I'm not a lawyer, but suppose the conspirators worked together after the murder to hide themselves from law enforcement, or otherwise to stop from being implicated. Wouldn't that be part of the "conspiracy?"
A tutorial by the smart lawyers here would be welcome... thanks!
My understanding is that the whole issue here is whether or not the phone call Rivera overheard between Magbanua and Garcia may be admitted into evidence. Defense counsel raised the objection that the call is hearsay (an out of court statement admitted for the truth of the statement). The call would obviously qualify as hearsay, so the only way it can come into evidence is either: 1) the call is not being introduced to prove the truth of the statement; or, 2) the call falls under an exception to the hearsay rule.
One of the exceptions to the rule is statements made by co-conspirators in the furtherance of the conspiracy. This is the exception that defense counsel Kawass refers to and claims does not apply here. According to Kawass, the law requires that the statement be made during the conspiracy and that the conspiracy ended at the time of the murder (because the murder was the objective of the conspiracy).
I do know that the "conspiracy exception" to hearsay requires independent proof of the conspiracy. And apparently Kawass is saying the state does not have such independent proof of the conspiracy. Therefore, she argues, the phone call cannot come into evidence. This is very good lawyering on her part, and I've noticed that Kawass is generally the most well-armed attorney in this courtroom when it comes to legal arguments.
I haven't attempted any legal research on this point and am relying on memories from my old law school evidence class, so I am no expert. However, my guess is the prosecution will attempt to counter Kawass by the following arguments:
1) They may argue that they are NOT trying to admit the call to prove the truth of what is being said by Garcia and Magbanua. Under this argument, the conversation is relevant to prove there was a conspiracy and, as such, is not being used to prove the truth of what was being said in the call itself. (Kawass is claiming you can't make this argument without independent proof of the conspiracy outside of the call itself. She may be right on this point, but my gut tells me it may not work here where the call is such powerful evidence that there was a conspiracy.)
2) If I were the prosecutor, I'd try to argue the payment for the hit is an inseparable part of the conspiracy objective. There wouldn't have been a murder without the payment, and it obviously was an integral part of the crime. Magbanua claims it is cut and dried that the conspiracy ends when the murder occurred (the state is, after all, charging conspiracy to commit murder). As I said, I haven't researched the law, but I find it hard to believe that payment to the hitmen is not considered part of the crime of murder when it involves murder for hire. We'll have to see if Ms. Cappleman comes up with some law that supports my gut intuition.
3) I would also make the argument that there IS evidence of a conspiracy independent of the conversation and, thus, the conversation fits the exception to the hearsay rule. You can tell from the way Kawasa argues that she knows she has to close this door to have any hope of winning the argument. She practically shouts, "Your honor, there is 100% no other evidence of this conspiracy on behalf of the defendant before the murder." I would take the position that there IS evidence of Katie's involvement in the conspiracy independently through what Garcia told Rivera and that Rivera understood clearly and unequivocally that Katie was (as he described her) the "mastermind" before the murder occurred.
*** Sorry for the lengthy discussion and I've probably bored you all to tears. Let's see what Georgia comes up with in the morning.