MBE Rules · Evidence
Co-conspirator statement (801(d)(2)(E))
FRE 801(d)(2)(E)
The rule
A statement by a co-conspirator of the party is non-hearsay when offered against the party if made during the course of and in furtherance of the conspiracy. The court must find by a preponderance that a conspiracy existed and both declarant and party were members; the statement itself may be considered but cannot alone establish these facts.
In plain English
Anything a conspirator says to advance the conspiracy — recruiting members, dividing spoils, planning next steps — is admissible against every other member. Casual bragging after arrest or mere narrative of past events does not qualify because it is not 'in furtherance.'
The trap
Post-arrest confessions or statements after the conspiracy's objective has failed or succeeded are NOT in furtherance and are inadmissible under this rule.
How examiners test it
One conspirator tells a supplier 'Bob is bringing the getaway car Friday.' Statement offered against Bob at Bob's trial.
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