OUJI-CR 9-17



Committee Comments

The Oklahoma Evidence Code allocates the responsibility for determining most preliminary questions of fact concerning the admissibility of evidence, including whether an out of court statement is hearsay or is subject to a hearsay exception, to the trial judge. 12 O.S.1991, § 2105(A); John W. Strong, McCormick on Evidence § 53 (4th ed. 1992); 2 Leo H. Whinery, Oklahoma Evidence § 12.01 (1994). Once the judge decides that a coconspirator statement is admissible, the jury may consider the statement as it would any other evidence, and a special instruction is neither necessary nor appropriate. See Laske v. State, 694 P.2d 536, 538 (Okl. Cr. 1985) (judge decides whether the State has introduced sufficient independent evidence to prove the conspiracy); United States v. James, 590 F.2d 575, 580 (5th Cir.) (en banc) (judge determines admissibility of coconspirator statements), cert. denied, 442 U.S. 917 (1979).

The trial court may consider the statement itself in determining whether it is admissible as a coconspirator admission. Harjo v. State, 797 P.2d 338, 345 (Okl. Cr. 1990). To avoid the danger of the jury's hearing an out of court statement that is later found not to be admissible as a coconspirator admission, the trial judge should require the conspiracy to be proved before the statement is admitted, either at trial or at an in camera hearing. Armstrong v. State, 811 P.2d 593, 597 (Okl. Cr. 1991).