Conspiracy is an agreement between two or more persons to engage jointly in an unlawful or criminal act. It can also be an act that is innocent in nature, but becomes unlawful when accomplished by the combination of actors. In other words, conspiracy occurs if two or more individuals act together to commit a crime or to commit a lawful act by unlawful means even if they are not aware of each other’s participation or role in the conspiracy.
Although conspiracy is considered a common law offense, it is treated as a crime under many jurisdictions when conspiracy to commit a particular offense occurs. The crime of conspiracy is defined as two or more persons conspiring to commit any crime, together with proof of the commission of an overt act to effect an objective of the agreement [i]. Conspiracy is a specific intent crime. A conspirator remains a participant in the conspiracy unless and until he/she communicates a decision to renounce the agreement[ii]. Similarly, a person who joins a conspiracy after its formation is equally guilty with the original conspirators[iii].
The main elements of conspiracy are a specific intent, an agreement with another person to engage in a crime to be performed; and the commission of an overt act by one of the conspirators in furtherance of the conspiracy[iv]. The essence of a conspiracy is the agreement to commit a crime that makes a conspirator responsible for the foreseeable acts of another[v].
A federal statute makes conspiracy a crime, if two or more persons conspire to commit any offense against the U.S. or to defraud the U.S. or any agency in any manner or for any purpose and for one or more of such persons to do any act to effect the object of the conspiracy[vi]. Some jurisdictions do not recognize the crime of attempted conspiracy.
However, the liability of a criminal conspiracy is well distinguished from accomplice liability. The relevant difference between conspiracy and accomplice liability is that while an agreement is an essential element of the crime of conspiracy, aid sufficient for accomplice liability can be given without any agreement between the parties. Accomplice liability requires knowledge and a completed crime, whereas a conspiracy requires intent and a substantial step towards completion[vii]. In some jurisdictions, an agreement or combination between two or more persons to commit a criminal conspiracy is punishable as a misdemeanor while some other statutes classify conspiracy as a felony.
However, an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission[viii]. This is known as Wharton’s Rule. Before the application of Wharton’s Rule, it must be shown that the offense required the active culpable participation of two people[ix]. At the same time, Wharton’s rule is not applicable if the substantive offense that is the object of the alleged conspiracy can be committed by a single person.
[i] People v. Swain, 12 Cal. 4th 593 (Cal. 1996)
[ii] United States v. Blackwell, 954 F. Supp. 944 (D.N.J. 1997)
[iii] State v. Carbone, 10 N.J. 329 (N.J. 1952)
[iv] Lacy v. State, 673 So. 2d 820 (Ala. Crim. App. 1995)
[v] State v. Samuels, 189 N.J. 236 (N.J. 2007)
[vi] 18 USCS § 371
[vii] State v. Stein, 144 Wn.2d 236 (Wash. 2001)
[viii] Iannelli v. United States, 420 U.S. 770 (U.S. 1975)