Bourjaily v. United States 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)
Greathouse was an FBI informant. He agreed to sell some
cocaine to Lonardo in a sting operation.
Lonardo told Greathouse that he had a 'friend' interested
in buying the cocaine. Greathouse later spoke to the 'friend' over the
telephone about the deal.
Greathouse testified that the 'friend' was Bourjaily.
Lonardo met Greathouse in a parking lot and put the
cocaine into Bourjaily's car. Both were immediately arrested for drug
At trial, the prosecution introduced the phone call
between Bourjaily and Lonardo into evidence.
Bourjaily objected on the grounds that the conversation
The prosecution countered that the conversation was not hearsay
because it met the met the FRE 801(d)(2)(E) exception because they
were statements made by a co-conspirator during the course of and in
furtherance of the conspiracy.
Bourjaily countered that the prosecution could not
establish that a conspiracy existed between Bourjaily and Lonardo
existed, so the exception did not apply.
Basically, Bourjaily argued that the phone call established
the conspiracy, but since it was inadmissible you couldn't prove the
conspiracy existed, and so the phone call was inadmissible.
Kinda like a Catch-22.
This is known as the bootstrapping rule, because
the evidence isn't allowed to pull itself up by its own bootstraps
The Trial Judge allowed the evidence to be admitted.
The Trial Judge found that the statements Lonardo made in
the phone call, and the incident in the parking lot were enough to prove
by a preponderance of the evidence that a conspiracy existed.
The Trial Court found Bourjaily guilty of drug
possession. He appealed.
The Appellate Court affirmed. Bourjaily appealed.
The US Supreme Court affirmed.
The US Supreme Court found that a Court does not need
evidence independent of the statements themselves in order to conclude
that a conspiracy existed.
Basically, a statement that a conspiracy exists can be
admitted under the FRE 801(d)(2)(E) exception, even if no other
independent evidence exists to prove the conspiracy.
The technical reason why this is allowed is that FRE
104(a) allows preliminary questions concerning admissibility to be
determined by the Court. Therefore, a court can decide to listen to the
statements, decide if those statements show a conspiracy, and then admit
them because they were made in furtherance of the conspiracy.
The decision in this case reversed the pre-FRE
common law, which used the bootstrapping rule to exclude evidence
that was not backed up by independent evidence.