Criminal Law Flashcards
FEDERAL CRIMINAL JURISDICTION
Power of federal government to create crimes falls into the following broad categories: 4
- Power over Federally Owned or Controlled Territory:
The federal government has extensive power to enact general criminal codes governing conduct in the District of Columbia, the territories, and federal enclaves (e.g., naval yards, federal courthouses, national parks, etc.) - Power over Conduct Occurring Within a State:
In contrast, federal power to criminalize conduct within a state is limited by the requirement that each statute be founded upon an express or implied constitutional grant of authority. - Power over United States Nationals Abroad:
Federal criminal statutes may, by express provision, reach conduct by citizens while on foreign soil. - Power over Conduct on Ships or Airplanes:
Federal “maritime jurisdiction” extends to conduct by all persons aboard American ships or aircraft when on or over the high seas or even in foreign waters or ports.
STATE CRIMINAL JURISDICTION
Power of state government to create crimes: generally
Every state has inherent authority by virtue of its “police power” to regulate its internal affairs for the protection or promotion of the health, saftety, welfare, and morals of its citizens.
SITUS OF THE CRIME
At common law, and in those states that have not expanded jurisdiction by statute, only the state in which the situs of the crime is
State Criminal Jurisdiction under the Common Law
At common law, and in those state that have not expanded jurisdiction by statute, only the state in which the situs of the crime is located has jurisdiction over the crime.
Situs of the Crime: defined
The place where the proscribed act (or omission) takes place, if the crime is defined in these terms; or the place of the harmful result, if the crime includes a result as a material element.
Example:
A libelous statement may be made a crime where it is published, not where it is written, because the crime of the libel proscribes the act of publication rather than the act of writing the libelous statement.
Modern Bases for State Criminal Jurisdiction
A person is subject to prosecution in a state for an offense that he commits within or outside that state, by his own conduct or that of another for which he is legally accountable, under the following conditions:
- When the OFFENSE IS COMMITTED WHOLLY OR PARTLY WITHIN THE STATE. Partly within the state includes occurrences within the state of either (i) conduct that is an element of the offense, or (ii) a result constituting such an element–e.g., in homicide, the “result” is either the physical contact causing death or the death itself. OR
- When there is CONDUCT OUTSIDE THE STATE THAT CONSTITUTES AN ATTEMPT OR CONSPIRACY to commit an offense within the state PLUS AN ACT INSIDE THE STATE. OR
- When there is CONDUCT WITHIN THE STATE CONSTITUTING AN ATTEMPT, SOLICITATION, OR CONSPIRACY TO COMMIT, IN ANOTHER JURISDICTION, AN OFFENSE under the laws of both the state and the other jurisdiction. OR
- When an offense based on the OMISSION OF PERFORMANCE OF A DUTY imposed by the law of a state is committed within that state, regardless of the location of the offender at the time of the omission.
Sources of Criminal Law: 5
- Common Law Crimes
- Statutory Crimes
- Constitutional Crimes
- Administrative Crimes
- The Model Penal Code
Common law crimes: defined
one created and enforced by the judiciary in the absence of a statute defining the offense.
Federal common law crimes:
There are no federal common law crimes because federal criminal law is governed entirely by statute. However, Congress has provided for common law crimes in the District of Columbia.
Common law crimes: majority view vs. minority view
Majority view: common law crimes retained either implicitly or by express “retention statutes.”
Minority view (modern trend): common law crimes abolished either expressly by statute or impliedly by the enactment of comprehensive criminal codes. These states nevertheless retain the various common law defenses such as insanity and self-defense.
Constitutional Crimes
The Constitution defines treason as levying war against the US, adhering to enemies of the US, or giving them aid and comfort. No person can be convicted of treason unless two witnesses testify to the same overt act, or unless the defendant confesses.
Administrative Crimes
A legislature may delegate to an administrative agency the power to proscribe rule, the violation of which may be punishable as a crime.
Note, however, that the legislature may not delegate the power to determine which regulations shall carry criminal penalties; nor may it delegate the power of adjudication (i.e., the determination of guilt or innocence).
