In some cases, a statement made by a co-conspirator in furtherance of the conspiracy can be used against the defendant. But there are several requirements to this non-hearsay statement: mainly that there was a conspiracy. So when does the State have to prove that there was a conspiracy? In a recent E.D. Texas case, the court explained that based on FRE 104, the conspiracy does not have to proved immediately but rather the trial judge may allow it to be proven later in the trial.
First the court explains the requirements of non-hearsay under 801(d)(2)(e):
The next issue is addressing when the non-hearsay statement can be admitted: before or after the state proves that there was a conspiracy. Citing the Fifth Circuit, the court explains that the trial judge has the discretion on whether or not to hold a pretrial hearing:
***This is not legal advice***