CRIMINAL LAW CASES AND MATERIALS

Seventh Edition

• • •

Joshua Dressler Distinguished University Professor

Frank R. Strong Chair in Law Michael E. Moritz College of Law

The Ohio State University

Stephen P. Garvey Professor of Law

Cornell Law School

AMERICAN CASEBOOK SERIES®

... WEST ACADEMIC PUBLISHING

The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

American Casebook Series is a trademark registered in the U.S. Patent and Trademark Office.

©West, a Thomson business, 1999, 2003, 2007 © 2009, 2012 Thomson Reuters © 2016 LEG, Inc. d/b/a West Academic

444 Cedar Street, Suite 700 St. Paul, MN 55101 1-877-888-1330

West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.

Printed in the United States of America

ISBN: 978-1-62810-205-5

816 INCHOATE OFFENSES CH. 10

b. Abandonment

COMMONWEALTH V. MCCLOSKEY

HOFFMAN, JUDGE:

Superior Court of Pennsylvania, 1975. 234 Pa.Super. 577, 341 A.2d 500.

Appellant contends that the Commonwealth's evidence at trial was insufficient to sustain his conviction for an attempted prison breach.

At the time of the alleged offense, appellant was serving a one-to three-year sentence for larceny in the Luzerne County Prison. At about 12: 15 a.m., on December 26, 1972, James Larson, a Guard Supervisor at the prison, heard an alarm go off that indicated that someone was attempting an escape in the recreation area of the prison. The alarm was designed so that it could be heard in the prison office, but not in the courtyard. Larson immediately contacted Guards Szmulo and Banik. Initially, the guards checked the prison population, but found no one missing. The three men then conducted a search of the area where the

SEC. B ATTEMPT 81 7

alarm had been "tripped." Near the recreation yard between two wings of the prison, they found one piece of barbed wire that had been cut. In addition, Guard Szmulo found a laundry bag filled with civilian clothing. The bags are issued by the prison and are marked with a different number for each prisoner. A check revealed that the bag belonged to appellant.

At approximately 5:15 a.m., on December 26, the appellant voluntarily approached Larson. Appellant had spent that night on the nine p.m. to five a.m. shift at work in the boiler room, situated near the point where the alarm had been triggered. Appellant explained to Larson "I was gonna make a break last night, but I changed my mind because I thought of my family, and I got scared of the consequences." Appellant testified at trial that he had become depressed prior to his decision to escape because he had been denied a Christmas furlough on December 24, 1972. His testimony at trial was consistent with Larson's version of the episode: " * * * in the yard, I realized that I had shamed my family enough, and I did not want to shame them any more. * * * So I went back to the boiler room and continued working."

On April 18, 1973, the grand jury returned an indictment charging the appellant with prison breach. Appellant went to trial * * * before a judge sitting without a jury and was found guilty of attempted prison breach. * * * This appeal followed. * * *

In the instant case, the evidence on the record indicates that appellant scaled a fence within the prison walls that led to the recreation yard and then to the prison wall. * * * The Commonwealth's evidence supports the appellant's claim that he went only as far as the yard before giving up his plan to escape. * * * Thus appellant was still within the prison, still only contemplating a prison breach, and not yet attempting the act. He was thus in a position to abandon the criminal offense of attempted prison breach voluntarily, thereby exonerating himself from criminal responsibility.

Judgment of sentence is vacated and appellant ordered discharged on the conviction of attempted prison breach. * * *

CERCONE, JUDGE (concurring):

I agree with the majority that appellant's conviction for attempted prison breach should not be permitted to stand. However, I disagree with the basis for the majority's conclusion, that the acts done by appellant prior to his decision to abandon his escape were insufficient to constitute an attempt. I would have found little difficulty, for instance, in affirming appellant's conviction had he been apprehended by the guards immediately after he had snipped the barbed wire and crossed the inner fence. To hold otherwise is to require that prisoners must literally be

818 INCHOATE OFFENSES CH. 10

plucked from the prison wall before their conduct may be characterized as attempted prison breach.

