Overt Act


A criminal conspiracy is complete if the following elements are fulfilled:

  • An agreement about the objective of the conspiracy;
  • Specific intent to achieve that objective;
  • An overt act in furtherance of the agreement.

An overt act is defined as an outward act done in pursuance of the crime and a manifestation of an intent or design, intending the completion of the crime[i].  An overt act of a conspiracy is part of the “theory” of the case rather than an actual element of conspiracy.

An overt act must be something more than evidence of the conspiracy.  It must be an act done by one of the parties to carry out the intent and it must be a step towards the execution of the conspiracy.  An overt act is an act accomplished to effect the objective of the conspiracy.  Therefore, the nature of a conspiracy is agreement to effect unlawful end.  However, before an offense is completed, the party to conspiracy must perform some overt act[ii].

Although no overt act is committed in the pursuance of committing a crime, it is regarded as a criminal offense.  It is to be noted that in common law, no overt act is necessary to constitute the offense of conspiracy[iii].  Under some jurisdictions, it is necessary to prove an overt act in order to show that an indictable conspiracy exists[iv].

It is to be noted that an overt act need not be unlawful in order to constitute conspiracy.  An innocent or illegal act can also constitute a criminal conspiracy which is done in furtherance of the objective or purpose of the conspiracy[v].  However, in prosecutions for criminal conspiracy, whether an overt act alleged served to support the objective of the conspiracy is a question for the jury.

If an overt act is required for a conspiracy prosecution, it must be an act done for the purpose of carrying out the conspiracy, a step toward its execution, and a manifestation that the conspiracy is at work.  A single overt act before termination of the conspiracy committed by one of the co-conspirators is sufficient.  However, an act prior to the conspiratorial agreement cannot be termed an overt act[vi].  It is observed that silence can be an overt act in furtherance of a conspiracy if it is a planned one and is intended to facilitate the conspiracy[vii].

It is to be noted that if the conspirators agree or conspire with the specific intent to kill and commit an overt act in furtherance of such agreement, then they are guilty of conspiracy to commit express malice murder[viii].

[i] Chavez v. United States, 275 F.2d 813 (9th Cir. Cal. 1960)

[ii] Cline v. State, 204 Tenn. 251 (Tenn. 1958)

[iii] State v. Cont’l Purchasing Co., 119 N.J.L. 257 (Sup. Ct. 1938)

[iv] People v. Olson, 232 Cal. App. 2d 480 (Cal. App. 5th Dist. 1965)

[v] State v. D’Ingianni, 217 La. 945 (La. 1950)

[vi] Commonwealth v. Rivera, 1983 Pa. Dist. & Cnty. Dec. LEXIS 63 (Pa. C.P. 1983)

[vii] United States v. Eucker, 532 F.2d 249 (2d Cir. N.Y. 1976)

[viii] People v. Swain, 12 Cal. 4th 593 (Cal. 1996)