4. Inchoate Offences Flashcards
What is required for solicitation (misdemeanor)?
1) Require another to commit a crime
- Incite/Counsel/Advise/Urge
2) D’s intent for another to commit the crime
- NO agreement required
What are the rules of merger for solicitation?
Solicited crime is committed
1) Defendant is liable for committing crime
2) Solicitor is liable for committing crime (NOT for solicitation)
Solicited crime is attempted
1) Defendant is liable for attempt
2) Solicitor is liable for attempt
Solicited crime is agreed upon (NOT attempted)
1) Defendant is liable for conspiracy
2) Solicitor is liable for conspiracy
What defences are available against solicitation?
Withdrawal (not just dissuade perpetrator from crime commission)
- Before solicitation => NOT liable for solicitation
- After solicitation + Before crime => Liable for solicitation + NOT liable for crime
Legislative intent of exemption
What defences are not available against solicitation?
Factual impossibility
What is required for conspiracy?
1) Agreement between 2 or more persons
- Express/Implied
2) Intent to enter agreement
- Express
- Inferred from conduct
3) Intent to achieve objective of agreement (meeting of guilty minds)
- NOT mere knowledge (UNLESS D takes advantage of conspiracy)
- Each Defendant
4) Overt act (most states)
- Most states - Overt act terminates conspiracy (even mere preparation)
- Common law - Agreement terminates conspiracy (NO overt act required)
How many persons must have intent to commit conspiracy?
Unilateral approach (MPC, modern view)
- One person must have intent
- Other may feign agreement
Bilateral approach (common law, traditional view)
- At least two persons must have intent (otherwise NEITHER are guilty)
- Wharton Rule: If at least two persons are required for crime (adultery, dueling, contraband sale) => More persons must participate to be guilty of conspiracy
What happens to Defendant if all persons with whom Defendant alleged to have conspired are acquitted?
Defendant is also precluded from conviction
UNLESS
- D in separate trial
- D charged with lesser offence
- D no longer prosecuted
- D not apprehended
What is the difference between conspiracy and attempt?
Conspiracy
- Overt act (mere preparation)
Attempt
- Overt act (substantial preparation)
What defences are available against conspiracy?
Withdrawal (MPC)
- Voluntary (thwart success of conspiracy, e.g. inform police)
- Notice to ALL co-conspirators in time to abandon conspiracy
What defences are not available against conspiracy?
Factual impossibility
What is required for attempt?
1) Specific intent to commit crime
- Intentional homicide
- Strict liability crime
- NOT reckless/negligent crime
2) Overt act
- Substantial step - D’s act is substantial step (NOT mere preparation) towards D’s completion of crime + strongly corroborative of D’s intent (MPC)
- Dangerous proximity test - D came within dangerous proximity to completing crime (majority view)
- Equivocality test - D’s conduct is unequivocal manifestation of D’s intent to complete crime (minority view)
3) Failure to complete crime
What are the rules of merger for attempt?
Attempted crime is committed;
- Defendant is liable for crime, NOT attempt (merger)
Attempted crime is NOT committed;
- Defendant is liable for attempt
What are the rules of merger for conspiracy?
Conspired crime is committed;
- Defendant is liable for crime + conspiracy (merger)
Conspired crime is NOT committed;
- Defendant is liable for conspiracy
What defences are available against attempt?
Legal impossibility (rare) - If D cannot be found liable for crime => D cannot be found liable for attempt despite completing all necessary steps to commit crime
Abandonment (MPC, most states)
1) Fully voluntary
- Not due to difficulty of completing crime
- Not due to increased risk of apprehension
2) Complete
- Not postpone
- Not find another victim
What defences are not available against attempt?
Factual impossibility
- Physical/Factual condition
- Mistaken re circumstances (majority view)
