Class 5: Inchoate Crimes (Attempt, Conspiracy)

Question 1

What is a inchoate conspiracy?

What does inchoate mean own its own?

Answer 1

The definition of a conspiracy is an agreement between two or more individuals to commit a unlawful act. The ultimate crime to which the conspiracy is directed need not be performed.

Inchoate means it does not actually have to be full preformed.

Question 2

Is an act required for conspiracy?

What about for CAN?

Answer 2

YES. There must be an actual act. It can be just preparation.

NO act is needed for CAN conspiracy.

Question 3

Can conspiracy just be preparation?

Answer 3

Yes, It can be just preparation

Question 4

What are the three elements of an inchoate conspiracy?

Answer 4

Elements of the offence are

1. Agreement to commit an unlawful act
2. Specific intent or purpose to achieve the goal or object of the conspiracy and
3. Overt act in furtherance of the conspiracy. (any act will basically count, even preparation)

Question 5

Is there a merger doctrine for inchoate conspiracy like there are for other crimes?

Answer 5

For conspiracy there is no merger like attempt. You can be charged for the conspiracy to commit the offence and the actual offence. You can be charged for both.

Question 6

True or False:

Once the agreement is formed and an overt act is performed, the inchoate crime of conspiracy has been committed. The agreement itself is the criminal act of the offence.

Answer 6

True.

Question 7

For a inchoate conspiracy, what type of agreement does common law require?

Answer 7

Common law requires a bilateral agreement

Question 8

Can an implicit agreement never rendered in exploit terms qualify as a conspiracy?

Answer 8

Yes

Question 9

What is a unilateral conspiracy?

Does it apply in all jurisdictions?

Answer 9

A unilateral conspiracy is agreement through only one person (aka undercover cop)

This applies where they allow a unilateral conspiracy and not a bilateral one in that jurisdiction.

Question 10

Hypothetical:

Someone feigns agreement for a conspiracy as they are an undercover cop.

Are the guilty of conspiracy?

Answer 10

Depends if a unilateral or bilateral state

Unilateral=Guilty

Bilateral=Not guilty, need two people to agree

Question 11

Is conspiracy a general intent or specific intent crime?

Answer 11

Specific intent

Question 12

x

Answer 12

x

Question 13

What type of overt act do you need for a inchoate conspiracy?

Answer 13

Virtually any act can be an overt act. Even prepatory act will work.

Question 14

What is the defence for conspiracy called renunciation mean?

Answer 14

It is an affirmative defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.

Question 15

Can you be charged for both a conspiracy and attempted conspiracy?

In Canada, can you be changed for an attempted conspiracy?

Answer 15

Yes no merger doctrine.

In Canada, no such crime as an attempted conspiracy.

Question 16

State v. Pacheco

Facts: Convicted for conspiracy to commit first degree murder. He contends he did not commit conspiracy because no genuine agreement existed between him and the undercover police agent. The law in this jurisdiction requires agreement between two co-conspirators. (BILATERAL)

Issue: Is this conspiracy?

Apply bilateral jurisdiction

Answer 16

Holding/Analysis

The statute requires an agreement, and the police agent obviously did not agree. In a bilateral jurisdiction, no conspiracy. If this was a unilateral jurisdiction, then he is clearly guilty.

Ratio: Be careful if bilateral or unilateral jurisdiction.

Question 17

United States v Valle

Facts: Valle was a cop. He was accused of conspiracy to commit kidnapping. He was a part of a chatroom where people would express fantasies of committing sexual violence.

The government gave evidence where Valle engaged in an identifiable intend to kidnap on the chatroom. The idea was the cops were going to identify a target to kidnap and identified specific dates. However, no one was ever kidnapped, and there was never any follow up online after the dates have passed

Issue: Is this conspiracy?

1) Court found they were not sincere. Apply to this to the facts

Answer 17

Holding/Analysis:

The court finds this to be an important fact. If they were sincere to torture these women, they never discussed it after the date. They were not sincere in actually committing the results.

Ratio: Not sincere thus no conspiracy

Question 18

Commonwealth v Knee:

Facts: High school students engage in a plot to blow up the school. They came up with a list of ingredients, tried to make napalm. Knee decides to thwart the plan, goes to law enforcement officer about the plans. But never tells the officer that he was apart of everything.

Issue: Is this a valid defence for conspiracy?

1) What does renunciation need?

Answer 18

Holding/Analysis

The problem with his claim of renunciation is that he never implicated himself in the conspiracy. This is inconsistent with the defense, as you cannot renounce a conspiracy you were not a part of. You must acknowledge you are apart of it. Thus, he cannot claim this defense as it was never complete.

Ratio: Renunciation requires complete renunciation.

Question 19

xx

Answer 19

xx

Question 20

Hypothetical: If the target crime is a felony, and you attempt to commit it, is this a felony too?

Answer 20

Yes the attempt is a felony

Question 21

What is an attempt?

Would any act work?

