Inchoate Crimes & Parties to a Crime

Question 1

Define

inchoate crimes

Answer 1

“Incomplete” crimes:

• Attempt
• Conspiracy
• Solicitation

Question 2

What is the mens rea for attempt?

Answer 2

Specific intent to commit the underlying crime

Question 3

What is the actus reus for attempt?

Answer 3

“Overt act” in furtherance of intent to commit underlying crime

Question 4

Can you be charged with attempt for crimes that have a mens rea of recklessness or negligence?

Answer 4

No, because attempt requires specific intent to commit the underlying crime.

⚠️ Note: if D knows that a result is practically certain to occur, the requisite intent may exist for an attempt charge

Question 5

What are the 3 tests to determine if there has been an overt act for an attempt?

Answer 5

1. Dangerous Proximity Test (majority):
2. Equivocality Test (minority)
3. Substantial Step (MPC)

Question 6

What is the dangerous proximity test?

Answer 6

Looks at whether D came within dangerous proximity to completing the crime, or “so near to the result that the danger of success is very great.”

Question 7

What is the equivocality test?

Answer 7

Asks: is D’s conduct an unequivocal manifestation of their intent to complete the target offense?

Question 8

Under the MPC, what is the substantial step test?

Answer 8

An act is an overt act if it is:

1. A “substantial step in a course of conduct planned to culminate in [D’s] commission of the crime”; and
2. Is strongly corroborative of D’s criminal intent

MPC § 5.01(1)(c)

Question 9

Does mere preparation qualify as a substantial step?

Answer 9

As a general rule, no - it must go beyond mere preparation.

Question 10

What are examples of actions considered substantial steps under the MPC?

Answer 10

MPC §5.01(2)(a-g) →

• Lying in wait, searching for or following the contemplated victim of the crime;
• Enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;
• Reconnoitering the place contemplated for the commission of the crime;
• Unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;
• Possession or collection of materials that serve no lawful purpose under the circumstances; or
• Soliciting an innocent agent to engage in criminal conduct

Question 11

What is the impossibility defense to attempt?

Answer 11

Argues that even though D did everything he could to complete the offense, external circumstances thwarted his ability to successfully complete it.

⚠️ Remember to distinguish between factual and legal impossibility. Many states have outlawed the factual impossibility defense, but allow for the legal impossiblity defense.

Question 12

What is factual impossibility and is it a successful defense to attempt?

Answer 12

Occurs when D is unable to complete a crime, but if the facts had been what D supposed them to be, the act would have been a crime.

Never a valid defense to attempt.

Ex. Max wants to buy meth from Ian, but Ian sold him cornstarch instead. Since Max thought that he was buying meth, the fact that he was sold cornstarch is not a valid defense.

Question 13

What is legal impossibility and is it a valid defense?

Answer 13

Arises when the D thinks they are committing a crime, but their actions are actually lawful.

It is a valid defense.

Question 14

Is renunciation a valid defense to attempt?

Answer 14

Renunciation is a valid defense under the MPC and in some states if:

1. D completely and voluntarily withdraws (i.e. withdrawal is not based on apprehension of being caught or waiting for a better time);
2. Before completion of the crime

⚠️ Many states have adopted the MPC’s recognition of the renunciation defense, but others have not. Make sure read the question carefully.

Question 15

If D withdraws after learning that the police are aware of the plan, does this constitute a voluntary withdrawal?

Answer 15

No, withdrawing out of fear of from newly discovered information about being caught is not considered voluntary

However, if D has general fear about being caught, this will qualify as voluntary

Question 16

Elements of common law solicitation

Answer 16

1. Enticing, advising, requesting, or otherwise endeavoring to persuade another person;
2. To commit a crime;
3. With the intent the other person commits the crime

Question 17

When is solicitation complete?

Answer 17

As soon as the D entices or encourages someone to commit a crime.

The other person does not need to agree to commit the crime

Question 18

Is withdrawal a defense to solicitation?

Answer 18

Allowed by some courts and the MPC if:

• Renunciation was voluntary; and
• D prevents commission of the crime

⚠️ Not recognized by common law

Question 19

Is factual impossibility a valid defense to solicitation?

Answer 19

No. Legal impossibility may be, but factual impossibility is not.

Question 20

Is a solicitee’s refusal to complete the crime a valid defense to solicitation?

Answer 20

No because solicitation is complete as soon as D encourages, whether or not solicitee agrees is irrelevant

Question 21

Distinguish between solitication and attempt

Answer 21

Solicitation: mere encouragement or inticement

Attempt: substantial steps taken to prepare for crime

Question 22

Elements of conspiracy

Answer 22

1. Intentional agreement between two or more persons;
2. To commit an unlawful act or a lawful act by unlawful means; and
3. An overt act in furtherance of the unlawful act (only required for half the states and the MPC)

Question 23

Explain the overt act requirement for conspiracy under the MPC

Answer 23

• Act must be in furtherance of the conspiracy
• Mere preparation is not sufficient
• “One bad apple spoils the bunch” → If one co-conspirator does an overt act, it will be attributed to all persons involved

Question 24

Is a “meeting of the minds” required for conspiracy?

