With a seasonal title, Prof. Colin Miller reminds us of a particular caution when seeking to admit statements of a co-conspirator – the statements have to be made before the crime is committed. There should be the same impact in a court-martial prosecution under the UCMJ.
As the text of this Rule [Indiana/Fed./Mil. R. Evid. 801(d)(2)(E)] makes clear, the Rule only covers statements made during the course of (and in furtherance of) a conspiracy and does not cover statements made after the conspiracy has been effected and the crime has been perpetrated.