Bourjaily v. United States is the 1987 Supreme Court decision that set the modern federal framework for admitting a co-conspirator’s out-of-court statements against a defendant. The Court ruled that a trial judge deciding whether such a statement qualifies under Federal Rule of Evidence 801(d)(2)(E) uses a preponderance of the evidence standard, may consider the statement itself when making that determination, and does not run afoul of the Sixth Amendment’s Confrontation Clause by admitting it.1Legal Information Institute. Bourjaily v. United States, 483 U.S. 171 A 1997 amendment to the rule and the Court’s later decision in Crawford v. Washington adjusted the edges of that framework, but its core survives.
Background of the Case
The case came out of a federal drug investigation. An FBI informant arranged to sell cocaine to Angelo Lonardo, who planned to pass it along to William Bourjaily. On a recorded phone call, Lonardo told the informant he had a “gentleman friend” who wanted to buy cocaine, and the informant then spoke with that person about quality and price. Lonardo set up the exchange in a parking lot, where the cocaine was moved from the informant’s car into Bourjaily’s car. Both men were arrested.
At trial, prosecutors introduced Lonardo’s recorded statements to show Bourjaily was part of the conspiracy. Bourjaily objected that the statements were inadmissible hearsay.2Justia U.S. Supreme Court Center. Bourjaily v. United States, 483 U.S. 171 (1987) The appeal asked the Supreme Court to settle three questions federal courts had been splitting on: what standard of proof applies to the preliminary findings a judge has to make, whether the judge can look at the hearsay statement itself to make those findings, and whether letting the statement in violates the defendant’s right to confront witnesses.
What the Court Decided
The Court answered all three questions in the government’s favor.
Preponderance of the Evidence
Before admitting a co-conspirator’s statement under Rule 801(d)(2)(E), the judge must find that a conspiracy existed, that the declarant and the defendant were both members, and that the statement was made during and in furtherance of the conspiracy.3Legal Information Institute. Federal Rules of Evidence Rule 801 Bourjaily held that the government has to prove those preliminary facts by a preponderance, meaning more likely than not. That is well below the beyond-a-reasonable-doubt standard the jury later applies to the actual charges. The question at this stage is only whether the evidentiary rule has been satisfied.
The Statement Itself Can Be Considered
Older case law, going back to Glasser v. United States in 1942, had produced a “bootstrapping rule” that barred courts from using the challenged statement as evidence that the conspiracy existed. The reasoning was that you could not prove the prerequisite for admitting a statement by pointing to the statement itself. Bourjaily rejected that limit. Because Federal Rule of Evidence 104(a) tells the judge she “is not bound by evidence rules, except those on privilege” when deciding preliminary questions, there is no reason to exclude the very statement at issue from the judge’s consideration.4Legal Information Institute. Federal Rules of Evidence Rule 104 – Preliminary Questions The judge could now look at the whole picture, hearsay included.
The Court did not say the statement alone would always be enough. It left open whether some independent corroboration was also needed. On the facts, that question did not matter: the parking lot handoff, where Lonardo physically moved cocaine into Bourjaily’s car, gave the government independent evidence connecting Bourjaily to the conspiracy.2Justia U.S. Supreme Court Center. Bourjaily v. United States, 483 U.S. 171 (1987)
No Confrontation Clause Violation
Bourjaily also argued that admitting Lonardo’s statements violated his Sixth Amendment right to confront the witnesses against him, since Lonardo did not testify. The Court rejected that. It treated the co-conspirator exception as a “firmly rooted hearsay exception” and held that no separate reliability inquiry was required.1Legal Information Institute. Bourjaily v. United States, 483 U.S. 171 Satisfying Rule 801(d)(2)(E) was enough to satisfy the Constitution.