Model Penal Code
Scholarly endeavor to compile a comprehensive and coherent body of criminal law. Since its publication in 1962, the MPC has greatly influenced the drafting of state criminal statutes.
Theories of Punishment: 6 theories that have been advanced to justify criminal punishment
- Incapacitation (Restraint): while imprisoned, a criminal has fewer opportunities to commit acts causing harm to society.
- Special Deterrence: Punishment may DETER THE CRIMINAL from committing future crimes.
- General Deterrence: Punishment may DETER PERSONS OTHER THAN THE CRIMINAL from committing similar crimes for fear of incurring the same punishment.
- Retribution: Punishment is imposed to vent society’s sense of outrage and need for revenge.
- Rehabilitation: Imprisonment provides the opportunity to mold or reform the criminal into a person who, upon return to society, will conform her behavior to societal norms.
- Education: The publicity attending the trial, conviction, and punishment of some criminals serves to educate the public to distinguish good and bad conduct and to develop respect for the law.
Classification of Crimes at Common Law:
All crimes were divided into three classes: treason, felonies, and misdemeanors.
At common law, the only felonies were murder, manslaughter, rape, sodomy, mayhem, robbery, larceny, arson, and burglary. All other crimes were misdemeanors.
Classification of Crimes: Modern
List 4
- Felonies and Misdemeanors
- Malum In Se and Malum Prohibitum
- Infamous Crimes
- Crimes Involving Moral Turpitude
Classification of Crimes: Modern
Felonies and Misdemeanors
Most state now classify as felonies all crimes punishable by death or imprisonment exceeding one year. Misdemeanors are crimes punishable by imprisonment for less than one year or by a fine only.
Classification of Crimes: Modern
Malum In Se
A crime malum in se (wrong in itself) is one that is inherently evil, either because criminal intent is an element of the offense, or because the crime involves “moral turpitude.”
Classification of Crimes: Modern
Malum Prohibitum
A crime malum prohibitum is one that is wrong only because it is prohibited by legislation.
Classification of Crimes: Modern
Infamous Crimes
At common law, infamous crimes are all crimes involving fraud, dishonesty, or the obstruction of justice. Under modern law, this concept has been expanded to include most felonies.
Classification of Crimes: Modern
Crimes Involving Moral Turpitude
The concept of moral turpitude–committing a base or vile act–is often equated with the concept of malum in se. Conviction of a crime involving moral turpitude may result in deportation of an alien, the disbarment of an attorney, or the impeachment of a trial witness.
Principle of Legality: Void for Vagueness Doctrine
The Due Process Clause of the federal Constitution, found in the 5th and 14th Amendment, has been interpreted by the Supreme Court to require that no criminal penalty be imposed without fair notice that the conduct is forbidden.
Void for Vagueness Doctrine has been held to require particular scrutiny of criminal statutes capable of reaching speech protected by the First Amendment.
The void for vagueness doctrine incorporates 2 considerations:
- Fair Warning
A statute must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. - Arbitrary and Discriminatory Enforcement Must be Avoided
A statute must not encourage arbitrary and erratic arrests and convictions.
Constitutional Limitations on Crime Creation
- No Ex Post Facto Laws
2. No Bills of Attainder
Ex Post Facto Laws: defined
Supreme court has defined an ex post facto law as one that operates retroactively to:
- make criminal an act that when done was not criminal
- aggravate a crime or increase the punishment therefor
- change the rules of evidence to the detriment of criminal defendants as a class
- alter the law of criminal procedure to deprive defendants of a substantive right.
Bills of Attainder: defined
A legislative act that inflicts punishment or denies a privilege WITHOUT A JUDICIAL TRIAL. Although a bill of attainder may also be an ex post facto law, a distinction can be drawn in that an ex post facto law does not deprive the offender of a judicial trial.
Interpretations of Criminal Statutes: list 5
- Plain Meaning Rule
- Ambiguous Statutes Strictly Construed in Favor of Defendant
- Expressio Unius, Exclusio Alterius
- The Specific Controls the General, the More Recent Controls the Earlier.
