MR. JUSTICE DOUGLAS, dissenting.
At the trial involved in this case there was much evidence of corrupt practices by the mayoral administration of petitioner Addonizio during his tenure as mayor of Newark, New Jersey. But the question posed to the
jury below was not whether these petitioners had engaged in corrupt practices but the narrower issue of whether they had entered into and executed a criminal agreement to extract kickbacks from public contractors through threats of physical harm or economic ruin in violation of 18 U.S.C. § *fn19511 Although the petitioners were charged with 65 substantive acts of coercive extraction of kickbacks, the key issue in the trial was who, if anyone, had conspired to commit these acts. Absent a finding that such a confederation had been formed, most of the evidence which damaged the petitioners could not have been introduced at all inasmuch as this evidence was hearsay admitted provisionally under the so-called coconspirator exception. That the jury found a conspiracy to have existed, however, was under the circumstances of this trial the unsurprising and virtually inevitable result of the many disabilities imposed upon an accused by the ordeal of a multi-defendant, conspiracy prosecution*fn2
Justice Jackson catalogued many of these disabilities in his well-known concurrence in Krulewitch v. United States , 336 U.S. 440, 446 (1949), reversing a conspiracy conviction, where he concluded that the prevailing "loose practice as to [the conspiracy] offense constitutes a serious threat to fairness in our administration of justice." He criticized the tendency of courts to dispense "with even the necessity to infer any definite agreement, although that is the gist of the offense." Id. , at 452. As to the procedural evils of this device he found that the risk to a co-defendant of guilt by association was abnormally high:
"A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. If he is silent, he is taken to admit it and if, as often happens, co-defendants can be prodded into accusing or contradicting each other, they convict each other." Id. , at 454.
Justice Jackson also regretted the wide leeway that prosecutors enjoyed in the broad scope of evidence admissible to prove conspiracy (and consequently to prove substantive acts as well). Under conspiracy law, the declarations and acts of any confederate in furtherance of the joint project are attributable to and admissible against all of its participants. This is true even if the declarant is not available for cross-examination. Moreover, such statements are admissible "subject to connection" by the prosecutor later in the trial. At the close of the Government's case, for example, the judge may believe that the Government failed to present a jury question as to a defendant's participation in a
collective criminal plot. In such a case, the judge must ask the jury to disregard the provisionally admitted hearsay. Obviously, however, it will be difficult in a lengthy trial (such as this one filling 5,500 pages of transcript) for jurors to excise the stricken testimony from their memories. In the alternative case where the judge believes that a jury question has been presented as to a defendant's participation in a criminal enterprise, the jury is permitted to consider the provisionally admitted matter in determining whether or not a defendant was a conspirator. In other words, the jury is allowed to assume its ultimate conclusion. Justice Jackson was particularly sensitive to the abuse potential in this vicious logic:
"When the trial starts, the accused feels the full impact of the conspiracy strategy. Strictly, the prosecution should first establish prima facie the conspiracy and identify the conspirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. The naive assumption that prejudicial effects can be overcome ...