I was taking an MBE Prep Test for the hell of it, and I found this question's answer to be controversial.

"Several persons together stole a painting from an art museum. One of them, who was the driver, was caught during the commission of another crime. He told police the following: “I didn't even get any money from the art museum. It all went to the first guy and the second guy.”

When the first and second guy go on trial for the theft of the art painting, is the driver’s statement admissible in court?"

1 Answer 1



In federal court (and under state rules of evidence based upon the Federal Rules of Evidence) this is governed by Federal Rule of Evidence 801(d)(2) which states that:

A statement is not hearsay if:

The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

You don't need to economically benefit from a crime to be a co-conspirator. Overt acts in knowing furtherance of the crime are sufficient, and an "accessory after the fact" meets that requirement. But, a statement made when caught during the commission of another crime is not a statement made "during the course of and in furtherance of" the conspiracy.

Not all states have adopted the "during the course of and in furtherance of" requirement in their version of FRE 801 (although I don't have a reference easily at hand to tell you which ones do and do not have that requirement). But, for MBE purposes, the Federal Rules of Evidence are the majority rule which is used.

Of course, if the driver testified in court to what he told the police, that wouldn't be hearsay, because it is a statement based upon his personal knowledge. The fact that the police are relaying what the driver said is what makes it hearsay.

Furthermore, if the driver was compelled to testify (perhaps with a grant of transactional immunity to avoid 5th Amendment issues or following a guilty plea by the driver to being an accessory after the fact) and lied, the statement made to the police could be admitted, not for the truth of the matter asserted (which would be hearsay), but to impeach the driver's trial testimony (which would not be hearsay).

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