Admission of a Recording of Non-Testifying Co-conspirator Does Not Violate the Confrontation Clause

State v. Brist, Minn.S.Ct., 2/22/2012.  A confidential informant made five separate controlled buys of methamphetamine from Ms. Brist’s boyfriend, Mr. Garcia.  The state charged Ms. Brist with aiding and abetting and conspiracy to commit controlled substances crimes.  Over objection, the state introduced an audio recording of a conversation between Mr. Garcia and the CI during one of the controlled buys.  The district court admitted this recording on the theory that Mr. Garcia made the statements in the course of and in furtherance of a conspiracy between Ms. Brist and Mr. Garcia.  Ms. Brist complained that admission of the recording violated her confrontation rights.

The court of appeals had rejected this argument earlier.  See here.  The supreme court also rejects this argument, relying on Bourjaily v. United States, 483 U.S. 171 (1987).  Ms. Crawford v. Washington, 541 U.S. 36 (2004) overruled Bourjaily.  The Minnesota supreme court acknowledges that Crawford has cast doubt on Bourjaily’s reasoning, but concludes that only the U.S. Supreme Court can overrule Bourjaily. 

Chief Justice Gildea and Justice Meyer would have affirmed the conviction by utilizing a Crawford analysis to conclude that the recording was not “testimonial.”