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.
Kessler, Lawrence W.
"The Treatment of Preliminary Issues of Fact in Conspiracy Litigations: Putting the Conspiracy Back into the Coconspirator Rule,"
Hofstra Law Review: Vol. 5
, Article 5.
Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol5/iss1/5