- Effect of Repeal.to bar prosecutions for earlier violations provided the prosecution is pending or not under way at the time of repeal (unless there is a saving provision)
Merger: Common Law Rule
- Misdemeanor merges into Felony
2. No merger among offenses of same degree
Merger: Current American Rule
No merger with the following limited exceptions:
- Merger of Solicitation or Attempt into Completed Crime
- Merger of Lesser Included Offenses into Greater Offenses in the sense that one placed in jeopardy for either offense may not later be retried for the other. Nor may one be convicted of both the greater offense and a lesser included offense. A lesser included offense is one that consists entirely of some, but not all, elements of the greater crime. (Required by the constitutional prohibition against double jeopardy.)
- Many states are developing rules against multiple convictions for parts of same transaction.
No double jeopardy for same act when:
statute provides multiple punishments for single act and the punishments are imposed at a single trial.
Essential Elements of a Crime: 4
- Actus Reus
- Mens Rea
- Concurrence
- Harmful Result and Causation
Actus Reus: define
Guilty Act: A physical act (or unlawful omission) by the defendant.
An act is defined as a bodily movement. A thought is not an act.
Must be voluntary–a conscious exercise of the will.
The following acts are not voluntary:
- conduct that is not the product of the actor’s determination
- Reflexive or convulsive acts
- Acts performed while the defendant was either unconscious or asleep unless the defendant knew that she might fall asleep or become unconscious and engaged in dangerous behavior.
Actus Reus: Omission as an “Act”
A defendant’s failure to act will result in criminal liability provided 3 requirements are met:
- Legal Duty to Act
- Knowledge of Facts Giving Rise to Duty (in some cases the law imposes a duty to know the facts)
- Reasonably Possible to Perform
Actus Reus: Omission as an “Act”
Legal Duty to Act can arise from: 5
- A statute
- A contract
- The relationship between teh defendant and the victim, which must be sufficiently close to create a duty.
- The voluntary assumption of care by the defendant of the victim
- The creation of peril by the defendant.
Actus Reus: Possession as an “Act”
Criminal statutes that penalize the possession of contraband generally require only that the defendant have control of the item for a long enough period to have an opportunity to terminate the possession. Possession need not be exclusive to one person, and possession may also be constructive, meaning that actual physical control need not be proved when the contraband is located in an area within the defendant’s “dominion and control.”
Absent a state of mind requirement in the statute, the defendant must be aware of his possession of the contraband, but he need not be aware of its illegality or true nature. However, many statutes and the MPC require a “knowingly” or “intentionally” state of mind element to possession crimes.
Mens Rea: purpose of the requirement
To distinguish between inadvertant or accidental acts and acts performed by one with a “guilty mind.” However, in some cases (strict liability crimes) mens rea is not required.
Mens Rea
Specific Intent Crime: defined
If the definition of a crime requires not only the doing of an act, but the doing of it with a specific intent or objective, the crime is a “specific intent” crime.
Specific Intent Crime: significance
It is necessary to identify specific intent for 2 reasons:
- Need for Proof: the existence of a specific intent cannot be inferred from the doing of the act. The prosecution must produce evidence tending to prove the existence of the specific intent.
- Applicability of Certain Defenses: Some defenses, such as voluntary intoxication and unreasonable mistake of fact, apply only to specific intent crimes.
Specific Intent Crimes: 11
- Solicitation: intent to have the person solicited commit the crime
- Attempt: intent to complete the crime
- Conspiracy: intent to have the crime completed
- First Degree Premeditated Murder (where so defined by statute): Premeditated intent to kill
- Assault: intent to commit a battery
- Larceny: Intent to permanently deprive another of his interest in the property taken
- Robbery: Intent to permanently deprive another of his interest in the property taken
- Burglary: intent at the time of entry to commit a felony in the dwelling of another
- Forgery: intent to defraud
- False Pretenses: intent to defraud
- Embezzlement: intent to defraud
Mens Rea
Malice
Defendant recklessly disregarded an obvious or high risk that the particular harmful result would result.
Although the intents required for the “malice” crimes–common law murder and arson–sound similar to specific intent (e.g., the intent to kill for murder), these crimes are NOT open to the specific intent defenses.
