The Journal of The DuPage County Bar Association

Back Issues > Vol. 9 (1997)

The Co-Conspirator Hearsay Exception: Comparing the Illinois and Federal Rules
By Stephen W. Baker and Ken McCracken

In any conspiracy trial, the issues will invariably revolve around the admissibility of statements by the various ‘co-conspirators’. The Illinois co-conspirator hearsay exception may well determine the outcome in any such trial. In Illinois, the elements for admissibility are proof of any act or declaration (1) by a co-conspirator or defendant (2) committed in furtherance of the conspiracy (3) during its pendency (4) provided that a foundation for its reception is laid by independent proof of the conspiracy. People v. Eddington, 129 Ill. App. 3d 745, 473 N.E.2d 103 (4th Dist. 1984).

The Basis of the Co-Conspirator Exception to the Hearsay Rule.

Co-Conspirator statements are admissible under Federal Rule of Evidence 801(d)(2)(E) not as an exception to the hearsay rule, but as an exemption from the hearsay rule. This difference is due to the structure of the Federal Rules of Evidence. Excepted statements are admissible because they have indicia of trustworthiness. Co-Conspirator statements on the other hand are exempted both because of the their trustworthy nature and because of the ‘agency fiction’ of conspiracies. This agency fiction states:

"When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made a ‘partnership in crime’. What one does pursuant to the common purpose, all do, and, as declarations may be such acts, they are competent against all." Bourjaily v. U.S., 483 U.S. 171, 190 (1987), quoting Van Riper v. U.S., 13 F.2d 961, 967 (2d Cir.) cert. denied sub nom Ackerson v. U.S., 273 U.S. 702 (1926).

Not only does the agency theory mitigate the problem of reliability, it also mitigates the problem of the sixth amendment right to confront witnesses. A defendant can hardly be deprived of the right to confront a witness when that witness was authorized to speak for him.

Moreover, since co-conspirator statements fall within a "firmly rooted hearsay exception" the availability of the declarant is immaterial. Ohio v. Roberts, 448 U.S. 56 (1989); U.S. v. Inadi, 475 U.S. 387 (1986).

In Illinois, it is not necessary that a co-conspirator testify before his or her statements may be used against the defendant. People v. Melgoza, 231 Ill. App. 3d 510, 595 N.E.2d 1261 (1st Dist. 1992), appeal denied 146 Ill.2d 643, 602 N.E.2d 467.

It should be noted that a conspiracy indictment is not necessary before the co-conspirator statement exemption may be used. People v. Goodman, 81 Ill.2d 278, 408 N.E.2d 215 (1980). Again, under the co-conspirator hearsay exception in Illinois, any act or declaration (1) by a co-conspirator or a party (2) committed in furtherance of the conspiracy (3) during its pendency is admissible against each and every conspirator, provided that (4) a foundation for its reception is laid by independent proof of the conspiracy. People v. Childrous, 196 Ill. App. 3d 38, 552 N.E.2d 1252 (4th Dist. 1990), appeal denied 330 Ill.2d 562, 56 N.E.2d 696. The ‘independent proof’ can be shown by a prima facie showing through non-hearsay evidence that two or more persons were engaged in a common plan to accomplish a criminal goal. The conspiracy need not be shown by direct evidence however; the existence of a conspiracy can be shown inferentially from the surrounding facts and circumstances, including the acts and declarations of the defendant himself. People v. Miller, 128 Ill. App. 3d 574, 470 N.E.2d 1222 (2d Dist. 1984). In federal courts, the existence of the conspiracy must be shown by a "preponderance of the evidence." Bourjaily, 483 U.S at 179.

Though Illinois courts frequently follow federal precedents concerning this rule of evidence, chiefly due to the frequency of federal conspiracy charges and relative rarity of state conspiracy charges, the requirement of ‘independent’ proof of the conspiracy is not followed in federal courts. Thus, in federal courts the conspiracy statements can bootstrap" themselves into proof that a conspiracy existed. Bourjaily, 483 U.S at 188.

There is no strict procedural rule in either Illinois or federal courts [Bourjaily, 483 U.S at 180] as to how the pre-trial hearing is conducted or as to what order of proof should be followed. The admissibility of the statements can be established by proffer, stipulation, or more rarely by live testimony.

It would be undesirable for the party opposing the co-conspirator statement to wait until trial, have the statement presented to the jury, and only then have it ruled inadmissible. People v. Fuller, 123 Ill. App. 3d 1026, 454 N.E.2d 334 (1st Dist. 1983). Therefore, every effort should be made to have the admissibility of the statements determined in a pre-trial motion or hearing. Conditional pre-trial rulings also aid the orderly progression of the trial and avoid lengthy trial interruptions. See U.S. v. James, 590 F.2d 575 (5th Cir. 1979) (en banc), cert. denied 442 U.S. 917.

The "In Furtherance" Requirement

A major point of contention at trial or the pre-trial hearing regarding the co-conspirator hearsay exception will undoubtedly be whether the statement was made "in furtherance" of the conspiracy. It is here where special planning and research on the part of the attorney will be necessary.

