Inchoate crimes; parties - Conspiracy

Learning Outcomes

After reading this article, you will be able to explain the elements of conspiracy, distinguish it from other inchoate crimes, and identify the liability of parties involved. You will understand the agreement requirement, the overt act rule, the scope of conspirator liability, and common defenses, enabling you to answer MBE questions on conspiracy with confidence.

MBE Syllabus

For MBE, you are required to understand the law of inchoate crimes, with particular focus on conspiracy. This includes the elements of the offense, the liability of parties, and the distinctions between conspiracy and other inchoate crimes. You should be able to:

• Recognize the elements required to establish conspiracy: agreement, intent, and (where required) overt act.
• Distinguish conspiracy from attempt and solicitation.
• Identify when and how parties are liable for substantive offenses committed by co-conspirators.
• Apply the rules regarding withdrawal and defenses to conspiracy.
• Understand the impact of the Wharton Rule, protected class exception, and unilateral vs. bilateral approaches.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT required for a common law conspiracy?
   1. An agreement between two or more persons
   2. Intent to achieve the unlawful objective
   3. An overt act in furtherance of the conspiracy
   4. Intent to agree
2. Under the modern approach, a conspirator is liable for which crimes committed by co-conspirators?
   1. Only crimes he personally commits
   2. All foreseeable crimes committed in furtherance of the conspiracy
   3. Only the target offense
   4. Only crimes committed after he joins the conspiracy
3. Which of the following is a valid defense to conspiracy?
   1. Withdrawal before the agreement is made
   2. Factual impossibility
   3. Withdrawal before the overt act (in some jurisdictions)
   4. Legal impossibility
4. Under the Model Penal Code, can a defendant be convicted of conspiracy if the only other party is an undercover police officer?
   1. Yes
   2. No

Introduction

Conspiracy is a central inchoate crime tested on the MBE. It involves an agreement to commit a criminal offense and is unique because it allows for liability even before the planned crime is attempted or completed. Conspiracy also expands criminal responsibility, making each conspirator potentially liable for the acts of others. Understanding the elements, scope, and defenses to conspiracy is essential for MBE success.

Key Term: Inchoate Crime
An offense involving steps toward the commission of another crime, but where the ultimate crime has not yet occurred. Includes attempt, solicitation, and conspiracy.

Elements of Conspiracy

At common law, conspiracy consists of an agreement between two or more persons to commit an unlawful act, combined with the intent to achieve that act. Most modern statutes also require an overt act in furtherance of the conspiracy.

Agreement

The heart of conspiracy is an agreement to pursue a criminal objective. The agreement can be express or implied from conduct. The parties must have a "meeting of the minds" to pursue the unlawful goal.

Key Term: Conspiracy
An agreement between two or more persons to commit a criminal offense, with intent to achieve the unlawful objective.

Intent

Conspiracy is a specific intent crime. Each conspirator must intend both to agree and to achieve the unlawful purpose. Mere knowledge of the plan is not enough.

Key Term: Specific Intent
The mental state where the defendant intends both the conduct and the result required by the offense.

Overt Act

At common law, no overt act was required. Most modern statutes, including the federal system and the Model Penal Code, require that at least one conspirator perform an overt act in furtherance of the conspiracy. The overt act can be minor and need not itself be criminal.

Key Term: Overt Act
Any act, however minor, taken by a conspirator to help accomplish the objective of the conspiracy.

Scope of Liability

Pinkerton Rule

A conspirator is liable for all substantive crimes committed by co-conspirators if those crimes were (1) committed in furtherance of the conspiracy and (2) were foreseeable.

Key Term: Pinkerton Liability
The doctrine that holds each conspirator liable for crimes committed by co-conspirators in furtherance of the conspiracy and reasonably foreseeable.

Withdrawal

Withdrawal is not a defense to the conspiracy itself once the agreement and overt act have occurred. However, timely withdrawal may limit liability for subsequent substantive crimes committed by others.

