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Federal Rules of Evidence (US) QUESTION #3776
Question 1
In a criminal trial for armed robbery, the prosecution seeks to introduce a witness's testimony that the defendant's brother offered the witness $\$5,000$ to 'forget' what he saw. The defendant was not present during this conversation and there is no evidence he authorized it. Is this testimony admissible?
  • No, because it is hearsay not subject to any exception.
  • Yes, as a statement by a co-conspirator under Rule 801(d)(2)(E).
  • Yes, to show the defendant's 'consciousness of guilt' via his agent.
  • No, because the statement cannot be attributed to the defendant under Rule 801(d)(2).✔️
Correct Answer Explanation
Under Rule 801(d)(2), a statement is not hearsay if it is offered against an opposing party and was made by the party's agent. However, without proof of agency or authorization, the brother's statement is inadmissible hearsay against the defendant. It fails the 'opposing party's statement' test.