Wharton's Rule

Wharton's Rule: an agreement between two persons to commit an offense does not constitute conspiracy when the target offense itself requires the participation of two persons.

Examples

  • Bribery (giver + receiver):
    • A agrees with B to give B a bribe → WR applies, no conspiracy (the target crime already requires two).
    • A and C agree to bribe B → WR does not apply: three people, conspiracy possible.
  • Drug Sale (buyer + seller):
    • A agrees to sell drugs to B → WR applies, no conspiracy.
    • A agrees to sell drugs to B + C agrees to act as lookout → WR does not apply: third party makes conspiracy possible.

Bilateral Jurisdiction Wharton Test

  1. Is there an actual agreement between two culpable parties?
    • No → stop. No conspiracy.
    • Yes → proceed.
  2. Does Wharton's Rule apply?
    • Does the substantive offense require exactly two participants?
    • Are only those two involved?
      • Yes → conspiracy barred.
      • More participants → Wharton's Rule does not apply.

Where Does Wharton's Rule Apply?

  • Bilateral jurxs. — applicable, unless statutory exception.
  • Unilateral jurxs. — inapplicable to truly unilateral conspiracies (only one true conspirator); applicable to truly bilateral conspiracies (two true conspirators), unless exception.

See State v. Mendoza, 889 A.2d 153 (2005) for the doctrine in action.