Bourjaily v. United States

483 U. S. 171

June 23, 1987

An undercover FBI agent made plans to sell cocaine to Lonardo, who in turn was to pass on the drug to Bourjaily. Both Lonardo and Bourjaily were arrested when the transfer took place, as planned, in a hotel parking lot. Bourjaily then objected to the admission as evidence of an inculpatory recorded telephone conversation between Lonardo and the FBI agent on the grounds of hearsay. The prosecutors argued that statements made in furtherance of a conspiracy were not hearsay under 801(d)(2)(E) of the Federal Rules of Evidence. The ultimate question was whether the recorded conversation itself could be used to prove the existence of a conspiracy.

The Court ruled 6-3 that the telephone conversation could be used to establish conspiracy, and that its subsequent admission was not hearsay. Rehnquist, who wrote the opinion, distinguished a 1942 case called Glasser, which seemed to suggest that conspiracy could only be established by evidence independent of the alleged hearsay. To the contrary, the alleged hearsay could work with independent evidence to establish a conspiracy, and this by a mere preponderance of the evidence.  Rehnquist found it conclusive that another rule, 104(a), said that these sorts of preliminary determinations could be made without use of the ordinary rules of evidence. The Court also rejected Bourjaily’s claim that he had the right to confront Lonardo at trial, and cited recent precedent holding that no confrontation was required when testimony against the accused fell within a “firmly rooted hearsay exception.”

Stevens said in concurrence that Glasser, despite interpretations to the contrary, had never been intended to mean that only independent evidence could be used to determine conspiracy. Blackmun, joined by Brennan and Marshall, disagreed, and further pressed that the conspiracy exception was rooted in agency law (i.e., because conspirators are united in a cause, a statement by one is a statement by all). Somehow (I don’t quite follow the logic), the agency justification meant the plain meaning of 104(a) didn’t apply. Blackmun continued that conspirator statements could easily be overinterpreted, or blown out of proportion, and that the independent evidence requirement is an important safeguard. Finally, he thought there was a confrontation clause violation. Because the Court abandoned the traditional interpretation of the Glasser rule in its decision, they had no business saying that admission of conspiracy evidence was a “firmly rooted” hearsay exception.

Call me obtuse, but I’ve never really understood why hearsay is so diabolical and verboten. In general, I think the good outweighs the bad, and that judges and juries can usually take out-of-court statements for what they are. Blackmun’s arguments regarding agency are hard to understand, but even if he’s correct, I can’t say I shed any tears.

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