Jun 4, 2025

Attempt and Conspiracy

Conspiracy and Attempt in Criminal Law

Overview

Conspiracy and attempt are two distinct inchoate offenses in criminal law. Both involve criminal liability for conduct that falls short of completing the intended crime, but they are treated differently by courts and statutes.

Conspiracy

What does being charged with conspiracy mean?

Conspiracy is an agreement between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means. The crime is complete upon the agreement and, in most jurisdictions, an overt act in furtherance of the conspiracy. The underlying crime does not need to be completed for a conspiracy charge to stand.

Attempt

Attempt occurs when a person, with the intent to commit a crime, takes a substantial step toward completing that crime but ultimately does not succeed. Attempt focuses on the actions of an individual who tries but fails to complete the offense.

Relationship to Target Offenses

Do attempt and conspiracy both merge into target offenses?

Generally, attempt merges with the completed offense, meaning a defendant cannot be convicted of both attempt and the completed crime. However, conspiracy does not merge with the completed offense; a defendant can be convicted of both conspiracy and the completed crime. This distinction is important in charging and sentencing decisions.

Multiple Convictions

Can you be convicted of both conspiracy and attempt?

Yes, it is possible to be convicted of both conspiracy and attempt related to the same underlying crime. Since conspiracy is based on the agreement and attempt is based on the actions taken toward committing the crime, courts have held that these are separate offenses and do not merge.

Special Cases

What is conspiracy to attempt to possess?

While less common, a charge of conspiracy to attempt to possess involves an agreement to try to obtain possession of something unlawfully. This is a complex charge because it combines two inchoate offenses, and its viability depends on the jurisdiction and the specific facts of the case.

Attempt and Conspiracy