8. Inchoate Offenses

Question 1

Three inchoate offenses

Answer 1

1. Solicitation
2. Conspiracy
3. Attempt

Question 2

Definition and required mental state of solicitation:

Answer 2

Asking someone to commit a crime, with the intent that the crime be committed.

Mental State: specific intent

Question 3

Conspiracy

Answer 3

An agreement between two or more people to commit a crime, plus an overt act in furtherance of the crime.

Question 4

Can You Have a One-Person Conspiracy?

Answer 4

Common law rule: No.

NY: Yes.

Question 5

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.

Question 6

Vicarious (“Pinkerton”) Liability:

Answer 6

In addition to conspiracy, a defendant will be liable for other crimes committed by his co-conspirators, so long as those crimes:

1. were committed in furtherance of the conspiracy’s objective, and
2. were foreseeable.

Question 7

How does NY treat vicarious liability?

Answer 7

No vicarious liability for one who merely conspires and does not participate in a crime committed by a co-conspirator.

Question 8

NY Attempt

Answer 8

The defendant must engage in conduct that gets dangerously close to the commission of the crime.

Question 9

Majority/MPC test for AttemptMPC

Answer 9

The defendant must engage in conduct that constitutes a substantial step towards the commission of the crime, provided that conduct strongly corroborates the actor’s criminal purpose.

Question 10

Can a defendant claim withdrawal as an affirmative defense to solicitation or conspiracy in NY?

Answer 10

Withdrawal is an affirmative defense if the defendant:

1. Completely and voluntarily renounces; and
2. Prevents the commission of the underlying crime.

Question 11

Can a defendant claim abandonment as an affirmative defense to attempt in NY?

Answer 11

Abandonment is an affirmative defense if the defendant

1. completely and voluntarily renounces; and
2. as a result, does not commit the underlying crime.

Question 12

Common law merger rule for inchoate offenses

Answer 12

Solicitation and attempt merge with the completed crime

Question 13

NY merger rule for inchoate offenses

Answer 13

Attempt merges but solicitation does not.

Question 14

Does conspiracy ever merge with a completed crime?

Answer 14

No