Cheri and Rob's (my brother/editor's) backyard in the Skagit Valley. The river is just beyond the closest set of trees.

Last week’s post failed to mention WHY.

Why is conspiracy a favorite legal theory and criminal charge of the Department of Justice?

Conspiracy opens up and broadens avenues for the prosecution that may not be as available in other types of criminal charges. The list is long but in my view charging conspiracy benefits the prosecution in the following primary ways.

Conspiracy allows the government to consolidate, that is to charge and try people together for an alleged partnership in crime and related crimes. More specifically, however, that consolidation opens up an evidentiary tool that lightens the government’s burden in proving the elements of the crime. No, technically, it doesn’t change the burden of proof from beyond a reasonable doubt to some lesser evidentiary burden. Rather, it creates a way around the rule prohibiting the introduction of hearsay by allowing the government to introduce evidence of one person’s self-incriminating statement against all members of the alleged conspiracy. More on that below.

Conspiracy also allows the government to identify people who were allegedly involved as conspirators without actually filing charges against them. Given that conspiracy allows the government to broaden the scope of the evidence available to use under what, in my view, amounts to an exception to the hearsay rule (even though the Rules don’t define it that way), the government wants to bring in all evidence it can. The government identifies uncharged participants in charging documents as “unindicted” co-conspirators. The government has many possible reasons for choosing not to charge someone as a conspirator but instead to identify him/her as an “unindicted” co-conspirator. Maybe it’s Department of Justice policy not to criminally charge a sitting president, for example, but the prosecution wants to use his self-incriminating statements against others of his colleagues in the criminal conspiracy. Maybe the evidence against the unindicted co-conspirator is not as strong, and the government does not want to risk that a weakness against one named defendant could bleed over to other named defendants. Maybe the alleged co-conspirator has entered a cooperation agreement with the prosecution before charges were filed. Maybe the government doesn’t want to have to put up with yet another obnoxious defense attorney at trial.

Moreover, partners in crime typically have the goods on each other. Statistically, the higher the number of people who are exposed to potential criminal conviction, the more likely the government is to turn one or more of them. Anyone with criminal exposure who is facing a loss of liberty is a candidate for turning against others, including other members of an alleged conspiracy. Often, one’s loyalty to others—Michael “I’d-take-a-Bullet-for-Trump” Cohen, for example—falls flaccid in the face of a realistic loss of liberty. Prosecutors and judges go easier on cooperators—targets or defendants who have the goods on others. (Co-inmates of a “snitch” are not known, however, for being quite so kind.) But usually, the first person in the prosecutor’s door as a cooperator gets the best deal—so long as s/he has something of meaningful use to the government in the prosecution of others.

Conspiracy is its own crime. By that I mean one can be convicted of conspiracy without being convicted of the underlying crime that is the “object of the conspiracy”—the purpose the partnership formed which is usually to violate some underlying criminal law. Conspiracy also creates criminal exposure to members of the conspiracy where even if the underlying crime was incomplete, abandoned or foiled. Conspiracy also creates criminal exposure to members of the conspiracy whose participation may not rise to the level of having committed the underlying crime itself even if other members of the conspiracy committed the underlying crime. People who were not all in may be easier to turn.


The Federal Rules of Evidence are meant to assure the testimony and exhibits a judge admits into evidence in a case are reliable, that the evidence is authentic and the attorneys can fairly and legitimately test its veracity and accuracy.

We often use the term “hearsay” colloquially. We have a general idea what hearsay is. Most people believe courts don’t like hearsay because it is perceived as unreliable and the Rules of Evidence disallow its use in court. Yes and no.

The Rules of Evidence define hearsay as an out-of-court statement that is being offered into evidence to prove the truth of what is asserted in that out-of-court statement. An out-of-court statement can be something someone verbalized or in the form of a document. For example:

Prosecutor to witness police office: “What did the medical examiner tell you was the cause of death?”

Defense attorney: “Objection. Calls for hearsay.”

Judge: “Sustained.”

Prosecutor: “I offer the police report as an exhibit which sets forth what the medical examiner told the police officer was the cause of death.”

Defense attorney: “Objection. Calls for hearsay.”

Judge: “Sustained.”

Clearly, the answer the prosecutor wanted from the cop was a hearsay statement—an out-of-court statement being offered to help prove the matter being asserted in that statement: “After she completed the autopsy, the medical examiner called me and said the cause of death was homicide from blunt-force trauma to the head, consistent with being stricken by a baseball bat, resulting in a fractured skull, subdural hematoma and swelling of the brain.”

