Intro to the Federal Rules of Evidence - 56

e. Agent Admissions (D)
i) Definition
Statements by an agent may be used against his party- employer – vicarious admissions by agents i) within scope of agency or employment ii) during time of employment.

ii) Rationale
The rule is justified on the grounds of reliability. An agent is typically well-informed about the business act on which he is commenting since they occur w/in his work. Also, while the employment continues the employee is not likely to make the statements unless they are true.

iii) Proof of an agency relationship (d)(2)
An agent’s own statements to the existence of an agency relationship “shall be considered,” and some otherwise admissible evidence must be presented: e.g., employment records, demeanor during meetings, etc.

f. Coconspirator Admissions (E)
i) Definition
Statements made by one co-conspirator to a third party are admissible against other co-conspirators.

ii) Elements
1) By a co-conspirator
2) During the course of the conspiracy
Statements must be made at a time when the declarant was participating in the conspiracy.

Statements made after the conspiracy has ended are admissible only against the declarant, not against the other members of the conspiracy.
3) In furtherance of the conspiracy
A statement should be admitted against a co-conspirator only if it was made for the purpose of advancing the conspiracy’s objectives, such as inducing, assisting.

Statements by one co-conspirator against another may be admitted even if no conspiracy crime is charged.

iii) Proof of the existence of conspiracy
Existence of the conspiracy, and satisfaction of the other factual requirements, is to be decided by the judge by a preponderance of the evidence (104(a)). Bourjaily v. United States, 483 U.S. 171 (1987).

The statement offered for its truth shall be used, but other evidence also is needed to prevent bootstrapping.

iv) Testimonial admissions
Testimonial admissions of a conspirator are admissible against a co-conspirator only if there was an opportunity to cross-examination the hearsay declarant.

vi) No need to charge conspiracy
Statements by one co-conspirator against another may be admitted under the exception even if no conspiracy crime is formally charged.