Text of the rule
• [A] statement is not hearsay if: . . .
(2) An Opposing Party's Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party's coconspirator during and in furtherance of the conspiracy.
The statement does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).
Statements made by the party in an individual or representative capacity, or by a person whom the party authorized to make a statement on the subject
• A party's own statement offered against that party is not hearsay.
Banks v. State, 761 N.E.2d 403, 406 (Ind. 2002)(citing Evid. R. 801(d)(2))
E.g., Hirsch v. State, 697 N.E.2d 37, 42 n. 9 (Ind. 1998)(citing Evid. R. 801(d)(2)(A))(“Blount's account of Hirsch's statement that Redfield said he would not quit is not hearsay only because Hirsch was a party. If Blount reported anyone else's account of Redfield's statement, it would be hearsay because offered to prove the truth of the fact that Redfield said it whether or not Redfield was truthful.”)
See Martin v. State, 736 N.E.2d 1213, 1219 (Ind. 2000)(emphasis added)(“Here, evidence linking Defendant to the address where the weapons were found was already properly admitted under Rule 801(d)(2)(A) (A statement made by a party that is offered against that party is not hearsay and thus admissible.) . . . .”)
See also Brown v. State, 24 N.E.3d 529, 534 (Ind. Ct. App. 2015)(“Indiana Evidence Rule 801(d)(2)(A) provides that statements made by a party opponent are not hearsay.”)
• It is true that the Rules of Evidence permit the admission of statements made by a representative, Evid. R. 801(d)(2)(A), or statements that a party authorizes. Evid. R. 801(d)(2)(C).
Turner v. State, 953 N.E.2d 1039, 1058 (Ind. 2011)
• [The defendant] . . . contends that the testimony about what [the declarant] said [the defendant] said was inadmissible hearsay. We disagree. The statement is not hearsay because it is a statement by a party opponent, made in a representative capacity. The witness testified that [the declarant] repeated [the defendant’s] desire to go over to [the victim’s] and shoot her only after [the defendant] looked at [the declarant] and told him to tell the witness about it. Accordingly, [the defendant] made [the declarant] his representative and the statement is not hearsay.
Hicks v. State, 690 N.E.2d 215, 221 n. 11 (Ind. 1997)(internal citation omitted)
Statements made by the party’s agent or employee on a matter within the scope of that relationship and while it existed
• [T]he record clearly supports the inference that the unidentified male was acting on behalf of [the defendant] when calling [the third party]. Consequently, we conclude that the trial court did not err in admitting into evidence the jailhouse telephone conversation under the statement by a party-opponent exception.
Dorsey v. State, 802 N.E.2d 991, 995 (Ind. Ct. App. 2004)
Statements made by the party's coconspirator during and in furtherance of the conspiracy: In general
• Rule 801(d)(2)(E) provides that a statement is not hearsay if it is offered against a party and is a statement made by a co-conspirator during the course of and in furtherance of a conspiracy.
Wright v. State, 690 N.E.2d 1098, 1105 (Ind. 1997), reh’g denied
Willoughby v. State, 660 N.E.2d 570, 581 (Ind. 1996)
• For information about conspiracy, please review Conspiracy.
• This means that the State must show, by a preponderance of the evidence, (1) the existence of a conspiracy between the declarant and the party against whom the statement is offered and (2) that the statement was made in the course and in furtherance of the conspiracy.
Roush v. State, 875 N.E.2d 801, 808 (Ind. Ct. App. 2007)(citing Barber v. State, 715 N.E.2d 848, 852 (Ind. 1999))
See Lander v. State, 762 N.E.2d 1208, 1213 (Ind. 2002)(citing Barber v. State, 715 N.E.2d 848, 852 (Ind. 1999))(“This means that the State must show that (1) existence of a conspiracy between the declarant and the party against whom the statement is offered and (2) the statement was made in the course and in furtherance of this conspiracy.”)
