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Friday, June 28, 2019

The Wharton Rule

The Wharton Rule is an interesting one. When it comes up in practice questions students often tell me they've heard of it or read about it but it hasn't stuck in memory.  It's simple enough and it's worth knowing how it relates to the crime of conspiracy.

First a quick review of conspiracy. A conspiracy under the common law required an agreement between 2 or more persons with an intent to enter into the agreement and an intent by at least 2 persons to achieve the criminal objective of the agreement. In addition, under the common law an overt act was required to provide some evidence of the agreement. An act of mere preparation would suffice as the overt act.

When the Wharton Rule is implicated, the first step is to consider some crimes that cannot be accomplished by just one person. A few that come to mind are bribery and adultery but there are plenty others. Under the Wharton Rule, where two or more people are necessary for the commission of a crime, there will be no conspiracy to commit that crime unless more parties participate in the agreement than are necessary for the crime.

In other words, if 2 people agree to a transaction that would constitute the crime of bribery then at least 3 people will be required to charge them with conspiracy to commit bribery.  Or more abstractly, if the commission of a crime requires n number of people, then conspiring to commit that crime will require at the least n+1.

One exception to note is that the Wharton Rule does not apply to agreements with "necessary parties not provided for" by the substantive offense.  Thus, if, for example, there is a state statute prohibiting the sale of narcotics and that statute imposes criminal liability on the seller but not on the buyer, then both the buyer and the seller may be charged with conspiracy to sell narcotics even though both parties are in fact required for commission of the offense.

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