Unit 26: Conspiracy II


  • Dressler 411-419

  • Foster (CP)

  • Lauria (CP)

  • Swain (CP)

Key words:

  • plurality rule

  • unilateral offense

  • bilateral offense

  • abandonment


Common Law Conspiracy: Mens Rea

Common law conspiracy required two different mens rea: (1) the conspirators had to intend to agree, and (2) the conspirators had to specifically intend the occurrence of the objective of the agreement (the crime or lawful act through unlawful means).

Common law “intent” could mean either purpose or knowledge. Courts today are divided as to whether conspiracy requires purpose for the objective of the crime to occur or simply knowledge that it will occur. But even in jurisdictions where purpose is required, purpose can sometimes be inferred from knowledge (see People v. Lauria).

Although it rarely arises, some jurisdictions impose a third mens rea requirement, called “the corrupt motive” doctrine.  Under this doctrine, the parties must have a corrupt or wrongful motive in addition to the intent to agree and the intent for the objective of the agreement to be successful. Essentially, the corrupt motive doctrine makes ignorance of the law an excuse when the act is morally innocent. The modern trend rejects the corrupt motive requirement.

The mens rea for attendant circumstances varies by jurisdiction. Some jurisdictions require purpose or knowledge as to the attendant circumstances, while others (including federal conspiracy) require that the mens rea as to the attendant circumstances be the same as the mens rea required for the attendant circumstances in the offense.

At common law, conspiracy was a bilateral offense, which meant that if one party lacked the requisite mens rea, then neither party was guilty of conspiracy. The requirement that at least two parties had to agree in order for there to be a common law conspiracy was also called the plurality rule. The plurality rule did not require that a co-conspirator be prosecuted or convicted of conspiracy, unless both co-conspirators were prosecuted during the same trial (in which case, if one was acquitted, the other must be as well).

At common law, one could only be guilty of a conspiracy if he specifically intended the target offense.  For example, one could not conspire to commit “reckless arson,” because the mens rea of the target offense requires only recklessness as to the result of burning down a building, but in order to be guilty of conspiracy, the offender would have to possess the specific intent (purpose or knowledge) as to the result of burning down the building.

Some common law jurisdictions required purpose and not just mere knowledge as to the target offense. However, even in these jurisdictions, purpose could sometimes be inferred from knowledge. Lauria suggests three circumstances in which purpose can be inferred from knowledge: (1) when the provider of legal goods or services has a stake in the venture (e.g. because the provider is selling goods at an inflated price to criminals), (2) when there is no legitimate use for goods or services, and (3) when the provider of goods or services does a grossly disproportionate amount of business with criminals.

MPC Mens Rea

Like at common law, MPC 5.03(1) requires two mens rea states to be guilty of conspiracy: the actor must intend to agree and the actor must intend for the result or conduct of the offense that is the object of the conspiracy to occur.

Unlike some common law jurisdictions, “intent” under the MPC for conspiracy can only be satisfied by purpose, not knowledge. The mens rea as to the prohibited result or conduct is purpose, even if the target offense requires a lesser mens rea. For example, if an actor conspired to commit arson and killed an occupant of the building by setting it on fire, the actor could be found guilty of conspiring to recklessly endanger the occupants of a building, since the actor purposefully intended to engage in conduct that constituted reckless endangerment.

The MPC does not recognize the so-called third mens rea for conspiracy (the corrupt motive doctrine). There is no mens rea requirement under MPC 5.03(1) that the actor knows that the criminal objective agreed to is illegal or immoral.

The MPC is purposefully silent as to the mens rea requirement for the attendant circumstances of the offense.

The MPC only requires a unilateral agreement, so only one party needs the requisite mens rea (and therefore the plurality rule does not apply).

Questions for Review:

Q1. If an actor asked an undercover officer to participate in a crime, and the undercover officer agreed, is the actor guilty of conspiracy? Does it matter if it is a common law or MPC jurisdiction?

Q2. Recall that under MPC 5.03(1), an actor must purposefully intend to promote or facilitate the commission of the target offense (i.e., she must be purposeful as to causing the prohibited result or conduct). Therefore, under the MPC, one can conspire to commit reckless endangerment, because the actor is purposefully engaging in conduct that will cause the prohibited result of reckless endangerment. At common law, can one conspire to commit reckless endangerment?

Q3. Under the MPC, could the defendant’s conspiracy conviction under a theory of abandoned heart implied malice second degree murder in Swain be upheld?

Q4. In the classic 1980s movie Heathers, Veronica wants to get revenge on a girl named Heather, so her boyfriend J.D. poisons Heather. J.D. tells Veronica that the poison will only make the girl sick, but in fact it kills her. J.D. then convinces Veronica to cover up the death as a suicide. The next week, Veronica wants to get revenge on two boys. J.D. hatches a plan where they will lure the boys to a park and shoot them with special, nonfatal bullets out of real guns. Veronica goes along with this plan, and shoots and kills the boys with J.D. (the bullets were real). Would Veronica be guilty of conspiracy to murder the boys? Make an argument, focusing on intent.