Answer 21

An attempt occurs when a person with the intent to commit a criminal offence preforms an act beyond mere preparation towards the commission of the offence.

Not any act would work, it must be beyond mere preparation.

Question 22

Would mere preparation count for an attempt crime

Answer 22

NO

Question 23

Are attempt specific intent or general intent crimes?

Answer 23

Attempts are specific intent crimes. For an attempt, the person specifically intends to engage in the conduct and specifically intend to bring about the target crime

Question 24

Hypothetical:

D and V go on a hunting trip. D fires a rifle into V’s tent and wounds but does not kill V. Is D liable for attempted murder?

What conditions are needed for him to be liable?

Answer 24

Maybe. If D intentionally pulled the trigger AND did so with the intent to kill V then yes this is attempted murder.

Question 25

Hypothetical:

For example. D and V go on a hunting trip. D fires a rifle into V’s tent and wounds but does not kill V. D intentionally pulled the trigger, but wanted to kill a deer. Is this attempted murder?

Answer 25

NO

As he did not specifically intend to kill V, then this is not attempted murder.

Question 26

Does the MPC require specific or general intent for attempts?

If something different, what do they require?

Answer 26

NEITHER MPC REQUIRES PURPOSE.

Purpose=specific intent but it is not explicitly stated

Question 27

Can you attempt to be reckless?

What about attempted felony murder?

Answer 27

NO TO BOTH.

Question 28

What are the 2 requirements for a punishable attempt crime?

Answer 28

a) the defendant has the specific intent or purpose to bring about the crime and that

b) he takes sufficient steps towards committing the crime to satisfy the jurisdictions actus reus test.

Question 29

There are 6 tests to distinguish attempt from mere preparation.

1-5 is in common law, the last is in the MPC.

1) Slight acts Test
2) Physical Proximity Test
3) Dangerous Proximity Test
4) Unequivocally Test
5) Probable desistance Test
6) MPC Substantial step Test

Answer 29

1. The slight-acts test, which allows liability if the design of a person to commit the crime is clearly shown and the actor commits even “slight acts” in furtherance of that design.
2. The physical proximity test, where the defendant must be close in time and space to the final act that completes the crime.
3. The dangerous proximity test is more conceptual and asks whether the defendant was dangerously close to consummating the offenses—proximity here being a causal concept, not a geographic one.
4. The unequivocality test asks whether the defendant’s conduct unequivocally demonstrates the defendant’s intent to commit the crime—an actus reus requirement that loops back and refers to the mental element.
5. The probable desistance test requires that the defendant’s conduct would result in the completed crime “in the ordinary and natural course of events” if the actor had not been interrupted by a third party (such as the police).
6. The MPC substantial step test requires that the defendant engage in a “substantial step in a course of conduct planned to culminate in his commission of the crime.”

Question 30

What is the general defence for attempt crimes?

How many types of them are there?

Answer 30

Impossibility.

Two types factual and legal impossibility

Question 31

What is factual impossibility for a defence to a crime?

Is this a valid defence?

Answer 31

This occurs when the objective of the defendant is proscribed by the criminal law but a circumstance unknown to the actor prevents him from bringing about that objective.

This is NOT a defence. For example, if the accused pulls the trigger but the gun jams, he is still guilty of attempted murder even though it was factually impossible to kill the victim.

Question 32

Hypothetical:

If the accused pulls the trigger but the gun jams, is he guilty of attempted murder?

Answer 32

Yes, he is still guilty of attempted murder even though it was factually impossible to kill the victim.

Question 33

What is a legal impossibility defence for a attempt crime?

What are the two types of legal impossibility defences?

(Dont worry about hybrid, just know the first one)

Answer 33

Pure legal impossibility covers circumstances where the defendant engages in conduct that the think is illegal, but it is not and thus he cannot be convicted of an attempt example, he walks into a public park after 10pm which he thought was curfew but it really was 11pm. He cannot be convicted of attempted trespassing.

Hybrid legal impossibility exits if the defendant’s goal was illegal, but commission of the offence was impossible due to a factual mistake regarding the legal status. (This has largely been abandoned)

Question 34

Hypothetical:

A guy walks into a public park after 10pm which he thought was curfew but it really was 11pm.

Can be convicted of attempted trespassing?

What defence will he raise?

Answer 34

He cannot be convicted of attempted trespassing. as it was a pure legal impossibility

Question 35

Hypothetical:

A guy receives property he thought was stolen but it was actually never stolen.

Is this attempted larceny?

If not why?

Answer 35

No. Pure legal impossibility.

In those circumstances he would not be guilty.

Question 36

What is the modern approach for legal impossibilities?

Answer 36

Only allow pure legal impossibilities

Question 37

What is the abandonment defence for attempt crimes?

What is something important to note about the defence?

Answer 37

The abandonment defence applies if the accused voluntarily and completely renounced his criminal purpose.

The abonnement must be truly voluntary as opposed to a result of resistance from the victim or of fear of apprehension.

