The Treatment of Preliminary Issues of Fact in Conspiracy Litigations: Putting the Conspiracy Back into the Coconspirator Rule

It is the thesis of this article that the admissibility of coconspirators' statements is a matter that must be decided by the jury. This approach, which is the traditional mode, presently competes for judicial favor with a revisionary rule. The revisionary rule places responsibility for deciding the preliminary issue with the judge, and, in at least the Second Circuit, permits admission without proof sufficient to create a prima facie case. The traditional approach better resolves the policy question.

It is also a procedure that is mandated by the Federal Rules of Evidence.