Tuesday, June 28, 2011

Conspiracy Law in Wisconsin

By John DiMotto

Not a week goes by when the media does not reference a criminal conspiracy that has been uncovered and being prosecuted. Did you ever wonder exactly what is required for criminal activity to constitute a conspiracy? Today, I would like to review Wisconsin statutory and case law regarding the law of conspiracy.

Statutory Law

Wisconsin Statutes section 939.31 addresses "Conspiracy." It sets forth that whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime, may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned. The crime of conspiracy is an inchoate crime, that is, one that has begun but not completed.

Elements of a Conspiracy - WI Criminal Jury Instruction 570

One of the best references to conspiracy law in Wisconsin is found in the Criminal Jury Instructions. It sets forth that there are three elements necessary to constitute a conspiracy. First, that a person have the intent to commit a specific crime. Second, that a person was a member of a conspiracy to commit that crime. Third, that one or more of the conspirators performed an act toward the commission of the intended crime that went beyond mere planning and agreement. It is important to note that "the act" performed need not by itself be an unlawful act or an attempt to commit the crime. However, "the act" must be a step toward accomplishing the criminal objective.

A conspiracy is a mutual understanding to accomplish some common criminal objective or to work together for a common criminal purpose. There is no need for an express or formal agreement, no need for a meeting, no need for the members of the conspiracy to all know each other. So long as the parties agreed or combined by words or actions and the person intended that the agreement be carried out, it is not necessary that the other persons intended to carry out the agreement. Wisconsin has adopted a "unilateral" approach to conspiracy.

Case Law on Conspiracy

As always, appellate decisions give trial courts and attorneys guidance as to what constitutes a conspiracy.

State v. Cavallari, 214 Wis.2d 42 (Ct. App. 1997). A conspiratorial agreement may be demonstrated by circumstantial evidence. Tacit understanding of a shared goal is sufficient.

State v. Ray, 166 Wis.2d 855 (Ct. App. 1992). It is necessary for the trial court to determine when a conspiracy begins and ends.

State v. Hecht, 116 Wis.2d 605 (1984). Each defendant need not be present at the scene of the crime, just that between all of them, all elements of the crime are done with mutual awareness of what each is doing.

State v. Sample, 215 Wis.2d 486 (1998). In a conspiracy prosecution under 939.31, you assess the subjective behavior of the defendant not the others who may be involved. 939.31 applies to both bilateral and unilateral conspiracies.

State v. Huff, 319 Wis.2d 258 (Ct. App. 2008). A unilateral conspiracy is when a person agrees to proceed in a prohibited manner. This approach assesses the subjective, individual behavior of the defendant. A criminal conspiracy will lie even where 1 of 2 alleged co-conspirators is unknown to the defendant, a cop or an informant who merely feigns participation in the conspiracy. Immateriality of con-conspirator's legal status is implicit in the unilateral approach. A bilateral conspiracy is when 2 or more persons agree to proceed in a prohibited manner. Under the inchoate crime of conspiracy under 939.31, by definition, no substantive crime is ever needed. 939.31 focuses on the subjective behavior of the individual defendant.

State v. Routon, 304 Wis.2d 489 (Ct. App. 2007). The focus of 939.31 conspiracy puts a heavy emphasis on intent. A stake in the venture is not a necessary element of conspiracy - It may be persuasive of the defendant's involvement in the crime but lack of stake in the venture does not absolve one of party to a crime liability for conspiracy.

The issue of whether withdrawal or renunciation is a defense to the inchoate crime of conspiracy under 939.31 has not been specifically addressed in Wisconsin case law. In terms of solicitation, it cannot be a defense. see State v. Boehm. 127 Wis.2d 351 9Ct. App. 1985).


Wisconsin like most other states has taken the steps to criminalize conduct that would lead to actual criminal activity. Conspiracy law has the intent to "nip criminal activity" in the bud. Conspiracy law is a pre-emptive strike against crime.

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