Acquittal of Co-Conspirators

Acquittal of Co-Conspirators

The plurality limits covered so far operate on the facts of the agreement, meaning who the parties are and what crime they agreed to commit. The bilateral rule has a further consequence that appears only at trial. Because the common law requires an agreement between two or more guilty persons, a conspiracy conviction is sound only if the record still shows two guilty parties when the verdicts are in, and a jury can remove the second one. The result is the consistency-of-verdicts rule: if all but one of the charged conspirators are acquitted in the same trial, the conviction of the remaining defendant must be reversed.¹

The reasoning follows from what the conviction asserts. A conspiracy conviction declares that the defendant agreed with at least one other person who shared the criminal purpose. If the same jury acquits every other alleged conspirator, no one is left who can be that second party, so the verdicts together describe a conspiracy with a single guilty member, which the bilateral approach treats as no conspiracy at all.² In a published illustration, two brothers were tried together for conspiring to murder a judge, and the jury convicted John but acquitted Lonny. In a jurisdiction applying the bilateral approach, John's conviction had to be reversed, because the verdicts established only one guilty party.³

The bar is a counting rule, and it applies only when a single conspirator is left. Where two or more defendants have been lawfully convicted, it makes no difference that others alleged to belong to the conspiracy were not convicted, even when the supposed head of the conspiracy escaped conviction.⁴ A variation appears in a jurisdiction that requires an overt act: there, acquittal of the one defendant who allegedly performed the overt act bars conviction of the others.⁵

Courts applying the bilateral view reach exactly these results, upholding the convictions when two defendants are convicted and one is acquitted, and refusing to uphold a lone conviction when every other defendant was acquitted in the same trial.⁶

The contrast that matters most is between an acquittal and a co-conspirator who is simply not tried. A person who is not tried has produced no verdict, and without a verdict nothing contradicts the defendant's conviction. If an alleged co-conspirator has fled the jurisdiction and cannot be brought to trial, the prosecutor can still convict the remaining defendant by proving that two or more persons agreed to commit the crime.⁷ The inconsistency the rule guards against lives in the verdicts, not in the mere absence of a second person from the courtroom. A fugitive's guilt has not been adjudicated either way, so the jury at the defendant's trial is free to find from the evidence that the two agreed, and no official finding says otherwise.

Other dispositions that produce no acquittal work the same way. A discretionary dismissal of the charges against the others, called a nolle prosequi, creates no verdict and so is not inconsistent with a factual basis for a multi-party agreement, and the others' diplomatic immunity from prosecution likewise leaves a conviction standing under the bilateral view.⁸ Acquittals in a separate trial are treated less uniformly. The general rule bars the lone conviction even then, although some courts applying the bilateral view uphold it, since separate juries hear different evidence.⁹

The consistency rule has drawn criticism on its own terms. A not-guilty verdict is not necessarily a declaration of innocence, since it may show only that the proof did not reach the level of guilt beyond a reasonable doubt, so the acquittal of a co-conspirator does not establish that no agreement existed.¹⁰ Differences in proof between trials make the point concrete. One conspirator may be acquitted for lack of evidence and a second, arrested later, convicted partly on the first one's testimony, or a witness who testified at one trial may die before the other. In such cases the verdicts conflict only in appearance.¹¹

Many modern statutes respond by making the co-conspirator's fate irrelevant. A substantial minority of recodifications provide expressly that it is no defense that the co-conspirators have been acquitted or convicted of a different offense, and a greater number provide that it is no defense that the co-conspirator lacked capacity.¹² Indiana's statute, for example, provides that it is no defense that the person with whom the accused is alleged to have conspired has not been prosecuted, has not been convicted, or has been acquitted.¹³ Such a provision does not always signal a unilateral statute, however. The drafters' comments to one state's version explained that its limited purpose was to avoid the recurring problems of separate trials, such as differences between juries and in the availability of witnesses, and the statute was still read as bilateral.¹⁴

The Model Penal Code removes the problem at its source. Its definition asks about the defendant's own agreement and purpose rather than about a second guilty party, so an inconsistent verdict or disposition for the other alleged conspirator does not affect the defendant's liability, and John's conviction in the illustration above would survive Lonny's acquittal.¹⁵ A later section develops that definition. For now, the acquittal bar comes from the common-law counting requirement and applies only where that requirement does.

Students lose this issue when they treat every missing co-conspirator as an acquitted one, because a fugitive, a dismissed defendant, and an immune defendant have each received no verdict, and only a verdict of acquittal triggers the bar.