Attempt/Solicitation/Conspiracy Flashcards
Attempt- Mens Rea(CL)
Attempt is a specific intent crime, even if the substantive crime is not.
Dual intents- Must have:
- Intent to engage in the conduct that is the attempt
- specific intent to commit target crime/ cause the social harm prohibited by the crime
Culpability threshold for attempt- can be greater than for substantive crime
- i.e. for attempted murder, must have specific intent to kill where as muder, can have mens rea of recklessness or GBI
- NO- attempted GBI, Depraved Heart, OR FMR murder
Attempt- Actus Reus Tests
- Last Act Test- performd all the acts he thought necessary to commit target offense
- Physical Proximity Test- not last act, but D must have power to complete crime almost immediatly
- Dangerous Proximity Test- D is dangerously close to sucess (3 factors are nearness of danger, greatness of harm, degree of apprehension)
- MPC Substantial Step test (used only if first two of MPC actus reus don’t apply)- D has taken a substantial step towards completing the crime
- there are other tests not emphasised and not covered in class
Attempt- Actus Reus- Substantial Step Test
MPC Substantial Step test (used only if first two don’t apply)
- Substantial step toward the commision of the crime; OR
- intentionally engages in conduct that would constitute a crime if circumstances were as D believed; OR
- acts with intent to cause the result and believes that this is the last act on her part that is needed.
Mere preparation is not enough
Attempt- MPC Actus Reus Test
- MPC (Actus Reus): person is guilty if he has mens rea required and:
- purposely engages in conduct that would constitute crime if attendant circumstances were as he believed them to be; OR
- acts or fails to act with the intent that it will cause the crime without any further conduct on his part; OR
- purposely acts or fails to act such that, under the circumstances as he believes them to be, act is a substantial step toward the commission of the crime
1+2= complete offenses
3= incomplete offenses
“substantial step”: mere preparation not enough; conduct must strongly corroborates criminal’s purpose
abandonment/renunciation- applies only to 2 & 3
Conspiracy- MPC
A person commits a conspiracy if, with another person, he agrees to:
- commit an offense; OR
- attempt to commit an offense; OR
- solicit another to commit an offense; OR
- aid another person in the planning or commision of the offense
- Actus reus- formation of agreement
- Mens rea- with purpose of promoting or facilitating its commission.
- The object of the agreement must be a criminal offense
- Misdemeanor or felonly in the third degree require an overt act; felony in first or second degree require no overt act
- merges with substantive offense unless pros. can prove that conspiratorial agreement involved the commission of additional offenses not yet committed or attempted.
- intent can not be inferred from knowledge
- unilateral is OK- no plurality
- abandonment is a defense if- complete & voluntary renunciation communicated and D thwarts target crime
Solicitation- Common Law
Purposefully invites, requests, commands, hires, or encourages another to engage in felonious conduct or misdemeanor obstruction of justice or breach of peace.
- actus reus- invites, etc.
- mens rea-specific intent crime-dual intents required- intent for actus reus and intent that the other party actually perform the act
- solicitation complete instant solicitation occurrs
- innocent instrumentality- use of one is not solicitation
- solicitation merges with substantive offense.
- solicitation must reach solicitee
- renunciation does not work- already guilty since instant offer is made=solicitation
Solicitation- MPC
A person is guilty of solicitation to commit a crime if the actor’s purpose is to promote or facilitate the commision of a substantive offense and with such purpose, he commands, encourages, or requests another person to engage in conduct that would constitute the crime, an attempt, or would establish the other person’s complicity in its commision or attempted commission.
- Actus Reus- invites, commands, encourages etc.
- Mens Rea- purposefully promote or facilitate
- broader than common law solicitation
- applies to all crimes
- you can solicit attempted crimes
- 3rd party does not have to be an accomplice
- uncommunicated solicitation is still solicitation under the code
- defense under MPC- renunciation/abandonment- completely and voluntarily renounces criminal attempt AND attempts to persuade/prevents other party from committing the crime
Conspiracy- Common Law
An agreement, express or implied between two or more persons to commit a criminal act(s) or commit a legal act by illegal means.