I respectfully suggest that the majority has fallen into a trap peculiarly common to the law of attempts. As Professor Perkins has stated in discussing when conduct ceases to be merely preparatory and becomes perpetration:

"The preparatory-perpetrating dichotomy is useful in discussing situations of a rather general nature, but the actual dividing line between the two is shadowy in the extreme. There is reason to believe that in close cases the decision is based upon other considerations and that the label attached is that appropriate to the conclusion reached-after it is reached." R. Perkins, Criminal Law 561 (2d ed. 1969). [Emphasis added.]

The "other consideration" which has influenced the majority herein is appellant's voluntary abandonment of his escape plan. In my opinion, appellant's abandonment of his plan is a sufficient defense to the crime of attempted prison breach and should be recognized as such.

As a practical matter, it has long been recognized that plans voluntarily abandoned are less likely to be found to be attempts than are plans carried to the same point, but interrupted by the apprehension of the perpetrators. Unfortunately, in jurisdictions where voluntary abandonment or renunciation of a criminal purpose has not been recognized as an affirmative defense, the courts have sought to give effect to the defendant's abandonment, sub silentio, by characterizing his conduct as "preparatory." That is precisely the error which the majority has made in the instant case. The difficulty with this position is that, with regard to the preparation-perpetration dichotomy, it breeds results superficially inconsistent. If voluntary abandonment is to be given effect in attempt cases, it should not be done covertly.

For some time the trend in the law has been to recognize voluntary abandonment as an affirmative and complete defense to a charge of attempt, despite the exhortations to the contrary by some commentators. And, in following this trend our legislature substantially adopted section 5.01 of the Model Penal Code in drafting the attempt provisions in our recently enacted Crimes Code. Our Code now recognizes that abandonment under circumstances indicating voluntariness, is a complete defense to a charge of attempt. Appellant, however, was charged under our old Penal Code which did not speak to whether voluntary abandonment was a defense to a charge of attempt. * * *

It is clear that this court long ago perceived voluntary abandonment to be an affirmative defense to the crime of attempt * * *.

Sound policy reasons also underlie the recognition of voluntary abandonment as an affirmative defense. As the drafters of the Model

SEC. B ATTEMPT 819

Penal Code have pointed out, the defense of complete and permanent abandonment should be allowed because voluntary abandonment negates the conclusion that the accused continues to be dangerous; and, the knowledge that voluntary abandonment exonerates one from criminal liability provides a motive to desist prior to completion of the crime.

Thus, I have concluded that the law in Pennsylvania recognized voluntary abandonment as an affirmative defense even prior to the adoption of the Crimes Code. In any event, the trend in the United States is so profoundly in favor of such a defense that we should have recognized its existence in the instant case even had the Crimes Code not been enacted. * * *

NOTES AND QUESTIONS

1 . How do you respond to the following argument against the abandonment defense?

[T]he traditional view [is] that voluntary abandonment is not a defense where the elements of an attempt are already established, although it may be relevant to the issue of whether defendant possessed the requisite intent in the first place. Under this view, once a defendant has gone so far as to have committed a punishable attempt, the crime is "complete" and he or she cannot then abandon the crime and avoid liability anymore than a thief can abandon a larceny by returning the stolen goods.

People v. Kimball, 109 Mich. App. 273, 3 1 1 N.W.2d 343 (1981).

2. In a jurisdiction in which abandonment is a defense to an attempt,should the defense ever apply to a completed offense? For example, should a thief who voluntarily returns the goods she stole be permitted a defense? What about a burglar who, after breaking into a dwelling, voluntarily leaves without committing a felony therein? Are such cases distinguishable from attempts?

3. Problem. Arin Ahmed, a 20-year-old Palestinian woman, decided tocommit a suicide bombing in Israel. She explained what happened:

I got out of the car. * * * I saw a lot of people, mothers with children, teenage boys and girls. I remembered an Israeli girl my age whom I used to be in touch with. I suddenly understood what I was about to do and I said to myself: How can I do such a thing? I changed my mind. [I went home.] I stayed at home until [members of the Israeli Defense Forces (IDF)] came and arrested me.

