CONSPIRACY

C. Procedural advantages: Conspiracy law furnishes the prosecutor with a potent weapon. Substantively, he is given extraordinary latitude in some states, which define conspiracy as an agreement to do not only criminal acts, but acts that are “immoral,” “contrary to the public interest,” or some other vague phrase. (See the fuller discussion of this aspect infra, p. 189). Even more significantly, a number of procedural advantages come to the prosecutor in a conspiracy case. We discuss two of these advantages here.

1. Joint trial: Joinder laws in virtually all states permit the prosecution to try in a single proceeding all persons indicted on a single conspiracy charge. Such a joint trial saves the prosecution a great deal of work, since the case only has to be presented once; furthermore, witnesses are likely to be much more willing to testify a single time than in multiple proceedings.

2. Admission of hearsay: Perhaps the most devastating procedural advantage available to the prosecution in a conspiracy trial is the exclusion from normal hearsay evidence rules given for statements made by a defendant’s co-conspirator in furtherance of the conspiracy. Normally, the rule against hearsay evidence prevents the in-court repetition of a previous statement by one person to be used against a different person (i.e., the defendant). But in a conspiracy case, the rule is that any previous incriminating statement by any member of the conspiracy, if made in furtherance of the conspiracy, may be introduced into evidence against all of the conspirators. See, e.g., Federal Rule of Evidence 801(d)(2)(E), codifying the common-law rule that a statement is admissible, and not excludable hearsay, if it is offered against a party and is “a statement by a co-conspirator of [the] party during the course and in furtherance of the conspiracy.”

a. Rationale: This rule is generally defended on the grounds that, by agreeing to pursue criminal ends together, all of the conspirators have authorized each of them to act as “agent” for all of them, and an agent’s statements are binding against his “principal.” The use of this exception to the hearsay rule can be demonstrated by the following example.

Example: D1, D2 and D3 are charged with conspiracy to rob a bank. Before the robbery occurs, D1, the organizer of the plan, tells his mistress, X, that D3’s part in the plan is to steal a getaway car. (D3 makes this statement in an unsuccessful attempt to recruit X to the conspiracy.) At trial, the prosecution has X repeat this statement in its case against D3, who is convicted with D1 and D2. Assuming that there is enough non-hearsay evidence to show, by a preponderance of the evidence, that D3 and D1 were a part of a conspiracy, the statements to X were properly admitted against D3, on the theory that the statement were acts in furtherance of the conspiracy, and were implicitly authorized by D3.

II. THE AGREEMENT

A. “Meeting of the minds” not required: As noted, the essence of a conspiracy is an agreement for the joint pursuit of unlawful ends. However, the sort of “agreement” that is required is not a true “meeting of the minds” of the kind necessary for a legally enforceable contract. All that is necessary is that the parties communicate to each other in some way their intention to pursue a joint objective.