See also Wright v. State, 690 N.E.2d 1098, 1105 (Ind. 1997), reh’g denied(“Before the statements of one conspirator are admissible into evidence, the trial court must determine, by a preponderance of the evidence, that the declarant and the defendant were involved in a conspiracy, and that the statement was made during and in furtherance of that conspiracy.”)
Statements made by the party's coconspirator during and in furtherance of the conspiracy: Showing the existence of a conspiracy
• For a statement to be admissible under Rule 801(d)(2)(E), the State must prove that there is “independent evidence” of the conspiracy.
Roush v. State, 875 N.E.2d 801, 808 (Ind. Ct. App. 2007)(citing Lott v. State, 690 N.E.2d 204, 209 (Ind. 1997))
See Lander v. State, 762 N.E.2d 1208, 1213 (Ind. 2002)(citing Lott v. State, 690 N.E.2d 204, 209 (Ind. 1997))(“We also require that the State prove that there is ‘independent evidence’ of the conspiracy before the statements will be admissible as non-hearsay under Rule 801(d)(2)(E).”)
See also Houser v. State, 661 N.E.2d 1213, 1219 (Ind. Ct. App. 1996), reh’g denied, trans. denied(citing Mayhew v. State, 537 N.E.2d 1188, 1190 (Ind. 1989))(“In order for a statement of a co-conspirator to fall under the hearsay exception, there must first be independent proof of the existence of the conspiracy.”)
See also Hightower v. State, 866 N.E.2d 356, 365 (Ind. Ct. App. 2007), trans. denied(“In order to introduce evidence of a co-conspirator's statement, the State must lay an evidentiary foundation establishing the existence of a conspiracy.”)
• There must be independent evidence of a conspiracy, i.e., evidence other than the statement itself.
Cockrell v. State, 743 N.E.2d 799, 804 (Ind. Ct. App. 2001)(citing Barber v. State, 715 N.E.2d 848, 852 (Ind. 1999))(emphasis added)
• The existence of the conspiracy may be shown by direct or circumstantial evidence, and the evidence need not be strong.
Wright v. State, 690 N.E.2d 1098, 1105 (Ind. 1997), reh’g denied(citing Lopez v. State, 527 N.E.2d 1119, 1132 (Ind. 1988))
See Hightower v. State, 866 N.E.2d 356, 365 (Ind. Ct. App. 2007), trans. denied(“Such proof may be either direct or circumstantial and need not be strong.”)
See also Leslie v. State, 670 N.E.2d 898, 900 (Ind. Ct. App. 1996), reh’g denied, trans. denied(citing Chinn v. State, 511 N.E.2d 1000, 1002 (Ind. 1987), reh’g denied)(“Such proof may be either direct or circumstantial and need not be strong.”)
See also Cockrell v. State, 743 N.E.2d 799, 804 (Ind. Ct. App. 2001)(citing Houser v. State, 661 N.E.2d 1213, 1219 (Ind. Ct. App. 1996), reh’g denied, trans. denied)(“The existence of the conspiracy for purposes of Rule 801(d)(2)(E) may be demonstrated by direct or circumstantial evidence.”)
• As we recently stated, the “independent evidence” requirement is “a useful safeguard against abusive use of co-conspirator hearsay, and [the Court] will continue to apply it to evidence proposed for admission under Rule 801(d)(2)(E).”
Barber v. State, 715 N.E.2d 848, 852 (Ind. 1999)(quoting Lott v. State, 690 N.E.2d 204, 209 (Ind. 1997))(alteration in the original)
Cockrell v. State, 743 N.E.2d 799, 804 (Ind. Ct. App. 2001)(citing Barber v. State, 715 N.E.2d 848, 852 (Ind. 1999)(quoting Lott v. State, 690 N.E.2d 204, 209 (Ind. 1997)))(alteration in the original)(“Our Supreme Court has emphasized that this independent evidence requirement is ‘a useful safeguard against abusive use of co-conspirator hearsay, and [the Court] will continue to apply it to evidence proposed for admission under Rule 801(d)(2)(E).’”)