How the Rule Works After the 1997 Amendment
Ten years after the decision, Congress amended Rule 801(d)(2) to lock in Bourjaily’s approach and to answer the corroboration question the Court had reserved. The rule now says a co-conspirator’s statement “must be considered but does not by itself establish… the existence of the conspiracy or participation in it.”3Legal Information Institute. Federal Rules of Evidence Rule 801
The Advisory Committee Notes explain the two moves. The amendment confirmed that the judge must look at the contents of the statement when deciding the preliminary questions, and it settled that the statement cannot be the only basis for finding a conspiracy. Courts must also weigh surrounding circumstances, including who made the statement, its context, and any corroborating evidence.5Office of the Law Revision Counsel. 28 USC App, Federal Rules of Evidence, Article VIII
So the current rule sits in a middle ground. Judges cannot ignore the co-conspirator’s statement, as the old bootstrapping rule required, but they cannot rely on it alone either. Some independent evidence has to be there, whether that is surveillance, financial records, testimony from other witnesses, or the circumstances of the arrest.
The “In Furtherance” Requirement
Even when the conspiracy is clear and the defendant was a member, the statement only comes in if it was made “in furtherance” of the conspiracy.3Legal Information Institute. Federal Rules of Evidence Rule 801 Courts read this broadly. Statements that advance the conspiracy’s goals usually qualify: discussing logistics, identifying buyers, negotiating prices, reassuring participants, recruiting members.
Statements that do not qualify include casual remarks about past crimes, idle conversation between co-conspirators about unrelated topics, and anything said after the conspiracy has ended. The line can be thin. Bragging about the operation to impress a potential recruit will typically count; the same boast to a friend over drinks, with no conspiratorial purpose, probably will not. Courts look at context, audience, and apparent purpose rather than applying a mechanical test.
The James Hearing
Federal courts often work through the preliminary findings in a “James hearing,” named after United States v. James, 590 F.2d 575 (5th Cir. 1979). At the hearing, the government has to show a conspiracy existed, the defendant was a member, and the statement was made during and in furtherance of it.
Timing varies by judge. Some hold the hearing before trial, requiring the government to lay its foundation outside the jury’s presence. Others allow the statements in during trial conditionally, with the government expected to “connect up” the evidence later. If the corroboration never materializes, the defense can move to strike, and the judge may instruct the jury to disregard the statements. Conspiracy prosecutions sometimes come apart at that point.
How Crawford v. Washington Changed the Analysis
In 2004, Crawford v. Washington replaced the reliability-based Confrontation Clause framework Bourjaily had used. Under Crawford, “testimonial” out-of-court statements cannot come in unless the declarant is unavailable and the defendant had a prior chance to cross-examine.6Justia U.S. Supreme Court Center. Crawford v. Washington, 541 U.S. 36 (2004)
At first glance, that could have swallowed the co-conspirator exception, since co-conspirators rarely testify and defendants almost never get to cross-examine them in advance. But the Crawford Court specifically observed that “most of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business records or statements in furtherance of a conspiracy.”6Justia U.S. Supreme Court Center. Crawford v. Washington, 541 U.S. 36 (2004) Because Crawford’s rule only reaches testimonial statements, co-conspirator statements admitted under Rule 801(d)(2)(E) fall outside it. Bourjaily’s practical result survived, even though the reasoning it used for the constitutional question was superseded.
Why Bourjaily Still Matters
Bourjaily gave prosecutors a predictable path. Before it, the rules for admitting co-conspirator statements varied by circuit, the standard of proof was unclear, and the bootstrapping rule forced the government to build its case in an artificial order. After Bourjaily, and after the 1997 amendment, the requirements are the same in every federal court: preponderance of the evidence, statement itself may be considered, independent corroboration also required.
For defendants, the exception raises the stakes of conspiracy charges. A co-worker’s recorded calls, texts, or overheard conversations can be used against someone who was never in the room, so long as the government produces some independent evidence tying the defendant to the conspiracy. Defense arguments usually target the weakest link: that the independent corroboration is too thin, that the statement was not actually made to advance any ongoing conspiracy, or that the defendant had not yet joined when it was made. The Rule 104(a) determination the judge makes before the jury hears anything is often the most consequential ruling in the case.