The military’s definition of conspiracy under Article 81 of the UCMJ is very similar to the definition in federal civilian law, but with one key difference. In both systems, a conspiracy is an agreement between two or more people to commit a crime. The core of the offense is the illegal agreement itself. However, the military has a broader application of the rule regarding the “overt act.”
In most civilian jurisdictions, to prove a conspiracy, the government must prove not only the agreement but also that at least one of the conspirators committed an “overt act” in furtherance of that agreement. This act can be very minor, but it is a required element. Under Article 81, UCMJ, this “overt act” element is only required if the object of the conspiracy is a non-criminal act of sedition or mutiny. For a conspiracy to commit any other offense under the UCMJ, the government does not need to prove an overt act was committed. The agreement itself is the completed crime.
This makes it easier for the military to prosecute conspiracies. The prosecutor only needs to prove beyond a reasonable doubt that an agreement was formed between the accused and at least one other person to commit a UCMJ offense. A military defense attorney will focus on attacking the evidence of the agreement itself, arguing that there was no “meeting of the minds” or that their client was merely present but did not actually agree to participate in the criminal plan.