Crim Law - Inchoate Offenses Flashcards
Inchoate Offenses
Inchoate or “incomplete” offenses are
(1) SOLICITATION
(2) CONSPIRACY
(3) ATTEMPT
SOLICITATION
Solicitation is asking someone to commit a crime, with the INTENT that the crime be committed
Mental State: SPECIFIC INTENT
Completion Unnecessary: The crime is in the ASKING. It doesn’t matter whether the other person agrees or whether the crime is actually committed
CONSPIRACY
CONSPIRACY is an agreement between two or more people to commit a crime, PLUS an OVERT ACT in furtherance of the crime
OVERT ACT: ANY act, even if merely preparatory, performed by ANY of the co-conspirators
Mental State: SPECIFIC INTENT to
(1) enter into a agreement
- –this can be proved by conduct that is a “concert of action” towards a common goal
(2) to accomplish the OBJECTIVES of the conspiracy
again COMPLETION UNNECESSARY - the essence of the crime of conspiracy is the AGREEMENT; completion of the conspiratorial objective is unnecessary for conviction
Can You Have A One-Person Conspiracy?
Under the common law, NO
The “Bilateral” Approach: There must be at least 2 guilty minds, both of who actually agree to accomplish the conspiracy’s objectives
—RELATED RULE: If all other parties to the agreement are acquitted, the last remaining D cannot be convicted
under NY LAW*** YESS you can have 1 person conspiracy
“UNILATERAL APPROACH” of NY and MPC, a D may be guilty of conspiracy even if other parties are ACQUITTED or were just PRETENDING to agree
–requires only 1 guilty mind
WHARTON RULE (NY*** follows this)
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
***NY Continues to follow the WHARTON RULE
e,g, Dudley and Alex agree to meet at dawn to engage in a duel, which is unlawful in this jurisdiction. They cannot be convicted of conspiracy to duel because the substantive crime of dueling REQUIRES two parties (can’t duel yourself), would need at least 3 participants in the agreement for the conspiracy
Vicarious (PINKERTON) Liability
Common Law Rule: In addition to conspiracy, a D will be liable for OTHER crimes committed by his co-conspirators, so long as those crimes:
(a) were committed in FURTHERANCE of the conspiracy’s objective, and
(b) were FORESEEABLE
***NY RULE - NO VICARIOUS LIABILITY for one who merely conspires and DOES NOT PARTICIPATE in a crime committed by a co-conspirator
***NY Rule for Vicarious Liability under a Conspiracy
***NY RULE - NO VICARIOUS LIABILITY for one who merely conspires and DOES NOT PARTICIPATE in a crime committed by a co-conspirator
Is Impossibility ever a defense to a charge of conspiracy?
NO, IMPOSSIBILITY is NEVER a defense to a charge of conspiracy
e.g. Dudley and Alex agree to kill Victor. When they arrive at Victor’s house, they find that he is already dead. Dudley and Alex can STILL be convicted of conspiracy to commit murder (even though it is impossible to murder a dead guy)
ATTEMPT
An attempt consists of two elements
(i) a SPECIFIC INTENT to commit a crime and
(ii) an overt act in furtherance of that intent
A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime.
Unlike conspiracy, attempt requires an overt act BEYOND mere preparation
NY***/Common law PROXIMITY” Test (strict): Conduct that gets DANGEROUSLY CLOSE to the commission of the crime
the MPC/Majority “SUBSTANTIAL STEP” Test (generous): Conduct that constitutes a SUBSTANTIAL STEP towards the commission of the crime, provided that conduct STRONGLY CORROBORATES the actor’s criminal purpose
What is the NY*** Test for the requisite Conduct for attempt?
NY uses the “PROXIMITY” test, which considers an attempt to be conduct that gets DANGEROUSLY CLOSE to the commission of the crime
Note: under NY’s PROXIMITY test, you are not considered “dangerously close” if you have not yet LOCATED the victim
Mental State for Attempt
Attempt requires the SPECIFIC INTENT to commit the underlying crime
therefore, you cannot ATTEMPT unintentional crimes
practically speaking, this means there are no attempt versions of
(a) recklessness
(b) negligence
(c) felony murder
e.g. can’t have “attempted manslaughter” in NY bc manslaughter in NY requires recklessness
IMPOSSIBILITY (Is it a defense to attempt?)
2 types
(1) FACTUAL IMPOSSIBILITY - Although the D intends to commit the underlying crime and engages in conduct consistent with the intent, some PHYSICAL or FACTUAL condition unknown to the D prevents the underlying crime from taking place
e. g. Dudley intends to pick Victor’s pocket and puts his hand in there but pocket is empty
RULE: Factual Impossibility is NOT a defense to attempt
(2) LEGAL IMPOSSIBILITY - Although the D intends to commit the underlying crime and engaged in conduct consistent with the intent, some LEGAL circumstance or status unknown to the D prevents the successful completion of the underlying crime
Common law Rule: Legal Impossibility IS a defense to attempt
**NY RULE: Legal Impossibility IS NOT a defense to attempt
e. g. Monica tries to steal an umbrella as she is leaving gym and believes she is stealing it when she takes it. Turns out it is hers that she forgot at the gym a while back
- common law = this is a defense
- under NY law = no defense
Common Law: WITHDRAWAL/RENUNCIATION/ABANDONMENT - ie what happens when a solicitor, co-conspirator, or attempter changes his mind?
Common Law: Withdrawal is NOT a defense
EXCEPTION:
(1) once D withdraws from a CONSPIRACY, he will no longer be vicariously liable for crimes committed by his co-conspirators AFTER he left the conspiracy
(2) HOWEVER, D is still guilty of conspiracy and all foreseeable crimes committed by co-conspirators prior to his withdrawal
NY Rule** Withdrawal/Renunciation/Abandonment
Renunciation IS a defense to SOLICITATION, CONSPIRACY, and ATTEMPT,
But ONLY IF:
(1) D renounces his criminal purpose PRIOR to the commission of the substantive offense AND makes a SINCERE and SUCCESSFUL EFFORT to prevent the commission of the substantive offense; and
(2) the RENUNCIATION is COMPLETE and VOLUNTARY, meaning it was based on a genuine “change of heart” not fear of failing or being caught
MERGER RULES For Inchoate Offenses
SOLICITATION AND ATTEMPT MERGE with the completed crime (ie if you solicit someone to help you murder, and then you murder that person, can’t be charged with solicitation AND murder, just murder, the solicitation merged - Not so with conspiracy, you can be charged with conspiracy to murder, and murder if you complete it - ie they don’t merge)
***NY DISTINCTION: SOLICITATION DOES NOT MERGE!!
CONSPIRACY IN GENERAL does not merge (An MBE Favorite!!!)