The common law created the special mental state category especially to deny MURDER and ARSON the specific intent defenses.
Mens Rea
General Intent
Awareness of factors constituting crime–defendant must be aware that she is acting in the proscribed way and that any attendant circumstances required by the crime are present.
General Intent can be INFERRED FROM THE ACT.
TRANSFERRED INTENT: most commonly applies to homicide, battery and arson. It does not apply to attempt. It must be the same crime.
Motive distinguished from intent.
A motive is the reason or explanation underlying the offense. It is generally held that MOTIVE IS IMMATERIAL to substantive criminal law. A good motive will not excuse a criminal act.
Strict Liability Offenses: defined
One that does not require awareness of all the factors constituting the crime. Generally, the requirement of a state of mind is not abandoned with respect to all elements of the offense, but only with regard to one or some of the elements. Certain defenses, such as mistake of fact, are not available.
Identification of Strict Liability Offenses
Generally are offenses that are part of a regulatory scheme and involve a relatively low penalty and are not regarded by the community as involving significant moral impropriety.
The fact that a statute is silent of the mental state does not necessarily make it a strict liability offense. The courts may still interpret the statute as requiring some mens rea, especially if the statute appears to be a codification of a traditional common law offense or it the statute imposes a severe penalty.
Constitutionality of Strict Liability Offenses
Majority view is that strict liability offenses are constitutional.
Exception: The Supreme Court struck down as a violation of due process a Los Angeles municipal ordinance imposing strict liability for failure to register as a felon. The key factor in the court’s decision was the absence of “circumstances which might move one to inquire as to the necessity of registration. NOTE: the holding is limited to statutes making criminal the failure to register.
MPC Analysis of Fault
MPC advocates the elimination of the ambiguous common law distinction between general and specific intent. Instead, the MPC proposes 4 categories into which the mental component of a criminal offense can be characterized.
MPC categories of mens rea: 3 subjective standards (what was going on in the person’s mind)
- Purposely
A person acts purposely with respect to his
conduct when it is his conscious object to engage in certain conduct or cause a certain result. - Knowingly (Willfully)
A person acts knowingly with respect to the result of his conduct when he knows that his conduct will necessarily or very likely cause such a result. - Recklessly (Wantonly)
A person acts recklessly when he consciously disregards a substantial or unjustifiable risk that circumstances exist or that a prohibited result will follow, and this disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation.
MPC category of mens rea: 1 objective standard
A person acts negligently when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such failure constitutes a SUBSTANTIAL DEVIATION FROM THE STANDARD OF CARE that a reasonable person would exercise under the circumstances.
However, this is not just the reasonable person standard that is used in torts; the defendant must have taken a VERY UNREASONABLE RISK in light of the usefulness of his conduct, his knowledge of the facts, and the nature and extent of the harm that may be caused.
VIOLATION OF STATUTE OR ORDINANCE MAY BE EVIDENCE OF NEGLIGENCE. (as in torts)
Analysis of Statutes Using Fault Standards where the statute does not indicate whether it is required for all the material elements of the offense:
The specified state of mind applies to all material elements of the offense unless a contrary purpose appears in the statute.
Analysis of Statutes Using Fault Standards where the statute does not include a state of mind requirement:
Defendant must have acted with at least recklessness with regard to each material element of the offense.
Vicarious Liability Offenses: defined
One in which a person without personal fault may nevertheless be held vicariously liable for the criminal conduct of another (usually an employee). The criminal law doctrine of vicarious liability is analogous to the tort doctrine of respondeat superior.
Vicarious liability dispenses with the actus reas requirement but retains the need for mental fault on the part of the employee.
Vicarious Liability–punishment
Because the imposition of criminal liability for faultless conduct is contrary to the basic premise of criminal justice that crime requires fault on the part of the accused, at least one state court has held that imprisonment in such cases violates the due process guarantees of the state constitution.
The current trend is to limit vicarious liability to regulatory crimes and to limit punishment to fines.
Enterprise Liability: Common law
Liability of Corporations and Associations
NO CRIMINAL LIABILITY
A corporation could not commit a crime because it was unable to form the necessary criminal intent.
