The Co-Conspirator Exception to Hearsay Is Important to Understand for Criminal Cases

State v. Lopez

Appellate Docket No.: A-1210-19T1

Decided September 23, 2020

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In an unpublished opinion, the Appellate Division of New Jersey reviewed a jury’s conviction and forty-five year aggregate term of parole ineligibility that included text messages admitted into evidence under the co-conspirator exception to the hearsay rule.

In State v. Lopez, at trial defendant was never directly identified as having participated in the robbery and the murder. His guilt was established circumstantially through testimony, video footage, and the challenged text messages.

Relevant to the present case, a statement “is not excluded by the hearsay rule if it was ‘made at the time the party and the declarant were participating in a plan to commit a crime . . . and . . . made [it] in furtherance of that plan.'” State v. Cagno, 211 N.J. 488, 529 (2012) (quoting N.J.R.E. 803(b)(5)). In order to admit a statement of a co-conspirator into evidence, the State must prove that “(1) the statement was ‘made in furtherance of the conspiracy’; (2) the statement was ‘made during the course of the conspiracy’; and (3) there is ‘evidence, independent of the hearsay, of the existence of the conspiracy and [the] defendant’s relationship to it.'” Id. at 529-30 (alteration in original) (quoting State v. Taccetta, 301 N.J. Super. 227, 251 (App. Div. 1997)). See also [State v. Harris, 298 N.J. Super. 478, 488 (App. Div. 1997).]

Before admitting such statements, a “trial court must make a preliminary determination of whether there is independent proof of the conspiracy.” State v. Savage, 172 N.J. 374, 403 (2002). See also N.J.R.E. 104(a) (“[w]hen the . . . admissibility of evidence . . . is subject to a condition, and the fulfillment of the condition is in issue, that issue is to be determined by the judge”). The independent evidence can take various forms and “must be substantial enough to engender a strong belief in the existence of the conspiracy and of the defendant’s participation.” State v. Phelps, 96 N.J. 500, 511 (1984).

The only issue determined here on was the third factor – whether there was sufficient “evidence, independent of the hearsay, of the existence of the conspiracy and [the] defendant’s relationship to it.” On a prior appeal, the Appellate Division observed that “prior to the jury having the text messages read to it, there was testimony and other evidence relating to the robbery and shooting.” The Appellate Division directed the trial court to “determine [if] that evidence constituted substantial independent nonhearsay evidence of defendant’s participation in a conspiracy to commit the crimes.” Ibid. If so, “defendant’s conviction should remain undisturbed [, and if not] then it must enter an order vacating the conviction and granting defendant a new trial at which the text messages will not be admitted.” Ibid.

After conducting a remand hearing, the trial court determined that the other evidence presented in the case created a strong belief the conspiracy existed and the defendant participated.  Defendant appealed again, and the Appellate Division affirmed.

The co-conspirator exception to hearsay is important to understand for criminal cases. Hearsay, an out of court statement made for the truth of the matter, is not admissible as evidence at trial. The co-conspirator exception allows such a statement to come in as evidence, even when the witness does not testify.  If the State can show that, for example, text messages, are made by a co-conspirator, implicating a defendant, made in furtherance of the conspiracy, and there is other evidence presented at trial showing proof of the conspiracy, the text messages would be deemed admissible as evidence and can be used to convict the defendant.

It is very important to contact an experienced criminal attorney to ensure you have the best defense to your criminal case.  Evidence such as co-conspirator evidence, if used at trial, would have to be turned over in discovery prior to the trial.  Your attorney should understand that while text messages could represent hearsay, there are many exceptions that could cause the text messages to overcome the hearsay exception and be entered into evidence.  Do not be surprised at trial because you chose a public defender.  Make the call to Hark & Hark today.

At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case involving motions to suppress. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.


We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any town in New Jersey including Barnegat Township, Barnegat Light Borough, Bay Head Borough, Beach Haven Borough, Beachwood Borough, Berkeley Township, Brick Township, Eagleswood Township, Harvey Cedars Borough, Island Heights Borough, Jackson Township, Lacey Township, Lakehurst Borough, Lakewood Township, Lavallette Borough, Little Egg Harbor Township, Long Beach Township, Manchester Township, Mantoloking Borough, Ocean Gate Borough, Ocean Township, Pine Beach Borough, Plumsted Township, Point Pleasant Beach Borough, Point Pleasant Borough, Seaside Heights Borough, Seaside Park Borough, Ship Bottom Borough, South Toms River Borough, Surf City Borough, Stafford Township, Toms River Township, and Tuckerton Borough.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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