Conspiracy Doctrine: A Prosecutors Tool

-- By BrayanA - 27 Apr 2022

The Crime of Conspiracy

A common law conspiracy is an agreement between two or more persons to commit a criminal act or to accomplish a legal action by unlawful means. Examples would be two or more individuals plotting a robbery or a murder. It is an aspect of conspiracy crimes that the criminal objective – such as robbery or murder – need not be realized to punish the individuals criminally. Such is the case because the criminal justice system punishes individuals for something other than completing the offense. Thus, a prosecutor may convict a person of conspiracy before effectuating any acts in preparation for the substantive crime. Therefore, the crime of conspiracy is an unprecedented and highly controversial doctrine.

Proponents of conspiracy crimes divide justifications for conspiracy into the "specific object" and "group-danger" rationales (See Developments). The specific object rationale emphasizes preventative law enforcement through the use of conspiracy as an inchoate offense. Generally, the conspiracy doctrine justifies police intervention much earlier than is permitted under attempt law. As for the group danger rationale, the proponents claim that inherent dangers exist in collective criminal actions that do not exist on the individual level. Yet, either of these rationales fails to address conspiracy law’s fundamental issues.

Darling of the Modern Prosecutor's Nursery

First, a successful conspiracy law conviction is often reliant on circular logic. Along with an agreement, prosecutors must show the existence of an overt act in furtherance of the conspiracy to prove a conspiracy conviction successfully. However, the overact need not be illegal and can be a minor act or an act that is usually constitutionally protected (See Yates). For example, a jury could find that the defendants have agreed to kidnap a woman for prostitution because the two parties made a phone call to each other (see Smith). Although generally making a phone call is not a criminal act, in a conspiracy case, prosecutors can use such facts to establish an overt act in furtherance of the conspiracy because we know the defendants have agreed to commit the crime in the first place. Thus, the over act "requirement is seldom more than a formality"(Conspiracy 878).

From this follows conspiracy’s most egregious flaw, the relaxation of the rules of evidence in favor of the prosecutor. Since conspiracies are generally secretive, prosecutors are granted wide latitude “in presenting evidence, and it is within the discretion of the trial court to admit evidence which even remotely tends to establish the conspiracy charged” (See Nye & Nissen 857). In other words, courts ease the standard rules of evidence and allow for prosecution based on inferences from the circumstances of the apparent association regardless of logical association to the crime charged (Arens 251) (Developments 984).

Moreover, a prima facie case of conspiracy then grants prosecutors the possibility to admit into evidence any statement made by a co-conspirator – during the time of the conspiracy and which concerns the conspiracy– against all other co-conspirators (“hearsay exception”) ( See Carnahan 103). The criminal justice system further facilitates such heinous action through the Pinkerton doctrine, which establishes vicarious liability in conspiracy cases even for offenses a defendant did not engage in or for which the defendant did not have actual knowledge (Newton 50). Consequently, the large volume of evidence involved in a case concerning multiple defendants can overwhelm a jury – not to mention the likelihood that the “jury will infer association among the defendants merely from the fact that they are being tried together” (Developments 980-981).

It is no surprise that Judge Learned Hand has labeled conspiracy as the “darling of the modern prosecutor’s nursery.” Charges of conspiracy can increase the conviction rate for a substantive charge, likely due to the hearsay exception (Marcus 940). Additionally, the admissibility of acts of co-conspirators and the reaction of the trier of fact to group danger highly encourage prosecutors to abuse conspiracy law to their advantage (Marcus 941). Prosecutors admit that the evidentiary benefits and advantages relating to plea bargaining most often motivate them to bring a conspiracy act even when the object offense has been consummated or sufficiently meets the elements of attempt (Marcus942). Thus, it is not surprising that experienced conspiracy lawyers overwhelmingly believe that whenever prosecutors bring two or more defendants to trial on a substantive felony, conspiracy charges will follow (Marcus 939).

Closing Remarks

When looking at the reality of conspiracy law, it is clear that prosecutors use conspiracy to place defendants at a severe disadvantage – not to mention its use as a tool to suppress public outrage against government policies (Dennis; Yates; Spock; Dellinger). Thus, the question becomes whether impunity from conspiracy crimes is socially desirable, to which the only answer is certainly.

First, conspiracy is inherently confusing, procedurally and substantively, making any attempt at reform futile (Johnson 1139-1140). Second, prosecutors can manage the prosecution of inchoate crimes under the doctrine of attempt, which does not suffer from the same flaws as conspiracy (Johnson 1161-1162). Survey results further indicate that there would not be a significant reduction in the number of convictions of inchoate crimes if prosecutors replaced conspiracy charges with attempt charges (Marcus 931). Next, advocates of conspiracy law derive their policies and justifications underlying conspiracy from abstract concepts void of reality (See Syre 405; Marcus 934). Similarly, situations where prosecutors have to use conspiracy to prove large-scale criminal endeavors are rare (Marcus 967). Finally, the ability to punish group actions that would otherwise not be illegal is too powerful of a tool for prosecutors to wield at their discretion. As such, the conspiracy doctrine will continue to be the source of injustice. Any social benefits that arise from the conspiracy doctrine do not justify the injustice that more often follows.

Works Cited

Conspiracy and the First Amendment. The Yale Law Journal, vol. 79, no. 5, 1970

Developments in the Law: Criminal Conspiracy. Harvard Law Review, vol. 72, no. 5, 1959

Syre, Criminal Conspiracy. Harvard Law Review, vol. 35, no. 4, 1922

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