Enterprise Liability: Modern Statutes
Liability of Corporations and Associations
VICARIOUS CRIMINAL LIABILITY
Modern statutes often provide for the liability of corporations and sometimes even unincorporated associations (e.g., partnerships). This liability is, by necessity, vicarious. Under such provisions, corporations may be held liable under the following conditions:
- Act Within Scope of Office
Except where the law specifically provides otherwise, the conduct giving rise to corporate liability must be performed by an agent of the corporation acting on behalf of the corporation and within the scope of his office or employment. - “Superior Agent Rule”
Some jurisdictions limit corporate criminal liability to situations in which the conduct is performed or participated in by agents sufficiently high in the corporate hierarchy to presume that their acts reflect corporate policy.
Enterprise Liablity: MPC
Liability of Corporations and Associations
Under MPC a corporation may be guilty of a criminal offense provided the offense:
- Consists of the FAILURE TO DISCHARGE A SPECIFIC DUTY imposed by law on the corporation.
- Is defined by a statute in which a LEGISLATIVE PURPOSE TO IMPOSE LIABILITY on corporations plainly appears;
OR
- Was “authorized, requested, commanded, performed, or recklessly tolerated BY THE BOARD OF DIRECTORS OR BY A HIGH MANAGERIAL AGENT acting on behalf of the corporation within the scope of his office or employment.
Individual Liability Independent of Enterprise Liability
The person who, in the name of the corporation, performs (or causes to be performed) the conduct that is an element of the offense is legally accountable and subject to punishment to the same extent as if the conduct were performed in his name or on his own behalf.
Both the corporation and the individual can be convicted.
Elements of Crime: Concurrence
The defendant must have had the intent necessary for the crime at the time he committed the act constituting the crime. In addition, the intent must have prompted the act.
Elements of a Crime: Causation
Some crimes require a harmful result and causation.
Parties to a Crime: Common Law (4)
The common law distinguished four types of parties to a felony:
- Principals in the first degree (persons who actually engage in the act or omission)
- Principals in the second degree (persons who aid, command or encourage the principal and are present at the crime.
- Accessories before the fact (persons who aid, abet, or encourage the principal but are NOT present at the crime)
- Accessories after the fact (persons who assist the principal after the crime.)
Parties to a Crime: significance of Common Law Distinctions
At common law, the distinctions between the parties had a great deal of procedural significance. For example, an accessory could not be convicted unless the principal had already been convicted, although both could be convicted in a joint trial if the jury determined the prinicipal’s guilt first.
Parties to a Crime: Modern Statutes: list and define each
All parties to the crime can be found guilty of the criminal offense.
Principal: one who, with the requisite mental state, actually engages in the act or omission that causes the criminal result. Also, anyone who acts through an innocent, irresponsible, or unwilling agent is classified as a principal.
Accomplice: one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime.
Accessory After the Fact: one who receives. relieves, comfortes, or assists another knowing that he has committed a felony, in order to HELP THE FELON ESCAPE ARREST, TRIAL, OR CONVICTION. The crime committed by the principal must be a FELONY and it must be COMPLETED at the time the aid is rendered. Typically the punishment for the crime bears no relationship to the principal offense: 5 years is the most common sentence. Exemptions usually provided for close relatives. (Common law exempted only the spouse.)
Accomplice liability: stake in the venture
selling a good at a higher price with the knowledge that a crime will be committed with the good is a stake in the venture and could constitute accomplice liability.
Accomplice liability: scope of liability
An accomplice is liable for the crimes he did or counseled AND for any other crimes committed in the course of committing the crime contemplated, as long as the other crimes were PROBABLE OR FORESEEABLE.
Accomplice liability: exclusions from liability (3)
- Members of the Class protected by the statute
- Liability of Necessary Parties not Provided For In the Statute
- Withdrawal from the crime before it is actually committed by the principal. Effective withdrawal depends on what the person initially did:
(i) If the person merely encouraged, withdrawal requires that he repudiates his encouragement.
(ii) if the person assisted by providing some material to the principal, withdrawal requires that the person attempt to neutralize the assistance, e.g., by doing everything possible to retrieve the material provided.
