Conspiracy vs. Attempt
A detailed comparison of these two criminal law rules, including key differences, exam strategies, and guidance on when to apply each.
Overview
Conspiracy and attempt are both inchoate crimes, meaning they criminalize conduct that occurs before the target offense is completed. However, they differ fundamentally in their structure, mens rea requirements, and the nature of the criminal conduct they address.
Conspiracy is an agreement between two or more persons to commit a crime, usually accompanied by an overt act in furtherance of the agreement (though some jurisdictions and the common law do not require an overt act for serious crimes). The essence of conspiracy is the agreement itself. Under the traditional bilateral approach, at least two "guilty minds" must genuinely agree to commit the crime. The Model Penal Code adopts a unilateral approach, where a defendant can be guilty of conspiracy even if the other "conspirator" is an undercover agent or feigning agreement. Once formed, a conspiracy creates ongoing liability for all co-conspirators under Pinkerton liability: each conspirator is liable for all foreseeable crimes committed by any co-conspirator in furtherance of the conspiracy.
Attempt, by contrast, is an individual's act of trying to commit a crime and failing. It requires specific intent to commit the target crime plus a substantial step toward its completion (under the MPC) or an act that comes dangerously close to completion (under the common law proximity tests). Unlike conspiracy, attempt merges with the target offense if the crime is completed, while conspiracy does not merge. This means a defendant can be convicted of both conspiracy and the completed crime, but not both attempt and the completed crime.
Key Differences
| Aspect | Conspiracy | Attempt |
|---|---|---|
| Nature of the crime | Agreement between two or more persons to commit a crime | Individual's substantial step toward committing a crime |
| Key element | The agreement itself is the actus reus | A substantial step beyond mere preparation |
| Number of actors | Requires at least two (bilateral) or one who believes there are two (unilateral/MPC) | Can be committed by a single individual |
| Merger | Does not merge with the completed crime (can be convicted of both) | Merges with the completed crime (convicted of one or the other) |
| Abandonment/withdrawal | Withdrawal can limit future liability but does not undo the conspiracy | Complete and voluntary abandonment is a defense under the MPC |
| Vicarious liability | Pinkerton liability: responsible for foreseeable crimes of co-conspirators | No vicarious liability; only responsible for own actions |
Exam Tips
Criminal law exams frequently test conspiracy and attempt together in the same fact pattern. Always analyze both. Check whether an agreement existed (conspiracy) and whether the defendant took a substantial step toward completing the crime (attempt). Remember that conspiracy does not merge, so if the target crime was completed, the defendant can be convicted of both conspiracy and the completed offense but not attempt and the completed offense. For conspiracy, address whether the jurisdiction uses the bilateral or unilateral approach, and discuss Pinkerton liability for foreseeable crimes of co-conspirators. For attempt, distinguish between the MPC substantial step test and common law proximity tests.
When to Apply Which
Apply conspiracy when two or more people agree to commit a crime and at least one takes an overt act in furtherance. Apply attempt when an individual (or group) takes a substantial step toward completing a crime but fails. The crimes can overlap: if conspirators begin executing their plan, they may be guilty of both conspiracy and attempt. The critical distinction is that conspiracy focuses on the agreement and collective action, while attempt focuses on the individual's progress toward completing the crime.