The Overt Act

Fundamentals of Criminal Law

Adam J. McKee, Ph.D.

Jack Brown, Ph.D.

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Most states and the federal statute now require proof of an overt act in furtherance of the conspiracy.  The overt act requirement is satisfied by even an insignificant act that is far removed from the commission of a crime. As Justice Oliver Wendell Holmes observed, “The essence of the conspiracy is being combined for an unlawful purpose—and if an overt act is required, it does not matter how remote the act may be from accomplishing the purpose if done to effect it. . . .” In past cases, attending a meeting of the Communist Party was considered to constitute an overt act in furtherance of a Communist conspiracy to overthrow the United States government, and purchasing large quantities of dynamite satisfied the overt act requirement for a conspiracy to blow up a school building.  

In other cases, the overt act has been satisfied by observing the movements of an intended kidnapping victim or by purchasing stamps to send poison through the mail.  An overt act by any party to a conspiracy is attributed to every member and provides a sufficient basis for prosecuting all the participants. The requirement of an overt act is intended to limit conspiracy prosecutions to agreements that have progressed beyond the stage of discussion and that therefore present a social danger.

Modification History

File Created:  07/13/2018

Last Modified:  07/13/2018

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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