If impossible to withdraw by these means, the person must notify the authorities or take some other action to prevent the crime.
Withdrawal must occur BEFORE the chain of events leading to the commission of the crime become unstoppable.
Inchoate offenses: list
Solicitation, conspiracy, attempt
Quite frequently considered felonies.
Solicitation: common law vs. modern law
At common law, it was a misdemeanor to solicit another to commit a felony or an act that would breach the peace or obstruct justice.
Modern statutes often retain solicitation, but restrict it to the solicitation of certain serious felonies.
Solicitation elements:
Inciting, counseling, advising, inducing, urging, or commanding another to commit a felony with the specific INTENT THAT THE PERSON SOLICITED COMMIT THE CRIME (general approval or agreement is not sufficient). The offense is complete at the time the solicitation is make. It is not necessary that the person solicited agree to commit the crime or do anything in response.
Solicitation: scope of liablity
If the person solicited does the crime, the solicitor will be liable for the crime as a party (including attempt).
Solicitation is generally not an attempt to commit the crime solicited. This distinction is important in jurisdictions where there is no crime of solicitation or where the crime of solicitation does not extend to as many offenses as does the crime of attempt.
Solicitation: defenses
- Impossibility No Defense
- Withdrawal or Renunciation No Defense
- Exemption from Intended Crime IS Defense (minor female/statutory rape)
Conspiracy: common law definition
Combination or agreement between two or more persons to accomplish some criminal or unlawful purpose, or to accomplish a lawful purpose by unlawful means.
Conspiracy: recent state codifications requirement
that the object of the conspiracy be a specifically proscribed offense. Yet many states essentially codify the expansive common law notion by making it a crime to conspire to commit acts injurious to the public welfare. The Supreme Court has indicated that such statutes are unconstitutionally vague unless construed narrowly.
Conspiracy: Merger
NO MERGER
Under the old rule, if the conspirators were successful and completed their crime, the crime of conspiracy “merged” into the completed crime. While the members of the agreement could be convicted of the completed crime, they could not be convicted of conspiracy. This is no longer the law in most jurisdictions. Now, if the conspirators are successful, they can be convicted of both criminal conspiracy and the crime they committed pursuant to the conspiracy.
Conspiracy: Scope of Liability
ACCOMPLICE LIABILITY
One conspirator may, by virtue of his participation in the scheme, meet the requirements for “aiding and abetting” the commission of crimes by his co-conspirators and therefore be liable for those crimes as an accomplice.
SEPARATE DOCTRINE
Even if the conspirator did not have the sufficient mental state for accomplice liability, a separate doctrine provides that each conspirator may be liable for the crimes of all other conspirators if TWO REQUIREMENTS are met:
- The CRIMES WERE COMMITTED IN FURTHERANCE of the objective of the conspiracy;
AND - The crimes were “a natural and probably consequence” of the conspiracy, i.e., FORESEEABLE.
This doctrine applies only if the conspirator has not made a legally effective withdrawal from the conspiracy before the commission of the crime by the co-conspirator.
Conspiracy: distinguished from attempt
In attempt cases, the law requires that there be a SUBSTANTIAL STEP toward commission of the crime. In conspiracy cases, at least at common law, the agreement itself is normally sufficient to constitute the crime. Hence in common law conspiracy cases the law intervenes at an earlier stage than the planning of the crime. The reason for this is that the secret activity is potentially more dangerous to society and, since a group is involved, it is more difficult for one person to stop the activity once the agreement has been made.
Conspiracy: Elements
- An AGREEMENT BETWEEN TWO OR MORE persons;
- An INTENT TO ENTER INTO AN AGREEMENT; and
- An INTENT TO ACHIEVE THE OBJECTIVE of the agreement.
Under the traditional definition of conspiracy, the agreement itself was the culpable act (the actus reus). Today, a majority of states require an OVERT ACT in furtherance of the conspiracy, but mere preparation will usually suffice.
