10. Should the court grant the woman's motion to dismiss the conspiracy charge against her?

At common law, the elements of conspiracy include: (i) an agreement between two or more persons; (ii) an intent to enter into an agreement; and (iii) an intent to achieve the objective of the agreement. Under the traditional definition of conspiracy, the agreement itself was the culpable act (the actus reus). Today, a majority of states require an overt act in furtherance of the conspiracy, but mere preparation will usually suffice.

The modern trend follows the MPC's «unilateral» approach to conspiracy, which requires that only one party have genuine criminal intent. Accordingly, under the unilateral approach, a defendant can be convicted of conspiracy if he conspires with one person only and that individual is an undercover law enforcement agent.

At common law, a conspiracy requires at least two «guilty minds,» i.e., persons who are actually committed to the illicit plan. Under this «bilateral» approach, one person in a two-party agreement is only feigning agreement, the other party cannot be convicted of conspiracy.

One may be guilty of conspiracy even if the other party to the criminal agreement is acquitted, or is not charged at all, or even if that person's identity is unknown. In the latter case, the prosecutor just has to prove that the defendant knew that someone else was involved in the criminal enterprise and was a functional part of the conspiracy. MPC § 5.03(2) supports this notion, stating that one may be ". .. guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime."

A is correct. Because the woman, in this case, agreed to help the diplomat burglarize the store, the diplomat's defense will not negate any element of the woman's crime of conspiring to commit burglary, and the court should deny her motion to dismiss.

B is incorrect. The woman would not be entitled to dismissal even if she knew of the diplomat's status. The diplomat's capacity to be convicted of the crime would be irrelevant to the woman's possible conviction in a jurisdiction that has adopted the unilateral view of conspiracy set out in the MPC.

C is incorrect. The jurisdiction follows the MPC, and therefore, a conspiracy in this jurisdiction does not require two guilty participants.

D is incorrect. As explained above, under the MPC approach, a defendant may be convicted of conspiracy if she agrees with another person that a crime be committed with the intent that the crime takes place, regardless of the intent, conviction, or charge of the other person. While it may be true that, but for the diplomat befriending the woman and explaining how she could enter the jewelry store, no conspiracy would have occurred, this is irrelevant to whether the woman voluntarily agreed to burglarize the store with the requisite intent.

Note: A defendant may be able to assert entrapment as a defense to a criminal charge, which, under MPC § 2.13(1), requires a law enforcement agent to induce or encourage someone to commit a crime when that person is otherwise unlikely to commit the offense. But in this case, a diplomat is not a public law enforcement official, and even if he were, no given facts support that the diplomat entrapped the woman. On the contrary, he solicited her to commit burglary without any evidence of falsely representing that the burglary was not actually prohibited. Further, no facts suggest that he used «methods of persuasion» that created a «substantial risk» that the woman would commit the burglary despite not being ready to do so before he approached her. He only befriended her and explained how she could get into the store before she agreed to help him commit the burglary, so entrapment would not be available to the woman as a defense here.