Conspiracy

I didn't entirely realize how much there was to know about the crime of conspiracy for the MBE. It’s a lot, but not too difficult.

First the definition: as usual there are elements. A conspiracy requires an agreement between two or more persons with both an intent to enter into the agreement to commit a crime and an intent to achieve the objective(s) of the agreement to commit a crime. Although the common law did not, many states do require an overt act, however slight, as evidence of the above intent. The agreement to commit a crime need not be express; it can be inferred. Conspiracy, however, is a specific intent crime. Implied or express, intent is required.

There's both a unilateral and a bilateral approach to conspiracy and it's important to understand the differences. The modern trend is unilateral. This approach, as the name suggests, requires that only one party to the agreement have a criminal intent. In other words, if one party with criminal intent agrees with an undercover police officer (who did not have criminal intent) to commit a crime, that might be a conspiracy under this approach. 

On the other hand, the traditional approach is bilateral. At least two parties must have a genuine intent to commit a crime when they agree to do so or the elements of a bilateral conspiracy have not been satisfied. 

A rather outdated doctrine that does show up on the MBE is the Wharton Rule. Under this rule, where two or more people are necessary for the commission of the crime, there is no conspiracy unless more parties participate in the agreement than are necessary for the commission of the crime itself. Perhaps thinking of it this way might help: if n people are necessary to commit the crime, then under the Wharton Rule, at least n + 1 must agree to commit the crime for there to be a conspiracy. For example, the crime of adultery requires at least 2 people, so conspiracy to commit adultery will require at least 3 people.

Conspiracies can get a bit more complex when subconspiracies enter the picture. In a chain relationship, there is a single, large conspiracy in which all parties to sub agreements are interested in a single large scheme. As such, all members are liable for the acts of the others in furtherance of the conspiracy. In a hub-and spoke relationship, a number of independent conspiracies are linked by a common member. The common member will be liable for all conspiracies, but the members of the individual conspiracies will not be liable for the acts of the other conspirators.

It's essential to understand at what point a conspiracy is terminated. Acts and statements of co-conspirators are admissible against a conspirator only if they were done or made in furtherance of the conspiracy, and that'll only be true if the conspiracy has not yet terminated. A conspiracy terminates upon the completion of the wrongful objective. 

Withdrawal is generally not a defense to conspiracy. After all, withdrawal is likely to take place after the agreement and the agreement is the point at which the crime of conspiracy has been committed. Withdrawal, however, may be a defense to crimes committed in furtherance of the conspiracy. Be sure to always distinguish between the conspiracy itself, and crimes committed in furtherance of the conspiracy. To withdraw from crimes committed in furtherance of the conspiracy, a conspirator must perform an affirmative act that notifies all members of the conspiracy of the withdrawal. Notice must be given in time for other members to abandon their plans. If assistance has been provided, then withdrawal also requires an attempt to neutralize that assistance. 

Lastly, conspiracy and any crime that was the subject of the conspiracy do not merge. In other words, if two people agree to commit burglary and then commit burglary the crime of conspiracy and the crime of burglary do not merge. Both crimes have been committed, and punishment is allowable for both.