Vered Levy-Barzilai, Prisoners' Dilemmas, Harper's Magazine, Sept. 2002, at 17, 21 .

Do you believe Ahmed should be convicted of attempted murder? Is it relevant to you that, when interrogated by the IDF and asked what she would do if she were released, she said she would "leave this place

820 INCHOATE OFFENSES CH. 10

immediately * * * [and] go to live in Jordan with my mother. I would draw a line across the past and never come back here." She explained, "I faltered. But it was a momentary stumble." If released, she would continue her college studies in Jordan, and "I'd never go near anything like this again. I'd continue my life normally." How would her case be resolved if Israel had a law similar to MPC § 5.01(4)?

4. Under MPC § 5.01(4), should the abandonment defense apply if awould-be rapist desists from having intercourse because: (a) the victim tearfully told him that her young daughter would be home from school "any time," and that "I am all she has because her daddy is dead," see Ross v. State, 601 So. 2d 872 (Miss. 1992); (b) the victim convinced him that "you could be my boyfriend, and you do not have to have it this way"? People v. Taylor, 80 N.Y.2d 1, 586 N.Y.S.2d 545, 598 N.E.2d 693 (1992); or (c) the victim was pregnant, see Le Barron v. State, 32 Wis. 2d 294, 145 N.W.2d 79 (1966).

5. When is it too late to abandon an attempt? Suppose that D, with theintent to kill, stabs V, feels immediate remorse, and rushes V to a hospital, where timely life-saving medical care is provided. See State v. Mahoney, 264 Mont. 89, 870 P.2d 65 (1994) ; State v. Smith, 409 N.E.2d 1 199 (Ind. App. 1980). In an attempted murder prosecution, should D be able to claim the defense of abandonment? See Model Penal Code and Commentaries § 5.01 cmt. 8, at 360 (1985).

836 INCHOATE OFFENSES

D. CONSPIRACY

1. GENERAL PRINCIPLES

PEOPLE V. CARTER Supreme Court of Michigan, 1982.

415 Mich. 558, 330 N.W.2d 314.

* * * JUSTICE BLAIR MOODY, JR. * * *

CH. 10

Criminal conspiracy occupies a unique place in our criminal justice system. It is defined as "a partnership in criminal purposes," a mutual agreement or understanding, express or implied, between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means. While the offense has its origins in the common law, it is now specifically proscribed by statute, which sets forth the penalties for its commission.

"The gist of the offense of conspiracy lies in the unlawful agreement." The crime is complete upon formation of the agreement; * * * it is not necessary to establish any overt act in furtherance of the conspiracy as a component of the crime.a However, a twofold specific intent is required for conviction: intent to combine with others, and intent to accomplish the illegal objective. * * *

It is a settled principle of black-letter law that conspiracy is a crime that is separate and distinct from the substantive crime that is its object. The guilt or innocence of a conspirator does not depend upon the accomplishment of the goals of the conspiracy. More importantly * * *, a conviction of conspiracy does not merge with a conviction of the completed offense. Thus, a defendant may be convicted and punished for both the conspiracy and the substantive crime. * * *

NOTES AND QUESTIONS

1. Rationale of the crime. Peter Buscemi, Note, Conspiracy: StatutoryReform Since the Model Penal Code, 75 Colum. L. Rev. 1122, 1 122 n.5 (1975):

Typically, conspiracy is said to perform a dual function. [First,] [i]n its aspect as an inchoate * * * crime, conspiracy has been employed to fill the gap created by a law of attempt too narrowly conceived. Where, in order to constitute attempt, preparation has had to proceed so far toward actual commission of a crime as to itself create an intolerable danger to society, conspiracy has entered the breach and provided an opportunity for earlier official intervention. [Second,] [i]n its role as weapon against group

3 Many * * * states do require, as an element of proof of the crime, that an overt act in pursuance of the conspiratorial end be taken. The overt-act requirement tends to be relatively easy to meet; virtually any act, no matter how insignificant, may suffice.