Conspiracy: Agreement
Parties must agree to accomplish the same objective by mutual action. The agreement need not be express. The existence of the agreement may be shown by a concert of action on the part of the conspirators over a period of time under circumstances showing that they were aware of the purpose and existence of the conspiracy and agreed to participate in the common purpose.
If there is an agreement among the parties to engage in a COURSE OF CRIMINAL CONDUCT constituting all the crimes, then there is only ONE CONSPIRACY.
Conspiracy: Multiple Party Situations
- Chain Relationship–One Large Conspiracy
2. Hub and Spoke Relationships–Multiple Conspiracies
Conspiracy: husband and wife
At common law, a husband and wife could not conspire together because they were viewed as one person. This distinction has been abandoned in virtually all states today.
Conspiracy: Corporation and Agent
Since a corporation can only act through an agent, there has been held that there can be no conspiracy between the corporation and a single agent acting on behalf of the corporation. There is a split of authority on whether the agents can be deemed co-conspirators. Note that a corporation may be a party to conspiracy with other corporations or individuals who are not agents of the corporation.
Conspiracy: Wharton Rule
Where two or more people are necessary for the commission of the substantive offense (e.g., adultery, dueling, sale of contraband), the Wharton Rule states that there is NO CRIME OF CONSPIRACY UNLESS MORE PARTIES PARTICIPATE IN THE AGREEMENT THAN ARE NECESSARY FOR THE CRIME.
Some courts hold that if the Wharton Rule applies there can never be a conviction for conspiracy. Others hold that if the rule applies, it prohibits conviction for both conspiracy and the crime that the parties agreed to commit.
Conspiracy: Agreement with Person in Protected Class
If members of a conspiracy agree to commit an act that violates a statute that was designed to protect persons within a given class, A PERSON WITHIN THAT CLASS cannot be guilty of the crime itself. Moreover, she CANNOT BE GUILTY OF A CONSPIRACY to commit that crime. It follows, then, that between the two people, the person NOT in the protected class cannot be guilty of criminal conspiracy on the basis of an agreement with the person in the protected class.
Conspiracy: Effect of Acquittal of Other Conspirators
A conspiracy requires two guilty parties at common law. Thus, in most courts, the acquittal of ALL persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant. This rule does NOT apply where the other parties are not apprehended, are charged with lesser offenses, or are no longer being prosecuted.
Conspiracy: MPC approach
Under the MPC’s unilateral approach, conspiracy is established by showing that the defendant “agreed” with another to commit the crime (regardless of whether the other person shared in that communication); it is not necessary to show an actual agreement between two or more persons. Thus, the fact that all the other parties to the conspiracy have been acquitted or were only feigning agreement will NOT prevent the defendant’s conviction.
Conspiracy: Mental state
Conspiracy is a SPECIFIC INTENT crime. There are two different intents that are necessary:
- Intent to Agree: It is very difficult to separate the intent to agree from the act of agreement. Hence, most courts do not even try. Intent to agree can be INFERRED from conduct.
- Intent to Achieve Objective of Conspiracy. This intent must be established as to EACH individual defendant.
Conspiracy: Intent to Facilitate a Conspiracy
A person who acts with the intent to facilitate a conspiracy may thereby become a member of the conspiracy. However, INTENT CANNOT BE INFERRED FROM MERE KNOWLEDGE. Therefore, a merchant who sells a good in the ordinary course of business that he knows will be used to further a conspiracy does not thereby join the conspiracy. On the other hand, a merchant may be held to have joined the conspiracy if the good sold is a specialty item that cannot easily be obtained elsewhere or if the merchant otherwise has a stake in the criminal venture (e.g., by raising the price of the good because of the buyer’s purpose).
Conspiracy: Motive
CORRUPT MOTIVE NOT REQUIRED
The majority rule is that the parties to a conspiracy need not have been aware that their plan was an illegal one.
A minority of courts have held to the contrary, however, reasoning that a requirement of evil motive flows implicitly from the word conspiracy. According to the “corrupt motive” doctrine, which operates as an exception to the general rule that ignorance of the law will not excuse criminal liability, the parties to a conspiracy must have known that their objective was criminal. The corrupt motive doctrine is usually limited to offense that malum prohibitum.
