The Common Enterprise Exception to the Hearsay Rule

Abstract

This article undertakes a comparative examination of the common enterprise exception to the hearsay rule, in order to paint a clear picture of the requirements and functioning of the rule in England and Wales. Four possible underlying rationales for the common enterprise exception—agency, res gestae, admissions and necessity—are first identified and evaluated. The doctrinal parameters of the exception are then explored, in terms of its three principal elements: the furtherance, pendency, and independent evidence requirements. Different mutations of the rule across various common law jurisdictions, particularly Canada and the United States, are considered. Finally, an exploration of subsidiary issues such as the required order of proof, the operation of the rule in relation to acquitted conspirators, and the conjunction of conspiracy counts with related substantive charges serves to underline the tensions between this traditional exception to the hearsay rule and legislatively enshrined guarantees of fair trial.