Bar Exam — MBE (Multistate Bar Exam)Criminal Law and ProcedureHard
A defendant is charged with conspiracy to commit arson. The prosecution presents evidence that the defendant agreed with an accomplice to burn down a rival business. As part of the agreement, the defendant purchased gasoline and matches, and the accomplice surveyed the business for entry points. The prosecutor also presents evidence that the defendant, on his own, bought a new lighter. In a jurisdiction following the common law rule for conspiracy, which of the following is true regarding the overt act requirement?
- AThe purchase of a new lighter by the defendant, on his own, is insufficient to satisfy the overt act requirement.
- BAn overt act is not required for conspiracy at common law.
- CThe surveying of the business by the accomplice is insufficient alone to satisfy the overt act requirement for the defendant.
- DThe purchase of gasoline and matches by the defendant satisfies the overt act requirement.
Show answer & explanationAnswer & explanation
Correct answer: B. An overt act is not required for conspiracy at common law.
At common law, the crime of conspiracy was complete upon the formation of the agreement to commit an unlawful act; no overt act in furtherance of the conspiracy was required. The requirement for an overt act is a statutory addition in many modern jurisdictions and under the Model Penal Code.
Why the other options are wrong
- A. Again, at common law, *no* overt act is required. If it were required, even a minor act like buying a lighter could suffice, but the premise of the question is common law where it's not needed.
- C. At common law, *no* overt act is required, so the sufficiency of the accomplice's act is moot in this context.
- D. While this would satisfy the overt act requirement in jurisdictions where it exists, it's not a *requirement* at common law.
Conspiracy (Common Law Overt Act)
At common law, the crime of conspiracy required only an agreement between two or more persons to commit an unlawful act, without any additional overt act in furtherance of the agreement.
- Agreement is the actus reus at common law.
- Mens rea is specific intent to enter agreement and achieve unlawful objective.
- Many modern statutes and the MPC add an overt act requirement.
Memory trick: Agree, Intent, Overt (sometimes): The Conspiracy Formula.