Inchoate Crimes

Question 1

Inchoate Crimes

Answer 1

Crimes that are committed when an intended crime (target offense) is not fully completed or accomplished. Includes, solicitation, attempt, and conspiracy.

Question 2

Merger

Answer 2

Keep in mind that if the target offense is completed or accomplished, the crimes of solicitation and attempt merge with the target offense (but the crime of conspiracy does not).

Question 3

Solicitation

Answer 3

When D requests or encourages another person to commit a criminal offense + specific intent that the solicitee commit the crime (remember that encouragement without intent is not enough).

Question 4

When is the Crime of Solicitation Completed?

Answer 4

The crime of solicitation is completed at the time the solicitation is made.

-If the solicited criminal completed the offense, merger occurs, and the solicitor is guilty as an accessory before the fact.

Question 5

What Happens When a Solicitee Attempts a Crime but is Unsuccessful?

Answer 5

Merger does not occur and solicitor would be guilty of solicitation and attempt (accessory before the fact).

Question 6

Solicitation: Request or Encourage

Answer 6

Broadly understood to include enticements, urgings, advisements, and demands.

Question 7

Solicitation: Mens Rea

Answer 7

The D must have a specific intent that the solicitee perform the target offense. Mere approval by D is not enough.

Question 8

Response by Solicited Parties

Answer 8

A solicitee does not have to respond for a solicitor to be guilty (as long as all of the elements are satisfied).

Question 9

Solicitation v. Conspiracy

Answer 9

• Keep in mind that the act of making the request amounts to solicitation.
• But if the solicitee agrees and an overt act is later committed, there is conspiracy.

Question 10

Solicitation: Protected Classes

Answer 10

A solicitor may not be guilty of the offense if they are a member of the class of persons the law seeks to protect (e.g. minor in relation to statutory rape).

Question 11

Defenses to Solicitation

Answer 11

Can include voluntary intoxication and unreasonable mistake of fact (because they negate specific intent).

Question 12

Inadequate Defenses to Solicitation

Answer 12

Include impossibility or renunciation or withdrawal.

Question 13

Attempt

Answer 13

When D specifically intended to bring about a criminal result + took a significant overt act in furtherance of that intent.

Question 14

What Happens for Attempt if the Target Offense is Completed?

Answer 14

The attempt merges into the target crime.

Question 15

Attempt: Significant Overt Act

Answer 15

Requires perpetration rather than mere preparation. Tests include the proximity test; the equivocality test; and the MPC test.

Question 16

Proximity Test

Answer 16

Looks at how close in time and physical distance a D was to the time and place the target crime was to be committed.

Question 17

Equivocality Test

Answer 17

Requires that Ds conduct to be such that it can have no other purpose than the commission of the crime attempted.

Question 18

MPC Test

Answer 18

Looks at whether the D took a step toward the offense substantial enough to corroborate the D’s criminal intent.

Question 19

Attempt: Legal Impossibility

Answer 19

Is a defense to attempt crimes

Question 20

Attempt: Factual Impossibility

Answer 20

Is not a defense (when a person intends to commit crime but present facts don’t allow it).

Question 21

Attempt: Abandonment or Withdrawal

Answer 21

Is not a defense once the attempt is complete. But a minority of jurisdictions recognize a voluntary and complete abandonment before commission of an offense.

Question 22

Attempt: Voluntary Abandonment

Answer 22

A true change of heart. Not giving up in the face of difficulties or an increased likelihood of being caught.

Question 23

Attempt: Complete Abandonment

Answer 23

The D is not merely postponing commission of the crime.

Question 24

Conspiracy

Answer 24

When one agrees with one or more other persons to commit a crime and any of the conspirators then takes an overt act in furtherance of that agreement.

Question 25

Conspiracy: Actus Reus (Agreement with Other Persons)

Answer 25

P must show that at least two people shared an intent to commit a crime (actual agreement is generally required).

Question 26

Conspiracy: Undercover Cops

Answer 26

An agreement between just one individual and an undercover cop will not support a conspiracy charge (because there is only one person there is no conspiracy).

Question 27

Conspiracy: Actus Reus (Overt Acts in Furtherance of the Agreement)

Answer 27

This element can be satisfied by an act that is itself not criminal or unlawful (but must involve perpetration rather than preparation).

Question 28

Conspiracy: Mens Rea

Answer 28

Requires both the intent to agree and the intent to achieve the objective of the agreement.

Question 29

Conspiracy: Accomplice Liability

Answer 29

If a Ds co-conspirator commits the target offense, the D will be guilty of the target offense as well (because the D aided or abetted the co-conspirator).

Question 30

Crimes of Co-Conspirator Other than Targeted Offense (Pinkerton Doctrine)

Answer 30

The Pinkerton doctrine holds that D can be liable if:

• D was a party to the conspiracy
• the offense was within the scope of the conspiracy
• the offense was committed in furtherance of the conspiracy
• the D could have reasonably foreseen the offense as a “necessary or natural consequence of the unlawful agreement”

Question 31

Conspiracy: Corporations

Answer 31

Because a corporation and its agent are considered one person, no conspiracy can exist between them (but watch out for conspiracy between agents).

Question 32

Conspiracy: The Wharton Rule

Answer 32

When a crime is so defined as to require two or more people to commit it –> a conspiracy conviction requires an additional person beyond the statute-mandated #.

Question 33

Crimes that Fall Under the Wharton Rule

Answer 33

Include:

• Dueling
• Bigamy
• Incest
• Adultery
• Gambling
• Giving and receiving bribes

Question 34

Conspiracy: Procedural Considerations

Answer 34

• It is not necessary to try more than one conspirator
• However, if all other alleged co-conspirators are acquitted of the conspiracy charge, the remaining alleged co-conspirator must be acquitted.

Question 35

Conspiracy: Protected Classes

Answer 35

A member of a class that is sought to be protected from certain conduct may avoid a conspiracy charge for engaging in that conduct.

Question 36

Conspiracy: Impossibility

Answer 36

Is not a defense.

Question 37

Conspiracy: Abandonment or Withdrawal

Answer 37

The general rule is that abandonment or withdrawal is not a defense to conspiracy if all the elements are met, but it will cut off liability for future crimes committed in furtherance of the conspiracy.

Question 38

Conspiracy: Renunciation (Minority Rule)

Answer 38

The minority rule that allows the defendant to shed liability for the conspiracy if:

• (withdrawal)- the renouncing party gives timely notice of his plans to all members of the conspiracy and
• (affirmative act)- the renouncing party performs an affirmative act to thwart the success of the conspiracy.

Question 39

Can a D Be Guilty of Both Attempt & Conspiracy?

Answer 39

Yes.