Question 38

Hypothetical

If the accused abandons a robbery after the victim fights back, can he claim abandonment for the crime?

Answer 38

No it was not voluntary thus no defense

Question 39

Does the MPC and Common law recognize the abandonment defence?

Answer 39

Yes.

Question 40

What must you first have to use a abandonment defence?

Answer 40

You must first have an attempt

Question 41

Example:

You are about to kill someone but they confuse you not to do the offence.

Is this an abandonment defence?

Answer 41

Yes confusingly. There is a case of a guy thinking of raping a women but then she says I have a child and he stopped.

Question 42

Example:

You are to about to kill someone, but you are afraid her screams will make others aware and you don’t commit.

Is this an abandonment defense?

Answer 42

No it is not true abandonment.

Question 43

Do attempts merge into their completed offences?

Answer 43

Attempt always merge into their completed offences. Once a crime is brought to fulfillment, the attempt legally disappears, and the actor can no longer be convicted for both the attempt and the completed offence.

Question 44

People v. Gentry

Facts: Defendant was convicted of attempted murder and aggravated battery. At trial, the court merged the battery conviction with the attempted murder conviction and imprisoned him for 45 years. Defendant appeals it should be reversed because the courts instruction regarding the intent was erroneous.

The trial court was given the info that “ To sustain the charge of attempt the state must prove the first that the defendant performed an act which was a substantial step towards the commission of the offence and that the defendant did so with the intent to commit the crime” Defendant argues the attempt requires specific intent to kill and this was not given.

Issue:

1) If there is no evidence he had the specific intent to kill, should he be charged for attempted murder?

Answer 44

Holding/Analysis

Court said no attempted murder as there is no evidence that he intended to kill the victim. Gentry tried to put out the fire, he did not have the intent to kill.

Court finds that a trial court MUST make it clear that specific intent to kill is the pivotal element of the defense. Thus the instructions given were wrong. Thus, remanded and reversed.

Ratio: Attempt requires a specific intent and nothing less.

Question 45

People v. Rizzo

Facts: Convicted of robbery as he planned to rob a guy for 1200. Two police officers say them planning to rob the guy and followed them. When the defendant was running out of the car to try and rob the guy, the police arrested him.

Issue: What is the dangerously close test?

If the court determine this was just planing, then what?

Answer 45

Holding/Analysis

Attempt of robbery requires acts that come dangerously close to the actual taking of the item. Did the actions here have that level? They used the dangerously close test

No attempt could be made as they couldn’t find the guy and didn’t even see him as the cops grabbed him prior. The defendants had planned to commit a crime and were going to, but the opportunity never came. Thus, not guilty.

Ratio: Must take actual steps, planning is not enough for attempt.

Question 46

State v. Reeves:

Facts: Defendant appeals that she had attempted to commit second degree murder. 12-year-old defendant decided to kill their homeroom teacher by putting rat poison in the teachers drinks then steal her car and drive away. The court used the substantial step test.

Issue:

Does the defendants’ actions constitute a substantial step towards the commission of the crime for the attempt?

Answer 46

Holding/Analysis

Yes. They put the poison in the cup and took steps that would cause death.

Ratio: Substantial steps towards commission constitute an attempt.

Question 47

People v. Dlugash:

Facts: Defendant was charged with murder as he and a friend killed a guy. However, the first guy killed the victim and the defendant shot after he was dead. He argues he could not commit murder as he did not kill anyone as he shot 5 minutes after the first guy killed him.

Issue: Did he commit murder or attempted murder?

Would an impossibility defense stand?

Answer 47

Holding/Analysis

This was attempted murder. Although he met the mens rea portion, he did not fulfil the actus reus as he did not actually commit the full act.

Factual impossibility is no defense, and even though in this case he couldn’t kill him twice, he still attempted to murder him.

Question 48

State v. Smith:

Facts: Defendant was a county jail inmate and had HIV. He threatened to kill officers by biting and spitting on them. That day he bit an officer. Jury found guilty of attempted murder, and he appealed that a bite is not enough for HIV.

Note: he did believe the bite could maybe kill him.

Issue:

1) Can you use factual impossibility as a defence?

Answer 48

Holding/Analysis

Cannot use factual impossibility as a defence.

Question 49

Ross v. Mississippi

Facts The guy had a gun and was going to rape a woman. She said she had a kid and he said if she did have a child, he wouldn’t touch her. He left without raping her.

Issue: Is this attempted rape? The key question is what made Ross leave? Was it voluntarily abandonment?

Answer 49

Holding/Analysis

Defendant argues he voluntarily and independently decided not to rape the women, but the state says he panicked and didn’t rape her. If he did voluntary abandon, it may negate the crime of attempt. The court finds he voluntarily abandoned the rape even though the victim persuaded him as she did not fight back nor nothing, but rather of conscious mind he left.

Ratio: True voluntary abandonment can render the attempt crime gone.