Key Term: Withdrawal (Conspiracy)
An affirmative act by a conspirator to end participation in the conspiracy, which may limit liability for future crimes but not for the conspiracy itself.

Special Doctrines

Unilateral vs. Bilateral Conspiracy

Under the traditional bilateral approach, at least two genuine parties must agree to the conspiracy. Under the Model Penal Code's unilateral approach, only the defendant must have genuine criminal intent; the other party may be feigning agreement (e.g., an undercover officer).

Key Term: Unilateral Conspiracy
A conspiracy where only one party actually intends to commit the crime; the other may be feigning agreement.

Key Term: Bilateral Conspiracy
A conspiracy requiring at least two parties with genuine criminal intent to agree to commit the crime.

Wharton Rule

If the target offense necessarily requires two or more people (e.g., dueling, adultery), there is no conspiracy unless more parties participate than are required for the substantive crime.

Key Term: Wharton Rule
No conspiracy exists if the crime by definition requires two participants, unless more parties are involved than necessary.

Protected Class Exception

If a statute is intended to protect a certain class, a member of that class cannot be guilty of conspiracy to violate the statute.

Key Term: Protected Class Exception
A person within the class the law is designed to protect cannot be convicted of conspiracy to violate that law.

Defenses to Conspiracy

• Withdrawal: Not a defense to the conspiracy itself once an overt act has occurred, but may limit liability for future crimes.
• Impossibility: Factual impossibility is not a defense; legal impossibility may be a defense in some jurisdictions.
• Merger: Conspiracy does not merge with the completed offense; a defendant may be convicted of both conspiracy and the substantive crime.

Worked Example 1.1

Scenario: Alice and Ben agree to rob a bank. Alice buys masks; Ben rents a car. Before the robbery, Alice tells Ben she wants out and notifies the police. Ben proceeds and robs the bank.

Answer:
Both Alice and Ben are guilty of conspiracy once the agreement and an overt act (buying masks, renting car) occurred. Alice's withdrawal does not absolve her of conspiracy, but by notifying Ben and the police before the robbery, she is not liable for the bank robbery itself.

Worked Example 1.2

Scenario: Carl and Dave agree to sell illegal drugs. Dave is an undercover officer who never intends to commit the crime.

Answer:
Under the Model Penal Code's unilateral approach, Carl can be convicted of conspiracy even though Dave is not a genuine conspirator. Under the bilateral approach, there is no conspiracy because there was no true agreement between two guilty parties.

Exam Warning

On the MBE, be alert for questions where one party is an undercover officer. Know whether the jurisdiction follows the unilateral or bilateral approach to conspiracy.

Revision Tip

Remember: Withdrawal is not a defense to conspiracy once an overt act has occurred, but it may shield you from liability for future crimes committed by co-conspirators.

Summary

Conspiracy requires an agreement, intent to achieve an unlawful objective, and (in most jurisdictions) an overt act. Each conspirator may be liable for crimes committed by others in furtherance of the conspiracy. Withdrawal is not a defense to the conspiracy itself, but may limit future liability. The Model Penal Code allows conviction even if the other party is feigning agreement.

Key Point Checklist

This article has covered the following key knowledge points:

• Conspiracy is an agreement to commit a crime, requiring intent and (usually) an overt act.
• Most modern statutes require an overt act; common law did not.
• Conspirators are liable for foreseeable crimes committed by others in furtherance of the conspiracy (Pinkerton rule).
• Withdrawal is not a defense to conspiracy, but may limit liability for subsequent crimes.
• The Model Penal Code allows conviction even if the only other party is an undercover officer (unilateral approach).
• The Wharton Rule and protected class exception may bar conspiracy liability in certain cases.
• Conspiracy does not merge with the completed offense; both convictions are possible.

Key Terms and Concepts

• Inchoate Crime
• Conspiracy
• Specific Intent
• Overt Act
• Pinkerton Liability
• Withdrawal (Conspiracy)
• Unilateral Conspiracy
• Bilateral Conspiracy
• Wharton Rule
• Protected Class Exception