Example of When Rule 801 May Come Into Play

Let’s consider a criminal trial scenario to illustrate how Rule 801, specifically the co-conspirator exception under Rule 801(d)(2)(E), might come into play.

Scenario: Drug Trafficking Conspiracy Trial

Defendants: Alice and Bob are on trial for allegedly conspiring to distribute illegal drugs.

Prosecution’s Strategy: The prosecution wants to prove that Alice and Bob were working together in a drug trafficking conspiracy. To do this, they want to introduce a recorded phone call between Alice and a third person, Charlie, who is not on trial.

The Phone Call: In the recorded conversation, Alice tells Charlie, “Bob and I will be moving the shipment tomorrow night. Make sure everything’s ready on your end.” This statement could provide critical evidence that Alice and Bob were working together in a conspiracy.

Application of Rule 801(d)(2)(E):

To admit Alice’s statement under the co-conspirator exception, the prosecution would need to demonstrate the following:

  1. Existence of a Conspiracy: There must be sufficient evidence outside Alice’s statement to show that a conspiracy existed between Alice and Bob to distribute drugs.
  2. Statement Made During the Course of the Conspiracy: Alice’s statement was made while the alleged conspiracy was ongoing.
  3. Statement Made in Furtherance of the Conspiracy: Alice’s instruction to Charlie about the shipment could be seen as made to help achieve the conspiracy’s goals.

Potential Defense Objections:

The defense might object to the admissibility of Alice’s statement, arguing that it’s hearsay. They might contend that the prosecution hasn’t sufficiently proven a conspiracy between Alice and Bob, or that Alice’s statement wasn’t really in furtherance of the conspiracy.

Court’s Decision:

If the court finds that the criteria for Rule 801(d)(2)(E) have been met, Alice’s statement to Charlie would be admissible as evidence against both Alice and Bob. If not, the statement would be excluded as hearsay.


This scenario demonstrates the nuanced application of Rule 801, specifically the co-conspirator exception, in a criminal trial. It shows how both sides might argue over the admissibility of a crucial piece of evidence, and how the court’s interpretation of Rule 801 could significantly impact the trial’s outcome.

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