Statements made by the party's coconspirator during and in furtherance of the conspiracy: Showing that the statement was made during and in furtherance of the conspiracy
• A statement is made in the course of a conspiracy when it is “made between the beginning and ending of the conspiracy.”
Roush v. State, 875 N.E.2d 801, 809 (Ind. Ct. App. 2007)(quoting Houser v. State, 661 N.E.2d 1213, 1219 (Ind. Ct. App. 1996), reh’g denied, trans. denied)
• However, “statements made before the defendant joined the conspiracy may be admitted.”
Roush v. State, 875 N.E.2d 801, 809 n. 5 (Ind. Ct. App. 2007)(quoting Haak v. State, 695 N.E.2d 944, 947 n. 1 (Ind. 1998))
• Once the object of the conspiracy is achieved, however, subsequent statements made by a co-conspirator are not admissible under the co-conspirator exclusion.
Willoughby v. State, 660 N.E.2d 570, 581 (Ind. 1996)(citing Marjason v. State, 75 N.E.2d 904, 905 (Ind. 1947))
• And a statement is in furtherance of a conspiracy when the statement is “designed to promote or facilitate achievement of the goals of the ongoing conspiracy.”
Roush v. State, 875 N.E.2d 801, 809 (Ind. Ct. App. 2007)(quoting Leslie v. State, 670 N.E.2d 898, 901 (Ind. Ct. App. 1996), reh’g denied, trans. denied)
• “Mere ‘idle chatter’ does not satisfy the in-furtherance requirement.”
Roush v. State, 875 N.E.2d 801, 809 (Ind. Ct. App. 2007)(quoting Leslie v. State, 670 N.E.2d 898, 901 (Ind. Ct. App. 1996), reh’g denied, trans. denied)
• [S]tatements that occur “during the course of and in furtherance of” the conspiracy can take many forms, and include statements made to recruit potential co-conspirators.
Wright v. State, 690 N.E.2d 1098, 1105 (Ind. 1997), reh’g denied
Statements made by the party's coconspirator during and in furtherance of the conspiracy: Discretion of the trial court
• “Much latitude must, however, be allowed by the court in marshalling the facts and circumstances which bear upon the issue, and it must be left very largely to the discretion of the court trying the cause to determine whether or not there has been introduced evidence sufficient to establish prima facie the existence of a conspiracy so as to justify the admission of the acts and declarations of one confederate against another.”
Hightower v. State, 866 N.E.2d 356, 365-66 (Ind. Ct. App. 2007), trans. denied(quoting Siglar v. State, 541 N.E.2d 944, 949 (Ind. 1989))
Statements made by the party's coconspirator during and in furtherance of the conspiracy: Relationship to the right of confrontation
• [The defendant’s] Confrontation Clause argument is also unavailing because co-conspirator statements are nontestimonial.
Hightower v. State, 866 N.E.2d 356, 366 (Ind. Ct. App. 2007), trans. denied
• Exceptions to confrontation have always been derived from the experience that some out-of-court statements are just as reliable as cross-examined in-court testimony due to the circumstances under which they were made.
Crawford v. Washington, 541 U.S. 36, 74 (2004)
• We have recognized, for example, that co-conspirator statements simply “cannot be replicated, even if the declarant testifies to the same matters in court.”
Crawford v. Washington, 541 U.S. 36, 74 (2004)(quoting United States v. Inadi, 475 U.S. 387, 395 (1986))
• Because the statements are made while the declarant and the accused are partners in an illegal enterprise, the statements are unlikely to be false and their admission “actually furthers the ‘Confrontation Clause's very mission’ which is to ‘advance the accuracy of the truth-determining process in criminal trials.’”
Crawford v. Washington, 541 U.S. 36, 74 (2004)(quoting United States v. Inadi, 475 U.S. 387, 395 (1986)(quoting Tennessee v. Street, 471 U.S. 409, 415 (1985)))
• For more information about the right of confrontation, please review Right of Confrontation.