A conspiracy is an agreement between two or more persons to commit a 
crime.

ELEMENTS
(1) an AGREEMENT between two or more persons
(2) an INTENT to enter into the agreement
(3) an INTENT by at least two persons to achieve the objective of the 
agreement.

***A majority of states now also require an OVERT ACT, but an act of 
mere preparation will suffice. 
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AGREEMENT REQUIREMENT
The parties must agree to accomplish the same objective by mutual 
action. However, the agreement need not be express; it may be 
inferred from joint activity.

***Common Law-- (minority + CAL) must be BILATERAL (both intend) 
An undercover cop pretending to intend and a defendant= NO conspiracy
A person agrees so he could warn the police and a defendant=NO 
conspiracy.

***MPC/MODERN-- (majority) must be UNILATERAL (one may be pretending)
An undercover cop pretending to intend and a defendant= CONSPIRACY

1. YES- A husband and wife can conspire together.

2. NO- A corporation and a single agent acting on behalf cannot 
conspire together. (States split on agents of a corp being co-
conspirators of the corporation).

3. WHARTON RULE- where two or more people are necessary for the 
commission of the substantive offense (ie adultery, dueling, 
bribery), there is no crime of conspiracy UNLESS more persons 
participate in the agreement than are necessary for the crime. 

EXAMPLE-- 
2 people= since 2 are needed to commit adultery-- NO Conspiracy
3 people= CONSPIRACY to Commit Adultery

Exception to Wharton Rule-
Wharton Rule DOES NOT apply to agreements with "necessary parties not 
provided for" by the substantive offense; both parties may be guilty 
of conspiracy even though both are necessary for commission of the 
substantive offense.

CALIFORNIA follows the Wharton Rule. (Please DOUBLECHECK with the 
Professor!)
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Effect of Acquittal of Some Conspirators
Under the TRADITIONAL view, Acquittal of all persons with whom a 
defendant is alleged to have conspired precludes conviction of the 
remaining defendant. In some jurisdictions following the traditional 
view, a conviction for conspiracy against one defendant is allowed to 
stand when the alleged co-conspirator is acquitted in a SEPARATE 
trial.

ACQUITTAL is KEY-- 
*If D and others allegedly conspired and ONLY the D is charged and 
tried, others weren't caught, the D can be convicted.

*If D is charged and tried and ALL OTHERS are acquitted, then the D 
cannot be convicted.
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Liability for Co-Conspirators' Crimes
A conspirator may be held liable for crimes committed by other 
conspirators if the crimes were
(i) committed IN FURTHERANCE of the objectives of the conspiracy and 
(ii) were FORESEEABLE.

***"Where a conspirator commits an act or makes a declaration which 
is NEITHER in furtherance of the object of the conspiracy NOR the 
natural and probable consequence of an attempt to attain that object, 
HE or SHE ALONE is responsible for and is bound by that act or 
declaration, and no criminal responsibility therefor attaches to any 
of his/her confederates."
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TERMINATION OF CONSPIRACY
The point at which a conspiracy terminates is important because acts 
and statements of co-conspirators are admissible against a 
conspirator only if they were done or made IN FURTHERANCE of the 
conspiracy. A conspiracy usually terminates UPON COMPLETION OF THE 
WRONGFUL OBJECTIVE. Unless agreed in advance, acts of concealment 
are NOT part of the conspiracy.
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DEFENSES

***IMPOSSIBILITY
NOT A DEFENSE
Note-- my chart said that legal impossibility was a defense to 
conspiracy-- this is WRONG. Sorry guys!

***WITHDRAWAL
Generally, not a defense to the CONSPIRACY because the conspiracy is 
complete as soon as the agreement is made and an act in furtherance 
is performed. 

Withdrawal MAY be a defense to crimes committed in furtherance of the 
conspiracy, including the substantive TARGET CRIME of conspiracy-- 
EFFECTIVE withdrawal from the conspiracy BEFORE commission of an 
overt act is clearly a good defense for the withdrawing member.

To withdraw, a conspirator must perform an affirmative act that 
notifies all members of the conspiracy of her withdrawal. Notice 
must be given in time for the members to abandon their plans. If she 
has also provided assistance as an accomplice, she must try to 
neutralize the assistance.

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MERGER DOCTRINE
Conspiracy DOES NOT merge; therefore, one may be convicted of 
Conspiracy and the substantive crime. 

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CANNOT Convict on BOTH Solicitation and Conspiracy 
Think of Solicitation as an ATTEMPT TO CONSPIRE.
Therefore, one may NOT be convicted of both...

So in that question that Julie asked, if two people asked a 3rd to 
kill someone, then the first two already have a conspiracy to commit 
murder. Since the 3rd person they asked said NO, their asking was an 
ACT in furtherance of their target crime-- their solicitation merged 
into the conspiracy. If the 3rd person said yes, then he just 
becomes a co-conspirator. 

And depending on how far the first two take their "master plan", they 
can be convicted of both conspiracy and attempted murder. Or they 
kill the dude, they'll be guilty of conspiracy to commit murder AND 
murder.

Hope I answered all of your questions...
Anna