M E M O
TO: Joint Procedure Committee
RE: Rule 801, N.D.R.Ev.; Definition of Hearsay
FROM: Gerhard Raedeke
This memo discusses the December 1, 1997, amendment to Rule 801, Fed.R.Ev., and the differences and uncertainties with North Dakota law as a result of Bourjaily v. United States, 483 U.S. 171 (1987).
Rule 801, N.D.R.Ev., defines statements which are not hearsay. Subdivision (d)(2)(v) provides: "A statement is not hearsay if . . . [t]he statement is offered against a party and is . . a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy."
Before an out-of-court statement of a co-conspirator may be used, the court must make preliminary factual determinations to determine the admissibility of the statement. The proponent of the statement must establish by a preponderance of evidence (1) a conspiracy existed, (2) the defendant and the declarant were members of the conspiracy, and (3) the declaration was made during the course and in furtherance of the conspiracy. State v. Lind, 322 N.W.2d 826, 838 (N.D. 1982); (citing with approval, United States v. Bell, 573 F.2d 1040 (8th Cir.1978)). The Lind court explained independent evidence is required when making the preliminary factual determinations to prevent the proponent from "bootstrapping" the admissibility of the evidence. 322 N.W.2d at 838.
After Lind was decided, the United States Supreme Court held a court, in making the preliminary factual determinations for admissibility under Rule 801(d)(2), may consider the out-of-court statements of a co-conspirator. Bourjaily v. United States, 483 U.S. 171 (1987). The court reasoned the "bootstrapping rule" was abolished with the adoption of Rule 104(a), Fed.R.Ev., which provides as follows:
"Preliminary questions concerning . . . the admissibility of evidence shall be determined by the court . . . . In making its determination it is not bound by the rules of evidence except those with respect to privileges."
Id. at 176-180. The Bourjaily Court reasoned "a piece of evidence, unreliable in isolation, may become quite probative when corroborated by other evidence." 483 U.S. at 180.
The 1997 federal amendment codifies the holding in Bourjaily, by providing "a court shall consider the contents of a co-conspirator's statement in determining 'the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered.'" 1997 Committee Note, Rule 801 Fed.R.Ev.
The federal amendment also answers the question which was left unresolved in Bourjaily. The Bourjaily Court did not decide whether the trial court could have relied solely upon the co-conspirator's statements to make its preliminary factual determination. The federal amendment resolves the issue by providing the contents of the declarant's statement do not alone suffice to establish a conspiracy in which the declarant and the co-conspirator participated. See 1997 Committee Note, Rule 801, Fed.R.Ev.
Finally, the federal amendment extends the reasoning of the Bourjaily Court to two other types of admissions by a party opponent; so that, preliminary questions relating to a declarant's authority and the agency or employment relationship and scope thereof are treated analogously to the preliminary questions involved in determining the admissibility of a co-conspirators statement.
The North Dakota Supreme Court has not determined after Bourjaily whether the preliminary factual determination must be based upon independent evidence. See Zajac v. Great American Ins. Companies, 410 N.W.2d 155, n.3 (N.D. 1987). However, North Dakota has adopted Rule 104(a), upon which Bourjaily was premised, and Rule 801, N.D.R.Ev., is predicated upon the federal rule. In addition, the precedents relied upon in Lind, 322 N.W.2d 826, are no longer good law after Bourjaily. Thus, in North Dakota it is unclear whether the proposed hearsay evidence may be considered in the preliminary determinations necessary to admit the hearsay evidence.
At the last meeting, the Committee rejected a proposal patterned after the 1997 federal amendment incorporating the holding of Bourjaily. The Committee did not think the use of hearsay should be expanded. The Committee thought the preliminary factual determination for admission of an out-of-court statement should be based upon independent evidence as required in Lind.
Should Rule 801, N.D.R.Ev., be amended to provide a court may not look at the hearsay statement itself when making the preliminary factual determinations. Such an amendment would clarify the rule and prevent the question from being raised as to whether Lind is still good law.