Wharton Rule (Legal Definition And How It Works)

What is the Wharton Rule?

How is it applied in criminal defendants? 

What are the essential elements you should know!

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The Wharton Rule 

What is the Wharton Rule?

The Wharton Rule (or Wharton’s Rule), in American criminal law, is a rule prohibiting the prosecution of two individuals for conspiracy to commit an offense when the offense can only be committed by the involvement of at least two individuals. 

Conspiracy under common law is an agreement between two or more persons formulating an “intent” to commit an office and achieve a criminal objective.

If you necessarily need at least two or more persons to commit a criminal offense, then the offenders cannot be prosecuted on “conspiracy” but should be charged as a culpable agent.

This rule is named after Francis Wharton who was an American lawyer and criminal law author.

Francis Wharton was the person who expressly formulated this rule.

Thus, today, the rule bears his name.

Wharton’s Rule applies to criminal offenses that require a “concerted” or “coordinated” criminal activity among many offenders.

For example, if bigamy is a crime.

To commit the criminal act of bigamy, you necessarily need at least three individuals.

For there to be two simultaneous marriages, you need at least one married couple along with one of the married couples to get married to a third individual.

Wharton Rule Criminal Law

What does the Wharton Rule mean in criminal law?

Typically, a criminal defendant can be accused of both the substantive crime and the conspiracy to commit that crime.

However, the Wharton Rule brings an exception to that in an attempt to avoid double jeopardy.

In essence, the rule of Wharton states that two offenders cannot be prosecuted for “conspiracy” to commit an offense when they both needed to actively contribute to the commitment of the offense.

In the case Iannelli v. United States, 420 U.S. 770, 773-74 n. 5 (1975), the court states that the Wharton Rule is “an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission.”

For example, if two individuals directly agree to commit a punishable offense or a criminal act, they cannot be prosecuted for conspiracy to commit that act when the contribution of both was required to commit the wrongdoing.

There can be no acts of conspiracy when the culpable actors needed to work in concert with one another or had agreed to commit the offense.

Non Application

Wharton’s Rule does not apply when you do not need a concerted criminal activity to commit the offense.

For example, using drugs or distributing drugs does not necessarily require a concerted effort to commit the offense.

In addition, the rule of Wharton does not apply when there are more people who cooperate to commit an offense when the number of actors are greater than what is required for the commission of the substantive offense.

Wharton’s Rule Example

What are some examples of criminal acts covered by the Wharton Rule?

For criminal acts that require multiple offenders to commit the offense, the offenders cannot be charged and prosecuted for consipracy to commit that act.

Here are some examples of instances where it will require more than one person to commit the criminal act:

• Adultery 
• Bigamy
• Dueling 
• Pandering 
• Gambling 
• Bribing 
• Contrabanding 
• Incest 
• Prostitution 

Takeaways 

So what is the legal definition of the Wharton Rule?

Let’s look at a summary of our findings.

Wharton Rule:

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