Criminal Law: Conspiracy

At its most basic, a conspiracy is an agreement between two or more parties to commit a crime. Specifically, for a finding of conspiracy, the following elements have to be satisfied: an agreement between two or more parties who had intent to enter into that agreement and with the intent to achieve the objective of the agreement.

Conspiracy is a heavily tested crime on the MBE. The intent element is an important one in that fact patterns will often present with a situation in which an undercover officer "agrees" with defendant to commit a crime, and you'll need to determine whether conspiracy results based on that agreement. In such a situation, there is no conspiracy (under the common law tested on the MBE), because the undercover officer never intended for the crime to be committed, and so there was no intent between two or more people to achieve the objective of an agreement (the objective being the commission of the crime).

Once two or more people agree to commit a crime, assuming that they have the intent to commit that crime, the conspiracy is complete. It's essential to remember that conspriacy itself is a crime, so that even if the underlying crime that was the subject of the agreement never comes into fruition, a conspiracy to commit that crime has still been committed. An issue is whether a co-conspirator can withdraw after agreeing to commit a crime, thereby limiting his liability. Because a conspiracy is complete as soon as the agreement is made, on the MBE, withdrawal is not a defense to the conspiracy. But note, withdrawal may be a defense to crimes committed in furtherance of the conspiracy. To withdraw, a conspirator must perform an affirmative act that notifies all members of the conspiracy of his withdrawal. Notice must be given in time for the members to abandon their plans. If the conspirator who is attempting to withdraw provided assistance as an accomplice, then accomplice liability analysis applies, and in order to withdraw that conspirator must try to neutralize that assistance.

For example, let's assume that X and Y agree to commit the crime of burglary. Both X and Y intended to enter into that agreement, and intend to achieve the objective of that agreement (they intend to commit burglary). Sometime, after the agreement, however, X has a change of heart and decides that he wants no part in the underlying crime. That decision by X does not affect his liability for conspiracy as that crime had already been completed prior to X deciding against committing the crime of burglary. If X withdraws, however, he can limit his liability in respect to the burglary if Y decides to follow through with the burglary, and certainly limit his liability for any crimes other than burglary that is committed by Y as a direct result of the burglary. In order to effectively withdraw, though, X will have to satisfy the requirements as stated above.