BAR FLASHCARDS - Crim L 4 - inchoate

Question 1

Clasification of Crimes Chart

Answer 1

Was the crime committed prior to or in preparation for a more serious offense?
YES: Soliciation, attempt, conspiracy
No:

Was the crime committed against property or a person?
Property: Was the crime against the habitation
Person:

[page 28 of CMR]

Question 2

Inchoate Offenses

Answer 2

Inchoate means INCOMPLETE.
Three Inchoate offenses:
Conspiracy
Attempt
Soliciation

Question 3

CONSPIRACY: Elements of conspiracy

Answer 3

• Agreement between 2 or more persons.
• Intent to enter into agreement
• Intent to achieve unlawful objective. The object of the conspiracy must be criminal or the achievement of the lawful object by criminal means.
• Overt act required by majority of states (but NOT in common law), but an act of mere preparation will suffice.

Question 4

Elements of Conspiracy

Answer 4

A conspiracy requires (1) an agreement between two or more persons; (2) an intent to enter into the agreement; and (3) an intent by at least two persons to achieve the criminal objective of the agreement.

The object of the conspiracy must be criminal or the achievement of the lawful object by criminal means.
Unlike the common law, a majority of states require an overt act, but an act of mere preparation will suffice.

Question 5

For conspiracy, there must be intent to pursue…

Answer 5

Intent to pursue an UNLAWFUL OBJECTIVE

Question 6

Elements of Conspiracy: Agreement Requirement

Answer 6

REQUIREMENT: - Agreement between 2 or more persons.

The parties must agree to accomplish the same objective by mutual action.
However, the agreement need not be express; it may be inferred from joint activity.

Requirement of Two or More Parties: A critical issue to look for is whether the jurisdiction follows the unilateral or common law approach to the two-party requirement for conspiracy.
Modern Trend—“Unilateral” Approach: ONLY 1 Party must have Criminal INTENT.
The modern trend follows the M.P.C.’s “unilateral” approach to conspiracy, which requires that only one party have genuine criminal intent.
Accordingly, under the unilateral approach, a defendant can be convicted of conspiracy if they conspire with one person only and that person is a police officer working undercover.

Traditional Rule—“Bilateral” Approach: At common law, a conspiracy requires at least two “guilty minds,” that is, persons who are actually committed to the illicit plan.
Under this “bilateral” approach, if one person in a two party agreement is only feigning agreement, the other party cannot be convicted of conspiracy.

Wharton Rule: Under the Wharton Rule, where two or more people are necessary for the commission of the substantive offense (for example, adultery, dueling), there is no crime of conspiracy unless more parties partici- pate in the agreement than are necessary for the crime (for example, because it takes two people to commit adultery, it takes three people to conspire to commit adultery).

Necessary Parties Not Provided For: The Wharton Rule does not apply to agreements with “necessary parties not provided for” by the substantive offense; both parties may be guilty of conspiracy even though both are necessary for commission of the substantive offense. For example, if a state statute prohibits the sale of narcotics and imposes criminal liability on the seller only, both the buyer and seller can be guilty of conspiracy to sell narcotics—even though both parties are necessary for commis- sion of the substantive offense.

Agreement with Person in “Protected Class”: If members of a conspiracy agree to commit a crime designed to protect persons within a given class, persons within that class cannot be guilty of the crime itself or of conspiracy to commit that crime. Likewise, the nonprotected person cannot be guilty of conspiracy if the agreement was with the protected person only.

Effect of Acquittal of Some Conspirators: Under the traditional view, the acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant. In some jurisdictions following the traditional view, a conviction for conspiracy against one defendant is allowed to stand when the alleged co-conspirator is acquitted in a separate trial.

Question 7

Acquittal of some conspirators

Answer 7

Effect of Acquittal of Some Conspirators: Under the traditional view, the acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant. In some jurisdictions following the traditional view, a conviction for conspiracy against one defendant is allowed to stand when the alleged co-conspirator is acquitted in a separate trial.

If the defendant and others allegedly conspired and only the defendant is charged and tried (for example, the other parties are not appre-
hended or not prosecuted), the defendant can be convicted. But if the defendant is charged and tried and all the others have been acquitted, the defendant cannot be convicted. (The acquittals show that there was no one with whom the defendant could conspire.)

Question 8

Conspiracy: Mental State

Answer 8

Mental State—Specific Intent: Conspiracy is a specific intent crime. Parties must have: (1) the intent to agree and (2) the intent to achieve the objective of the conspiracy. (the criminal objective)

Question 9

Overt act for conspiracy

Answer 9

• not required at common law, At common law, the conspiracy was complete when the agreement with the requisite intent was reached.
• Required by most states. The majority rule, followed by most states, is that an overt act in furtherance of the conspiracy must be performed. Even a MERE ACT of PREPARATION, that is good enough.
  If you are operating under the majority rule that requires an agreement plus an overt act, any little act can be an overt act in further- ance of the conspiracy, even an act of mere preparation.

Question 10

Termination of Conspiracy

Answer 10

The point at which a conspiracy terminates is important because acts and statements of co-conspirators are admissible against a conspirator ONLY if they were done or made in furtherance of the conspiracy.

