A conspiracy occurs when two or more people agree to commit an illegal act and take some step toward its completion. Conspiracy is an inchoate crime because it does not require that the illegal act actually have been completed. For instance, a group of individuals can be convicted of conspiracy to commit burglary even if the actual burglary never happens. Conspiracy is also unique in that, unlike attempt, a defendant can be charged with both conspiracy to commit a crime, and the crime itself if the crime is completed.

Elements of a Conspiracy

Conspiracy first requires a showing that two or more people were in agreement to commit a crime. This agreement does not have to be formal or in writing. All that is required is that the parties had a mutual understanding to undertake an unlawful plan. Second, all conspirators must have the specific intent to commit the objective of the conspiracy. This means that someone who is entirely unaware that she is participating in a crime cannot be charged with conspiracy. For instance, if two sisters agree to rob a bank and ask their brother to drive them to the bank without informing him of their intent to commit a crime, he cannot be charged with conspiring in the robbery. This specific intent requirement does not require that each individual knows all the details of the crime or all of the members of the conspiracy. As long as an individual understands that the act being planned is a criminal one and proceeds nonetheless, he can be charged with conspiracy.

Finally, in most states, conspiracy requires an “overt act” taken in furtherance of the crime. This overt act does not have to be the crime itself, nor does it have to be an act that is illegal. Rather, the act must merely be a step taken in furtherance of the criminal objective, such as buying a weapon or holding a meeting to plan an attack. The act must also take place after the group of individuals has agreed to conspire. Actions taken before the agreement do not fulfill this requirement. While an “overt act” implies an affirmative action, some courts have held that silence can be an overt act where it is intentional, planned, and done in furtherance of the conspiracy.

Defenses to Conspiracy

Like other inchoate crimes such as attempt, a defendant charged with conspiracy can raise the defense of abandonment or withdrawal. In order to do so, a defendant must show that he affirmatively communicated his withdrawal to his co-conspirators and took some positive action to withdraw from the conspiracy. Additionally, the defendant must have withdrawn from the conspiracy prior to its completion. Importantly, the defendant must have definitively cut ties with his fellow co-conspirators. If he continues to communicate with them or assist them in any way, this may prevent him from raising the defense of withdrawal.

Another defense available in conspiracy cases is the defense of entrapment. Entrapment means that the defendant was persuaded to participate in the conspiracy by a law enforcement officer or government agent and that he or she would not otherwise have become involved in the conspiracy. Specifically, the defendant must show that (1) the idea for the conspiracy came from an officer and not the defendant; (2) the defendant was persuaded to participate in the conspiracy by an officer and (3) before being persuaded, the defendant had no intention of committing the crime.

Both federal law and state law define the crime of conspiracy. Whether a person is charged under federal or state law depends upon the specific circumstances. Often, the federal government will prosecute persons allegedly involved in a conspiracy that spans multiple states, whereas a state government will generally handle matters that are entirely contained within its borders. If the crime underlying the conspiracy is a federal crime, this too may lead to federal, rather than state, prosecution.