SEC. D CONSPIRACY

criminal activity, conspiracy has been used to combat the extraordinary dangers allegedly presented by multi-member criminal undertakings. In this guise, the offense has been characterized by vague definition and loose procedural standards. The usual response to criticism has been that such features are necessary to cope with the special threats posed by organized criminal conduct.

837

Of these two stated justifications, "the heart of the rationale lies in the fact-or at least the assumption-that collective action toward an antisocial end involves a greater risk to society than individual action toward the same end." Developments in the Law-Criminal Conspiracy, 72 Harv. L. Rev. 920, 923-24 (1959). The Supreme Court has presented the classic defense of this rationale:

The distinctiveness between a substantive offense and a conspiracy to commit [it] is a postulate of our law. "It has long been recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses." * * *

This settled principle derives from the reason of things in dealing with socially reprehensible conduct: collective criminal agreement-partnership in crime-presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.

Callanan v. United States, 364 U.S. 587, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961).

Is this argument entirely convincing? Consider the dialogue in Double Indemnity, the 1944 Billy Wilder film noir masterpiece, in which insurance agent Walter Neff (Fred MacMurray) assists Phyllis Dietrichson (Barbara Stanwyck) kill her husband. Barton Keyes (Edward G. Robinson), still unaware of Neffs involvement, says to Neff, ''Murder is never perfect. It always come apart sooner or later. When two people are involved, it's usually sooner. * * * They may think it's twice as safe because there are two of them. But, it isn't twice as safe. It's ten times twice as dangerous."

Why might this be? Consider the following observations about the supposed greater harm arising from conspiratorial relationships:

838 INCHOATE OFFENSES CH. IO

Though these assumed dangers from conspiracy have a romantically individualistic ring, they have never been verified empirically. It is hardly likely that a search for such verification would end in support of [the] suggestion that combination alone is inherently dangerous. This view is immediately refuted by reference to our own society, which is grounded in organization and agreement. More likely, empirical investigation would disclose that there is as much reason to believe that a large number of participants will increase the prospect that the plan will be leaked as that it will be kept secret; or that the persons involved will share their uncertainties and dissuade each other as that each will stiffen the others' determination. Most probably, however, the factors ordinarily mentioned as warranting the crime of conspiracy would be found to add to the danger to be expected from a group in certain situations and not in others; the goals of the group and the personalities of its members would make any generalization unsafe and hence require some other explanation for treating conspiracy as a separate crime in all cases.

Abraham S. Goldstein, Conspiracy to Defraud the United States, 68 Yale L.J. 405, 414 (1959).

Neal Katyal disagrees:

A wide body of psychological research over the last century reveals that people tend to act differently in groups than they do as individuals. Some of the work is tentative, thereby precluding robust results. Nevertheless, it is generally accepted that groups are more likely to polarize toward extremes, to take courses of action that advance the interests of the group even in the face of personal doubts, and to act with greater loyalty to each other. Much of the most influential research focuses on how group membership changes an individual's personal identity to produce a new social identity.

Neal Kumar Katyal, Conspiracy Theory, 1 12 Yale L.J. 1307, 1316 (2003) .

2. As noted in Carter, a criminal conspiracy at common law involvesan agreement to commit a crime or to commit a lawful act in an unlawful manner. The italicized language means that "it will be enough if the acts contemplated are corrupt, dishonest, fraudulent, or immoral * * *." State v. Kemp, 126 Conn. 60, 78, 9 A.2d 63, 72 (1939).

D agrees with P, a prison inmate, to bring P tobacco. Under California law, a prison inmate who possesses tobacco is guilty of an "administrative rule violation." But, or so it would appear, California law does not make such possession a crime, nor does it criminalize bringing tobacco into a state prison. D is charged with conspiracy to "commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws" under Cal. Penal Code § 182(a)(5) (201 1). People

SEC. D CONSPIRACY 839

v. Redd, 228 Cal. App. 4th, 175 Cal. Rptr. 3d 351 (Ct. App. 2014) . Whatresult?

