## Facts

- Ryan Tai was indicted in New York Supreme Court, New York County, for drug-related offenses, including criminal sale of a controlled substance in the first degree and conspiracy in the second degree.
- The People alleged Tai participated in a drug-selling conspiracy with, among others, Andrew Sun.
- Before trial, the People sought to introduce testimony recounting out-of-court statements attributed to Sun under the co-conspirator exception to the hearsay rule.
- Sun was not expected to testify at Tai’s trial, so the statements would come in through other witnesses if admitted.
- Tai moved for permission to impeach Sun’s credibility by calling character witnesses to testify that Sun had a reputation for untruthfulness.
- The People also sought to call a confidential informant as a trial witness while withholding the informant’s name, address, and other identifying information, asserting that disclosure would place the informant in danger and compromise an ongoing investigation.
- The court decided these questions as pretrial evidentiary rulings (145 Misc. 2d 599; 547 N.Y.S.2d 989).

## Issues

1. What foundation must the People establish under New York law to admit a non-testifying co-conspirator’s out-of-court statements as made during and in furtherance of the conspiracy?
2. If the People introduce a non-testifying co-conspirator’s hearsay statements, may the defendant impeach the declarant by calling character witnesses to testify to the declarant’s reputation for untruthfulness?
3. May the People call a confidential informant to testify at trial while withholding the informant’s identity, where the People show that disclosure would endanger the informant and threaten an ongoing investigation?

## Decision

- The court held that, before admitting co-conspirator hearsay, the People must make a prima facie showing—by evidence independent of the hearsay statements themselves—that a conspiracy existed between the defendant and the declarant, and that the statement was made during the course of and in furtherance of that conspiracy.
- The court held that the defense may impeach the credibility of the non-testifying co-conspirator declarant (Sun) whose hearsay statements are admitted, including by offering reputation evidence that the declarant is untruthful.
- The court held that the People could, on the record presented, call the confidential informant as a witness without disclosing identifying information, subject to court-imposed limits intended to preserve meaningful cross-examination while addressing safety and investigative concerns.

## Legal Principles

- A co-conspirator’s out-of-court statement may be received as nonhearsay/under the co-conspirator exception only if the prosecution first makes a prima facie showing, based on evidence other than the statement itself, that the defendant and declarant were part of a conspiracy and that the statement was made during and in furtherance of it.
- When a hearsay declarant’s statement is admitted against a party, the declarant’s credibility is subject to attack; in this setting, the defendant may use reputation evidence for untruthfulness to challenge a non-testifying co-conspirator whose statements are presented to the jury.
- A confidential informant may, in limited circumstances, testify without disclosure of name, address, or similar identifying details when the prosecution demonstrates a real danger to the informant and risk to an ongoing investigation, so long as the trial court sets conditions that preserve a fair chance to test credibility through cross-examination.

## Conclusion

*People v. Tai* (Sup. Ct. N.Y. County 1989) resolved three pretrial evidence questions: it kept New York’s requirement that the People present prima facie, independent proof of a conspiracy before co-conspirator hearsay is admitted; it allowed the defense to attack the credibility of the non-testifying co-conspirator declarant through reputation evidence for untruthfulness; and it permitted the People, upon a sufficient safety and investigative showing and with court supervision, to present testimony from a confidential informant without revealing the informant’s identity.


People v. Tai, 547 N.Y.S.2d 989 (1989)