coconspirator exception in Nebraska

2009COCONSPIRATOR EXCEPTION TO HEARSAY Hudson argues that the trial court committed reversible error when it allowed the State to offer testimony by Johnson under the coconspirator exception to the hearsay rule, § 27-801(4)(b). "`[B]efore the trier of facts may consider testimony under the coconspirator exception to the hearsay rule, a prima facie case establishing the existence of the conspiracy must be shown by independent evidence.. . .'" State v. Gutierrez, 272 Neb. 995, 1018 , 726 N.W.2d 542, 565 (2007), quoting State v. Bobo, 198 Neb. 551 , 253 N.W.2d 857 (1977).

2009COCONSPIRATOR EXCEPTION TO HEARSAY Hudson argues that the trial court committed reversible error when it allowed the State to offer testimony by Johnson under the coconspirator exception to the hearsay rule, § 27-801(4)(b). "`[B]efore the trier of facts may consider testimony under the coconspirator exception to the hearsay rule, a prima facie case establishing the existence of the conspiracy must be shown by independent evidence.. . .'" State v. Gutierrez, 272 Neb. 995, 1018 , 726 N.W.2d 542, 565 (2007), quoting State v. Bobo, 198 Neb. 551 , 253 N.W.2d 857 (1977).

2022TRAIL Cite as 312 Neb. 843 his or her fellow conspirators, and the commonality of inter- ests gives some assurance that the statements are reliable. 74 Whether or not a conspiracy has been charged in the informa- tion, before the trier of fact may consider testimony under the coconspirator exception to the hearsay rule, a prima facie case establishing the existence of the conspiracy must be shown by independent evidence, to prevent the danger of hearsay evi- dence being lifted by its own bootstraps. 75 Our review of the record demonstrates the district court was aware of Trail’s concerns and i

2022TRAIL Cite as 312 Neb. 843 his or her fellow conspirators, and the commonality of inter- ests gives some assurance that the statements are reliable. 74 Whether or not a conspiracy has been charged in the informa- tion, before the trier of fact may consider testimony under the coconspirator exception to the hearsay rule, a prima facie case establishing the existence of the conspiracy must be shown by independent evidence, to prevent the danger of hearsay evi- dence being lifted by its own bootstraps. 75 Our review of the record demonstrates the district court was aware of Trail’s concerns and i

2022Stat. § 27-801 (4)(b)(v) (Reissue 2016), a statement is not hearsay if it is “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Under the coconspirator exception to the hearsay rule, the declarant conspirator who partners with oth- ers in the commission of a crime is considered the agent of 69 Id. 70 Id. 71 Brief for appellant at 23. 72 Id. 73 State v. Hudson, 279 Neb. 6 , 775 N.W.2d 429 (2009). - 886 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports STATE V.

2022Stat. § 27-801 (4)(b)(v) (Reissue 2016), a statement is not hearsay if it is “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Under the coconspirator exception to the hearsay rule, the declarant conspirator who partners with oth- ers in the commission of a crime is considered the agent of 69 Id. 70 Id. 71 Brief for appellant at 23. 72 Id. 73 State v. Hudson, 279 Neb. 6 , 775 N.W.2d 429 (2009). - 886 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports STATE V.

1999In State v. Copple, 224 Neb. 672 , 401 N.W.2d 141 (1987), abrogated on other grounds, State v. Reynolds, 235 Neb. 662 , 457 N.W.2d 405 (1990), we held that statements made by coconspirators could be admitted even when the conspiracy was not charged in the information. *310 However, before the “ ‘trier of facts may consider testimony under the coconspirator exception to the hearsay rule, a prima facie case establishing the existence of the conspiracy must be shown by independent evidence....”’ Copple, 224 Neb. at 693 , 401 N.W.2d at 156 .

1999In State v. Copple, 224 Neb. 672 , 401 N.W.2d 141 (1987), abrogated on other grounds, State v. Reynolds, 235 Neb. 662 , 457 N.W.2d 405 (1990), we held that statements made by coconspirators could be admitted even when the conspiracy was not charged in the information. *310 However, before the “ ‘trier of facts may consider testimony under the coconspirator exception to the hearsay rule, a prima facie case establishing the existence of the conspiracy must be shown by independent evidence....”’ Copple, 224 Neb. at 693 , 401 N.W.2d at 156 .

