Saturday, March 17, 2012


A few quick things to remember about conspiracy as it was defined under the common law:

The elements required for conspiracy are an agreement between two or more people to commit a crime, and an intent to enter into that agreement.

A few distinctions between the common law and that of most states:

Under the common law, a husband and wife could not conspire together.

Under the common law, there could be no conspiracy between a corporation and an agent acting on behalf of the corporation.

Under the common law, there was no requirement of an overt act in furtherance of the conspiracy, though this is a requirement in most states. (Note that the act required is minimal, such as mere preparation to commit the crime in furtherance of the conspiracy.)

Under the common law, at least two people with the intent to enter into an agreement to a commit a crime were required for the crime of conspiracy (this is why one could not conspire with a police officer pretending to be a co-conspirator), but states following the Model Penal Code apply the unilateral approach to conspiracy. Under the unilateral approach the defendant can be convicted of conspiracy regardless of whether the other parties were merely feigning agreement.

On the MBE, an often-tested topic is the liability of all co-conspirators for crimes committed by any one of the co-conspirators. Co-conspirators will be liable for crimes committed by other co-conspirators if the crimes were committed in furtherance of the objectives of the conspiracy, and if the crimes were foreseeable.

An important point to remember is that the crime of conspiracy is completed the moment the agreement to commit a crime takes place. Therefore one cannot withdraw from the conspiracy itself after the agreement, but one can withdraw from crimes committed in furtherance of the conspiracy, if he notifies all other co-conspirators of his intent to withdraw. In addition to withdrawal, one may be required to neutralize any assistance that had been provided as an accomplice.

Finally, because conspiracy itself is a crime, the crimes committed in furtherance of the conspiracy do not merge with the crime of conspiracy. In other words, if x and y agree to commit robbery, and x and y commit robbery, x and y are guilty of both conspiracy and robbery.

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