Articles Tagged with co-conspirator

I have been routinely filing a motion in-limine in cases where I expect the prosecution witnesses, typically law enforcement or DFAS, to be providing context testimony.  There are several bases to object:  hearsay is bootstrapped, there is implied human lie detector testimony, there are Mil. R. Evid. 701 fact wrapped and disguised as to expert testimony, and an implied ‘he wouldn’t be here if he wasn’t guilty.’  Here is another case from the 2d Circuit, thanks to Federal Evidence Review.

In vacating and remanding defendant’s drug conspiracy conviction, Second Circuit rejects the "government’s claim [a]s simply not credible" that an investigating officer’s testimony about a co-conspirator provided necessary background on the investigation; the officer’s testimony regarding his directions to the co-conspirator to phone his "supplier" and the actions taken by the co-conspirator in response was "inadmissible prejudicial hearsay testimony," that impermissibly communicated to the jury that the co-defendant had identified the defendant as his supplier, in United States v. Gomez, __ F.3d __ (2d Cir. August 4, 2010) (No. 08-3829-cr)

It is not often that a circuit takes the government to task on it’s evidentiary arguments. A recent case in the Second Circuit provides an example of a circuit’s reaction to what it considers an implausible argument on the applicability of FRE 801(c). In the case, the circuit vacated the defendant’s sentence and remanded for retrial because the government had introduced at trial hearsay through the testimony of one of the investigating officers in the case.

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.

Prof. Colin Miller, Later On, We’ll Conspire: Court Of Appeals Of Indiana Notes That Statements After A Crime Has Been Perpetrated Cannot Be Co-Conspirator Admissions.

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.

Contact Information