Guilty Without Charge: Assessing the Due Process Rights of Unindicted Co-Conspirators

Abstract:     
The grand jury practice of naming individuals as unindicted co-conspirators routinely results in injury to reputations, lost employment opportunities, and a practical inability to run for public office. Yet, because these individuals are not parties to a criminal trial, they have neither the right to present evidence nor the opportunity to clear their names. Thus, Professor Robbins argues that the practice violates the Fifth Amendment guarantee that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law[.]" While prosecutors may offer many justifications to support the practice of naming unindicted co-conspirators, these reasons do not withstand careful scrutiny. Legitimate governmental objectives can be met in other ways. Professor Robbins concludes that Congress should breathe life into the traditional "shielding" function of federal grand juries and prohibit the use of unindicted co-conspirators' real names in grand jury indictments.

Keywords: Grand Jury, Co-Conspirator, Unindicted Co-Conspirator, 5th Amendment, Due Process, Miscarriage of Justice, Fundamental Fairness

JEL Classifications: K14, K42

Accepted Paper Series