Master Supreme Court decision defining the admissibility standard for co-conspirator statements under Rule 801(d)(2)(E) and addressing the Confrontation Clause. with this comprehensive case brief.
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. The Supreme Court resolved two longstanding disputes: the quantum of proof required to establish the preliminary facts for admissibility and whether the court may consider the very hearsay statement sought to be admitted in making that threshold determination. The Court concluded that judges decide admissibility under a preponderance standard and may consider the co-conspirator statement itself, significantly shaping how conspiracy prosecutions are tried.
Equally important, the Court held that admission of such statements did not violate the Sixth Amendment’s Confrontation Clause under then-governing doctrine because the co-conspirator exception is a “firmly rooted” hearsay exception. Although Crawford v. Washington later reshaped Confrontation Clause analysis, Bourjaily remains the leading authority on the evidentiary foundation for co-conspirator statements under the Federal Rules of Evidence and is routinely taught to illustrate Rule 104(a)’s role in preliminary questions of admissibility.
483 U.S. 171 (U.S. Supreme Court 1987)
Federal agents, working with a confidential informant, arranged a controlled narcotics transaction. In recorded telephone conversations, the informant spoke with an alleged co-conspirator who made statements indicating that a buyer—identified only as a "friend"—was prepared to purchase cocaine, would accompany him to the transaction, and had the necessary funds. The conversations detailed logistics about the time, place, and manner of the buy. At the appointed meeting, the petitioner, Bourjaily, arrived and acted consistently with the plan described on the recordings—meeting the co-conspirator, engaging in the transaction, and taking steps indicative of participation in the drug deal. The government sought to admit the co-conspirator’s recorded statements against Bourjaily under Federal Rule of Evidence 801(d)(2)(E) (co-conspirator statements). Over defense objection, the district court admitted the statements after finding, based on a pretrial proffer and the combined force of the recordings and corroborating surveillance evidence, that a conspiracy existed, the declarant and Bourjaily were members, and the statements were made during and in furtherance of the conspiracy. A jury convicted Bourjaily. The court of appeals affirmed, and the Supreme Court granted certiorari.
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.
The Court began with Rule 104(a), which assigns preliminary evidentiary questions to the judge and frees the judge from most evidentiary constraints. The Court rejected a categorical prohibition on considering the hearsay statement itself (“no-bootstrapping” rule), noting that the Federal Rules contemplate a pragmatic approach: the judge may evaluate all available evidence—including the statement—when deciding whether the foundational conditions are met. The Court also selected the preponderance-of-the-evidence standard, reasoning that this is the default standard for preliminary evidentiary questions and strikes an appropriate balance between reliability and efficiency. The Court emphasized that the district court did not rely on the statement in isolation; there was independent corroboration (e.g., the defendant’s arrival at the arranged time and place, conduct consistent with the plan, and surrounding circumstances). These facts, taken together with the statements, supported the conclusion that a conspiracy existed, that both the declarant and Bourjaily were members, and that the statements were made during and in furtherance of the conspiracy. On the Sixth Amendment issue, applying then-current Confrontation Clause doctrine (Ohio v. Roberts), the Court held that co-conspirator statements fall within a firmly rooted hearsay exception and thus carry sufficient indicia of reliability to satisfy the Constitution. The Court therefore rejected the argument that additional confrontation or reliability showings were required beyond satisfying Rule 801(d)(2)(E).
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.
Preponderance of the evidence. The trial judge must be persuaded that it is more likely than not that a conspiracy existed, the declarant and defendant were members, and the statement was made during and in furtherance of the conspiracy.
Yes. Under Rule 104(a), the judge may consider the statement itself along with other evidence. After Bourjaily, Rule 801(d)(2) was amended to clarify that while the statement’s contents must be considered, they do not alone establish the existence of the conspiracy or a party’s participation.
Under Bourjaily’s application of then-controlling law (Ohio v. Roberts), no. The co-conspirator exception is a firmly rooted hearsay exception, which sufficed for Confrontation Clause purposes at the time. After Crawford v. Washington, confrontation focuses on whether a statement is testimonial; co-conspirator statements made in furtherance of a conspiracy are generally non-testimonial and thus typically admissible without confrontation.
The statement must be made while the conspiracy is ongoing and must advance, promote, or facilitate its objectives (e.g., planning, concealment immediately following the crime if part of the plan, coordination of roles). Idle chatter, mere narratives of past events, or statements made after the conspiracy has ended do not qualify.
Bourjaily held that the court may consider the statement itself and did not impose a strict requirement of independent evidence. However, the 1997 amendment to Rule 801(d)(2) clarifies that the statement alone does not establish the conspiracy or participation. In practice, prosecutors typically offer corroborating evidence (surveillance, admissions, circumstantial proof) to satisfy the preponderance standard.
Appellate courts generally review the district court’s factual findings (existence of a conspiracy, membership, and in-furtherance) for clear error and the ultimate evidentiary ruling for abuse of discretion, giving deference to the trial judge’s assessment of the record.
Bourjaily v. United States supplies the doctrinal blueprint for admitting co-conspirator statements: judges decide admissibility, using a preponderance standard, and may consider the statements themselves along with other evidence. The decision harmonizes Rule 104(a) with Rule 801(d)(2)(E) and provides a functional approach that accommodates the realities of conspiracy prosecutions without sacrificing the safeguards of judicial gatekeeping.
Although Crawford altered the Confrontation Clause landscape, Bourjaily’s evidentiary holdings remain authoritative. Understanding this case equips students to analyze co-conspirator statements systematically—identifying the required foundational elements, anticipating proof strategies, and navigating the interplay between evidentiary rules and constitutional constraints.