The cop does not have personal knowledge of what the medical examiner did and concluded and doesn’t have the background to give his own opinion. Moreover, if the judge were to allow that answer to come into evidence, the defense attorney would be unable to cross-examine the veracity or accuracy of that statement because the “declarant,” the medical examiner who is the person who had purportedly formed and expressed that opinion to the police officer, is not on the witness stand. The prosecutor must put the medical examiner on the witness stand in order to elicit testimony concerning cause of death. The cause of death as stated by the police officer, whether from the witness stand or in a police report, is hearsay. If the medical examiner takes the witness stand, the defense attorney can cross examine the medical examiner to test the opinion, to attempt to reveal flaws in the analysis and autopsy and thereby call the conclusion, the opinion, into question.

Parenthetically, some out-of-court statements are offered not for the truth but to show the declarant’s state of mind. “He told me the sky is purple.” Unless the purpose of offering that statement was to prove the sky was actually purple, it can come into evidence if the statement is otherwise relevant. Maybe it shows the defendant was impaired or delusional.

The Federal Rule of Evidence defining hearsay says:

“(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made the statement.

(c) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.”

Hearsay is not admissible unless it falls within an exception under the Rules of Evidence, federal statutes or other Rules prescribed by the Supreme Court. The Rules of Evidence provide a plethora of exceptions based on the perceived reliability of the out-of-court statements.


As mentioned above, conspiracy opens up a critical evidentiary rule that is not otherwise available in non-conspiracy cases. Under the Rules of Evidence, some out-of-court statements being offered for the truth of what the statement asserts are not considered hearsay and can come into evidence. What if the prosecutor wants to introduce an incriminating out-of-court statement made by a “declarant” who is the person on trial for a crime? What if that person, now the defendant, told his brother something incriminating about himself, say that he carries around a baseball bat in the back of his pick-up in case some “motherf#%er f#%s” with him? Can the prosecutor put the brother on the witness stand and elicit that statement as relevant evidence? Yes. The Rules of Evidence consider as reliable a prior statement made by someone who is now a party to the case if the statement was adverse to or against his own interests. Courts believe that people do not say bad things about themselves unless they are true. So, those out-of-court statements by the defendant/declarant are carved out of the definition of hearsay and are admissible in evidence so long as they are otherwise relevant.

That definition is as follows:

“**Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: . . .

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed . . . .”

Hypothetically, two people are charged with robbing a bank, Defendant-1 and Defendant-2. It is possible they cannot be tried together unless they are also charged with the separate crime of conspiracy to rob the bank. Why?

Let’s say Defendant-1 made a self-incriminating statement to investigators that also implicates Defendant-2. “We were together when I stole a gun.” Is the prosecutor permitted to call that investigator as a witness to elicit the admission Defendant-1 made about stealing the gun? He can try. But that scenario creates two significant problems for Defendant-2:

First, while the self-incriminating statement can come into evidence against Defendant-1 as a non-hearsay admission against his own interest, that statement constitutes inadmissible hearsay to Defendant-2 because it was not his statement but that of his co-defendant. Allowing that hearsay statement into evidence for the jury to consider would be prejudicial to Defendant-2.

Second, this creates what is known as a Bruton problem. Defendant-2 cannot cross-examine the hearsay statement Defendant-1 made to the investigator which the investigator repeats on the witness stand. Defendant-1 may decide not to take the witness stand in his own defense, which is his right under the Fifth Amendment. So introducing the “admission” against Defendant-1 violates the right of Defendant-2 to confront and cross-examine the evidence against him under the Sixth Amendment to the United States Constitution. Bruton v. United States, 391 U.S. 123 (1968).

Those problems are easily solved if Defendants-1 and -2 are charged with bank robbery and conspiracy to commit bank robbery. Any self-incriminating out-of-court statements made by one conspirator comes in against all conspirators. The Rules of Evidence carve out of the definition of hearsay one other area:

“A statement that meets the following conditions is not hearsay: . . .

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

Charging conspiracy gives the prosecution a huge advantage, the ability to use one conspirator’s self-incriminating statements against all persons charged in the conspiracy. That is an inducement for the prosecution to find sufficient cause to charge a criminal partnership. One becomes a member of a conspiracy by expressly or implicitly agreeing to participate, knowing of at least one of its objects (usually the commission of some crime) and intending to help accomplish it. The crime of conspiracy is complete when one or more of its members performs at least one overt act for the purpose of carrying out the underlying crime. The federal conspiracy statute says:

"If two or more persons conspire either [1] to commit any offense against the United States, or [2] to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both." 18 U.S.C. § 371.

*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to


Natural US Citizen. Caucasian. Shamed into blogging by DSM-V Cluster B 9/9-led regime, Utah's most embarrassing congressperson, and Newton's Third Law of Motion. The views expressed are mine.

USA, Utah, Salt Lake City


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