Answer 24

No, only that the parties agree to pursue a common objective. Parties do not even need to know about each other.

Question 25

Do co-conspirators need to know about each other for a criminal conspiracy to exist?

Answer 25

No

Question 26

For the purposes of conspiracy, is it sufficient for D to know that his actions might further a criminal action?

Answer 26

No, the D must intend for his actions to futher criminal conduct. Mere knowledge is not enough.

Question 27

Are D’s liable for the crimes committed by their co-conspirators?

Answer 27

Under the Pinkerton Doctrine of Liability, co-conspirators are liable for crimes that are:

1. Foreseeable; and
2. Committed in furtherance of the conspiracy

Question 28

Under common law, does mere membership in a conspiracy subject co-conspirators to liability when another co-conspirator commits a crime without the direct aid of the others?

Under MPC?

Answer 28

Common law: Yes, since those crimes are reasonably foreseeable

MPC/Modern Courts: Less likely to hold co-conspirators liable without evidence of further involvement

Question 29

Define

“chain” conspiracies

Answer 29

Conspiracies with a series of events that are dependent on each other, each of which furthers the object of the conspiracy.

Question 30

Define

“hub and spoke” conspiracies

Answer 30

When one person (the ring leader or hub) enters into agreements with individuals (individual spokes). The individual spokes may not know about each other.

Question 31

When is a “hub and spoke” conspiracy considered one large conspiracy instead of several smaller ones?

Answer 31

1. Each participant is aware that other participants exist (but they do not need know them); and
2. Participants understand that they exist in a “community of interest”

Question 32

Define

“unilateral” conspiracy

Answer 32

When a single party is charged with conspiracy.

Ex. if D is conspiring with someone who is an undercover police officer

⚠️ Note: Only allowed under the MPC and some states; not allowed under common law

Question 33

Define

Wharton’s Rule

Answer 33

If the target offense requires two or more people, then a conspiracy charge cannot be brought.

For example, there can be no conspiracy for adultery or dueling because these crimes require at least two participants to occur.

Question 34

What is the exception to Wharton’s Rule?

Answer 34

If there are more people than necessary to complete the crime, then a conspiracy charge can be brought.

Ex. If there was a third party involved in adultery, all three could be charged with conspiracy AND the substantive offense.

Question 35

Does the MPC use Wharton’s Rule?

Answer 35

No

Question 36

Under common law, is withdrawal or abandonment a defense to conspiracy?

Answer 36

No, the conspiracy is complete as soon as the parties make an agreement. Even calling the police and stopping the conspiracy will not serve as a valid defense.

Question 37

Under the MPC, is withdrawal or abandonment a defense to conspiracy?

Answer 37

Yes, if the D:

1. Voluntarily withdraws; and
2. Actually thwarts the conspiracy, usually by calling the police (merely trying to thwart the conspiracy is not enough)

Question 38

Is intoxication a defense to conspiracy?

Answer 38

Yes, because it can negate the requisite intent.

Question 39

Distinguish accomplice vs. principal

Answer 39

Accomplice: Assists or encourages the commission of the crime, but does not do the act itself

Principal: Commits the actus reus

Question 40

When is an individual criminally liable as an accomplice?

Answer 40

If individual:

1. Aids, abets, or encourages principal to commit a crime;
2. With the intent to assist the principal; and
3. With the intent for the principal to commit the crime

Question 41

When will the accomplice be liable for crimes by the principal that he did not aid or abet?

Answer 41

If:

1. Crime is a “natural and probable” outgrowth of the original crime; and
2. Crime is in furtherance of the original crime

⚠️ Note: MPC only allows accomplices to be charged with crimes they directly intended

Question 42

Under common law, what are the defenses to accomplice liability?

Answer 42

1. Withdrawal, but if D:
   
   1. Makes it clear to parties he is withdrawing and renouncing prior aid;
   2. Does everything possible to counter prior aid; and
   3. Does so before the chain of events is set in motion and unstoppable
2. Being a member of the class the offense is intended to protect. For example, the victim of an assault could not be an accomplice to assault.
3. Legal impossibility (very rare but possible. Factual impossibility is never a defense)

Question 43

Under the MPC, is withdrawal a defense to accomplice liability?

Answer 43

Yes, but only if accomplice:

1. Renders his prior assistance to the perpetrator completely ineffective; or
2. Provides the police with a timely warning of the perpetrator’s plan; or otherwise makes a substantial and proper effort to prevent the perpetrator from committing the crime

MPC § 2.06(6)

Question 44

Is the accomplice required to have actually thwarted the crime to invoke the withdrawal offense?

Answer 44

No, but the accomplice must have taken affirmative actions to undo his prior assistance

Question 45

Define

accessory after the fact

Answer 45

One who aids or abets a principal after commission of the crime. There must be:

1. A completed felony;
2. Actual knowledge of the felony by the accessory; and
3. Affirmative steps taken by the accessory to personally give aid to the felon to hinder the felon’s apprehension, conviction, or punishment

Question 46

Does failure to report a felon make someone an accessory after the fact?

Answer 46

No, they must have taken affirmative steps to prevent felon’s arrest