. 854 (1982).


 The drafters of the Federal Rules evinced concern that the co-conspirator’s exception not be expanded:

“The agency theory of conspiracy is at best a fiction and ought not serve as a basis for admissibility beyond that already established.” Adv. Comm. Notes, FED. R. EVID. R. 801(d)(2)(E).

The trial court “should refrain from advising the jury of his findings that the government has satisfactorily proved the conspiracy.” U.S. v. Vinson, 606 F.2d 149, 153 (6th Cir. 1979).


 In drafting the Federal Rules of Evidence the Advisory Committee noted the distinction between the Hearsay Rule and the Confrontation Clause:

“[T]he impact of the Clause clearly extends beyond the confines of the hearsay rule…. In recognition of the separateness of the Confrontation Clause and the Hearsay Rule and other exclusionary principles, the exception set forth in Rules 803 and 804 are stated in terms of exemption from the general exclusionary mandate of the hearsay rule, rather than in positive terms of admissibility.” Adv. Comm. Notes, FED. R. EVID. Art. VIII.


 While co-conspirator’s statements meeting the requirements of Rule 801(d)(2)(E), may not constitute “hearsay” under the Federal Rules of Evidence, at least one court had held they may still be inadmissible as denying the accused his Sixth Amendment right to confrontation and cross- examination, at leas where there is no showing the witness is unavailable. U.S. v. Gibbs, 703 F.2d 683, 691-695 (3d Cir. 1983) (noting opinion withdrawn and district court affirmed on rehearing (739 F.2d 838) for failure of defends counsel to raise confrontation objection at trial) See also Rule 103(a)(1).

In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the Supreme Court recognized that the Confrontation Clause and the hearsay rule ‘stem from the same roots’, but declined to equate the two. Id. at 86, 91 S.Ct. at 218. We therefore believe that the Confrontation clause issue and the evidentiary question must be separately analyzed, and that the sixth amendment may require the exclusion of evidence even though admissible under FED. R. EVID. 801 (d)(2)(E).

Because the right of confrontation is so important in our adversarial system, it may only be denied in exceptional situations. The Government has not met its burden to show that the instant case is such an exceptional situation. The prosecution has failed to establish either that the declarant cannot be produced for trial, or that the hearsay is sufficiently reliable and insignificant to justify dispensing with a showing of unavailability.

“The admission into evidence of Quintiliano’s statements had the effect of sharply tipping the scales of justice against the defendant. Under these circumstances, the historic safeguard guaranteeing the accused the right to be confronted with the witnesses against him may not be disregarded. We therefore hold that where the Government has not demonstrated that the declarant is unavailable, and where the out-of-court statements are not sufficiently refillable and peripheral tuo justify dispensing with the unavailability requirement, the statements may not be admitted into evidence. The admission of the challenged evidence therefore constitutes reversible error.” U.S. v. Gibbs, 739 F.2d 838 (3d Cir. 1984).

See also           U.S. v. Palow, (violation of confrontation clause where co-defendant makes post- conspiracy statement but does not testify at trial, precluding opportunity to cross- examine).

However, the Supreme Court has expressly rejected as a “radical proposition” the contention that co-conspirator declarations should not be admitted without demonstrating that the declarant is reasonably unavailable to testify and be cross-examined.

U.S. v. Inadi, 475 U.S. 387, 394 (1986).

For an example of Texas law on this point. See Buckley v. State, 786 S.W.2d 357, 359 (Tex.Cr.App. 1990).

The Confrontation Clause normally requires a showing of unavailability. The court noted, however, that the Supreme Court has “identified at least one exception to this norm.” Buckley v. State, 786 S.W.2d 357, 359 n.2 (Tex.Cr.App. 1990)(citing Inadi).

The courts of Texas adhere to the same proposition that the right of confrontation is not absolute. See, e.g., Porter v. State, 578 S.W.2d 742, 745 (Tex. Cr. App. 1979).

“If literally applied, the Confrontation Clause would abrogate virtually every hearsay exception …” Loven v. State, 831 S.W.2d 387, 393 (Tex. App. – Amarillo 1992)(citing Maryland v. Craig, 110 S.Ct. 3157, 3166 (1990); Ohio v. Roberts, 448 U.S. 56, 63 (1980)).

“Confrontation and cross-examination are not essential where indicia of reliability is sufficient to ensure the integrity of the fact-finding process.” Huff v. State, 897 S.W.2d 829, 1995 WL 42722 at *8 (Tex. App. – Dallas, 1995)(citing Porter, 578 S.W.2d at 745). The Dallas Court of Appeals in Huff utilized the test from Ohio v. Roberts, stating that the reliability of an out-of- court statement may be inferred without more when the statement falls within a firmly rooted hearsay statement. Id.


 The Supreme Court has held that at least with respect to the co-conspirator’s exception, which they found so “steeped in our jurisprudence,” the Sixth Amendment Confrontation Clause provides no greater protection than those found in Rule 801(d)(-2)(E) of the Federal Rules of Evidence:

“[T]here can be no separate Confrontation Clause challenge to the admission of a co-conspirator’s out-of-court statement.” Bourjaily v. U.S., 483 U.S. 171, 97 L.Ed.2d 144, 15, 107 S.Ct. 2775 (1987).

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