The Elements Of Conspiracy Agreement
The essence of conspiracy is the agreement between two or more persons. A single person acting alone cannot be guilty of conspiracy.
However, if a coconspirator dies prior to the indictment or trial, the surviving coconspirator may still be charged with conspiracy. A HUSBAND AND WIFE can be guilty of conspiracy. A corporation is considered a person for conspiracy purposes, so a corporation can be guilty of conspiracy, but it cannot conspire with itself. For example, if two or more employees within a corporation conspire to break the law and subsequently commit an act in furtherance of the conspiracy, the corporation itself is not criminally liable for conspiracy.
The agreement must be made voluntarily and with an intent to participate in furthering a common purpose. Mere knowledge or approval, in the absence of an actual agreement to cooperate, does not constitute conspiracy.
Once an agreement with criminal intent is made, the conspiracy is complete, unless the applicable statute requires the additional element of an overt act. The agreement need not be written or formal, and it may be proved by CIRCUMSTANTIAL EVIDENCE. A tacit understanding is sufficient to constitute agreement, even if no words are spoken that expressly communicate the conspiracy. Conspiracy exists if there is some form of mutual understanding between persons working together with a common unlawful end.
Intent Criminal intent is also necessary to create a conspiracy. This means that the parties must intend both to agree on and to engage in the unlawful act. Ignorance of the law is not usually a defense to a crime, but an unwitting conspirator may defend against conspiracy charges on grounds of ignorance. Ignorance will not be a defense if the person continues to participate in the common plan after learning of its illegality.
Either the purpose of the agreement or the means by which it is accomplished must be illegal to support criminal prosecution on conspiracy charges. If the purpose is unlawful, the offense is committed even if the means used to achieve the purpose are lawful. One illustration is where a noncustodial parent conspires with another person to KIDNAP the parent's child, and the child is abducted during a court-approved visit. Conspiracy also occurs if the purpose of the agreement is lawful but the means used to achieve it are illegal. For example, if a custodial parent chooses to retrieve a child who has been kidnapped by the noncustodial parent, an agreement to use unlawful force constitutes conspiracy.
Overt Act An overt act can be any step that indicates that the execution of the conspiracy has begun. This can be an innocuous act and need not be illegal unto itself. For example, if two persons agree to rob a bank, then purchase a ski mask, the act of buying the mask may constitute the overt act required to charge the two with conspiracy.
The overt act must follow the agreement and must be executed with an intent to carry out the purpose of the conspiracy. For example, if one of the potential bank robbers buys a ski mask after the agreement is made, the purchase may not constitute the overt act if the ski mask will not be worn to carry out the ROBBERY. An overt act need not be committed by each and every conspirator; an overt act by one conspirator solidifies the offense for all coconspirators. Thus, a conspirator who does not participate in the overt act can be charged with conspiracy.
If a conspirator completely and voluntarily renounces the criminal purpose to all conspirators, that person may withdraw from the conspiracy before the overt act is committed. Many jurisdictions require that the withdrawing conspirator also inform law enforcement officials or take measures to thwart the crime, in order to avoid criminal liability for the conspiracy.
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