Johnny Football and the Rule Against Hearsay (Part Three)

kylefield.jpgRules 801 and 803 provide what is non-hearsay and what are exceptions to hearsay. The prosecutor says, “[a]dmission by a party opponent or coconspirator, your honor.” The autograph broker’s lawyer glances down at Rule 801(e)(2) which says, “[a] statement is not hearsay if…The statement is offered against a party and is: (A) the party’s own statement in either an individual or representative capacity; … or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.”

The judge, having not looked at the coconspirator rule for a while, rereads it and says, “Sustained as to Mr. Manziel. Although the statement might be one of a coconspirator to the crime of committing NCAA violations, the statement was not made in furtherance of any conspiracy. However, it is admissible as to Mr. Autograph Broker because they are his own words and offered against him.” Mr. Manziel wipes his forehead and looks at his lawyer. But, since your one’s own statements to any witness are admissible against you at a trial against you under 801, Mr. Autograph Broker is behind the 8-ball and his lawyer knows it.

“Your honor, at this time I move for severance of this trial,” says Johnny Manziel’s lawyer. Since these statements incriminating Mr. Manziel are admissible only against his codefendant, Mr. Manziel is able to sever (get a separate trial) under the Bruton rule. Otherwise, Mr. Manziel’s right to cross examine his accusers (those making the statement) would be violated by not being able to cross examine the declarant of the admissible hearsay statement, Mr. Autograph Broker. Mr. Autograph Broker can assert his right to remain silent, thus violating Mr. Manziel’s right to confrontation.