Stacking the Deck Against Defendants in Conspiracy Cases?


Are prosecutors stacking the deck against defendants in conspiracy cases? A case now on appeal in the Second Circuit is posing that interesting question.

On appeal from his conviction in a fake reinsurance deal scheme, former General Re Corporation assistant general counsel Robert Graham is arguing that the government denied him a fair trial by preventing a key witness from testifying.

By amending the original complaint to name the corporation’s former general counsel, Timothy McCaffrey, as an unindicted co-conspirator, the prosecution effectively ensured that McCaffrey would assert his Fifth Amendment privilege and decline to testify at trial. Graham asserts that McCaffrey would have provided material, exculpatory testimony for Graham if he had taken the witness stand.

When subpoenaed by a defendant to testify during trial, unindicted co-conspirators almost always invoke the Fifth because they do not want to incriminate themselves as potential targets of prosecution. This practically inevitable series of events provides prosecutors with the opportunity to make the strategic decision to name individuals in the complaint that they otherwise might not, in order to prevent a defendant from access to potentially exculpatory testimony. The defendant may ask the prosecution to seek immunity in order to get the unindicted co-conspirator onto the stand, but in the interest of preserving the option to prosecute, prosecutors rarely grant such requests.

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