Conspiracy as a Criminal Charge

Cite this article as: Jason Mance Gordon, "Conspiracy as a Criminal Charge," in The Business Professor, updated January 5, 2015, last accessed March 30, 2020,
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Criminal Conspiracy
This video explains what is required to be guilty of the crime of conspiracy.

Next Article: Obstruction of Justice as a Criminal Charge


What is the crime of “Conspiracy”?

Conspiracy involves an agreement between individuals to commit a crime. Conspiracy is a separate charge or crime than the crime agreed to by the parties. In a conspiracy, each member becomes the agent of the other member(s). Each person in the conspiracy does not have to know all of the details. Each person simply needs to understand that the plan is illegal and knowingly and willfully join in that plan on one occasion. The conspiracy or conspired act does not have to be successful. The formal elements of a conspiracy charge are as follows:

  • Multiple People – There must be 2 or more persons.
  • Mutual Understanding – In some way or manner, these people must come to a mutual understanding to try to accomplish a common and unlawful plan.
  • Willfulness – The defendant must willfully become a member of the conspiracy.
  • Overt Act – During the existence of the conspiracy, one of the conspirators must knowingly commit at least one of the “overt acts” described in the indictment (formal charge).
  • Purposeful Act – The overt act was knowingly committed in an effort to carry out or accomplish some objective of the conspiracy.

The essence of a conspiracy offense is the making of an agreement followed by the commission of any overt act in furtherance of that agreement. While direct evidence is preferable, circumstantial evidence may be used to prove a conspiracy.

Discussion: Do you think a person should be liable for conspiracy to commit a crime if they were not involved in the planning of the crime? What if conspirators solicit a third party to commit an illegal act that is part of the conspiracy, but the third party does not know about or agree upon the conspired scheme? How much evidence do you think must be present to demonstrate alleged conspirators have arrived at a mutual understanding?

Discussion Input

  • Some people may have a hard time finding a person guilty of a crime when they were not actively involved in the planning or commission of it. Others may argue that a person who is implicated in criminal activity, in any way, should be held accountable in the same fashion as the perpetrators. The question of liability for conspiracy will always turn on the agreement between the parties. This means that the prosecution must convince the jury that the parties understood the objectives of the agreement and knowingly and willfully consented to it.

Practice Question: Sarah, Jane, and Tommy need money to support their drug habits. They devise a plan to break into April’s house and rob her. As soon as they begin planning, Sarah realizes that this is a very bad idea. She tells Tommy and Jane that she made a mistake and she wants no part of the plan. Tommy and Jane, undeterred by Sarah backing out, go to April’s house to determine the best way to break in. A neighbor notices them creeping around the house and calls the police. The police arrest Tommy, Jane, and Sarah and charge them all with conspiracy. Will Sarah, Jane, and Tommy be found guilty of conspiracy? Why or why not?

Proposed Answer

  • The crime of conspiracy occurs when two or more persons agree to commit a crime-an essential feature for committing organized crime. One purpose of the conspiracy offense is to extend liability “backwards” by criminalizing the planning (or agreement) stage of a criminal offence. Conspiracy can create criminal liability even if no preparation of the contemplated offence has begun. In many jurisdictions, an act in furtherance of the agreement is required. The criminalization of conspiracy has a further purpose in that it allows for prosecution of multiple persons involved in a criminal enterprise. The agreement to commit a crime must be made between at least two persons. Jurisprudence suggests that, while the agreement cannot exist without communication between the conspirators, there is no requirement that the parties to the agreement know each other. All that is required is that each conspirator is committed to the agreed objective(s). The most important elements of the crime of conspiracy are the act (actus reus) and the state of mind (mens rea) required. Liability for conspiracy generally requires a voluntary agreement between two or more people, the parties do not have to be involved extensively with the conspiracy, and the object is to commit a serious crime. From the example in the practice question, Tommy and Jane shall be found guilty of the crime of conspiracy. Sarah will however not be found guilty as her actions show that although she was aware of the plan, she was not willing to go through with it to the end as she had backed out.

Academic Research

Katyal, Neal K., Conspiracy Theory. Yale Law Journal, Vol. 112, June 2003. Available at SSRN: or

Morrison, Steven R., Conspiracy Law’s Threat to Free Speech (November 5, 2011). 15 U. Pa. J. Const. L. 865 (2013). Available at SSRN: or

Sacharoff, Laurent, Conspiracy as Contract (February 15, 2016). 50 U.C. Davis L. Rev. 405 (2016). Available at SSRN:

Nelson, Josephine, The Corporate Conspiracy Vacuum (January 1, 2014). Cardozo Law Review, Vol. 37, No. 249, 2015. Available at SSRN: or

Dalton, Taylor R., Counterfeit Conspiracy: The Misapplication of Conspiracy as a Substantive Crime in International Law (August 15, 2010). ILSA Journal of International & Comparative Law, Vol. 17, No. 1, 2010. Available at SSRN:

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