Inchoate Crimes

Question 1

What are the inchoate criminal offenses?

Answer 1

1) Solicitation
2) Conspiracy
3) Attempt

Question 2

What are the elements of criminal solicitation?

Answer 2

Solicitation =

1) asking someone to commit a crime;
2) with the specific intent that the crime be committed

NOTE: the crime is the ASKING; it doesn’t matter whether the other person agrees/completes the crime

Question 3

What are the elements of conspiracy?

Answer 3

Conspiracy =

1) the specific intent to enter into an agreement (with 1 or more other people) to commit a crime; AND
2) The specific intent is with respect to
(i) entering the agmt; AND
(ii) accomplishing the objectives of the conspiracy
* * NOTE: can be proven INDIRECTLY by conduct that is a “concert of action” torwards a common goal

2) an overt act in furtherance of the crime
* * ANY overt act, even preparatory, performed by ANY of the co-conspirators is sufficient

**NOTE: completion is NOT necessary; the agreement ALONE is suffiicent

Question 4

Is it possible to have a one-person conspiracy?

NOTE: NY Distinction

Answer 4

Common law rule = NO!
There must be at least 2 guilty minds (bilateral approach)

NOTE: If the other parties to the agreement are acquitted, the last remaining ∆ CANNOT be convicted

NY DISTINCTION = YES!
A ∆ may be guilty of conspiracy EVEN IF the other parties are acquitted or were just pretending to agree (the unilateral approach)

Question 5

What is the Wharton rule?

Answer 5

When two or more people are NECESSARY for the commission of the substantive offense, there is NO CONSPIRACY unless MORE parties participate in the agreement than are necessary for the crime

NOTE: NY follows the Wharton rule

Question 6

What is the rule for vicarious liability with respect to conspiracy?

NOTE: NY Distinction

Answer 6

Common law (“Pinkerton”) rule = In ADDITION to the conspiracy, a ∆ will be liable for OTHER crimes committed by his co-conspirators, SO LONG AS those crimes:

1) were committed in furtherance of the conspiracy; AND
2) were foreseeable

NY DISTINCTION: NO vicarious liability for one who merely conspires and DOES NOT particpate in the crime commited by a co-conspirator

Question 7

Is impossibility ever a defense toconspiracy?

Answer 7

NO! Impossibility (factual or legal) is NEVER a defense to a charge of conspiracy

Question 8

What are the elements of attempt?

NOTE: NY Distinction

Answer 8

Attempt =

1) An overt act BEYOND mere preparation; Substantial step test = conduct that constitutes a substantial step towards the completion of the crime is sufficient (provided the conduct strongly corroborates the actor’s criminal purpose)

NY DISTINCTION = proximity test = conduct that gets dangerously close to the commission of the crime

2) w/ the specific intent to commit the underlying crime You CANNOT attempt UNINTENTIONAL crimes, so NO attempt for (i) recklessness crimes; (ii) negligence crimes; OR (iii) felony murder

NOTE: transferred intent does NOT apply to attempt crimes

Question 9

Is impossibility a defense to attempt?

NOTE: NY Distinction

Answer 9

Maybe…

1) Legal impossibility = if the ∆, having completed ALL the acts that he intended PLUS having full information abt the facts DIDN’T commit a crime

** Legal impossibility IS a defense to attempt

** NY DISTINCTION: Legal impossibility is NOT a defense to attempt in NY

2) Factual impossibility = if the substantive crime is incapable of completion b/c of some physical or factual condition unknown the the ∆ (he doesn’t have full information)

** Factual impossibility is NOT a defense to attempt

Question 10

Is withdrawal/abandonment from an inchoate crime possible?

NOTE: NY Distinction

Answer 10

Common law: withdrawal is NOT a defense to an inchoate defense

EXCEPTION: Once ∆ withdraws (i.e. lets the other co-felons know) from a CONSPIRACY he will no longer be vicariously liable (Pinkerton) for crimes committed by his co-conspirators AFTER he left the conspiracy (BUT is liable for crimes committed prior to withdrawal)

NY DISTINCTION: Withdrawal IS an affirmative defense to solicitation AND conspiracy IF the ∆

(i) voluntarily/completely renounced the act; AND 
(ii) prevented the commission of the object crime	

Abandonment IS an affirmative defense to attempt IF the ∆

(i) manifests a voluntary/complete renunciation of his actions; AND 
(ii) he avoids the commission of the object crime by abandoning the criminal effort

Question 11

What are the merger rules for inchoate crimes?

NOTE: NY Distinction

Answer 11

Solicitation: merges with

(i) attempt; 
(ii) conspiracy;AND 
(iii) the completedtarget crime			

NY DISTINCTION: Solicitation does NOT merge (it stays a separate crime)

Attempt: merges w/ the completed target crime (ONLY) Conspiracy: DOES NOT merge. Period. (it stays a separate crime)