This Comment posits that the practice of publicly naming unindicted co-conspirators before trial violates due process and that unless preventative measures are adopted to halt this practice, such due process violations will continue. This conclusion is buttressed by the text that follows, which surveys the relevant case law on the rights of unindicted co-conspirators, highlights the types of harm that a sample of unindicted co-conspirators have suffered as a result of being publicly named, and proposes procedures and rules that, if adopted, would conform with due process and help prevent these harms.
In this Comment, I will expand on the work started by Professor Robbins and explore several instances in which unindicted coconspirators are publicly named—not just when they are named in an indictment. After giving a diagnosis of the problem, I suggest prophylactic measures that can prevent due process violations and minimize harms to unindicted co-conspirators. Part II provides background on the phenomenon of the unindicted co-conspirator designation, the utility of this tactic to prosecutors, and the due process implications that result from the naming of unindicted co-conspirators. Part III is divided into two major sections. Part III.A explores the ineffective and inconsistent patchwork of guidelines created by the courts in an effort to balance the due process rights of unindicted coconspirators against the legitimate interests of the government in prosecuting alleged criminals. Although some of those safeguards and remedies can work, this Comment exposes the ones that do not, as well as the gaps that remain. Part III.B highlights the significance of ineffective safeguards by exploring the collateral detriments that can accompany the public branding of “unindicted co-conspirator.” This will be accomplished by looking at the impact this designation had on the Council on American-Islamic Relations (“CAIR”), a national civil rights group that was among 246 designated unindicted co-conspirators whose names were mistakenly made public by prosecutors in pre-trial filings in a major terrorism case. Part IV proposes procedural changes that strike a better balance between the needs of prosecutors to effectively try cases and the due process rights of unindicted co-conspirators. This Comment specifically proposes: (1) that the loaded and injurious term of “unindicted coconspirator” be universally abandoned and replaced with a more benign classification, such as “joint venturer,” “special witness,” or “material actor,” (2) that the Justice Department adopt better procedures for protecting the rights of unindicted co-conspirators by updating the U.S. Attorneys’ Manual to explicitly prohibit the public naming of unindicted co-conspirators in an indictment, and (3) that the relevant rules of procedure be changed to require that all pre-trial documents that name unindicted co-conspirators be filed under seal.
Tayeh, Raeed N.
"Implicated But Not Charged: Improving Due Process for Unindicted Co-Conspirators,"
Akron Law Review: Vol. 47
, Article 6.
Available at: https://ideaexchange.uakron.edu/akronlawreview/vol47/iss2/6