3. Merger. Suppose that April and Bill conspire to rob First StateBank, and subsequently rob it. According to Carter, are April and Bill guilty of both conspiracy to rob the bank and of robbery, or only of robbery? What would be the result under the Model Penal Code? See § 1 .07(1).

In a Model Code jurisdiction, does the conspiracy merge into the completed offense if Alice and Bill conspire to rob banks-not simply to rob a specific bank-and they are arrested after robbing First State Bank, but before they commit any further robberies? See Model Penal Code and Commentaries § 1.07 cmt. 2(b), at 109 (1985).

4. The relationship of conspiracy to the other inchoate offenses. UnitedStates v. Anzalone, 40 M.J. 658, 663-64 (N-M.C.M.R. 1994), rev'd in part on other grounds, 43 M.J. 322 (A.F.C.M.A. 1995):

Th[e] spectrum of criminal conduct ranges from solicitation through the actual commission of the offense * * *. The spectrum might be viewed as follows:

Solicitation » Conspiracy » Attempt » Substantive Crime

Solicitation occurs at the very outset of a criminal venture and consists of requesting seriously another person to commit an offense. However, soliciting another to commit an offense does not constitute an attempt. [This is not always so, see p. 834, Note 6.] The offense of solicitation is complete when the solicitation is made or advice is given with the specific wrongful intent to influence another or others to commit the offense. "It is not necessary that the person or persons solicited or advised agree to or act upon the solicitation or advice."

In our hierarchical analysis, conspiracy may be said to occur next. When the person solicited agrees to participate in a concerted action with the person soliciting to commit a crime, then a conspiracy is formed. When an overt act is committed by any of the persons involved, the crime of conspiracy is complete. Any overt act is enough, no matter how preliminary or preparatory in nature, as long as it is a manifestation that the agreement is being carried out.

An attempt, itself, occurs on the very threshold of completion of the substantive crime. Attempt requires an overt act done with the specific intent to commit the offense. Unlike conspiracy, "[t]he overt act required goes beyond preparatory steps and is a direct movement toward the commission of the offense." The final step in this hierarchical analysis is the actual commission of the offense.

5. Attempted conspiracy? Is "attempted conspiracy" a cognizableoffense, or simply another way of describing the crime of solicitation? Can you suggest a scenario in which a person who attempts to conspire (as

840 INCHOATE OFFENSES CH. 10

"conspiracy'' is defined in Carter) is not guilty of the offense of common law

solicitation?

6. Conspiracy is an inchoate offense. However, in most jurisdictions the existence of a conspiracy also constitutes the basis for holding a person accountable for the completed crimes of co-conspirators. The next case considers this subject.

PINKERTON V. UNITED STATES Supreme Court of the United States, 1946. 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Walter and Daniel Pinkerton are brothers who live a short distance from each other on Daniel's farm. They were indicted for violations of the Internal Revenue Code. The indictment contained ten substantive counts and one conspiracy count. The jury found Walter guilty on nine of the substantive counts and on the conspiracy count. It found Daniel guilty on six of the substantive counts and on the conspiracy count. * * *

A single conspiracy was charged and proved. * * * Each of the substantive offenses found was committed pursuant to the conspiracy. * * *

It is contended that there was insufficient evidence to implicate Daniel in the conspiracy. But we think there was enough evidence for submission of the issue to the jury.

There is, however, no evidence to show that Daniel participated directly in the commission of the substantive offenses on which his conviction has been sustained, although there was evidence to show that these substantive offenses were in fact committed by Walter in furtherance of the unlawful agreement or conspiracy existing between the brothers. The question was submitted to the jury on the theory that each petitioner could be found guilty of the substantive offenses, if it was found at the time those offenses were committed petitioners were parties to an unlawful conspiracy and the substantive offenses charged were in fact committed in furtherance of it. 6

Daniel relies on United States v. Sall [ 116 F.2d 745 (3d Cir. 1940)] . That case held that participation in the conspiracy was not itself enough to sustain a conviction for the substantive offense even though it was committed in furtherance of the conspiracy. The court held that, in addition to evidence that the offense was in fact committed in furtherance of the conspiracy, evidence of direct participation in the commission of the

& * * * Daniel was not indicted as an aider or abettor, nor was his case submitted to the jury on that theory.

