Inchoate Offense: SOLICITATION, CONSPIRACY, ATTEMPT

Question 1

SOLICITATION

Answer 1

Asking someone to commit a crime with the (SPECIFIC) INTENT that the crime be committed.

Question 2

Does solicitation merge?

Answer 2

MBE –> YES

NEW YORK –> does NOT merge

Question 3

CONSPIRACY

• def
• mental state

Answer 3

An AGREEMENT btw two or more people to commit a CRIME, plus an OVERT ACT (even if merely prepatory) in furtherance of the crime.

Specific intent to do two things:
1- enter the agreement– can be proven by conduct that is a “concert of action” towards a common goal
2- to accomplish the objectives of the conspiracy

Question 4

Can you have a one-person conspiracy?

Answer 4

COMMON LAW “Bilateral Approach”- NO, there must be at least 2 guilty minds both of whom actually agree to accomplish the conspiracy’s objectives; if all other parties are acquitted, the last remaining D cannot be convicted

NEW YORK/MPC “Unilateral Approach”- YES, a D may be guilty of conspiracy even if the other parties are acquitted in a separate trial or were just pretending to agree.

Question 5

Wharton Rule (NY & MBE)

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.

Question 6

COMMON LAW Vicarious Liability for Co-conspirators

Answer 6

Co-conspirators liable for all foreseeable crimes committed in furtherance of the conspiracy’s objective

Question 7

Impossibility & Conspiracy

Answer 7

NEVER a defense

Question 8

Def: Attempt

Answer 8

SPECIFIC INTENT to commit the underlying crime + An overt act, BEYOND mere preparation

Question 9

ATTEMPT- NY/Common Law Act Requirement (minority)

Answer 9

Conduct that gets DANGEROUSLY CLOSE to the commission of the crime

Question 10

ATTEMPT- MPC/Majority Act Requirement

Answer 10

Conduct that constitutes a SUBSTANTIAL STEP towards the commission of the crime, provided that conduct STRONGLY CORROBORATES the actor’s criminal purpose

Question 11

Attempt & Impossibility

Answer 11

• Factual impossibility is NOT a defense to attempt
• Legal impossibility IS a defense to attempt AT COMMON LAW
• Legal impossibility IS NOT a defense to attempt in NEW YORK

Question 12

Def: Factual Impossibility

Answer 12

Although the defendant intends to commit the underlying crime and engages in conduct consistent with that intent, some physical or factual condition unknown to the defendant prevents the underlying crime from taking place

Question 13

Def: Legal Impossibility

Answer 13

Although the defendant intends to commit the underlying crime and engages in conduct consistent with that intent, some legal circumstance or status unknown to the defendant prevents the successful completion of the underlying crime

Question 14

What happens at COMMON LAW when a solicitor, co-conspirator, or attempter changes his mind?

Answer 14

withdrawal is NOT a defense to the solicitation/conspiracy/attempt itself BUT withdrawal communicated to co’s gets rid of vicarious liability for crimes committed AFTER withdrawal

Question 15

MBE - MERGER RULES FOR INCHOATE OFFENSES

Answer 15

• solicitation and attempt merge w/ completed crime

- conspiracy DOES NOT merge