A plot happens when two or more individuals are unlawful and take action towards its fulfillment. Conspiracy is an inchoate offense since it involves no completion of the criminal act. For example, even though there is no real burglary, a group of people may be accused of conspiracy to commit burglary. Employment is special, too, since unlike attempts, both plot to commit a crime, and the crime itself could be convicted by an accused once the crime is done.


When two or more persons agree to do or cause to be done –

  • an illegal act or

  • an act which is not illegal by illegal means such an agreement is designated criminal conspiracy;

provided that no agreement except an agreement to commit an offense shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.


It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object.

Conspiracy requires a first demonstration of the approval of two or more individuals. It is not a formal or written agreement. All that is needed is a shared agreement of the parties for the execution of an illegal scheme. Second, the special purpose of all conspirators should be to commit the plot goal. This means that nobody can be charged with conspiracy if you are totally unaware that you are involved in a crime. For example, if two of the sisters agree to rob a bank and ask their brother to deliver it to the bank, he will not be charged with conspiring in robbery without telling it of their intent to commit a crime. This particular reason

Finally, in most states, conspiracy requires an “overt act” taken in furtherance of the crime. This overt act does not have to be the crime itself, nor does it have to be an act that is illegal. Rather, the act must merely be a step taken in furtherance of the criminal objective, such as buying a weapon or holding a meeting to plan an attack. The act must also take place after the group of individuals has agreed to conspire. Actions taken before the agreement do not fulfill this requirement. While an “overt act” implies an affirmative action, some courts have held that silence can be an overt act where it is intentional, planned, and done in furtherance of the conspiracy.


Conspiracy arises and an offense is committed as soon as an agreement is made and the offense continues to be committed as long as the combination persists, viz., until the conspiratorial agreement is terminated by the completion of its performance or by abandonment or frustration, or due to some other cause.


Whoever is a party to a criminal conspiracy to commit an offense punishable with death, imprisonment for life or rigorous imprisonment for a term of two years, or upwards shall where no express provision is made in this code for the punishment of such a conspiracy be punished in the same manner as if he had abetted such offense.

Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offense punishable aforesaid shall be punished with imprisonment of either description for a term not exceeding six months or with fine or with both.

Under South Carolina law, there is really only one element necessary to prove the conspiracy: the “agreement.” However, it is useful to speak in terms of three sub-elements:

To achieve a criminal/unlawful object or to use a criminal/unlawful means

Once the agreement/understanding is reached, the crime has been committed and no further acts in furtherance of the conspiracy are needed. As one court phrased it: “The gist of the crime is the unlawful combination. The crime is then complete …” Lee v. Chesterfield General Hospital, Inc., 344 SE 2d 379 (S. Car. App. 1986). Any acts taken in furtherance of the conspiracy are considered to be evidence of the existence of the conspiracy, its object, and scope.

A case that illustrates the legal principles is State v. Buckmon, 555 SE 2d 402 (S. Car. Supreme Court 2001). That case involved the murder of an employee of a Chinese restaurant. The victim was found in her car with a gunshot wound to her chest.

The defendant — Buckmon — was charged with murder, attempted robbery, and criminal conspiracy. There was no direct evidence of Buckmon’s involvement. The key pieces of circumstantial evidence were these:

Buckmon and the two alleged co-conspirators were together at an apartment on the night of the murder

Buckmon and the two others left together at around 10:00 p.m. and went in the direction of the China Express restaurant

A witness testified that three people were seen running in the direction of the restaurant at about 10:00 p.m.

One witness (Temetrius) who drove the three conspirators around on the night in question said that “they” discussed “getting some cheese” — meaning money — in front of Temetrius; “they” included Buckmon

Another witness (Walker) testified that, while at the apartment, “they” talked about “getting a lick” — meaning doing a robbery — in front of Walker; they included Buckmon

Based on this evidence, Buckmon was convicted on all three counts. The South Carolina Supreme Court reversed the convictions for murder and attempted robbery. The Court stated that none of the evidence presented by the State placed the appellant at the scene of the crime and the evidence merely raised suspicion of guilt with respect to the murder and attempted robbery charges. However, the evidence was sufficient to support the charge of criminal conspiracy.


Like other inchoate crimes such as attempts, a defendant charged with conspiracy can raise the defense of abandonment or withdrawal. In order to do so, a defendant must show that he affirmatively communicated his withdrawal to his co-conspirators and took some positive action to withdraw from the conspiracy. Additionally, the defendant must have withdrawn from the conspiracy prior to its completion. Importantly, the defendant must have definitively cut ties with his fellow co-conspirators. If he continues to communicate with them or assist them in any way, this may prevent him from raising the defense of withdrawal.

Another defense available in conspiracy cases is the defense of entrapment. Entrapment means that the defendant was persuaded to participate in the conspiracy by a law enforcement officer or government agent and that he or she would not otherwise have become involved in the conspiracy.

Specifically, the defendant must show that the idea for the conspiracy came from an officer and not the defendant; the defendant was persuaded to participate in the conspiracy by an officer and before being persuaded, the defendant had no intention of committing the crime.

Both federal law and state law define the crime of conspiracy. Whether a person is charged under federal or state law depends upon the specific circumstances. Often, the federal government will prosecute persons allegedly involved in a conspiracy that spans multiple states, whereas a state government will generally handle matters that are entirely contained within its borders. If the crime underlying the conspiracy is a federal crime, this too may lead to federal, rather than state, prosecution.


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