A client, a former special forces operative, is approached by a criminal organization to plan and execute a complex bank robbery. The client agrees, meticulously plans the operation, identifies escape routes, and procures specialized equipment. However, the night before the planned robbery, the client has a change of heart and decides not to participate. He notifies the criminal organization of his withdrawal and destroys all his plans and equipment. Despite his withdrawal, the organization proceeds with the robbery using a modified version of his plans. The client is charged with conspiracy. Which of the following statements about his withdrawal is most accurate?
- AHis withdrawal is effective as a defense to conspiracy if he also took an affirmative act to thwart the conspiracy.
- BHis withdrawal is effective as a defense to conspiracy if he communicated it to all co-conspirators.
- CHis withdrawal is ineffective as a defense to conspiracy because the organization proceeded with the robbery.
- DHis withdrawal is ineffective as a defense to conspiracy because the crime of conspiracy was complete upon agreement.
Show answer & explanationAnswer & explanation
Correct answer: A. His withdrawal is effective as a defense to conspiracy if he also took an affirmative act to thwart the conspiracy.
Under the majority view (and Model Penal Code), withdrawal from a conspiracy requires not only communication of the withdrawal to co-conspirators but also an affirmative act to thwart the conspiracy's success. Merely communicating withdrawal and destroying one's own plans is insufficient if the conspiracy continues. The client would need to, for example, report it to the police or actively persuade others to abandon the plan.
Why the other options are wrong
- B. Communication alone is often insufficient; an affirmative act to thwart is also typically required.
- C. The organization proceeding impacts liability for the substantive crime, but an effective withdrawal could still negate conspiracy liability for the withdrawing party if all conditions are met.
- D. While conspiracy is complete upon agreement (plus an overt act in some jurisdictions), withdrawal can still be a defense to subsequent crimes or even the conspiracy itself under certain conditions.
Withdrawal from Conspiracy (Modern View)
To effectively withdraw from a conspiracy, a conspirator must communicate their withdrawal to all co-conspirators and take an affirmative act to thwart the success of the conspiracy.
- Common law often holds that withdrawal is generally not a defense to the crime of conspiracy itself, only to subsequent crimes.
- Modern/MPC view allows withdrawal as a defense to conspiracy if active steps are taken to thwart.
- Affirmative acts to thwart could include reporting to police or persuading others to abandon the plan.
- Mere cessation of participation or communication of withdrawal is typically insufficient.
Memory trick: Inchoate efforts can be stopped if you truly thwart the plan.