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4. Is the testimony admissible?
A defendant is being prosecuted for conspiracy to possess cocaine with intent to distribute. At trial, the government seeks to have its agent testify to a conversation that he overheard between the defendant and a coconspirator regarding the incoming shipment of a large quantity of cocaine. That conversation was also audiotaped, though critical portions of it are inaudible. The defendant objects to the testimony of the agent on the ground that it is not the best evidence of the conversation.
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Under Federal Rule of Evidence (FRE) 801(d)(2), a statement by an opposing party (traditionally known as an «admission by a party-opponent») is not hearsay. Under this Rule, when the opposing party's statement is offered against that same opposing party and was made in either an individual or representative capacity, it is admissible.
Under FRE 801(d)(2)(E), admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime, at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators. See United States v. Inadi, 475 U.S. 387 (1986).
C is correct. Because the agent personally heard the conversation, he is not relying on the contents of the audiotape for his testimony. Therefore, the best evidence rule does not apply. The conversation could also be proved by introducing the audiotape itself, and it can be argued that the audiotape is «better» evidence than the agent's testimony, but the testimony itself is not subject to the best evidence rule.
A is incorrect. Although the best evidence rule would typically require the production of the original recording when its contents are being introduced, here, the agent's testimony is based on his own firsthand perception of listening to the conversation, not the tape itself. As such, the best evidence rule does not apply.
B is incorrect. While the defendant's statements were made out-of-court and are being offered for the truth of the matters asserted, they are admissible as non-hearsay admissions by a party-opponent under FRE 801(d)(2)(A). The statements made by the co-conspirator are also admissible under FRE 801(d)(2)(E).
D is incorrect. This answer reaches the correct answer with the wrong reasoning. The testimony of the agent is admissible because it is based on his personal perception of the conversation, not because the audiotape is partly inaudible. Therefore, the agent is allowed to testify regardless of any recording or any defects in the recording.