Conspiracy is an agreement between two or more people to commit a crime. The offense is the agreement itself, which is why it is complete long before anything else happens and why prosecutors like it so much. It also carries procedural advantages, including a hearsay rule that admits statements of co-conspirators and, in many jurisdictions, liability for crimes the defendant never personally committed.
Elements
- An agreement. Two or more people agreeing to pursue an unlawful objective. The agreement can be tacit and proved by circumstances.
- Intent. Intent to agree and intent that the object of the agreement be achieved.
- An overt act. Required by most modern statutes, though even a small preparatory step counts, and some common law formulations require none.
- No merger. Unlike attempt, conspiracy does not merge, so a defendant may be convicted of both the conspiracy and the completed crime.
- Pinkerton liability. In many jurisdictions each conspirator is liable for the substantive crimes of the others that were committed in furtherance of the conspiracy and were reasonably foreseeable.
- Withdrawal. Requires affirmative notice to the other conspirators or disclosure to authorities, and in most places it stops liability for future crimes without erasing the conspiracy itself.
Leading cases
- Pinkerton v. United States: a conspirator was liable for the substantive offenses of a co-conspirator committed in furtherance of the conspiracy and reasonably foreseeable to him.
- Kotteakos v. United States: separate groups dealing with the same central figure were multiple conspiracies rather than one, because they shared no common purpose with each other.
- Krulewitch v. United States: statements made after the objectives of the conspiracy had ended were not admissible as statements in furtherance of it.
Where students go wrong
The first mistake is looking for a formal agreement. A tacit understanding inferred from concerted action is enough, and prosecutors almost never have anything more.
The second is skipping the structure of the conspiracy. Whether the facts show one large agreement or several small ones changes who is liable for what, and the chain and wheel patterns are how courts describe it.
The third is applying Pinkerton without saying so. Not every jurisdiction accepts it, and the Model Penal Code does not, so name the rule you are using before extending liability.
FAQ
Does conspiracy merge into the completed crime?
No. That is one of its distinctive features. A defendant may be convicted and sentenced for both the conspiracy and the offense it aimed at.
What is Wharton's rule?
The principle that an agreement cannot be a conspiracy where the target offense necessarily requires two participants, such as duelling or bigamy, unless more people are involved than the crime requires.
Can someone withdraw from a conspiracy?
Yes, but it takes an affirmative step: communicating the withdrawal to the other conspirators or informing the authorities in time for them to act.
Related terms
Working through this in your own casebook takes longer than reading it here. Syllume starts from your syllabus and turns each assigned case into a brief you can study from.