Conspiracies: More Than Just Who is Watching

Q: What constitutes a conspiracy?

A: Whenever we hear the term “conspiracy,” images of dark rooms or back alleys, filled with smoke and unshaven henchmen usually come to mind. Perhaps you envision a scene not unlike something witnessed in the Godfather or on the Sopranos where two or more bad guys are deciding how someone is going to get “whacked.”

Your understanding of conspiracies, it is safe to say, comes largely from what Hollywood attempts to teach us. One of my favorite movies is Mel Gibson’s “Conspiracy Theory.” In that movie, Gibson plays a man who was programmed by the government to do its naughty bidding. Somehow, he gets away, but whatever deprogramming he was given failed to take. Thus, Gibson is a paranoid taxi driver, obsessed with a woman portrayed by Julia Roberts. No, Sidebar will not spoil the intrigue that results when the super-secret agency seeks to redeem Gibson and permanently deprogram him with the business end of a bullet. Suffice to say, despite its promising title, it is a horrible example of what is meant by a conspiracy.

A conspiracy, simply stated, is an agreement by two or more person to commit an unlawful act. With that definition, we hearken back to the dimly lit room filled with wayward ne’r-do-wells. A better understanding of what is meant by a criminal conspiracy is portrayed in the cheeky movies about Danny Ocean and gang – 11, 12, or 13 of them (take your pick). In each of the “Ocean’s” movies, we have a number of bad guys who, for some sick reason, greatly enjoy criminal activity, nearly lauding it to be as much of a calling in life as the priesthood might be.

The gang of 11, 12, or 13 get together, lay out plans of a casino, bank, house, or museum that plays host to an inordinate sum of money, and develop a plan to covertly relieve said edifice of all wealth stored therein. That is a conspiracy. Two or more people (in this case 11, 12, or 13) have agreed (with snarky dialogue) to commit an unlawful act (robbery, breaking and entering, wearing white after Labor Day, etc.).

But, as usual, Hollywood disappoints when it comes to truth in fiction. What the Silver Screen always displays as a long, drawn out, intricately planned conspiracy is usually not what happens. The law says that an agreement to commit an unlawful act need only exist for a mere moment in order to constitute a conspiracy. So, Jack could be walking down the street with Joe, see a car and say, “Hey, let’s steal this car.” If Joe say, “Ok, let’s,” a conspiracy has been created.

Importantly, co-conspirators share in the totality of the crime. Just because Joe did nothing more than ride in the passenger seat, while Jack picked the lock, hotwired the engine, and drove it to the docks, such passivity in conspiracy does not absolve Joe from being tried for the crime of conspiracy to commit grand theft auto.

Furthermore, conspiracy itself is a separate crime from the actual criminal activity. Thus, Jack and Joe can be tried for conspiracy to commit grand theft auto even if Patsy the Policeman catches them before they successfully execute the entire conspiracy.

Oh, sure, there is a whole lot more to the doctrine of conspiracy. But at least now you know that conspiracy is a whole lot more than something that involves big brothers, black helicopters, and super-secret spy agencies.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Objectionable Objection

Q: What does it mean when a lawyer says, “I object!”?

A: We have all seen some courtroom drama where things are sailing along keenly, the key witness is on the stand, and, as the music builds, the questioning gets more and more intense. You sense that a confession is just about to explode from the mouth of the confused witness. The lawyer asking the questions is hovering over the witness, who cowers in the corner of the witness stand, shirking away from the shrill barrister. Suddenly, from the other side of the room, the opposing jurist, erupts to his feet, pounds the table with his fist bellowing, “Your honor, I object!!” As the whole courtroom gasps and fills the air with chatter, the judge brings all to a silence simply by saying, “On what grounds?!”

While most objections are something less dramatic than that, objections serve several useful purposes in the trial. The verb “object” means, “to bring forward in opposition.” That definition summarizes things nicely. An objection is used as a means of one attorney saying, “I disagree that the piece of evidence (or particular procedure) at issue is being appropriately introduced (or used).” Why is that important?

