The exception may be stated as where two or more
persons are alleged to have conspired to commit a crime
or a civil wrong, any statement made by one during the
course of and in furtherance of the conspiracy is
admissible in evidence against any other member of the
conspiracy. [State v. Phelps, 96 N.J. 500, 508 (1984);
State v. Varona, 242 N.J. Super. 474, 483 (App. Div.
1990), certif. denied, 112 N.J. 386 (1990)].
The exception is coextensive with the federal
coconspirator hearsay exception. State v. Taccetta, 301
N.J. Super. 227, 251 (App. Div.), certif. denied, 152 N.J.
187 (1997). The provision does not violate a defendant’s
right to confrontation. See also Bourjaily v. United States,
483 U.S. 171 (1987); State v. Harris, 298 N.J. Super.
478, 486 (App. Div), certif. denied, 151 N.J. 474 (1997).
To admit such a statement, there must be evidence,
independent of the hearsay, of the existence of the
conspiracy and defendant’s relationship to it. State v.
Phelps, 96 N.J. at 510; State v. McKiver, 199 N.J. Super.
542, 545 (App. Div. 1985); State v. D’Arco, 153 N.J.
Super. 258, 262 (App. Div. 1977). This independent
evidence may take many forms but “must be substantial
enough to engender a strong belief in the existence of a
conspiracy and of defendant’s participation.” State v.
Phelps, 96 N.J. at 511.
The determination of whether there is sufficient
independent proof is to be made by the trial judge. State
v. Phelps, 96 N.J. at 513-16. The prosecution must
demonstrate by a preponderance of the evidence
independent of the hearsay that the conspiracy existed
and that the defendant participated in it. State v. Clausell,
121 N.J. 298, 337 (1990); State v. Phelps, 96 N.J. at 518-
- The court is not precluded, however, from
considering the hearsay evidence in conjunction with
independent evidence. State v. Phelps, 96 N.J. at 512;
State v. McKiver, supra. Indeed, the trial court “may
consider the coconspirator’s hearsay declaration if it is
satisfied that such declaration is reliable and that there is
other evidence substantial enough to engender a belief in
the conspiracy’s existence and the defendant’s
participation in it.” State v. Phelps, 96 N.J. at 518-19; see
also Bourjaily v. United States, supra. When the declarant
makes statements supportive of the existence of a
conspiracy of which he is a part, the trustworthiness of the
hearsay is enhanced because of the likelihood that he
would not have made declarations contrary to his best
interests unless they were truthful. State v. Phelps, 96 N.J.
at 511.
The coconspirator exception does not require that
the defendant be formally charged with conspiracy or any
other form of criminal plan. State v. Clausell, 121 N.J. at
336; State v. Louf, 64 N.J. 172, 177 (1973); State v.
Farthing, 331 N.J. Super. 58, 82 (App. Div. 2000).
Indeed, such evidence may be admissible on a substantive
offense, even if the defendant is acquitted on a companion
charge of conspiracy. State v. D’Arco, 153 N.J. Super. at
265-266; State v. Farinella, 150 N.J. Super. 61, 69 (App.
Div.), certif. denied, 75 N.J. 17 (1977).As set forth above, the defendant and the declarant
must have been engaged in the conspiracy when the
statement was made and the statement must have been to
further one or more objects of the conspiracy. See State v.
Farthing, 331 N.J. Super. at 83; State v. Taccetta, 301 N.J.
Super. at 252. However, a conspiracy is presumed to
continue with regard to each member of the conspiracy
until the conspiracy’s object has been attained or there is
evidence of an affirmative act of withdrawal by one or
more members of the conspiracy. Id. Statements
regarding past events may be in furtherance of a
conspiracy if they serve a current purpose of the
conspiracy, such as to promote cohesiveness, provide
reassurance to a coconspirator, or prompt a nonmember
of the conspiracy to respond in a way that furthers
conspiratorial goals. Id. at 253.- Excision
Pursuant to R. 3:15-2, if, in a joint trial of two or
more defendants, a prosecutor intends to use against one
defendant a statement or confession of a codefendant, the
prosecutor shall move prior to trial to determine if the
references to the non-declarant defendant can be
effectively deleted from the statement. See also State v.
Young, 46 N.J. 152 (1965). In State v. Biddle, 150 N.J.
Super. 180, 183 (App. Div.), certif. denied, 75 N.J. 542
(1977), the Appellate Division held that the failure of the
State to move for excision prior to trial was not per se
reversible error and did not require complete exclusion of
the codefendant’s statement. See also State v. Guzman,
313 N.J. Super. 363, 381 (App. Div.), certif. denied, 156
N.J. 424 (1998).- Confession of Another
A confession by another is of such probative
importance in a criminal trial that its exclusion
constitutes a denial of defendant’s due process right to a
fair trial. Thus, where a witness voluntarily appears to
testify that he and not the defendant is the guilty party,
it is improper for the trial judge to have him arraigned and