§ 29.04 Conspiracy: The Agreement
[A] In General
The gist—or "essence"31—of a conspiracy is the agreement to commit an unlawful act or series of such acts.32 An express agreement, however, need not be proved.33 Indeed, a physical act of communication of an agreement (e.g., a nod of the head or some verbal exchange) is not required. Furthermore, an agreement can exist although not all of the parties to it have knowledge of every detail of the arrangement, as long as each party is aware of its essential nature.34 Moreover, a "conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense."35 It is enough that each person agrees, at a minimum, to commit or facilitate some of the acts leading to the substantive crime.
Nonetheless—and this is the essence of the agreement—there must be present "on the part of each conspirator communion with a mind and will outside [herself]."36 In this very limited and intangible sense, the conspiracy is externalized; that is, the agreement takes the law beyond the individual mental states of the parties, in which each person separately intends to participate in the commission of an unlawful act, to a shared intent and mutual goal, to a spoken or unspoken understanding by the parties that they will proceed in unity toward their shared goal.
How does a prosecutor prove the existence of this amorphous yet critical agreement? "Conspiracy is by nature a clandestine offense,"37 one in which the agreement that constitutes the crime "is seldom born of 'open covenants openly arrived at.' "38 Ironically, the difficulty in demonstrating an agreement has proven to be the prosecutor's greatest advantage because, "in their zeal to emphasize that the agreement need not be proved directly, the courts sometimes neglect to say that it need be proved at all."39
A conspiratorial agreement may be established directly or through entirely circumstantial evidence of a mutual, implied understanding. As one court has acknowledged, "because of the clandestine nature of a conspiracy and the foreseeable difficulty of the prosecution's burden of establishing the conspiracy by direct proof, the courts have permitted broad inferences to be drawn . . . from evidence of acts, conduct, and circumstances."40
A conspiracy "may be inferred from a 'development and a collocation of circumstances.' "41 A crime committed as the result of a prior agreement is apt to look choreographed.42 For example, in one case,43 the prosecution proved the following: D1 was driving an automobile in which D2 and D3 were passengers; as the car drove by V, a pedestrian, D1 stopped the car; D2 called V over to the curb; D2 and D3 exited the vehicle leaving their car doors open, and robbed V; D2 and D3 re-entered the car; and D1 drove away. Based on these facts, the court held that a jury could rationally find, beyond a reasonable doubt, that a conspiracy to rob V had been formed prior to the robbery, and that D1, the driver of the vehicle, was a party to the agreement. Countless cases based on far less evidence than this have found conspiratorial agreements.44
When the choreography is missing, however, a court is somewhat less likely to find an agreement, absent more direct evidence. For example, in Commonwealth v. Cook,45 D1 and D2, brothers, conversed with V, a female, on a street. When D1 said he was out of cigarettes, the three began walking toward a nearby convenience store. Along the way, V slipped and fell to the ground, at which moment D1 jumped on top of V in order to rape her. D1 handed his trouser belt to D2, who encouraged D1 in the rape. D2's conduct—holding the belt and encouraging D1—clearly constituted assistance in the rape. As such, he was properly charged as an accomplice to the rape. Based on this evidence, however, an appellate court concluded that D2 was not properly convicted of the crime of conspiracy with D1 to rape V.
The court's conclusion was sound. It was a chance meeting of the two men with the victim; the rape occurred in an apparently spontaneous, unplanned manner, i.e., V slipped and D1 suddenly attacked her. As the court reasoned, it is as likely that D2 became involved as an accomplice (rather than a co-conspirator) after the rape had begun as it is "to infer that the minds of the parties had met in advance" as part of an agreement to commit the rape.
[B] Distinguishing the Agreement from the Group that Agrees
The term "conspiracy" describes the agreement that constitutes the offense for which the parties may be punished. However, a common but misleading use of the word "conspiracy" is as a description of the group itself that intends to commit the unlawful acts.
These two different uses of the term—"conspiracy" as the agreement versus "conspiracy" as the people who have formed the agreement—are often blurred by commentators and courts. Thus, one treatise states that "the gist of a conspiracy is the combination which is formed."46 Some courts repeat the unfortunate characterization of a conspiracy as a "combination" of people.47 Holmes, too, has described a conspiracy as "a partnership in criminal purposes."48
The crime of conspiracy should not be described in this fashion. One danger in failing to distinguish between the agreement and the group is that conspiracy convictions may improperly be affirmed. For example, suppose that X and Y agree (conspire) to commit a robbery. Suppose that D, a stranger to X and Y, unaware of the conspiracy, nonetheless assists in the robbery at the scene in some spur-of-the-moment way. On these facts, as explained in the next chapter, D may be convicted of the robbery as an accomplice of X and Y. But this raises a separate question: In view of the fact X and Y were conspirators, may D also be convicted of the crime of conspiracy? If the X-Y group is treated as the conspiracy rather than their agreement, then it follows that when D aids X and Y, she aids the "conspiracy" (i.e., the group). Therefore, pursuant to complicity law, D would be an accomplice of the (group) "conspiracy" and, consequently, be guilty of the crime of conspiracy.
This analysis is wrong.49 The essence of a conspiracy is the agreement itself, and not the group of conspirators. D's last-minute participation in the underlying offense does not mean that she agreed with X and Y to rob the bank, i.e., that there was a meeting of the minds among the three. To properly convict D of conspiracy, it would be necessary to prove that she aided and abetted the conspiracy (the agreement)—that is, that D intentionally aided in the formation of the agreement, such as by arranging the meeting at which X and Y formed the agreement. As D did not aid in this manner, D should not be convicted of conspiracy.
[C] Object of the Agreement
At common law, the object50 of a conspiracy must be "to do either an unlawful act or a lawful act by criminal or unlawful means."51 As this quote may suggest, the contemplated act that is the basis of the conspiratorial agreement need not constitute a crime at common law; "it will be enough if the acts contemplated are corrupt, dishonest, fraudulent, or immoral."52 Thus, at common law it is possible for two people to be guilty of the offense of conspiracy because they have agreed to perform an act that is not criminal if performed in the absence of agreement by one of them! For example, it is a common law conspiracy for two or more persons to agree to perform a civil wrong (i.e., an act that would subject them to civil damages),53 or to agree to perform an act that is not a civil wrong but is otherwise considered immoral or dangerous to the public health or safety.54
This feature of common law conspiracy, followed in many pre-Model Penal Code statutes,55 has been strongly criticized by commentators as violative of the principle of legality.56 People are entitled to fair notice...
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