Also known as: overt acts requirement · overt act requirements · overt act · overt acts
Written by attorneys · grounded in primary & secondary sources — see below
A statutory or common-law rule requiring proof of an act in furtherance of a conspiracy or attempt beyond mere agreement or preparation. The rule varies by jurisdiction and offense. At common law conspiracy is complete upon agreement alone while the Model Penal Code demands an overt act for lesser felonies. For attempt the act must advance dangerously close to completion under the proximity test.
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Octavia Okonkwo and Odin Obeng met and agreed to burn a rival warehouse. They formed the plan but took no further steps before arrest. Under the traditional common law definition the agreement itself supplies the actus reus so the prosecution need not prove any additional overt act.
Odilia Okamura and Opal Okoro agreed to commit misdemeanor theft by shoplifting. No further conduct occurred. Because the target crime is not a first- or second-degree felony the prosecution must allege and prove an overt act by one of them to secure a conspiracy conviction.
Owen Ortega bought gasoline and rags then drove to the rear of a vacant building he intended to burn. Police stopped him in the alley before he exited the car or approached the structure. The conduct remained too remote from actual ignition so it did not satisfy the proximity test for an overt act constituting attempt.
Oscar Ortiz purchased and mixed chemicals for an arson attempt then carried the container toward the target building. He later abandoned the plan and dumped the mixture. Once the carrying crossed the line from preparation to an overt act constituting attempt the subsequent withdrawal supplied no defense.
Octavia Okonkwo and Odin Obeng reached an express understanding to falsify records. They shook hands on the plan but performed no further steps. At common law the conspiracy became complete upon the agreement with the requisite intent and the doctrine imposed no requirement of an overt act in furtherance.
Odilia Okamura and Opal Okoro formed an agreement to commit insurance fraud and one of them later created an altered report file. Odilia then attempted to withdraw before any filing occurred. The offense was already complete upon the agreement and any required overt act so the later withdrawal supplied no defense.
No. At common law the agreement itself constitutes the culpable act and the prosecution need not prove any additional overt act. The offense is complete once the parties reach the agreement with the requisite criminal intent.
Supporting sources
The Model Penal Code requires an overt act for conspiracy to commit any crime other than a felony of the first or second degree. The act may be performed by the defendant or by a person with whom the defendant conspired.
…233. On the other hand, the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for "even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions." Braunfeld v.…
…"On the other hand, the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions.' Braunfeld v.…
…31 Illinois, 385, 392, the court, speaking by Chief Justice Breese, said: "Sanity is an ingredient in crime as essential as the overt act, and if sanity is wanting there can be no crime, and if the jury entertain a reasonable doubt on the question of insanity, the prisoner is entitled to the benefit of the doubt. We wish to…
…in view of the court’s conception of the case. Moreover, the effect of the court’s misconception extended also to the proof of overt acts
…745 , decided by the Circuit Court of Appeals for the Third Circuit. A single conspiracy was charged and proved. Some of the overt acts
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The defendant's conduct must come dangerously close to successful completion of the substantive offense. Preparatory acts such as traveling to the area or acquiring materials remain insufficient if substantial steps toward the crime are still undone.
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No. Under the majority and traditional common law rule abandonment supplies no defense once the defendant has crossed the line from mere preparation to the commission of an overt act constituting an attempt.
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No. At common law the offense is complete once the parties form the unlawful agreement and in jurisdictions that require it once any conspirator commits an overt act. Subsequent withdrawal supplies no defense.
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