Are statements of persons previously acquitted of conspiracy admissible against an alleged coconspirator as a vicarious admission exception to the hearsay rule (often called the coconspirator rule)? The applicable rule is Evid. R. 63(9)(b) which provides:
"A statement which would be admissible if made by the declarant at the hearing is admissible against a party if * * * (b) at the time the statement was made the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan."
This is substantially similar to Federal Rule 801(d) which provides that a "statement is not hearsay if * * * (2) * * * offered against a party and is * * * (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy".
This rule does not offend the right to be confronted by witnesses, as guaranteed by the Sixth Amendment. State v. D'Arco , 153 N.J. Super. 258, 262 (App. Div. 1977).
A multi-count indictment charged four defendants and several unindicted persons with conspiracy. Another 61 counts charged one or more of the four defendants with other crimes.
When called for trial eight months ago, defendant Morris Hacker was severed from that trial for medical reasons. He is now being tried separately. At the earlier trial defendants Joyce and Burke were acquitted of conspiracy (although Joyce was convicted of other charges), and the third
defendant, DeBellis, was convicted of conspiracy and other charges.
In this trial against Hacker only, the State seeks to offer statements made by Joyce and Burke allegedly during and in furtherance of the conspiracy.
Hacker objects because Joyce and Burke were acquitted of conspiracy at the earlier trial. That acquittal, he says, means that they were not conspirators.
The coconspirator rule was first enunciated in the United States by Mr. Justice Story in United States v. Gooding , 25 U.S. (12 Wheat.) 460, 469, 6 L. Ed. 693, 696 (1827). Since then it has received widespread acceptance. "Developments in the Law-Criminal Conspiracy", 72 Harv. L. Rev. 920, 988-9 (1959).
New Jersey espoused the coconspirator rule at least as early as State v. Carbone , 10 N.J. 329, 340 (1952), which held that a "conspiracy is a partnership in crime" and "each conspirator [is] liable under the criminal law for the acts of every other conspirator done in pursuance of the conspiracy." See also, State v. Rios , 17 ...