Criminal Law - Solicitation & Conspiracy

Elements to Conspiracy include:

1) Agreement 2) Two Guilty Minds 3) Unlawful Purpose 4) Overt Act

Solicitation Elements include:

1) Solicit Another to commit a Crime 2) Specific Intent

Conspiracy Does not Merge

A defendant may be convicted of both conspiracy to commit and the attempted crime or completed crime. Conspiracy does not merge with the attempt or completed crime.

Solicitation

A solicitation is committed when a defendant asks another person to commit a crime with the intention that the crime be committed.

Conspiracy

At common law, conspiracy is committed when the defendant enters an agreement to commit a crime. Under majority rule, a conspiracy is committed when the defendant enters an agreement to commit a crime and an overt act is done toward the commission of the target offense.

Withdrawal - Common Law & Majority

At common law, withdraw requires the conspirator to communicate his withdrawal to each of the co-conspirators. Under jurisdictions that require an overt act for form a conspiracy, withdrawal generally requires some overt act to withdrawal such as telling the police, warning the victim, stopping the commission of the crime, etc. Under common law and the majority, withdrawal is not recognized as a valid defense to conspiracy because the conspiracy is complete as soon as the parties agreed to commit the crime and an overt act is committed; therefore the conspirator will be charged with conspiracy. However, withdrawal may cut off further liability for the target crime committed in furtherance of the conspiracy.

Two Guilty Minds

Both parties must intend to agree and intend to achieve the objective of the agreement. Ex. Not two guilty minds ex. if a police officer who is acting in a sting, doesn't actually agree. A person who says yes, but doesn't actually intend to conspire.)

Solicitation Merges

Defendant asks another to commit a crime. Once an agreement is formed, solicitation merges into conspiracy.

Protected Class

If you have a party in a protected class, they cannot be a part of a conspiracy. Ex. A minor is in a protected class.

MPC Unilateral Conspiracy Theory

MPC minority, follows the unilateral conspiracy theory where you can have a one person agreement. Under the MPC, a conspiracy is two or more people in agreement to commit a crime, or where a defendant BELIEVES he or she has an agreement to commit a crime. Ex. It doesn't matter if one is a police officer or a person who says yes, but doesn't actually intent to conspire. Conspirator will be guilty of this element.

Vicarious Liability

Once you have a conspiracy, each co-conspirator is vicarious liable for any and all actions of co-conspirators in furtherance of the conspiracy.

Solicitation - Vicarious Liability

Once you have a solicitation, the solicitee will be vicariously liable for anything in furtherance of that solicitation.

Overt Act

Some jurisdictions require an overt act in furtherance of the conspiracy. Common law had no such requirement as the agreement itself constituted the crime. The overt act need not be criminal or unlawful, and need only be committed by one member; mere preparation will suffice.

Wharton Rule

The Wharton rule states that if a crimes definition requires two guilty parties, then those two parties cannot be convicted of conspiracy. If a third person also agrees to commit the crime, the Wharton rule does not apply, and all three may deemed to have conspired. Wharton crimes include bigamy, incest, gambling, adultery, dueling, and giving and receiving bribes.

Agreement

The agreement does not have to be express. The agreement may be established by implication, where the two parties are acting in concert to complete a crime.

Unlawful Purpose

The objective of the agreement must be to either commit a crime or to commit a lawful act by unlawful means.

Specific Intent

The solicitor must intend that the person solicited perform criminal acts (thus the solicitor must have a specific intent). Mere approval of the acts is not enough. Solicitation does not require that the solicitee agrees with or act on the solicitation. The crime is completed when the communication (spoken word, written word, conduct, or may not even respond) is received by the solicitee. A solicitor is treated as an accessory before the fact, and thus will be guilty of any solicited crime (whether attempted or completed) by the solicitee.

Withdrawal MPC

Under the MPC, withdrawal requires the conspirator to communicate his withdrawal to each of the co-conspirators and notifying the police or warning the victim. Under the MPC, if the conspirator withdrawals effectively, the withdrawal is a defense to the conspiracy crime and the conspirator will be guilty of no crime.