2024BOSWELL Cite as 316 Neb. 542 [27,28] Pursuant to the coconspirator exception, a state- ment is not hearsay if it is “offered against a party and is . . . a statement by a coconspirator of a party made during the course and in furtherance of the conspiracy.” 56 We have held that a statement is excluded from the definition of hearsay under the coconspirator exception if the State shows that (1) a conspiracy existed, (2) the declarant was a member of the conspiracy, (3) the party against whom the assertion is offered was a member of the conspiracy, (4) the assertion was made during the course of

2024BOSWELL Cite as 316 Neb. 542 After considering the parties’ arguments, the district court expressly found the State had sufficiently proved the exis- tence of a conspiracy through independent evidence regard- ing the conduct and actions of Boswell and Trail, as well as through statements made by Boswell, and thus, Trail’s state- ments were admissible under the coconspirator exception to the hearsay rule.

2021State v. Torres, supra. We have stated that the phrase “prima facie” can “‘probably be defined only in terms of sufficient evidence to permit the trial court reasonably to infer that there existed a conspiracy.’” State v. Copple, 224 Neb. 672, 693 , 401 N.W.2d 141, 156 (1987) (quoting State v. Thompson, 273 Minn. 1 , 139 N.W.2d 490 (1966)), abrogated on other grounds, State v. Reynolds, 235 Neb. 662 , 457 N.W.2d 405 (1990).

2021State v. Torres, supra. We have stated that the phrase “prima facie” can “‘probably be defined only in terms of sufficient evidence to permit the trial court reasonably to infer that there existed a conspiracy.’” State v. Copple, 224 Neb. 672, 693 , 401 N.W.2d 141, 156 (1987) (quoting State v. Thompson, 273 Minn. 1 , 139 N.W.2d 490 (1966)), abrogated on other grounds, State v. Reynolds, 235 Neb. 662 , 457 N.W.2d 405 (1990).

2009"The coconspirator exception to the hearsay rule is applicable regardless of whether a conspiracy has been charged in the information or not." Id.

1990The principles announced in Roberts, supra, were reaffirmed in Idaho v. Wright, ___ U.S. ___, 110 S.Ct. 3139 , 111 L.Ed.2d 638 (1990).

1990The principles announced in Roberts, supra, were reaffirmed in Idaho v. Wright, ___ U.S. ___, 110 S.Ct. 3139 , 111 L.Ed.2d 638 (1990).

1977See, Glover v. United States, 306 F. 2d 594 (10th Cir., 1962); Panci v. United States, 256 F. 2d 308 (5th Cir., 1958); Ong Way Jong v. United States, 245 F. 2d 392 (9th Cir., 1957); People v. Garcia, 201 Cal. App. 2d 589 , 20 Cal. Rptr. 242 (1962); Annotation, 46 A. L.

1977See, Glover v. United States, 306 F. 2d 594 (10th Cir., 1962); Panci v. United States, 256 F. 2d 308 (5th Cir., 1958); Ong Way Jong v. United States, 245 F. 2d 392 (9th Cir., 1957); People v. Garcia, 201 Cal. App. 2d 589 , 20 Cal. Rptr. 242 (1962); Annotation, 46 A. L.

1977United States v. Yow, Jr., supra. The rule is well established that before the trier of facts may consider testimony under the coconspirator exception to the hearsay rule, a prima facie case establishing the existence of the conspiracy must be shown by independent evidence.

1977United States v. Yow, Jr., supra. The rule is well established that before the trier of facts may consider testimony under the coconspirator exception to the hearsay rule, a prima facie case establishing the existence of the conspiracy must be shown by independent evidence.

1977In United States v. Stroupe, 538 F. 2d 1063 (4th Cir., 1976), a government agent attempted to purchase amphetamine from one Wright.

1977See, State v. Merchants Bank, 81 Neb. 704 , 116 N. W. 667 (1908); United States v. Nixon, 418 U. S. 683 , 94 S. Ct. 3090 , 41 L.

1977See, State v. Merchants Bank, 81 Neb. 704 , 116 N. W. 667 (1908); United States v. Nixon, 418 U. S. 683 , 94 S. Ct. 3090 , 41 L.

1977See, Glover v. United States, 306 F. 2d 594 (10th Cir., 1962); Panci v. United States, 256 F. 2d 308 (5th Cir., 1958); Ong Way Jong v. United States, 245 F. 2d 392 (9th Cir., 1957); People v. Garcia, 201 Cal. App. 2d 589 , 20 Cal. Rptr. 242 (1962); Annotation, 46 A. L.

1977See, Glover v. United States, 306 F. 2d 594 (10th Cir., 1962); Panci v. United States, 256 F. 2d 308 (5th Cir., 1958); Ong Way Jong v. United States, 245 F. 2d 392 (9th Cir., 1957); People v. Garcia, 201 Cal. App. 2d 589 , 20 Cal. Rptr. 242 (1962); Annotation, 46 A. L.