The Confrontation Clause and Co-Conspirator Statements After Crawford

Why Rule 801(d)(2)(E) and the Confrontation Clause Are Separate Hurdles

A James hearing decides an evidence question: does the statement satisfy Rule 801(d)(2)(E)? The Sixth Amendment asks a different question: is the statement testimonial? A co-conspirator statement must clear both filters, and winning or losing one does not decide the other, so defense counsel preserves each objection separately.

For two decades the two inquiries were effectively fused. Under Ohio v. Roberts, hearsay could be admitted consistent with the Constitution if it fell within a firmly rooted exception or carried adequate indicia of reliability, and Bourjaily v. United States applied that framework to hold that no independent reliability inquiry is required for statements satisfying Rule 801(d)(2)(E). Crawford v. Washington then rebuilt the doctrine: testimonial statements are inadmissible unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination, no matter how reliable the statement seems. As the Supreme Court confirmed in Whorton v. Bockting, Crawford overruled Roberts outright.

The practical consequence is that reliability arguments are gone and the testimonial line now does all the constitutional work. The table below keeps the two filters straight.

What Makes a Statement Testimonial?

A statement is testimonial when, viewed objectively, its primary purpose was to establish or prove past events potentially relevant to later criminal prosecution. Grand-jury testimony, prior trial testimony, and statements produced by police interrogation sit at the core of the category. Casual remarks to acquaintances and statements advancing a joint venture sit outside it.

Crawford declined to give a comprehensive definition, but it identified a core class: prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and statements made during police interrogations. Davis v. Washington supplied the working test. Statements are non-testimonial when made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency; they are testimonial when circumstances objectively indicate there is no such emergency and the primary purpose is to establish or prove past events potentially relevant to later criminal prosecution. Davis also settled that the Clause reaches only testimonial hearsay — a non-testimonial statement cannot violate it.

Michigan v. Bryant emphasized that the inquiry is objective from end to end: courts evaluate the circumstances of the encounter and the statements and actions of both parties, asking what purpose reasonable participants would have had rather than what anyone subjectively intended. Formality matters — a stationhouse interrogation looks like testimony in a way a chaotic phone call does not — and a related formulation asks whether an objective declarant would reasonably believe the statement would be available for use at a later trial. For conspiracy prosecutions, the questions that decide the issue are usually simple: who was the audience, and what did the declarant understand the conversation to be for?

Why Genuine Co-Conspirator Statements Almost Always Pass

Statements that truly satisfy Rule 801(d)(2)(E) are made to advance a live scheme — recruiting, planning, reporting, arranging — not to create a record for prosecution. Crawford itself listed statements in furtherance of a conspiracy among the statements that by their nature are not testimonial, and the Fifth Circuit applies that observation consistently.

In United States v. Holmes, the Fifth Circuit put it directly: statements made by a co-conspirator during the course and in furtherance of a conspiracy are by their nature generally non-testimonial and are routinely admitted despite the absence of cross-examination. The declarant in that setting is talking to a partner-in-crime or a customer, not to the government, and a future trial is the last thing on the declarant’s mind.

The same logic covers the most common James-hearing evidence: recordings. In Brown v. Epps, the Fifth Circuit held that recorded statements made unwittingly to a confidential informant while arranging a drug sale were non-testimonial. The declarants did not know the calls were being preserved, the exchanges were informal conversations about future plans, and their objective primary purpose was to set up the deal — not to create an out-of-court substitute for trial testimony. Wiretap intercepts of conspirators unaware of monitoring fall in the same box. And under United States v. Inadi, the government need not show the declarant is unavailable before offering a co-conspirator statement. The same facts that establish “during and in furtherance” usually defeat the testimonial label — but circumstances, not the government’s theory of admission, decide it.

When a Confrontation Problem Does Arise

Constitutional trouble starts when the government offers formalized or post-arrest statements under a co-conspirator theory. Custodial confessions, grand-jury testimony, plea allocutions, and sworn depositions are testimonial, and in the Fifth Circuit an officer’s trial account of what an arrested co-conspirator said in custody is testimonial hearsay.

In United States v. Harper, officers testified to what a codefendant said while in custody after arrest; the court of appeals held those accounts were testimonial. Statements like that almost always fail Rule 801(d)(2)(E) anyway, because an arrested declarant answering police questions is no longer speaking during or in furtherance of the scheme — the two doctrines converge on exclusion. The danger zone is the statement that arguably satisfies the rule while remaining formal in character. Holmes flagged exactly that scenario: the challenged statement there came from a recorded, sworn civil deposition — a formalized testimonial source, not a run-of-the-mill co-conspirator remark — and the court resolved the case on other grounds rather than declare such a statement non-testimonial. The co-conspirator label, in other words, is not an automatic constitutional pass.

Co-Conspirator Statements vs. Codefendant Confessions: The Bruton Line

Joint conspiracy trials mix two doctrines that are easy to confuse. A statement admitted under Rule 801(d)(2)(E) is evidence against you for its truth. A non-testifying codefendant’s custodial confession is not admissible against you at all — it reaches the jury only against its maker, redacted, with a limiting instruction.

