Criminal Law

Conspiracy

A conspiracy is an agreement by two or more persons to commit a criminal act.

Conspiracy usually does not merge into a completed offense.

Conspiracy has three elements:

1. An agreement to commit an unlawful act
   • Can be implied
   • Not all of the parties have to know of every detail of the arrangement, only its essential nature
   • Each person must agree to commit or facilitate some part of the acts leading to the substantive crime.
   • At common law, the object of the agreement does not have to be criminal, but under the Model Penal Code it does.
2. Specific intent or purpose to achieve the object of the conspiracy
   • Conspiracy requires that the defendant intend to agree and that he intend the result of their agreement to occcur.
     • Some courts and the Model Penal Code require that they purposely bring about the unlawful result, while some others allow a conviction if they merely do it knowingly.
   • The common law adopted the bilateral approach of requiring both the defendant and another to possess the requisite mens rea, however the Model Penal Code and most states have adopted the unilateral approach of only requiring the defendant's culpability.
     • This is especially relevant in situations when the defendant makes a conspiracy with an undercover agent.
3. Overt act in furtherance of the conspiracy
   • At common law, the conspiracy was complete upon formation of the unlawful agreement. No overt act was required.
   • Most states require proof of the commission of an overt act by any party to the conspiracy. Any act may be sufficient as long as it is in furtherance of the conspiracy. The overt act may be committed before a conspirator joins.
   • The Model Penal Code only requires an overt act in cases involving a misdemeanor or a felony of the third degree.