You cram these words into mine ears against the stomach of my sense.
The co-conspirators’ exception to the hearsay rule permits the acts, declarations, statements or utterances of an accused’s alleged co-conspirators, performed or made in furtherance of a conspiracy, to be presented as evidence against the accused as proof of his or her guilt. Declarations and acts are treated equally.
The Rationale for the Rule
The Rule is based upon principles of agency. Each member of a common unlawful scheme impliedly permits every other member of the unlawful scheme the right to act or speak on her behalf in pursuit of the common unlawful plan.
The Application of the Rule
It is not the rule that offends my senses; it is the application of the rule. Judges routinely claim to be able to hear prejudicial evidence in the course of making a legal ruling on evidence, then banish from their minds the prejudicial aspects of that evidence if a ruling is made in favour of the accused thus excluding the evidence. Of this claim I am depressingly suspicious. My suspicion soars, however, at the thought of jurors attempting to accomplish this same segregation of thought.
More likely to occur unfortunately is that jurors will find guilt not by evidence but by association. In nature, birds of a single species do, in fact, sometimes fly together. In law, guilt by association is presumptively improper. Jurors will, of course, be instructed that probable guilt is not a sufficient basis to convict.
They will be instructed that they have been allowed to hear all the evidence concerning the conduct and declarations of others, most, or all of whom, did not actually testify. And, they have been allowed to hear about events that occurred in the absence of the accused, and perhaps without any awareness by him of the events. But, they must forget that evidence presently. They will only consider that evidence later in their deliberations, if at all.
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