Using the example of a recent major terrorism prosecution, this article addresses “coventurer hearsay” in the context of the ongoing Confrontation Clause debate concerning the United States Supreme Court’s decision in Crawford v. Washington. Courts have recently begun admitting hearsay evidence pursuant to a revisionist interpretation of the coconspirator statement exception to the hearsay rule. Under the new “lawful joint venture” theory, a hearsay statement may be admitted as a coconspirator statement if made in furtherance of a “joint undertaking” - defined as pretty much any cooperative activity - even if the “conspiracy” is not illegal. Because this new interpretation of an old hearsay exception cannot plausibly be described as “firmly rooted” in American law, nor does the hearsay included in the new exception bear “indicia of reliability,” coventurer hearsay would have been inadmissible at criminal trials under pre-Crawford Sixth Amendment jurisprudence. The overwhelming majority of coventurer statements, however, are not “testimonial,” meaning that current Confrontation Clause law does not prohibit their use against criminal defendants. Accordingly, coventurer hearsay demonstrates that defendants suffer prejudice from the Court’s reinterpretation of the Sixth Amendment. After reviewing evidence that the Crawford majority misinterpreted the historical background of the Confrontation Clause, the article argues that the Court should reexamine whether the Confrontation Clause, or perhaps the Due Process Clauses of the Fifth and Fourteenth Amendments, should be read to prohibit the admission of dangerously unreliable hearsay against criminal defendants, even if such hearsay is “nontestimonial.” The case of the Holy Land Foundation - in which the United States government closed America’s largest Muslim charity and convicted five leaders of funneling money to Hamas - provides a concrete example of coventurer hearsay run amok. The prosecution case relied heavily on “joint venture” hearsay, unreliable out-of-court statements admissible only pursuant to a new interpretation of the coconspirator exception, a hearsay exception likely to have been found unconstitutional under the Confrontation Clause jurisprudence upended by Crawford. The result exemplifies the injustice made possible by recent case law and provides a new challenge to the testimonial theory of confrontation law.
Ben Trachtenberg, Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, and the Sixth Amendment Confrontation Clause, 64 Fla. L. Rev. 1669 (2012)