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F 6.24 n1 Co-Conspirators: Hearsay Exception.
EC 1223 permits admission of a statement of a co-conspirator as an exception to the hearsay rule. (But see Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [testimonial hearsay inadmissible where declarant is unavailable and never confronted by defendant].) However, there must first be a prima facie showing of a conspiracy as a prerequisite to admission of the co-conspirator’s statement. People v. Herrera (2000) 83 CA4th 46, 62-63 [98 CR2d 911] held that a prima facie showing means a preponderance of the evidence, i.e., it is more likely than not that there was a conspiracy.
F 6.24a
Admissibility Of Co-Conspirator Statements:
When Not Admissible Against All Co-Defendants
(PC 182)
*To be added after 4th ¶ of CJ 6.24 when applicable:
However, you are not to consider the statement[s] of __________ [insert name of co-conspirator making statements] as evidence against __________ [insert name of co-defendant against whom the statements are inadmissible].
Points and Authorities
When a co-conspirator’s statements are admissible against one defendant, and not another, CJ 6.24 and CJ 2.07 should be modified to clearly inform the jury that it may only consider the statements against the defendant against whom they are admissible. (EC 355.)
Jury consideration of improper matters lessens the prosecution’s burden of proof in violation of the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
F 6.24b
Admissibility Of Co-Conspirator’s Statements
(PC 182)
*Add to CJ 6.24 when appropriate:
However, if you find the existence of multiple conspiracies under the instructions previously given, you must not consider any acts or declarations by another against the defendant unless you find, beyond a reasonable doubt, that the person doing the act or making the declaration, was a member of the same conspiracy as was the defendant.
Points and Authorities
Vicarious liability for the acts and declarations of a co-conspirator is predicated upon the defendant’s membership in the same conspiracy as the co-conspirator. In cases where the evidence provides a basis for finding multiple conspiracies (see FORECITE F 6.10d), the jury must be instructed that the defendant and co-conspirator were members of the same conspiracy. (People v. Skelton (80) 109 CA3d 691, 717-18 [167 CR 636].)
NOTES
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-634.]