Bar Exam — MBE (Multistate Bar Exam)Criminal Law and ProcedureMedium
A defendant is charged with conspiracy to commit fraud. The prosecution alleges that the defendant agreed with another person to defraud an insurance company. The defense argues that the defendant never took any overt act in furtherance of the conspiracy. In a jurisdiction that requires an overt act for conspiracy, what is the most likely outcome?
- ANot guilty, because an overt act is a required element.
- BNot guilty, as the fraud was not completed.
- CGuilty, as the intent to commit fraud is sufficient.
- DGuilty, as agreement alone is sufficient for conspiracy.
Show answer & explanationAnswer & explanation
Correct answer: A. Not guilty, because an overt act is a required element.
While common law conspiracy only required an agreement, many modern statutes (and the Model Penal Code) require an overt act in furtherance of the conspiracy by any party to the agreement. If the jurisdiction requires an overt act and none occurred, the defendant cannot be convicted of conspiracy.
Why the other options are wrong
- B. Conspiracy is an inchoate crime; the underlying crime does not need to be completed for a conspiracy conviction.
- C. Intent is necessary, but not sufficient alone if an overt act is also required.
- D. This is true under common law, but the question specifies a jurisdiction requiring an overt act.
Conspiracy (Overt Act)
Many jurisdictions, and the Model Penal Code, require an overt act in furtherance of the conspiracy, in addition to the agreement and intent, for a conviction.
- Common law only required agreement and specific intent.
- The overt act can be minor and performed by any co-conspirator.
- The overt act demonstrates commitment to the illegal agreement.
Memory trick: AGREE, INTEND, and ACT for CONSPIRACY.