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.

Beware the Implications

Q: Does “caveat emptor” still hold any meaning in modern business?

A: How many of you took Latin at some point in your education and actually remember what this term means? Okay, the three of you in the back row can put your hands down. Now, how many of you actually work this term into conversation on a routine basis? Anybody? Anybody? Bueler? Bueler? I thought not.

For the benefit of the rest of us who do not have our Latin-Modern English dictionary at the ready, “caveat emptor” is a phrase that literally means, “let the buyer beware.” It is an axiom used to encourage buyers to use caution in what they purchase. If the buyer is truly being aware, he will know his rights in relationship to the product he is purchasing. It further implies the buyer does a certain amount of “due diligence” before he buys the thing, just to be sure that the product is what is advertised.

Conversely, the maxim is a phrase just as widely bandied about by merchants. By saying, “let the buyer beware,” the seller is attempting to disclaim responsibility for a faulty product. “Hey,” the angered purchaser snaps to the merchant, “this widget you sold me fell into a million pieces the moment I got it home. I want a refund.” How will the merchant respond? You guessed it: “Caveat emptor.”

Today’s marketplace is certainly a far cry from the bazaars of old, where this phrase, no doubt, had its origination. Does caveat emptor still hold sway in today’s business scheme? Say it with me class: “It depends.”

In days of old, it was difficult, if not impossible, for buyers to truly know if what they were buying was filled with so many defects that the product would be rendered useless as soon as it was sold. Today, the savvy buyer has the advantage of being able to research the product and company before buying their product. The Internet, Consumer Reports, and the Better Business Bureaus allow a buyer to determine whether the seller and his product is as reputable as the infomercial claims. Thus, in a certain sense caveat emptor is still of some effect. As the buyer, you have a limited duty to make sure the seller is trustworthy.

But, that duty does not absolve all sellers. Today, the idea of caveat emptor has been replaced with the doctrine of “implied warranty.” An implied warranty basically asserts that the given product will work as it is advertised to work, absent negligence. This a seller cannot disclaim. In other words, if a seller claims that the widget he has for sale will slice and dice, but actually explodes into tiny bits of shrapnel, the seller may be liable based on the implied warranty of fitness for a particular purpose.

You will remember from a previous column that waivers and disclaimers that attempt to bar liability are permissible, unless they run afoul of public policy. To disclaim a harmful product by saying, “caveat emptor” is as vacuous as putting a license plate on one’s car that says, “Not responsible for injury or death as a result of this vehicle.”

Being an aware buyer, regardless of what warranty is (or is not) implied, is probably the best method for staving off a lawsuit.

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