Ben Trachtenberg, a Visiting Assistant Professor at Brooklyn Law School, has written an article which both documents and criticizes the recent trend of federal prosecutors seeking to expand the scope of Fed. R. Evid. 801(d)(2)(E), which allows the admission against a defendant of statements made by a coconspirator in furtherance of their joint crime.

AUSAs have characterized the exception as a "joint venture exception," arguing that it covers statements made in furtherance of any joint venture, regardless of its legality or illegality. Indeed, the D.C. Circuit adopted this interpretation in United States v Gewin, 471 F.3d 197 (D.C. Cir. 2006).

Professor Trachtenberg argues that such a reading of the coconspirators exception is mistaken and undesirable, both historically and as matter of law. His survey of thousands of cases on this issue, makes clear that a "conspiracy" under the co-conspirator's exception must involve wrongful acts. He argues that

First, courts and commentators have for centuries described the exception as concerning illegal or illicit conduct. Second, because the drafters of the Federal Rules of Evidence (and analogous state codes) intended to adopt the common law understanding of the Exception when codifying it in Rule 801(d)(2)(E), encroachment beyond the historical boundaries of the Exception violates existing rules of evidence. Third, and most important, such revisionism also violates the Confrontation Clause of the Sixth Amendment, which allows admission in criminal trials of evidence pursuant to hearsay exceptions "well established" at the time the Amendment was ratified but jealously restricts any broadening of those exceptions.

The cases and arguments contained in this article should be cited if faced with a prosecutor seeking or a court applying an overly broad, ahistorical, test for admitting statements under the coconspirators exception. Indeed, these arguments parallel those made adopted by the Court in Crawford v Washington (541 U.S. 36 [2004]).