Every crime in California is defined by a specific code section. Our attorneys explain the law, penalties and best defense strategies for every major crime in California.
A Criminal conspiracy charge can be filed if multiple people agree to commit a crime, they intend to commit the crime, and one of them acts in furtherance of the agreement. Defendants can be liable for conspiracy even if they never act unlawfully, on their own. Depending on the state and circumstances, it can be a felony or a misdemeanor.
People can be charged with criminal conspiracy if:
A criminal defense attorney can break down each of these components of conspiracy law.
The agreement to commit a crime is often referred to as the essential component of a conspiracy charge.1
The agreement does not have to be in writing or even spoken out loud.2 Law enforcement does not even need to have direct evidence of its existence. The agreement can be implied from the conduct of the parties alleged to be a part of it.3 While the essential terms of the conspiracy have to be agreed upon, the precise details do not.4
The agreement does, however, have to be between at least 1 other person who intends to commit the crime. The members of the conspiracy do not have to be a part of it from its inception – they can join later on and still be liable for conspiracy.5 However, they do have to intend to commit the offense. Alleged conspirators who have only agreed with those who do not intend to commit the crime, like undercover informants, have not committed the crime of conspiracy.6
However, there is no requirement that co-conspirators have to be aware of each other’s identities, or even that they exist.7 These are often so-called “hub-and-spoke” conspiracies.
For example: Frank independently conspires with Allen, Bob, Claire, Drake, and Elaine to commit a white collar crime. Even though none of these other people know of each other, they are all co-conspirators.
To be liable for conspiracy, the parties to the agreement have to intend to commit the crime.
This means that parties who secretly intend to not play their part in the crime, like undercover police officers and informants, are not liable for conspiracy. It also means that defendants who were a part of the agreement but who withdrew or who agreed only as a joke are not liable.
Generally, there has to be an overt act that furthers the objective of the conspiracy. However, conspiracy laws in a few states, like South Carolina, do not require this element.8 The overt act requirement is also missing in a small set of conspiracy laws that deal with certain crimes.9
Any act that moves the conspiracy forward satisfies this element. It does not have to be as substantial as the act necessary to amount to an attempted crime. It can be as insubstantial as making a phone call.10 The overt act also does not need to be done by the defendant – overt acts by other co-conspirators suffice.11 It does not even have to be an illegal act, so long as it furthers the conspiracy.12
Even in conspiracy cases where an overt act is not required, prosecutors frequently use it as evidence of the agreement.
The penalties of a conspiracy conviction depend on the state and on the type of criminal case the defendants conspired to commit.
In California, for example, conspiracy is a wobbler offense. It can be charged as either a felony or as a misdemeanor. It will be charged as a felony whenever the defendants conspired to commit a criminal act that is a felony. A conviction carries the same penalties as the felony that was conspired. If multiple felonies were the object of the conspiracy, a conviction carries the penalties of the most severe criminal charge or unlawful act. If the underlying crime is a misdemeanor, the conspiracy conviction would carry up to:
Similarly, federal conspiracy charges generally carry different penalties for felonies and misdemeanors. If the conspiracy was to commit a federal crime that is a felony, a conviction carries up to 5 years in federal prison. If the object was to commit a misdemeanor under federal law, the punishment for conspiracy is the same as the conspired misdemeanor.14
Defendants who want to avoid these penalties should strongly consider establishing an attorney-client relationship with someone from a criminal law firm.
There are 3 main legal defenses that defendants can raise to a conspiracy charge:
However, it is not a defense that the defendant is charged with conspiracy based on an overt act by a co-conspirator who has been acquitted.15
Law enforcement has to prove that there was an agreement. Raising reasonable doubts about the existence of an agreement is often an effective defense. A criminal defense lawyer can help do this.
However, a unique aspect of conspiracy charges makes this defense difficult to establish. Unlike in other cases, prosecutors in federal conspiracy cases can use out-of-court statements made by co-conspirators against the defendant.16 These statements are normally considered hearsay. But in conspiracy cases, conspirators are considered to speak and act on each other’s behalf.17 This makes these statements admissible. Therefore, prosecutors can use statements made by co-conspirators that indicate the presence of an agreement.18 Those statements can even have been made before the defendant joined the conspiracy.19
When the conspiracy statute requires it, prosecutors also have to show that an overt act was made in furtherance of the conspiracy. It is not enough to merely plan to conspire and commit the crime. Someone has to take a step towards the alleged objective. Showing that this did not happen can be a strong defense.
It is also a defense that the defendant effectively withdrew from the conspiracy to commit the crime.
What amounts to an effective withdrawal from the conspiracy depends on the jurisdiction. Generally, though, the conspiracy defendant has to:
This often has to be done before an overt act has been committed.21
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
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