The Threat of Unfairness in Conspiracy Prosecutions: A Proposal for Procedural Reform


Writing about the law of criminal conspiracy in 1941, Professor Albert Harno declared that the crime of conspiracy presents “serious potential dangers of abuse.” His statement is no less true today. Extraordinary dangers face defendants inconspiracy prosecutions. Arising from the substantive law of conspiracy and the courtpractices that have developed around it, they fall into three categories. First, there areproblems associated with proof at trial. Second, there is a substantial risk of guilt byassociation. Third, there appears to be a tendency for prosecutors to abuse their discretion in their use of the charge of conspiracy.

The situation is grave, for the law surrounding the crime of conspiracy allows serious abuses of defendants’ rights. This Note will examine these abuses. It will then enumerate the protections provided by present law to prevent abuse and explain why these protections are ineffective. Because conspiracy law has been developed mainly in the federal courts, the discussion here focuses upon conspiracy prosecutions on the federal level. Therefore, unless otherwise noted, the law of conspiracy referred to in this Note is the law of the federal courts.
To remedy the potential for unfairness at conspiracy trials, this Note proposes three procedural reforms, to be incorporated into the Federal Rules of Criminal Procedure. Since the law of conspiracy differs little from one jurisdiction to another, it should be noted that although the focus is here upon the federal courts, the proposed reforms might apply with equal validity to state conspiracy law.

The procedural reform proposed in this note will be compared with other approaches to the problem of remedying abuses in conspiracy prosecutions. The reforms proposed here would not change the substance of the law of conspiracy; nor would they directly change the procedures at trial. To do either to the extent necessary to correct abuses would be to make the crime of conspiracy ineffective against groups organized for criminal purposes. The proposed reforms would simply require the government to meet certain prerequisites before it can prosecute on acharge of conspiracy. The effect of these reforms would be to restrict the application of conspiracy law to cases in which it properly attacks groups organized for criminal purposes, without involving innocent persons in a web of guilt spun out by procedures peculiar to conspiracy prosecutions.

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