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Cross-Examination of Co-Conspirators

News broke earlier in November about the investigation and apprehension of several individuals in what law enforcement describes as a “massive” credit card fraud and cockfighting ring. According to news reports, nine individuals were indicted on various charges related to the alleged criminal enterprise. One can fairly assume that the allegations include that the individuals were aware of the illegal activities being perpetrated by the ring and had conspired with one another to carry out the alleged criminal activities.

When Law Enforcement Cannot Find Every Conspirator

Individuals who plan with another person or persons to carry out an illegal act or carry on an illegal enterprise may be considered conspirators under the law if one of them takes a material step toward the completion of the criminal purpose of the conspiracy. When conspiracies are broken up by law enforcement, it is common for one co-conspirator to cooperate with law enforcement officers by providing details concerning the conspiracy. By the very nature of a conspiracy, some of these details will include statements made by other conspirators who have not yet been identified or apprehended. Are these statements admissible at trial if the co-conspirator is not present to be cross-examined?

Hearsay and the Admissions Exception

Hearsay can be generally defined as an out-of-court statement made by someone who is not present in court and available to testify and be cross examined, when the statement is being offered as evidence that the information contained in the statement is true. For example, consider a witness who testifies thusly at a murder trial, “I spoke with Jose, and he told me he saw Gary pull the trigger” when Jose is not available in court. The reason why courts do not permit hearsay testimony to be introduced is because there is no way for the parties to question Jose about his statement or the observations he made that prompted the statement. Hearsay is generally inadmissible at trial unless it an exception permits the hearsay statement to be admitted.

Florida law does allow out-of-court statements made by co-conspirators to be admitted at your trial and used to prove that the subject matter of the statement was true and accurate, but the prosecution must first establish:

  • That the statement was made during the course of and in the furtherance of the conspiracy’s purpose; and
  • Through independent evidence and/or testimony, the existence of a conspiracy and the members of that conspiracy.

If the prosecution cannot establish both of these propositions, then the statement is not admissible at any hearing. Its erroneous admission to your trial can cause prejudice to your case and violate your right to cross-examine the witnesses accusing you of a crime.

South Florida criminal defense attorney Jeffrey S. Weiner of Jeffrey S. Weiner, P.A. aggressively protects his clients rights through skilled and zealous advocacy in and out of the courtroom. If you have been charged with a crime, Jeffrey S. Weiner can challenge the admissibility of hearsay statements and other evidence, helping ensure that you receive a fair trial. Contact his office by phone at (305) 670-9919 or complete this online form to discuss your case with Jeffrey S. Weiner.

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