The statement need not have actually furthered the conspiracy to be admissible; it is only that it was uttered for the purpose of furthering the conspiracy. To further the conspiracy, such statements must have the intended effect of aiding, abetting or encouraging its perpetration. People v. Spears, 256 Ill. App. 3d 374, 628 N.E.2d 376, appeal denied 158 Ill.2d 563, 645 N.E.2d 1366 (1st Dist. 1993).

Situations where the statement was found to be in furtherance of the conspiracy include bragging for the purpose of calming fears or gaining the confidence of other conspirators. U.S. v. Santiago, 837 F.2d 1545 (11th Cir. 1988).

Statements will fall under the exception where they "set transactions integral to the conspiracy in motion and maintain the flow of information among the conspirators." U.S. v. Roberts, 14 F.3d 502, 515 (10th Cir. 1993).

In addition are statements that are admissible because they are "made to induce enlistment or further participation in the group’s activities...prompt further action on the part of conspirators...[or] reassure members of a conspiracy’s continued existence." Id.

A statement is not in furtherance of a conspiracy if it is merely a recitation of past events. Thus, if a codefendant recites the defendant’s description of a past crime, it will be inadmissible under the exception. Childrous, 196 Ill. App. 3d at 45.

In U.S. v. Urbanik, 801 F.2d 692, 698 (4th Cir. 1986), a defendant was charged with conspiracy to distribute cocaine and marijuana. The strength of the case against him rested upon a conversation between two co-conspirators as they were lifting weights together. One co-conspirator described his drug connection as "a short little guy" who could nevertheless bench press 300 pounds. The court found that this description was "idle conversation" that merely touched on and did not further the conspiracy.

In an Illinois case of attempted murder, a co-conspirator’s statement that he and the defendant had recently shot at a house was properly inadmissible against the defendant since the statement in no way furthered the conspiracy. On the contrary, since the statement would have tended to harm the conspiracy by exposing it, the statement was inadmissible hearsay. People v. Rogers, 178 Ill. App. 3d 650, 533 N.E.2d 987, appeal denied 126 Ill.2d 564, 541 N.E.2d 1113 (2d Dist. 1989).

The Pendency Requirement.

Generally, once the object of the conspiracy is attained, or the conspiracy is terminated, the hearsay exception will not apply. Thus post-arrest statements are usually not admissible, since the arrest of all the conspirators will terminate the conspiracy. But, the conspiracy has not terminated simply because one conspirator has withdrawn, e.g., has become a police informant. People v. Swerdlow, 269 Ill. App. 3d 1097, 647 N.E.2d 1040 (5th Dist. 1995). Thus, statements by co-conspirators not contemporaneously arrested can be admissible against the arrested party. People v. Columbo, 118 Ill. App. 3d 882, 455 N.E.2d 733 (1st Dist. 1983).

A new member of a conspiracy may also be bound by statements uttered by others before he or she joined the conspiracy, again due to the agency fiction. U.S v. Sophie, 900 F.2d 1064 (7th Cir. 1990), cert. denied sub nom Duque v. U.S., 498 U.S. 843 (1990). U.S. v. Williams, 44 F.3d 614 (7th Cir. 1995)

Even when the object of the conspiracy has been achieved, statements may also be admissible if uttered for the purpose of concealing evidence, and thus, furthering the conspiracy. The statements must be proximate in time to accomplishing the criminal goal however, since acts or declarations distant in time from the offense are "subject to grave doubts as to their trustworthiness." Childrous, 196 Ill. App. 3d at 45.

In Childrous, the defendant and a co-conspirator attempted to get rid of a gun five days after an armed robbery. Two weeks after the robbery, they also attempted to dispose of bank checks taken in the robbery. The court held that such actions were not proximate enough in time with the robbery to be admissible. Id. See also People v. Meagher, 70 Ill. App. 3d 597, 388 N.E.2d 801 (1979). — co-conspirator’s statement to possible witnesses the next day to remain quiet went beyond mere narrative and was admissible against all.

In U.S. v. Howard, 770 F.2d 57 (6th Cir. 1985), a defendant accused of torching his own home for insurance money claimed that a taped conversation with a co-conspirator after the fire had been set should be inadmissible since the object of the conspiracy had already been achieved. Since the insurance company however, had not yet paid the claim at the time of the conversation, the conversation was in furtherance of the conspiracy to defraud the insurance company and was properly admitted. It should be noted that an agreement to conceal evidence or obstruct justice cannot be implied as a matter of law. Krulewitch v. U.S., 336 U.S. 440 (1949); Fiswick v. U.S., 329 U.S. 211 (1946).


In any case where the co-conspirator exception arises, the practitioner must take particular care to determine the admissibility of co-conspirator statements in pre-trial hearings. This logic applies equally to Illinois or federal prosecutions involving the co-conspirator hearsay exception.

Steven W. Baker
is DuPage County Public Defender. He is the President of the Illinois Public Defenders Association. He received his Undergraduate Degree in 1974 from Western Illinois University and his Law Degree in 1978 from Loyola University-Chicago.

Ken McCracken is an Associate at Jones and Lemon, Geneva. His Practice is concentrated in Criminal and General Commerical Litigation. He received his Undergraduate Degree in 1989 from Boston University and his Law Degree in 1997 from I.I.T. Chicago-Kent.

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