§ 29.06 "PLURALITY" REQUIREMENT

• Jurisdiction: United States

§ 29.06. "Plurality" Requirement

[A] Common Law

According to Justice Cardozo, "[i]t is impossible . . . for a man to conspire with himself."¹¹² This observation follows from the fact that a conspiracy is an agreement, and an agreement is a group act. Unless two or more people form an agreement, no one does. As a consequence, a prosecution of common law conspiracy must fail in the absence of proof that at least two persons possessed the requisite mens rea of a conspiracy, i.e., the intent to agree and the specific intent that the object of their agreement be achieved.¹¹³ This is the so-called "plurality" requirement.

As a result of the plurality principle, there can be no common law conspiracy if one of two parties to an agreement lacks the specific intent to commit the substantive offense. For example, no conspiracy conviction is possible — although, perhaps, an attempted conspiracy charge might lie¹¹⁴—if one of the two persons is an undercover agent feigning agreement,¹¹⁵ or lacks the capacity to form the agreement due to mental illness.¹¹⁶ Indeed, although the rule is breaking down, in a joint trial of the two defendants in an alleged two-person conspiracy, the acquittal of one alleged conspirator traditionally requires the discharge of the remaining defendant, regardless of the jury's reasons for acquittal of the first party.¹¹⁷

The plurality rule does not require, however, that two persons be prosecuted and convicted of conspiracy. It is enough that the prosecutor proves beyond a reasonable doubt that two persons are guilty of conspiracy. Thus, the conviction of a conspirator is not in jeopardy simply because the other person involved in the arrangement is unapprehended, dead, or unknown, or cannot be prosecuted because he has been granted immunity.¹¹⁸ And, although the rule used to be to the contrary,¹¹⁹ the modern rule is that a convicted conspirator is not automatically entitled to relief because of the acquittal of the remaining conspirators in a separate trial.¹²⁰ As long as the evidence at the first trial was "sufficient unto itself to support its verdict"¹²¹—that is, the prosecutor proved that there was a conspiratorial agreement between two or more persons, one of whom was the defendant—the failure to convince the second jury of the conspiracy does not impair the validity of the first conviction, since the acquittal at the second trial may have been the result of a multitude of factors, such as the unexpected absence of a critical state witness.

The plurality requirement has been criticized. First, the rule undermines the law enforcement purpose of conspiracy laws. For example, if O, an undercover police officer, feigns willingness to assist D in the commission of a murder, the plurality rule supposedly prevents O from arresting D until the latter's conduct reaches the more dangerous stage of an attempt.¹²² Second, one who fails to conspire because her "partner in crime" is an undercover officer feigning agreement is no less personally dangerous or culpable than one whose colleague in fact possesses the specific intent to go through with the criminal plan.¹²³

On the other hand, the plurality doctrine is consistent with the "special dangers in group criminality" rationale of conspiracy.¹²⁴

[B] Model Penal Code

The Model Penal Code departs significantly from the common law by establishing a unilateral approach to conspiracy liability. Unlike the common law definition of conspiracy, which is phrased in terms of "two or more persons," the Code "focuses inquiry on the culpability of the actor whose liability is in issue, rather than on that of the group of which [she] is alleged to be a part."¹²⁵ That is, although the gist of the offense, as at...