- two or more persons needed- plurality requirement
- Actus Reus- agreement; complete upon formation, no further act needed(most jurisdictions)
- Mens Rea- specific intent to:
- form the agreement
- criminal objective be achieved
- conspiracy does not merge
- Pinkerton doctrine- liability for conspiracy extends to all crimes in furtherance of the conspiracy even if accomplice liability doesn’t exist.
- intent can be inferred from knowledge
- D has a stake
- no legit. purpose for goods and services
- volume of grossly dispopor. to overall sales
- price of goods is inflated
- serious crimes more than less serious
- abandonment not a defense
- majority jurisdictions- no act needed in furtherance
Conspiracy- Defenses
- Wharton’s Rule- crime by its very definition requires agreement of two or more parties, conspiracy can’t be charged
- exception- more than statuatorily needed parties.
- Withdraw (MPC)
- complete and voluntary and done before overt act & actually thwart target crime
- Abandonment
- will limit future liability
- requires communication of withdrawl and effort to neutralize assistance
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Attempt- MPC Mens Rea
- D is guilty of attempt when it was his purpose or conscious object to engage in the conduct or cause the result that is the substantive offense
- Exceptions:- D is guilty if he believes result will happen, even if not his conscious object
- attendant circumstances- culpability requirement for substantive offense controls mens rea for AC (?)
- eg. reckless re: girls age for stat. rape= attempted statutory rape if D is reckless; but NOT if D is negligent or innocent
Conspiracy- Pinkerton Doctrine
A conspirator is liable for every crime in furtherance of the conspiracy, even:
- those committed by co-conspirators
- if D has no liability as an accomplice
- if D has no knowledge of the other conspirators or their roles
Attempt- Defenses
- Impossibility
- Factual- fails to complete a crime because of unknown attendant circumstance (never a defense)
- Legal- law does not proscribe D’s goal; believes crime but no prohibition (a defense)
- Withdrawl (MPC only)
- complete and voluntary
- must be done before overt act
- must be comunicated to co-conspirators
- must thwart target crime
- Abandonment (same under MPC & CL)
- can limit future criminal liability for acts done in furtherance of conspiracy
- must communicate withdrawl to P1st; AND
- make bona fide effort to neutralize effects of assistance
- Wharton’s Rule
- when crime, by its definition, requires two or more parties, can’t charge D with conspiracy
- exception- more than stat. required parties
Attempt- Basics
An attempt occurs when D, with intent to commit an offense, performs some act that constitutes a substantial step, beyond mere prparation, towards committion of the offense, whether or not D’s intention is accomplished
Two types-
- complete/imperfect- D completes all acts, but fails to attain criminal goal
- incomplete- D does some acts needed but quits or is prevented from completion to attain criminal goal
Attempt merges with substantive crime
Attempt- Answer Outline
Attempt- when D, with intent to commit an offense, performs some act that constitutes a substantial step, beyond mere preparation, toward commission of the offense, whether or not D’s intention is accomplished. **Merges with Sub. Crime if completed**
- Voluntary Act/Omission
a. CL- not used
b. MPC (trigger, fuse, step)
i. Purposely engage in conduct that would constitute the crime if attendant circumstances were as he believed them to be; OR (pull trigger of an empty gun)
ii. Intentionally engage in conduct that will cause the crime without any further conduct on his part; OR (light fuse on bomb)
iii. Purposely engage in conduct that is a substantial step toward the commission of the crime (substantial step) - Mens Rea- attempt is specific intent
a. MPC
i. D is guilty of attempt when it was his purpose to: - engage in the conduct that is the substantive offense; OR
- cause the result that is the substantive offense
ii. Exceptions:- D is guilty if he believes result will happen, even if not his conscious object
Solicitation- Answer Outline
Solicitation-purposely invites, requests, commands, hires or encourages another to engage in felonious conduct (or a misdemeanor relating to obstruction of justice, or breach of peace)
- Voluntary Act/Omission
a. When D invites, commands, requests, hires, or encourages
b. Most jurisdictions require NO act in furtherance - Mens Rea- specific intent crime (dual intents)
a. Common Law
i. Purposefully intends to commit actus reus (no jokes)
ii. With specific intent that the other person commit the solicited crime
b. MPC- not used