Remember that the jury decides all questions of fact and the judge governs all matters of law. In order for the judge to make a ruling on a matter of law, an attorney must make such a request known to the gavel jockey. This process is called, raising an “objection.” An objection stops all the presentation of factual evidence and allows a discussion of the law to be had. There is a grand variety of objections to be made – too many to be listed in this column.

Once an objection is lodged, the ground for the objection is made, the opposing counsel is given a chance to disagree with the objection, and the judge pronounces judgment as to that issue. If the objection is successful and the jury heard something they should not have heard, the attorney can ask that the forbidden issue be stricken from the jury’s review. If granted, the judge instructs the jury to forget what they just heard, which is often as effective as someone trying to un-ring a bell.

What is perhaps more important is the preserving effect objecting has. When trials conclude, appeals to a higher court may follow. The only issues that may be heard on appeal are errors of law. Such errors of law are preserved by the making of objections. Failure “to bring forward in opposition” is tantamount to saying, “I see nothing wrong with that issue.”

Objections, therefore, enforce the orderliness of courtroom proceedings and preserve the contentious issues for any subsequent appeals.

P.S. Have you ever wondered why attorneys use the term “object?” It probably has something to do with the definition, but there are other words that mean the same thing and could have been used. But, then again, can you really hear Perry Mason leaping to his feet saying, “Your Honor, I demur!!”? Can you hear Matlock saying, “Expostulation, your Honor!”? “I object,” seems to encompass all that needs to be said in one nice, neat package. Besides, that’s what Rule 103 of the Rules of Evidence says you are supposed to call it.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Evidently the Right Stuff

Q: How is evidence introduced at trial?

A: In our ongoing, and ever interrupted, series on the criminal trial, we have gone through arrest, grand jury, indictment, voire dire, and even opening statements. The trial has begun, but now what?

Much can be said about the topic of evidence. There is direct evidence, circumstantial evidence, hearsay evidence (not all of which is forbidden at trial), character evidence, etc. But we are concerned with the question of precisely how that evidence makes it into the trial process.

To answer the question, we need to back up a step. Recall from our discussion of the aptly named, “pre-trial period” that one of the things done during that time was the exchange of motions. Typically, the aim of these motions is to permit or exclude various pieces of evidence. One of my favorite motions is called, the Motion in Limine (prounounced, “lieh-mn-ee”). Literally, that is a motion “at the outset.”

I will probably catch it from some of my colleagues of the Bar for being so mundane with this explanation, but a Motion in Limine is essentially a catch-all, last minute, just-before-the-gavel-slams motion that does not fit any other category of motions. You see, during the pre-trial period, there are dates certain by which parties are to make various types of motions. Attorneys can file “Motions to Suppress Evidence” in order to prevent evidence from gaining admission at trial. A “Motion to Compel” asks the court to….well, compel one party to give the other a particular piece of information or evidence.

But, Motions in Limine are typically made late in the game, just before trial starts, and have a number of issues that need to be addressed before a jury starts hearing things that might corrupt their unprejudiced minds. A Motion in Limine can be made to press or guard against the admission of a particular piece of evidence.

Once the Motions in Limine are decided, evidence comes in from two main sources: testimony and “stuff.” Testimonial evidence is exactly what it sounds like. Someone is sworn to tell the truth, the whole truth, and nothing but the truth and asked a series of questions designed to elicit the evidence that the questioner wants relayed to the jury.

The highly technical term of art, “stuff” I have made up to describe evidence in the form of documents, materials, physical objects (bullets, axes, clothing, etc.), or photographs. Unfortunately, “stuff” evidence is not typically self-authenticating. Thus, the use of testimonial evidence to authenticate (i.e., vouch that the thing is what it purports to be) the “stuff” must be used.

To explain how this is done would be to reveal one of the tricks of the trade we lawyers learn in law school. Since I do not want to take business away from our nation’s law schools, suffice to say, an attorney asks a variety of questions about the “stuff,” moves for its admission, and, if within the parameters of the super secret Rules of Evidence (which are available for your review at your local public law library), the court will admit the “stuff” into evidence.

Once the evidence is introduced, the jury can consider it – both during the trial, as well as when deliberating. That is all that they can consider. Now you can probably see why attorneys work so diligently to ensure that just the right “stuff” is presented to the jury.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.