Criminal Conspiracy - intent and proving intent.pdf - College of William Mary Law School William Mary Law School Scholarship Repository Faculty

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College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 1976 Criminal Conspiracy: The State of Mind Crime - Intent, Proving Intent, Anti-Federal Intent Paul Marcus William & Mary Law School , [email protected] Copyright c 1976 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. Repository Citation Marcus, Paul, "Criminal Conspiracy: The State of Mind Crime - Intent, Proving Intent, Anti-Federal Intent" (1976). Faculty Publications. Paper 557.
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CRIMINAL CONSPIRACY: THE STATE OF MIND CRIME-INTENT, PROVING INTENT, AND ANTI-FEDERAL INTENTt Paul Marcus* I. INTRODUCTION The crime of conspiracy, unlike other substantive or inchoate crimes, deals almost exclusively with the state of mind of the defendant. Although a person may simply contemplate committing a crime without violating the law, the contemplation becomes unlawful if the same criminal thought is incorporated in an agreement. The state of mind element of conspiracy, however, is not concerned entirely with this agreement. As Dean Harno properly remarked 35 years ago, "The conspiracy consists not merely in the agreement of two or more but in their intention." 1 That is, in their agreement the parties not only must understand that they are uniting to commit a crime, but they also must desire to complete that crime as the result of their combination. Criminal conspiracy, therefore, involves two distinct states of mind. The first state of mind prompts the conspirators to reach an agreement; the second relates to the crime that is the object of the agreement. Because the crime of conspiracy is "so predominately mental in compos- ition,"2 many of the significant issues which arise in conspiracy cases revolve around this dual state of mind requirement. These issues include defining the states of mind, estabUshing the existence of the states of mind from certain sorts of conduct, and identifying the particu- lar states of mind required for federal convictions. This article will discuss these issues in detail providing an analysis which draws heavily from prosecutions in which the problem arose. The approach here is theoretical and pragmatic, for conspiracy, with its contradictory and © 1976 by Paul Marcus. t The author currently is pursuing a broad study of the crime of conspiracy under a grant from the National Science Foundation and a supplemental grant from the University of Illinois Program in Law and Society. This study, to be published later this year, deals in detail with the basic con- cept of conspiratorial agreement and current prosecutorial practices. * Assistant Professor of Law, University of Illinois. A.B. 1968, J.D. 1971, University of California Los Angeles.
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