483 U.S. 171 (U.S. Supreme Court 1987)
Bourjaily v. United States is a cornerstone evidence case that clarifies how courts decide whether out-of-court statements by alleged co-conspirators are admissible against a defendant.
In determining the admissibility of a co-conspirator's statement under Federal Rule of Evidence 801(d)(2)(E), may the trial court consider the hearsay statement itself, and what standard of proof governs the preliminary determination? Additionally, does admitting such statements violate the Confrontation Clause?
Under Federal Rule of Evidence 104(a), the trial judge decides preliminary questions of admissibility and is not bound by the rules of evidence (except those on privilege). For Rule 801(d)(2)(E), the government must prove by a preponderance of the evidence that: (1) a conspiracy existed; (2) both the declarant and the defendant were members; and (3) the statement was made during and in furtherance of the conspiracy. In making this determination, the court may consider the co-conspirator's statement itself. Admission of co-conspirator statements does not violate the Confrontation Clause where the statements fall within a firmly rooted hearsay exception. (Post-Bourjaily, Rule 801(d)(2) was amended to clarify that the contents of the statement are to be considered but do not, by themselves, establish the conspiracy or a party's participation.)
Yes. The court may consider the co-conspirator's statement itself in deciding admissibility under Rule 801(d)(2)(E), and the government must establish the foundational facts by a preponderance of the evidence under Rule 104(a). Admission of the statements did not violate the Confrontation Clause because the co-conspirator exception is a firmly rooted hearsay exception.
Bourjaily is the leading case on the evidentiary foundation for admitting co-conspirator statements. It establishes that judges decide admissibility under Rule 104(a) by a preponderance and may consider the statement itself—an approach that greatly influences how conspiracy cases are tried and how the government builds its foundation. Although the decision did not require independent evidence, a subsequent amendment to Rule 801(d)(2) clarified that a statement's contents must be considered but do not, by themselves, establish the conspiracy or a party's participation. For law students, Bourjaily concretely links Rules 104(a) and 801(d)(2)(E), illustrates the "during and in furtherance" requirement, and shows how constitutional and evidentiary analyses interact. Post-Crawford, co-conspirator statements are generally non-testimonial and thus typically admissible without confrontation, while Bourjaily continues to govern the evidentiary foundation under the Federal Rules.