The Burden of Proof in Conspiracy Calvin Smith was convicted of two murders and two counts of conspiracy in 2005 as part of an organized drug enterprise in Washington. He is serving 25 years to life for his part in those crimes, but he is appealing the conspiracy convictions. The Supreme Court, which heard oral argument on this case last week, should reverse the conspiracy convictions on the ground that they violate Mr. Smith's Fifth Amendment right to due process. Mr. Smith introduced evidence at trial showing that for six years while the drug conspiracy was operating he was in prison for other crimes and was no longer a member of the conspiracy. By the time the government brought the conspiracy indictment against him, the five-year statute of limitations for conspiracy had run out. The issue is whether Mr. Smith should have to prove that he was not a member of the conspiracy while he was in prison, or whether, as he correctly argues, the government should have to prove he remained part of the conspiracy during that time. The government argues that Mr. Smith must bear the burden of proof since it has already demonstrated that he was part of the conspiracy at one point and that the conspiracy continued. Mr. Smith contends that once he provided evidence showing that he quit the conspiracy, the government was obliged to prove him wrong. Fairly allocating the burden of proof is imperative because, as Justice Robert Jackson once wrote, the overreliance on theories of conspiracy in criminal law can be "a serious threat to fairness in our administration of justice." One reason for caution is that membership in a conspiracy makes an individual liable for everything done by others in that conspiracy, even if the individual did not approve or know about a crime. For instance, a getaway driver in a robbery is held liable for a co-conspirator shooting a guard. To keep conspiracy law from favoring prosecutors even more than it does, the court should rule for Mr. Smith and place the burden of proof on the prosecutor.