Introduction

Joint Trials in Conspiracy Cases

Introduction

Conspiracy is the crime most likely to put a crowd of defendants in one courtroom, because the offense is the agreement itself and an agreement can reach outward through any number of intermediaries. Picture a narcotics chain in which importers sell to distributors, distributors sell to street-level retailers, and the retailers never meet, or even learn the names of, the importers. Each person in that chain has plainly committed, or agreed to commit, some crime. The harder question is how far each person's agreement extends, and who can fairly be tried alongside whom. Much of the most difficult conspiracy litigation has centered on that question of scope in large, sprawling networks rather than on the elements of the offense.¹ The offense itself is defined in Model Penal Code § 5.03, which makes a person guilty of conspiracy who, with the purpose of promoting or facilitating a crime, agrees with others that it be committed or agrees to aid in its planning or commission.²

The part of § 5.03 that decides who may be tried together is subsection (4), captioned "Joinder and Venue in Conspiracy Prosecutions".³ Joinder means trying more than one defendant in a single proceeding, and the caption tells you that this subsection is procedural: paragraph (a) supplies the joinder rule, and paragraph (b) supplies safeguards, one of which is a venue limit. Paragraph (a) provides that, subject to those safeguards, "two or more persons charged with criminal conspiracy may be prosecuted jointly" if one of two alternative conditions is met.⁴ The word "may" makes the rule permissive, and the phrase "charged with" directs attention to what the prosecution alleges rather than to what it will eventually prove. The two conditions are that the defendants are charged with conspiring with one another, or that the conspiracies alleged, whether they have the same or different parties, are so related that they constitute different aspects of a scheme of organized criminal conduct.⁵

The first analytical step follows from that wording. You ask whether two or more persons are charged with criminal conspiracy, and if they are, you ask which of the two gateways the charges satisfy.⁶ Because joinder is a question of procedure, the gateway settles who may sit at the same table. It leaves open whether each defendant is guilty and how many separate conspiracies actually existed. That separation recurs throughout this chapter, and it explains why paragraph (a) operates only subject to the protections in paragraph (b): being tried alongside others must not make a defendant answerable for what those others agreed to or did. The lesson moves in order from the gateway rule, to the simpler route for defendants charged with conspiring with one another, to the route for related conspiracies, and finally to the protections that follow any joint trial. It begins with the framework itself and the permissive character of the rule, since the two routes make sense only once the structure that holds them is clear.