SEC. D CONSPIRACY 841

substantive offense or other evidence from which participation might fairly be inferred was necessary.

We take a different view. We have here a continuous conspiracy. There is here no evidence of the affirmative action on the part of Daniel which is necessary to establish his withdrawal from it. * * * And so long as the partnership in crime continues, the partners act for each other in carrying it forward. It is settled that "an overt act of one partner may be the act of all without any new agreement specifically directed to that act." * * *

A different case would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. But as we read this record, that is not this case.

Affirmed.

MR. JUSTICE RUTLEDGE, dissenting in part.

The judgment concerning Daniel Pinkerton should be reversed. In my opinion it is without precedent here and is a dangerous precedent to establish.

* * * The proof showed that Walter alone committed the substantive crimes. There was none to establish that Daniel participated in them, aided and abetted Walter in committing them, or knew that he had done so. Daniel in fact was in the penitentiary, under sentence for other crimes, when some of Walter's crimes were done. * * *

The court's theory seems to be that Daniel and Walter became general partners in crime by virtue of their agreement and because of that agreement without more on his part Daniel became criminally responsible as a principal for everything Walter did thereafter in the nature of a criminal offense of the general sort the agreement contemplated, so long as there was not clear evidence that Daniel had withdrawn from or revoked the agreement. Whether or not his commitment to the penitentiary had that effect, the result is a vicarious criminal responsibility as broad as, or broader than, the vicarious civil liability of a partner for acts done by a co-partner in the course of the firm's business.

Such analogies from private commercial law and the law of torts are dangerous, in my judgment, for transfer to the criminal field. Guilt there * * * remains personal, not vicarious, for the more serious offenses. It should be kept so. * * *

842 INCHOATE OFFENSES CH. 10

NOTES AND QUESTIONS

1 . In Pinkerton, Daniel conspired with Walter, but apparently he did not aid and abet in the commission of the substantive offenses (footnote 6 supra). As will become clear in the next chapter, aiders-and-abettors (accomplices) are usually co-conspirators, and vice-versa, but (as here) not always. Moreover, as will be seen, accomplice liability is often less expansive than conspiracy liability under the Pinkerton doctrine. Keeping these two forms of complicity doctrine-accomplice and conspiracy liability-separate is therefore critical.

2. Problem. Developments in the Law-Criminal Conspiracy, 72 Harv.L. Rev. 920, 996 (1959):

A is the organizer and ringleader of a conspiracy to rob banks. He hires B and C to rob banks 1 and 2 respectively. Although B and C do not meet face-to-face, both know that they are members of a large conspiracy and each knows of the other's assignment. At A's instigation, D, knowing of the conspiracy, steals a car for use in the robberies. B and C perform their robberies, the former using D's car.

For purposes of the preceding hypothetical, you may assume that A, B, C and D are parties to a single conspiracy to rob banks. What completed offenses did each party personally commit? Of what offenses is each party guilty, as a co-conspirator, pursuant to the Pinkerton doctrine?

3. The Pinkerton rule can make relatively minor parties in a largeconspiracy criminally responsible for many completed offenses over which they had little or no control. For example, in Anderson v. Superior Court, 78 Cal. App. 2d 22, 177 P.2d 315 (1947), abortionist (Stern) performed illegal abortions on pregnant women sent to him by Anderson and sixteen other conspirators, who received fees for their referrals. Stern, Anderson, and the sixteen other contacts were charged with one count of conspiracy to perform abortions and with 26 separate counts of abortion. That is, Anderson was prosecuted not only for the abortions performed on the women she directed to Stern, but also for those abortions performed on women sent to Stern by others. Thus, the prosecutor sought to have the relatively minor functionaries in the conspiracy held responsible for as many substantive crimes as the primary actor, Stern, was guilty.

