Trachtenberg on the history of hearsay

The Exception the Hearsay Rule: Coconspirators, 'Coventurers', and the Confrontation Clause is a new paper by Ben L.W. Trachtenberg, who is a Visiting Assistant Professor at Brooklyn Law School. Here's the abstract:

Since the dawn of the Hearsay Rule, formulations of which are as ancient as the common law adversary trial itself, various exceptions have allowed the admission of evidence that-while otherwise barred by the Rule-was deemed reliable or necessary to the conduct of fair trials. The Coconspirator Exception, which admits out-of-court statements made by a defendant's confederate during the course of and in furtherance of their joint wrongdoing, substantially predates the Constitution. Without this Exception, certain prosecutions, especially for crimes like drug distribution and complex white-collar frauds, might be impossible. Because such evidence is generally considered reliable, and because a defendant is said to have assumed the risk of its admission when he joined the conspiracy, the Exception has been relatively uncontroversial for some time.

In recent years, however, prosecutors-sometimes with the blessing of courts-have argued that when proving the existence of a "conspiracy" to justify admission of evidence under the Exception, they need show only that the declarant and the defendant were "coventurers" with a common purpose, not an illegal purpose. Indeed, government briefs and court decisions specifically disclaim the need to show any wrongful goal whatsoever. This Article contends that such a reading of the Exception is mistaken and undesirable. Conducted for this Article, a survey of thousands of court decisions, including the earliest English and American cases concerning the Exception as well as approximately 2,500 federal court opinions discussing the Exception since its federal codification in 1975, makes clear that a "conspiracy" under the Exception must involve wrongful acts. First, courts and commentators have for centuries described the Exception as concerning illegal or illicit conduct. Second, because the drafters of the Federal Rules of Evidence (and analogous state codes) intended to adopt the common law understanding of the Exception when codifying it in Rule 801(d)(2)(E), encroachment beyond the historical boundaries of the Exception violates existing rules of evidence. Third, and most important, such revisionism also violates the Confrontation Clause of the Sixth Amendment, which allows admission in criminal trials of evidence pursuant to hearsay exceptions "well established" at the time the Amendment was ratified but jealously restricts any broadening of those exceptions.

To adhere to the historical definition of the Coconspirator Exception to the Hearsay Rule, prosecutors should stop arguing that the conspiracy joined by the declarant and defendant may include purely lawful conduct, and courts encountering such arguments should reject them, lest they find themselves conducting new trials after the Sixth Amendment rights of convicted defendants find vindication on appeal.