Inchoate Offenses

Question 1

What are the three inchoate offenses?

Answer 1

Solicitation, Attempt, Conspiracy

Question 2

A conspiracy requires:

Answer 2

(1) an agreement between two or more;
(2) an intent to enter into the agreement; and
(3) an intent by at least two persons to achieve the objective of the agreement.

Question 3

Modern Unilateral Approach to the two-party requirement for conspiracy

Answer 3

MPC’s “unilateral” approach requires only that one party have genuine criminal intent.

Defendant can be convicted of conspiracy if they conspire with one person only and that person is a police officer working undercover.

Question 4

traditional bilateral approach to the two-party requirement for conspiracy

Answer 4

Requires two guilty minds. If one person in a two party agreement is only pretending to agree, the other party cannot be convicted of conspiracy.

Question 5

What is the Wharton Rule?

Answer 5

Where two or more people are necessary for the commission of the substantive offense, there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime.

Question 6

Mental State of Conspiracy

Answer 6

Parties must have: (1) the intent to agree and (2) the intent to achieve the objective of the conspiracy.

Question 7

Overt Act

Answer 7

At common law, conspiracy is finished when the agreement with the requisite intent is reached. The majority rule, followed by most states, is that an act in furtherance of the conspiracy must be performed.

If you are operating under the majority rule that requires an agreement plus an overt act, any little act can count even just mere preparation.

Question 8

When does a conspiracy usually terminate?

Answer 8

Upon completion of the wrongful objective.

Question 9

A conspirator may be held liable for crimes committed by other conspirators if the crimes:

Answer 9

(1) were committed in furtherance of the objectives of the conspiracy and
(2) were foreseeable.

Question 10

Is factual impossibility a defense to conspiracy?

Answer 10

No.

Question 11

Is withdrawal from a conspiracy a defense?

Answer 11

Generally no. Withdrawal MAY be a defense to crimes in furtherance of the conspiracy, including the substantive target crime of the conspiracy.

To withdraw effectively, a conspirator must perform an affirmative act that notifies all members of the conspiracy of their withdrawal.

Question 12

Is there merger in the punishment for conspiracy?

Answer 12

No, conspiracy and the completed crime are distinct offenses and a defendant may be convicted of and punished for both.

Question 13

Solicitation Elements

Answer 13

Consists of asking, inciting, counseling, advising, urging or commanding another to commit a crime, with the intent that the person solicited commit the crime. It is not necessary that the person solicited agree to commit the crime.

Question 14

Solicitation Defenses

Answer 14

Most jurisdictions = not a defense that the solicitor renounces or withdraws the solicitation.

MPC recognizes renunciation as a defense if the defendant prevents the commission of the crime, such as by persuading the person solicited not to commit the crime.

Question 15

Solicitation Merger

Answer 15

The solicitor cannot be punished for both the solicitation and these other offenses.

Question 16

What are the attempt elements?

Answer 16

Requires: (1) specific intent plus (2) an overt act in furtherance of the crime.

Question 17

Overt Act for Attempt

Answer 17

Defendant must commit an act beyond mere preparation. Traditionally, most courts followed the proximity test.

Today most states and the MPC require that the act of omission constitute a substantial step in the course of conduct.

Question 18

Is abandonment an attempt defense?

Answer 18

NOT a defense at common law.

The MPC provides that a fully voluntary and complete abandonment is a defense.

Question 19

Is factual impossibility a defense to attempt?

Answer 19

No.