The drafters of the Code, which rejects the Pinkerton doctrine, believed that the "law would lose all sense of just proportion if simply because of the conspiracy itself each [conspirator] were held accountable for thousands of additional offenses of which he was completely unaware and which he did not influence at all." Model Penal Code and Commentaries § 2.06 cmt. 6(a), at 307 (1985). Do you agree? Or do you concur in the statement that "[a]lthough it may appear to some that this rule is unduly harsh, such harshness may be considered as an occupational hazard confronting those who might be tempted to engage in a criminal conspiracy"? State v. Barton, 424 A.2d 1033 (R.I. 1981)?

SEC. D CONSPIRACY 843

4. Some procedural features of conspiracy law. Although this chapterfocuses on the substantive crime of conspiracy, you should be aware of at least a few of the procedural rules-many of which are controversial-that come into play in prosecutions of alleged conspiracies.

First, state and federal rules of evidence generally bar introduction of hearsay evidence at trial. "Hearsay" is a statement, made other than by a witness while testifying at trial, introduced to prove the truth of the matter stated. For example, in a criminal prosecution of Alice for murder, it would constitute hearsay to allow Bob to testify at trial that Carla said, "I saw Alice murder the victim," if the latter statement is introduced for its truth (that Alice murdered the victim). Such evidence is generally prohibited because it is both unreliable and unfair to Alice to use Carla's statement against her when Carla is not under oath and is not available for cross-examination.

One exception to the hearsay rule, however, is that an out-of-court statement made by a conspirator, while participating in the conspiracy, may be introduced in evidence against all of her co-conspirators. Thus, if Carla was Alice's co-conspirator in the murder, her statement would be admissible against Alice. In a perfect world, the prosecutor would be required to prove the existence of the conspiracy before allowing Carla's hearsay statement in evidence against Alice, but this does not always-or even typically-occur. As Justice Jackson explained in Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949):

Strictly, the prosecution should first establish prima facie the conspiracy and identify the conspirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed.

Moreover, the existence of the conspiracy, and a particular defendant's participation in it, need only be proven by preponderance of the evidence in order for hearsay statements of co-conspirators to be introduced. Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) .

Second, persons charged in a conspiracy are typically tried together rather than separately. Much of the evidence-and same witnesses-would need to be introduced at each alleged conspirator's trial, so one trial of all of the defendants is simpler for the witnesses and the prosecutor, as well as a more efficient way to expend finite judicial resources. But, is this approach fair to the defendants? Justice Jackson in Krulewitch has written:

A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is

844 INCHOATE OFFENSES CH. 10

difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. If he is silent, he is taken to admit it and if, as often happens, co-defendants can be prodded into accusing or contradicting each other, they convict each other.

Third, most states and federal law permit the government to bring a conspiracy prosecution in the jurisdiction in which either the alleged conspiracy itself was formed or any act in furtherance of that conspiracy allegedly occurred. Again, Justice Jackson has pointed out the concern:

An accused, under the Sixth Amendment, has the right to trial ''by an impartial jury of the State and district wherein the crime shall have been committed." The leverage of a conspiracy charge lifts this limitation from the prosecution and reduces its protection to a phantom, for the crime is considered so vagrant as to have been committed in any district where any one of the conspirators did any one of the acts, however innocent, intended to accomplish its object. The Government may, and often does, compel one to defend at a great distance from any place he ever did any act because some accused confederate did some trivial and by itself innocent act in the chosen district.

Fourth, the Supreme Court has held that, under federal law, a conspiracy does not automatically terminate simply because law enforcement officers have defeated the object of the conspiracy. United States v. Recio, 537 U.S. 270, 123 S.Ct. 819, 154 L.Ed.2d 744 (2003) . For example, a conspiracy to distribute specific drugs does not end, even though the drugs in question have been seized by the police, if some of the conspirators do not realize that the conspiratorial objective has been frustrated. In such circumstances, the Court reasoned, the special conspiracy-related dangers of conspiratorial agreements remain in effect. Consequently, the special conspiracy rules that apply to conspiracies-e.g., the Pinkerton doctrine and admissibility of co­conspirator hearsay-can continue to apply although the conspiratorial objective has long since failed.