Conspiracy

A criminal conspiracy is the intentional formation of an agreement between two or more people to commit an unlawful act or to commit a lawful act in an unlawful manner.

Intentional Formation of Agreement

Under traditional common law, the courts took a very broad view of the intent element of the crime of conspiracy to include any intent to form an agreement to accomplish an unlawful objective, or an immoral objective (even if lawful), and any intent to form an agreement to accomplish an unlawful objective even if the agreement was not formed, as well as expectation to gain from a crime that was the objective of an attempted or completed conspiracy. Even the mere knowledge of the crime that was the objective of an attempted conspiracy was viewed as a conspiracy. Some jurisdictions required that every person who was party to the conspiracy intend the criminal objective of the conspiracy.

Today, statutory laws provide that the intent of the agreement of a conspiracy must be to commit a crime, or in some jurisdictions, to commit one of several enumerated torts (civil wrongs). Additionally, the law now provides that only one person need intend the objective of the conspiracy (a meeting of the minds is not required).

The Agreement

Under traditional common law principles, the agreement, once formed, was the crime, and no further act was needed to prove the crime of conspiracy. Additionally, the agreement could be to do any unlawful act or any act in an unlawful manner.

Today, under federal law and in most state jurisdictions, a meeting of the minds is not required if one person to a conspiracy intends the objective of the conspiracy and solicits another to assist in committing the crime. In other words, only one guilty mind is required. However, both federal law and most jurisdictions require that some overt act be performed by at least one person to the conspiracy; that overt act must be in furtherance of the conspiracy, but the conspiracy need not be a crime.

The Parties

The agreement to form a conspiracy can be made between people, as well as corporations, so long as the corporation has more than one employee, and only party need intend to commit the crime, so long as that party is not a member of a protected class. A protected class is the group of people that the law seeks to protect. For example, for the crime of sex with a minor, the minor is the person in the protected class, so a minor could not be guilty of conspiracy to commit the crime of sex with a minor.

The Act

Today, almost all states and the federal government require that at least one conspirator perform an act in furtherance of the purpose of the conspiracy. In some states, the required act is very minimal.

Acquittal Of Conspiracy

Under common law principles, if other parties to the conspiracy for which the defendant was being tried had already been found not guilty of conspiracy, then the defendant had to be be exonerated (see exonerated of conspiracy charges) of the crime of conspiracy.

Conspiracy Trials

Today, most jurisdictions continue to apply the rule of exoneration, but only when all parties to the conspiracy are tried together. Any party to a crime involving a conspiracy can be found guilty or not guilty of the underlying crime (the object crime of the conspiracy), without regard to the rest of the parties, even when the parties are tried together.

Withdrawal From Conspiracy

Complete Withdrawal

Under common law, a withdrawal from a conspiracy requires that the person not only consider himself to have withdrawn from the conspiracy, but also to communicate to the other conspirators that he has withdrawn. That communication must be made in a reasonable means so as to effectively communicate it to all parties of the conspiracy. In situations where such a communication is not feasibly possible, or if the communication would place the defendant in peril of his or his family's life, then a reasonable means and form are required.

Today, under statutory law in most states, a complete withdrawal from a conspiracy does not exonerate the defendant from the crime of conspiracy. The crime of conspiracy is committed when the agreement is formed, or in other situations that meet the burdens of proof for a conspiracy. However, a complete withdrawal effects avoidance of criminal liability for subsequent crimes that the conspiracy may commit for which the defendant would otherwise be held vicariously liable.

Withdrawal Plus Prevention

In a minority of jurisdictions, and in states that recognize the Model Penal Code, a withdrawal from a conspiracy is a defense to the crime of conspiracy only if 1) the defendant voluntarily withdraws from the conspiracy, and 2) the defendant assists in preventing the objective of the conspiracy from being completed such as when he makes a report to the police. The actions to prevent the crime from commission must be substantial; a defendant who merely tries to talk the other conspirators out of committing the crime would likely not prevail on a claim asserting withdrawal as a defense.

Acquittal Of Conspiracy By Exoneration

Traditional Law On Exoneration Of Conspiracy Charge

Under traditional common law, if the conspirators of a conspiracy were found not guilty of the conspiracy, then the defendant had to be exonerated of the crime of conspiracy. That exoneration was limited to the conspiracy charge, and it did not include the underlying crime.

Modern Common Law On Exoneration Of Conspiracy Charge

Today, most jurisdictions continue to apply the rule of exoneration, but only when all parties to the conspiracy are tried together. Any party to a crime involving a conspiracy can be found guilty or not guilty of the underlying crime (the object crime of the conspiracy), without regard to the rest of the parties.

Conspiracy Charges

If a conspiracy involves two or more people (or a corporation with more than one employee), and one agreement is formed to perform an unlawful act or perform a lawful act in an unlawful manner, then such an agreement would entail one count of conspiracy, even if a series of actions were needed to complete the underlying crime. However, if one person performs one transactions with one person who is only interested in his transaction, and all transactions are part of a larger conspiracy, then that agreement would constitute several conspiracy crimes and several conspiracy charges, with one charge to each person and as many charges to the one conducting transactions with each person as there were people conducting transactions.

If the criminal charge is conspiracy to commit a crime, then solicitation cannot also be charged.

Lastly, under a doctrine called the Wharton's Rule, if a crime requires two people in order for the crime to be committed, then if two people commit that crime, they cannot also be charged with conspiracy to commit the crime. However, if the commission of a crime requires two people, but three people are actually involved in committing that crime, then all three can be charged with the crime and with conspiracy to commit that crime. But if the crime involves two people, but punishes only one person, such as delivery of a controlled substance, then both may be charged with conspiracy to commit the crime, even though one is charged with the completed crime (and the other may be charged with a different crime).

Contact Van Wagner & Wood