Common Law Inchoate Crimes

Question 1

Elements of Attempt

Answer 1

1. A specific intent to engage in conduct or to bring about a certain result that would in law amount ot a crime, and
2. An affirmative act in furtherance of that intent, and
3. A failure to consummate the crime

Question 2

Tests to Distinguish attempt from mere prep

Answer 2

Slight acts test
Physical proximity test
Dangerous proximity test
Unequivocally test
Probable desistance test

Question 3

Slights Acts Test

Answer 3

liability if shown even slight act was taken in furtherance of design.

Question 4

Physical Proximity Test

Answer 4

defendant must be close in time and space to final act that completes the crime.

Question 5

Dangerous Proximity Test

Answer 5

Defendant was causally dangerously close to consummating the crime.

Question 6

Unequivocally Test

Answer 6

defendant’s conduct unequivocally demonstrates defendant’ s intent to commit the crime.

Question 7

Probable Desistance Test

Answer 7

Defendant’s conduct would result in completed crime in the ordinary and natural course of events if actor was not interrupted.

Question 8

Legal Impossibility Defense to Attempt

Answer 8

Crime is impossible to complete
Pure – where D engages in conduct he thinks is a crime but isn’t.
Hybrid – D’s goal was illegal but commission of the offense was impossible due to a factual mistake by them regarding the legal status of some factor relevant to their conduct.

Question 9

Factual Impossibility Defense to Attempt

Answer 9

not really a defense – where the objective of the defendant is proscribed by the criminal law but the circumstances unknown to the actor prevents him from bringing about that objective.

Question 10

MPC Section 5.01 (1). Definition of Criminal Attempt.

Answer 10

(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or
(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or
(c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

Question 11

MPC 5.01 (2) Conduct Which May be Held Substantial Step Under Subsection (1)(c)

Answer 11

Conduct shall not be held to constitute a substantial step under Subsection (1)(c) of this Section unless it is strongly corroborative of the actor’s criminal purpose. Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law:

(a) lying in wait, searching for or following the contemplated victim of the crime;

(b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;

(c) reconnoitering the place contemplated for the commission of the crime;

(d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;

(e) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances;

(f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;

(g) soliciting an innocent agent to engage in conduct constituting an element of the crime.

Question 12

MPC 5.01(4) Renunciation of Criminal Purpose.

Answer 12

When the actor’s conduct would otherwise constitute an attempt under Subsection (1)(b) or (1)(c) of this Section, it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention.

Within the meaning of this Article, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.

Question 13

Merger Doctrine of Attempt

Answer 13

Attempts always merge into completed crimes
D cannot be charged, convicted and punished for an attempt to commit a crime and for the commission of that crime

Question 14

Elements of Solicitation

Answer 14

1. Specific intent or purpose
2. To solicit (hire, command, request, encourage, or invite)
3. A third party to perform a crime

Question 15

Elements of Conspiracy

Answer 15

1. Agreement to commit an unlawful act
2. Specific intent or purpose to achieve the goal or object of the conspiracy
3. Overt act in furtherance of the conspiracy

Question 16

Overt Act for Conspiracy

Answer 16

Conspiracy the actus reus is an agreement to commit a crime and the actus reus of solicitation is attempt to persuade another to commit a crime

Question 17

Differences between Conspiracy and Attempts

Answer 17

Attempts can and often do involve one person; conspiracies always involve at least two people (unilateral w/ undercover cop and bilateral between two people)
Attempts generally require a substantial step (some direct but ineffectual act toward the commission of the crime; an act that reaches “dangerous proximity” to the commission of a crime). Conspiracies requires only an overt act by any co-conspirator to carry the conspiratorial agreement into motion

Question 18

Renunciation of Conspiracy

Answer 18

D must fully renounce the conspiracy by (1) thwarting the conspiracy under circumstances (2) manifesting a complete and voluntary renunciation of his criminal purpose

Question 19

Conspiracy Merger Doctrine

Answer 19

Conspiracy does not merge with completed offense

Question 20

Bilateral Approach to Conspiracy

Answer 20

Under a bilateral approach, a conspiracy does not exist if there is no actual agreement to commit a crime between the defendant and at least one other person.
A person is not guilty of conspiracy to commit an illegal act if the evidence fails to establish that he partook in a genuine agreement to commit the act and had the specific intent to do so.
In certain circumstances, threatening speech can qualify as an overt act sufficient for a charge of conspiracy