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The 'Unindicted Co-Conspirator'
The criminal justice process can be arcane, but one term is recognizable to the public. An indictment is a formal accusation by a grand jury that an indicted individual has committed a crime. While damning, the indicted defendant nonetheless has the constitutional right to say to the government, 'Prove it,' and, if the government fails, to be cleared of all criminal wrongdoing.
In contrast, an individual designated in an indictment as an 'unindicted co-conspirator' has not been charged by a grand jury with a crime. Rather, the label reflects only the view that the individual is complicit in the defendant's wrongdoing. Unlike the defendant who has a right to defend himself, the unindicted co-conspirator is not on trial but confined to a limbo in which vindication is never possible.
Courts recognize that this public stigma may rise to the level of a due process violation. Both the courts and the Department of Justice (DOJ) impose constraints on the identification of unindicted co-conspirators by name. However, as a practical matter, these protections fall short. The resulting damage to the individual ' and, by extension, his corporate employer ' can be incalculable. Therefore, defense counsel must be proactive in requesting safeguards for clients who may be recognizable in an indictment without being charged.
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