The Agreement

Fundamentals of Criminal Law by Adam J. McKee

In the business world, agreements are often clear-cut and formalized through legally binding contracts. These contracts specify the responsibilities, roles, and obligations of each party, offering concrete evidence of an agreement. In contrast, the crime of conspiracy usually doesn’t involve such explicit agreements. Rarely do individuals draft formal contracts to outline their illicit plans. As a result, proving the core element of a conspiracy charge—an agreement to commit a crime—becomes a complex and nuanced task for prosecutors.

Circumstantial Evidence as a Key Tool for Prosecutors

Given the lack of formal agreements, prosecutors typically rely on circumstantial evidence to demonstrate that an agreement existed. Circumstantial evidence consists of facts or circumstances from which one can infer other connected facts that are logically implicated. In the context of conspiracy, this might include text messages discussing the plan, witness testimonies describing a secret meeting, or even evidence showing that the conspirators gathered the tools necessary for committing the crime.

Sometimes even conduct can imply an agreement; for instance, if two people are found together with burglary tools near a building that’s later broken into, a prosecutor might argue that their conduct implies a conspiracy to commit burglary.

Challenges and Ethical Considerations

The use of circumstantial evidence to prove an agreement poses ethical and legal challenges. On one hand, circumstantial evidence can sometimes be the only way to hold conspirators accountable, especially when the conspiracy is deeply covert. On the other hand, heavy reliance on circumstantial evidence increases the risk of wrongful convictions. A text message taken out of context or an innocent gathering of individuals might be misconstrued as evidence of a conspiracy, posing ethical concerns about the right to a fair trial and just conviction.

The Unique Nature of Conspiracy Agreements

In essence, the “agreement” in conspiracy charges is unlike any other form of agreement recognized in other areas of law. It’s often nebulous, informal, and proved through indirect means. This makes the charge of conspiracy uniquely challenging for both prosecutors and defense attorneys. Prosecutors must weave together disparate threads of evidence to convincingly portray an agreement to commit a crime, while defense attorneys often focus on poking holes in these narratives, arguing that the evidence is insufficient to prove beyond a reasonable doubt that their client agreed to participate in a criminal enterprise.

Modification History

File Created:  07/12/2018

Last Modified:  09/13/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License


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