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You must help your client overcome all 5 of the 4.18.371(2)

Pinkerton

Charge.

This is what the court uses to determine if a person is guilty or not. See below. This will be given to the jury as a guide.


There is another method by which you may evaluate whether to find [defendant] guilty of the substantive charge in the indictment.

If, in light of my instructions, you find beyond a reasonable doubt that [defendant] was guilty on the conspiracy count (Count ___), then you may also, but you are not required to, find [him/her] guilty of the substantive crime charged in Count ___, provided you find beyond a reasonable doubt each of the following elements:


First, that someone committed the substantive crime charged in Count ___;


Second, that the person you find actually committed the substantive crime was a member of the conspiracy of which you found [defendant] was a member;


Third, that this co-conspirator committed the substantive crime in furtherance of the conspiracy;


Fourth, that [defendant] was a member of this conspiracy at the time the substantive crime was committed and had not withdrawn from it; and


Fifth, that [defendant] could reasonably have foreseen that one or more of [his/her] co-conspirators might commit the substantive crime.


If you find all five of these elements to exist beyond a reasonable doubt, then you may find

[defendant] guilty of the substantive crime charged, even though [he/she] did not personally participate in the acts constituting the crime or did not have actual knowledge of them.


If, however, you are not satisfied as to the existence of any one of these five elements, then you may not find [defendant] guilty of the particular substantive crime unless the government proves beyond a reasonable doubt that [defendant] personally committed that substantive crime, or aided and abetted its commission.


If all 5 items are not there then the jury should consider the person not guilty. It becomes a battle of proving that thedefendantis not guilty of all 5. The more conspirators you have testifying against each other the more difficult it becomes. The prosecution will work to get eachdefendantto testify against the others. In order to win this you need a lot of time, because you have to build a case against each testimony to prove, one by one, that each person giving testimony is either not a qualified witness, a liar, has something to gain by giving this testimony, and or that the defendant is not the person they are saying they are.


If there is objective proofs such as phone records or other items, each item's integrity must be brought into question.


In the case of the first item, thedefenselawyer may try to prove that the crime in question is not the same as the charge says or that it was not committed by the accused.


IN the second case a defense lawyer needs to show that the person being accused was not actually part of the conspirators, but on the fringe, or outskirts, and therefore not a conspirator.


In the third case, it must be proved that the conspirator was intentionally trying to further the conspiracy by their actions. For the prosecution, this is very difficult to prove unless the charged conspirator was actually doing something to proves this.


In the fourth case, if a conspirator at any time withdrew from the group thus associated, and was in an out then the may not have been there during the time the crime was committed. the defendants whereabouts at all time during the conspiracy is very important to know.


Finally, number 5, "that the defendant could reasonably have foreseen that one or more of [his/her] co-conspirators might commit the substantive crime." reasonably is the key here. What is reasonable? Foreseen? How does one prove that a person could have foreseen something?


These littletechnicalitieswill kill the prosecution's strategy if a good defense law team is involved. The issue here is that these are high stakes Poker and few lawyers dare to enter the waters due to themythicalclaim that conspiracy charges cannot be one. Any attorney worth his or her salt can win, but are they willing to do the spade work and put there best out there fore all to see.


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Q: How do you defend against conspiracy charges?
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