13. In a jurisdiction that has adopted the unilateral theory of conspiracy, is the woman guilty of conspiracy to murder the business competitor?

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.

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.

The modern trend, by contrast, follows the Model Penal Code's (MPC) «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. In jurisdictions that recognize unilateral conspiracies, therefore, it is enough that one person agrees with another person to commit a crime (and in some jurisdictions, that an overt act in furtherance of that agreement be committed). It is no defense to unilateral conspiracy that the other person was feigning agreement or acting in an undercover capacity.

The term of art «substantial step» is related to the law of attempt, not conspiracy. Some jurisdictions require an overt act in order to find the existence of a conspiracy, which is any action taken in furtherance of the conspiracy. A substantial step for attempt purposes is more serious than an overt act for conspiracy purposes and requires conduct that moves closer to the perpetration of the crime. An overt act, on the other hand, can be any action that furthers the crime, and can be legal in and of itself — e.g., legally renting a car to use as a getaway vehicle in a future crime.

Most jurisdictions do not recognize factual impossibility as a defense. Factual impossibility exists when an issue of fact makes committing the crime in question impossible to commit, even though the perpetrator intended for the crime to occur — for example, purchasing powdered sugar from an undercover police officer who claimed it was cocaine. On the other hand, legal impossibility may be a defense, and exists if the defendant's conduct would not constitute a crime regardless of her intent — for example, purchasing powdered sugar knowing that it is powdered sugar, but with the assumption that the possession of powdered sugar is illegal. In the first instance, the purchaser intended to purchase cocaine but could not do so because the substance was not really cocaine. The crime of purchasing illegal drugs still exists, however, and the purchaser bought the powdered sugar with the intent to purchase cocaine, so she still will be criminally responsible for her actions. In the latter scenario, the purchaser may have thought that purchasing powdered sugar was a crime and made the purchase with that intent, but her actions were not actually unlawful. It is legally impossible for her to have committed the crime she thought she was committing.

C is correct. The woman's agreement, intent to agree, and intent to commit the target crime, even though the man did not really intend to kill her business competitor, amount to conspiracy under the unilateral approach. And if the jurisdiction requires an overt act, paying the man $25,000 as a down payment easily would suffice as an act taken in furtherance of that conspiracy to commit murder. Because the woman believed that she had an agreement with the man that would bring about the competitor's death, a court in this unilateral conspiracy jurisdiction will find that she meets the elements and is guilty of conspiracy.

A is incorrect. The fact that the man did not really intend to kill the competitor does not make the woman any less guilty if she did enter into the agreement with that intent. A unilateral jurisdiction would recognize her agreement, intent to agree, and intent to commit the target crime. And if the jurisdiction requires an overt act, paying the man $25,000 as a down payment easily would suffice.

B is incorrect. Hiring a man to kill someone else, as the woman intended, is illegal. The fact that the man she hired really was an undercover police officer made her crime factually impossible, and therefore impossibility would not be an available defense. Regardless, neither type of impossibility exists under these facts, as the woman meets the requirements of conspiracy in a unilateral conspiracy jurisdiction. Even though the man was an undercover police officer who never actually intended to kill the business competitor, making it factually impossible for the crime to occur, the woman still will be guilty of conspiracy.

D is incorrect. The woman may have taken a substantial step when she paid the man $25,000 as a down payment, but that is not why she will be guilty of conspiracy. She will be guilty of conspiracy because she entered into an agreement with the man to kill her business competitor, with the intent to agree, and with the intent that the man would kill the competitor. If this jurisdiction requires an overt act, she meets that element as well. Attempt, and the analysis of her substantial step, is a separate crime not at issue in this question.