The boundary comes from Bruton v. United States and its progeny. A facially incriminating confession of a non-testifying codefendant deprives the defendant of the confrontation right even when the jury is instructed to consider it only against the confessor. But statements that incriminate only inferentially — that become damaging only when linked to other evidence — are treated differently: the limiting instruction is presumed effective. Harper applied that line, holding the codefendant’s custodial statements did not directly implicate the defendant until connected to other proof, so their admission with an instruction did not violate the Sixth Amendment. The Supreme Court reaffirmed the framework in Samia v. United States, holding that a confession redacted to refer neutrally to some “other person,” paired with a proper limiting instruction, does not violate the Confrontation Clause.

For the defense, the doctrinal sorting is the whole game. The government cannot cure a failed Rule 801(d)(2)(E) showing with a limiting instruction, and it cannot use the co-conspirator label to put a custodial confession before the jury as substantive evidence against you. When no redaction can work because the confession points at the defendant however it is trimmed, a severance motion under Rule 14 is the natural companion objection.

Not-for-Truth Uses and Forfeiture by Wrongdoing

Two doctrines can defeat an otherwise solid confrontation objection. A testimonial statement offered for a purpose other than its truth does not implicate the Clause at all, and a defendant who wrongfully causes a witness’s absence, intending that result, forfeits the right to confront that witness.

The not-for-truth route decided Holmes. Even assuming the co-conspirator’s sworn deposition was testimonial, there was no constitutional error because the government offered it to prove its falsity — to show the cover story that the scheme required — not the truth of anything asserted. The same principle explains why the informant’s side of recorded calls often comes in: those statements give context and make the defendant’s and co-conspirators’ answers intelligible, a non-hearsay use the Fifth Circuit acknowledged in Brown v. Epps. The defense response is procedural discipline: request a limiting instruction fixing the permissible use, and object when “context” is a pretext and the jury is plainly invited to credit the content as true.

Forfeiture is the government’s equitable counter. Davis reiterated that one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation, and Rule 804(b)(6) codifies the matching hearsay exception for a statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability, intending that result. The advisory committee materials contemplate the usual Rule 104(a) preponderance standard, and the wrongdoing need not be criminal. In conspiracy cases, allegations of witness intimidation are the classic trigger, so counsel should treat any such allegation as a live threat to the confrontation objection.

Raising the Confrontation Objection at a James Hearing

The James hearing resolves the evidence-rule question, but it is also the natural place to put the constitutional objection on record. Counsel should object on both grounds, ask for explicit rulings on each, and build the factual record — audience, custody, formality, awareness of recording — that the testimonial inquiry turns on.

A hearsay objection does not automatically carry the constitutional point, so each ground is stated expressly. The facts that decide the testimonial question are concrete, and the hearing is the opportunity to pin them down:

• Identify each statement, its declarant, and its audience — partner-in-crime, customer, informant, undercover officer, or police interrogator.
• Establish whether the declarant was under arrest or in custody when the statement was made.
• Establish the formality of the setting: structured questioning, sworn testimony, recorded proceedings, or casual conversation.
• Establish what the declarant objectively understood — whether anything about the circumstances suggested the statement would be available for use at a later trial.
• Sort the government’s exhibits into statements offered for their truth and statements offered only for context, and demand limiting instructions for the latter.

If a statement is testimonial, the government must show the declarant is unavailable and that the defense had a prior opportunity for cross-examination — a showing it can rarely make, because co-conspirator declarants were typically never cross-examined about anything. Because many courts admit statements subject to connection and make final James findings later, renew the confrontation objection when those findings are made and again at the close of the evidence.

Where This Fits

This guide is one of four situations that arise under the James Hearing (Co-Conspirator Statements). Start with the parent motion for the overall framework, or move to a related fact pattern:

What the Case Law Says

These decisions—verified against primary sources—control how this issue is litigated. Every case still turns on its own facts.

• Davis v. Washington, 547 U.S. 813 (2006) — The Confrontation Clause applies only to testimonial hearsay; statements are testimonial when their primary purpose is establishing past events potentially relevant to later prosecution.
• Michigan v. Bryant, 562 U.S. 344 (2011) — Courts objectively evaluate the circumstances of the encounter and the statements and actions of the parties to determine an interrogation's primary purpose.
• United States v. Holmes, 406 F.3d 337 (5th Cir. 2005) — Co-conspirator statements made during and in furtherance of a conspiracy are by nature generally nontestimonial; not-for-truth uses raise no Confrontation Clause concern.
• United States v. Harper, 527 F.3d 396 (5th Cir. 2008) — Officers' trial account of a codefendant's custodial statements was testimonial; inferentially incriminating statements with limiting instructions did not violate the Sixth Amendment.
• Brown v. Epps, 686 F.3d 281 (5th Cir. 2012) — Recorded statements made unwittingly to a confidential informant while arranging a drug deal were nontestimonial, so their admission did not violate the Confrontation Clause.
• Samia v. United States, 599 U.S. 635 (2023) — Admitting a nontestifying codefendant's confession that did not directly inculpate the defendant, with a proper limiting instruction, did not violate the Confrontation Clause.

General summaries of published opinions for information only — not predictions about any specific case.