BAR FLASHCARDS - Crim L 4 - inchoate
Clasification of Crimes Chart
Was the crime committed prior to or in preparation for a more serious offense?
YES: Soliciation, attempt, conspiracy
No:
Was the crime committed against property or a person?
Property: Was the crime against the habitation
Person:
[page 28 of CMR]
Inchoate Offenses
Inchoate means INCOMPLETE.
Three Inchoate offenses:
Conspiracy
Attempt
Soliciation
CONSPIRACY: Elements of conspiracy
- Agreement between 2 or more persons.
- Intent to enter into agreement
- Intent to achieve unlawful objective. The object of the conspiracy must be criminal or the achievement of the lawful object by criminal means.
- Overt act required by majority of states (but NOT in common law), but an act of mere preparation will suffice.
Elements of Conspiracy
A conspiracy requires (1) an agreement between two or more persons; (2) an intent to enter into the agreement; and (3) an intent by at least two persons to achieve the criminal objective of the agreement.
The object of the conspiracy must be criminal or the achievement of the lawful object by criminal means.
Unlike the common law, a majority of states require an overt act, but an act of mere preparation will suffice.
For conspiracy, there must be intent to pursue…
Intent to pursue an UNLAWFUL OBJECTIVE
Elements of Conspiracy: Agreement Requirement
REQUIREMENT: - Agreement between 2 or more persons.
The parties must agree to accomplish the same objective by mutual action.
However, the agreement need not be express; it may be inferred from joint activity.
Requirement of Two or More Parties: A critical issue to look for is whether the jurisdiction follows the unilateral or common law approach to the two-party requirement for conspiracy.
Modern Trend—“Unilateral” Approach: ONLY 1 Party must have Criminal INTENT.
The modern trend follows the M.P.C.’s “unilateral” approach to conspiracy, which requires that only one party have genuine criminal intent.
Accordingly, under the unilateral approach, a defendant can be convicted of conspiracy if they conspire with one person only and that person is a police officer working undercover.
Traditional Rule—“Bilateral” Approach: At common law, a conspiracy requires at least two “guilty minds,” that is, persons who are actually committed to the illicit plan.
Under this “bilateral” approach, if one person in a two party agreement is only feigning agreement, the other party cannot be convicted of conspiracy.
Wharton Rule: Under the Wharton Rule, where two or more people are necessary for the commission of the substantive offense (for example, adultery, dueling), there is no crime of conspiracy unless more parties partici- pate in the agreement than are necessary for the crime (for example, because it takes two people to commit adultery, it takes three people to conspire to commit adultery).
Necessary Parties Not Provided For: The Wharton Rule does not apply to agreements with “necessary parties not provided for” by the substantive offense; both parties may be guilty of conspiracy even though both are necessary for commission of the substantive offense. For example, if a state statute prohibits the sale of narcotics and imposes criminal liability on the seller only, both the buyer and seller can be guilty of conspiracy to sell narcotics—even though both parties are necessary for commis- sion of the substantive offense.
Agreement with Person in “Protected Class”: If members of a conspiracy agree to commit a crime designed to protect persons within a given class, persons within that class cannot be guilty of the crime itself or of conspiracy to commit that crime. Likewise, the nonprotected person cannot be guilty of conspiracy if the agreement was with the protected person only.
Effect of Acquittal of Some Conspirators: Under the traditional view, the acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant. In some jurisdictions following the traditional view, a conviction for conspiracy against one defendant is allowed to stand when the alleged co-conspirator is acquitted in a separate trial.
Acquittal of some conspirators
Effect of Acquittal of Some Conspirators: Under the traditional view, the acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant. In some jurisdictions following the traditional view, a conviction for conspiracy against one defendant is allowed to stand when the alleged co-conspirator is acquitted in a separate trial.
If the defendant and others allegedly conspired and only the defendant is charged and tried (for example, the other parties are not appre-
hended or not prosecuted), the defendant can be convicted. But if the defendant is charged and tried and all the others have been acquitted, the defendant cannot be convicted. (The acquittals show that there was no one with whom the defendant could conspire.)
Conspiracy: Mental State
Mental State—Specific Intent: Conspiracy is a specific intent crime. Parties must have: (1) the intent to agree and (2) the intent to achieve the objective of the conspiracy. (the criminal objective)
Overt act for conspiracy
- not required at common law, At common law, the conspiracy was complete when the agreement with the requisite intent was reached.
- Required by most states. The majority rule, followed by most states, is that an overt act in furtherance of the conspiracy must be performed. Even a MERE ACT of PREPARATION, that is good enough.
If you are operating under the majority rule that requires an agreement plus an overt act, any little act can be an overt act in further- ance of the conspiracy, even an act of mere preparation.
Termination of Conspiracy
The point at which a conspiracy terminates is important because acts and statements of co-conspirators are admissible against a conspirator ONLY if they were done or made in furtherance of the conspiracy.
A conspiracy usually terminates upon completion of the wrongful objective.
Unless agreed to in advance, acts of concealment are not part of the conspiracy.
Note also that the government’s defeat of the conspiracy’s objective does not automatically terminate the conspiracy.
Liability for Co-Conspirators’ Crimes
A conspirator may be held liable for crimes committed by other conspirators if the crimes
(1) were committed in furtherance of the objectives of the conspiracy and
(2) were foreseeable.
Defenses to Conspiracy.
a. Factual Impossibility: Factual impossibility is not a defense to conspiracy.
b. Withdrawal: Generally, withdrawal from the conspiracy is not a defense to the conspiracy, because the conspiracy is complete as soon as the agreement is made and an act in furtherance is performed.
Withdrawal may be a defense to crimes committed in furtherance of the conspiracy, including the substantive target crime of the conspiracy.
This means the defendant can withdraw from liability for the other conspirators’ subsequent crimes, but the defendant cannot withdraw from the conspiracy itself.
Withdrawal from conspiracy
NOT a defense to the conspiracy. withdrawal from the conspiracy is not a defense to
the conspiracy, because the conspiracy is complete as soon as the agreement is made and an act in furtherance is performed
May be a defense to crimes commited in furtherance of the conspiracy, including the substantive target crime.
This means the defendant can withdraw from liability for the other conspirators’ subsequent crimes, but the defendant cannot withdraw from the conspiracy itself.
Conspirator must perform affirmatrive act that notifies co-conspirators of withdrawal in time for them to abandon plans.
When is When Withdrawal Effective for a conspiracy?
To withdraw, a conspirator must perform an affirmative act that notifies all members of the conspiracy of their withdrawal.
Notice must be given in time for the members to abandon their plans.
If the conspirator has also provided assistance as an accomplice, they must try to neutralize the assistance.
A conspiracy is complete upon…
Remember that a conspiracy is complete upon the agreement with the requisite intent and an overt act.
Since the overt act can be a preparatory act, the conspiracy is usually complete very soon after the agreement.
If the crime is complete, the defendant is guilty of conspiracy—even if the facts show that they had second thoughts, told their co-conspirators that they were backing out, warned the police, hid the weapons, etc.
These actions come too late; the defendant is guilty of conspiracy. (Such actions may relieve the defendant of criminal liability for their co-conspirators’ acts after this withdrawal, but they have no effect on the crime of conspiracy.)
