CONSPIRACY

a. View favoring liability: In favor of finding a conspiracy in this situation, it can be argued that D knew he was serving an existing conspiracy, and he therefore had as great an evil intent, and as much willingness to act affirmatively in furtherance of that intent, as if he had made an agreement with A and B.

b. View against liability: On the other hand, since conspiracy is defined as an “agreement,” it can be argued that one aids and abets conspiracy only by aiding the act of agreement (e.g., by bringing A and B together and helping them agree on a plan), not by aiding and abetting the substantive object crime. (See L, p. 578.)

i. Unfairness: Furthermore, as the draftsmen of the Model Penal Code point out, there are so many severe implications to being treated as a member of a conspiracy (e.g., admissibility of declarations by one conspirator against another, despite hearsay rule) that it may be unfair to treat the aider and abettor as a full-fledged conspirator when he has not become part of the agreement. See Comment 2(c)(iv) to M.P.C. § 5.03. Accordingly, under the Code, the aider and abettor is liable for the substantive object crime if the conspirators commit it. But he does not become a co-conspirator merely by aiding and abetting the conspirators.

C. Parties do not agree to commit object crime: Although there must be an agreement, it is not necessary that each conspirator agree to commit the substantive object crime(s) (or “immoral act,” etc.; see infra, p. 189). A particular defendant can be a conspirator even though he agreed to help only in the planning stages. Thus in the example on p. 182), D3 would be guilty of conspiracy to commit bank robbery even though he has only agreed to obtain the getaway car, not to participate in the bank robbery itself.

D. Feigned agreement: Suppose A and B verbally agree with each other that they will rob a bank, but B is secretly an undercover agent, and never has any intention of committing the robbery (and in fact plans to have A arrested before he can go much further). In this situation, has the requirement of an “agreement” been met?

1. Traditional view that there is no conspiracy: The traditional common-law view is that there is no agreement, and therefore no conspiracy.

2. Modern view allows conspiracy finding: Modern courts, however, generally hold that despite the lack of subjective intent on the part of one conspirator to carry out the object crime, the other party may nonetheless be convicted of conspiracy.

Example: D agrees with his cousin that the two of them will murder D’s mother. The cousin turns D into the police, and testifies at D’s conspiracy trial that he, the cousin, never had any intention of carrying out the plan. Held, D was properly convicted. “[A] man who believes he is conspiring to commit a crime and wishes to conspire to commit a crime has a guilty mind and has done all in his power to plot the commission of an unlawful purpose,” even if the other party has no intention of cooperating. State v. St. Christopher, 232 N.W.2d 798 (Minn. 1975).