A conspiracy usually terminates upon completion of the wrongful objective.

Unless agreed to in advance, acts of concealment are not part of the conspiracy.

Note also that the government’s defeat of the conspiracy’s objective does not automatically terminate the conspiracy.

Question 11

Liability for Co-Conspirators’ Crimes

Answer 11

A conspirator may be held liable for crimes committed by other conspirators if the crimes
(1) were committed in furtherance of the objectives of the conspiracy and
(2) were foreseeable.

Question 12

Defenses to Conspiracy.

Answer 12

a. Factual Impossibility: Factual impossibility is not a defense to conspiracy.

b. Withdrawal: Generally, withdrawal from the conspiracy is not a defense to the conspiracy, because the conspiracy is complete as soon as the agreement is made and an act in furtherance is performed.
Withdrawal may be a defense to crimes committed in furtherance of the conspiracy, including the substantive target crime of the conspiracy.
This means the defendant can withdraw from liability for the other conspirators’ subsequent crimes, but the defendant cannot withdraw from the conspiracy itself.

Question 13

Withdrawal from conspiracy

Answer 13

NOT a defense to the conspiracy. withdrawal from the conspiracy is not a defense to
the conspiracy, because the conspiracy is complete as soon as the agreement is made and an act in furtherance is performed

May be a defense to crimes commited in furtherance of the conspiracy, including the substantive target crime.
This means the defendant can withdraw from liability for the other conspirators’ subsequent crimes, but the defendant cannot withdraw from the conspiracy itself.

Conspirator must perform affirmatrive act that notifies co-conspirators of withdrawal in time for them to abandon plans.

Question 14

When is When Withdrawal Effective for a conspiracy?

Answer 14

To withdraw, a conspirator must perform an affirmative act that notifies all members of the conspiracy of their withdrawal.
Notice must be given in time for the members to abandon their plans.
If the conspirator has also provided assistance as an accomplice, they must try to neutralize the assistance.

Question 15

A conspiracy is complete upon…

Answer 15

Remember that a conspiracy is complete upon the agreement with the requisite intent and an overt act.

Since the overt act can be a preparatory act, the conspiracy is usually complete very soon after the agreement.

If the crime is complete, the defendant is guilty of conspiracy—even if the facts show that they had second thoughts, told their co-conspirators that they were backing out, warned the police, hid the weapons, etc.

These actions come too late; the defendant is guilty of conspiracy. (Such actions may relieve the defendant of criminal liability for their co-conspirators’ acts after this withdrawal, but they have no effect on the crime of conspiracy.)

Question 16

Conspiracy: Does merger apply?

Answer 16

No.

Punishment—No Merger: Conspiracy and the completed crime are distinct offenses; there is no merger. A defendant may be convicted of and punished for both.

Question 17

Conspiracy: Common law vs Not common law

Answer 17

Common law does NOT require an overt act.
and
unilateral approach at common law

Question 18

SOLICIATION

Answer 18

.

Question 19

Soliciation: Elements

Answer 19

• Asking another person to commit a crime, with the INTENT that the person commit it.

Elements: Solicitation consists of asking, inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that
the person solicited commit the crime.

It is not necessary that the person solicited agree to commit the crime.
BUT, if the other person AGREES to do it, it merges into the crime of CONSPIRACY (no more solicitation).

Question 20

Soliciation: Defenses

Answer 20

It is not a defense that the person solicited is not convicted, nor that the offense solicited could not in fact have been successful (factual impossibility).

In most jurisdictions, it is not a defense that the solicitor renounces or withdraws the solicitation.

The M.P.C. recognizes renunciation as a defense if the defendant prevents the commission of the crime, such as by persuading the person solicited not to commit the crime. However, it is a defense that the solicitor could not be found guilty of the completed crime because of a legislative intent to exempt them (for example, a minor female cannot be guilty of solicita- tion of statutory rape by urging an adult male to have intercourse with her, because she could not be guilty of the completed crime).

Question 21

Soliciation: Merger

Answer 21

What if the person the defendant asks to commit the crime agrees to do it?
If the person solicited commits the crime solicited, both that person and the solicitor can be held liable for that crime.
If the person solicited commits acts sufficient to be liable for attempt, both parties can be liable for attempt.
If the person solicited agrees to commit the crime, but does not even commit acts sufficient for attempt, both parties can be held liable for conspiracy.
However, under the doctrine of merger, the solicitor cannot be punished for both the solicitation and these other offenses.

Question 22

Attempt:

Answer 22

AN Act done with intent to commit a crime that falls short of completing it.

Question 23

Attempt: Elements

Answer 23

Attempt is an act, done with intent to commit a crime, that falls short of completing the crime.
Attempt requires (1) specific intent plus (2) an overt act in furtherance of the crime.

Intent: To be guilty of attempt, the defendant must intend to perform an act and obtain a result that, if achieved, would constitute a crime.
Regardless of the intent necessary for the completed offense, an attempt always requires a specific intent (that is, the intent to commit the crime).

Question 24

Attempt requires (TWO things)

Answer 24

Attempt requires (1) specific intent plus (2) an overt act in furtherance of the crime.

Question 25

An attempt always requires _____.

Answer 25

Regardless of the intent necessary for the completed offense, an attempt always requires a specific intent (that is, the intent to commit the crime).

Question 26

To be guilty of attempt to commit murder, the defendant must have had….

Answer 26

To be guilty of attempt to commit murder, the defendant must have had the specific intent to kill another person, even though the mens rea for murder itself does not necessarily require a specific intent to kill.

Question 27

Attempt to commit a crime defined as the negligent production of a result (such as negligent homicide)…

Answer 27

Attempt to commit a crime defined as the negligent production of a result (such as negligent homicide) is logically impossible because a person cannot intend to be negligent.
Thus, there can be no attempted negligent homicide, etc.
The same holds true for crimes that require recklessness.

Question 28

Attempt: OVERT Act for Attempt

Answer 28

• Act beyond mere prepartion: Overt Act: The defendant must commit an act beyond mere preparation for the offense.
• Traditional/Proximity test: Dangerously close to completion. Traditionally, most courts followed the “proximity” test, which requires that the act be “dangerously close” to successful completion of the crime (for example, pointing a loaded gun at an intended victim and pulling the trigger, only to have the gun not fire or the bullet miss its mark is sufficient).
• Modern/majority test: Substantial step in course of conduct. Today most state criminal codes (and the Model Penal Code) require that the act or omission constitute a “substantial step in a course of conduct planned to culminate in the commission of the crime” that strongly corroborates the actor’s criminal purpose.

Question 29

The overt act required for attempt is ___ substantial than the overt act required for conspiracy.

Answer 29

The overt act required for attempt is much more substantial than the overt act required for conspiracy.
Mere preparation is sufficient for conspiracy, but more is required for attempt.

Question 30

Attempt: DEFENSES

Answer 30

a. Abandonment of Attempt
- Not a defense at common law. Abandonment is not a defense at common law. If the defendant had the intent and committed an overt act, the defendant is guilty of attempt despite the fact that they changed their mind and abandoned the plan before the intended crime was completed.
- Defense under MPC if fully voluntary and complete renunciation. The M.P.C., followed in a number of jurisdictions, provides that a fully voluntary and complete abandonment is a defense.

b. Legal Impossibility:
If the defendant, having completed all acts that they had intended, would have committed no crime, they cannot be guilty of an attempt to do the same if they fail to complete all intended acts.
Legal impossibility is a defense, albeit rare.

c. Factual Impossibility: Factual impossibility describes the situation when the substantive crime is incapable of completion due to some physical or factual condition, unknown to the defendant.
Factual impossibility is not a defense to any inchoate defenses.

Question 31

whether impossibility is a defense

Answer 31

whether impossibility is a defense, ask yourself: “If the defendant were able to complete all of the acts that they intended to do, and if all of the attendant circumstances actually were as the defendant believed them to be, would the defendant have committed a crime?”

The answer usually will be yes, in which case the impossibility is factual and not a defense.

In the unusual case where the answer is no, the defendant most likely has a legal impossibility defense.

Question 32

Abandonment of attempt

Answer 32

a. Abandonment of Attempt
- Not a defense at common law. Abandonment is not a defense at common law. If the defendant had the intent and committed an overt act, the defendant is guilty of attempt despite the fact that they changed their mind and abandoned the plan before the intended crime was completed.
- Defense under MPC if fully voluntary and complete renunciation. The M.P.C., followed in a number of jurisdictions, provides that a fully voluntary and complete abandonment is a defense.

Folly volunatry and complete renunciation, means getting sick/getting caught is not enough.

Question 33

Attempt: Prosecution for Attempt

Answer 33

A defendant charged only with a completed crime may be found guilty of the completed crime or an attempt.

A defendant charged only with attempt may not be convicted of the completed crime.

Attempt does merge, so you cannot be on the hook for attempted murder and murder, its one or the other.

Question 34

Inchoate Crimes Chart.
the 3 inchoate crimes.
For each, list:
- Culpable Conduct
- Mental State
- Overt Act:
- Merger into substantive defense
- Withdrawal a defense

Answer 34

Solicitation
- Culpable Conduct: Solicitation of another to commit a crime.
- Mental State: Specific intent that person commited the crime.
- Overt Act: No act (other than solicitation)
- Merger into substantive defense: Yes.
- Withdrawal a defense: Generally no.

Conspiracy
- Culpable Conduct: Agreement between two or more people to commit a crime
- Mental State: Specific intent to: (1) enter into agreement; and (2) achieve objective.
- Overt Act: Act in furtherance of the conspiracy (no act required at common law)
- Merger into substantive defense: No.
- Withdrawal a defense: No, except for crimes of co-conspirators.

Attempt
- Culpable Conduct: Performance of an act that would be a crime if successful
- Mental State: Specific intent to commit the particular crime attempted.
- Overt Act:
- - MPC - substantial step test.
- - Traditional rule: act dangerously close to success.
- Merger into substantive defense: Yes.
- Withdrawal a defense: Generally no.