CRIMES - Inchoate Crimes and Accomplice Liability

Question 1

Is failure to intervene sufficient for accomplice liability?

Answer 1

No. “Failure to intervene to prevent” will not make one an accomplice UNLESS there is an AFFIRMATIVE DUTY TO INTERVENE (e.g., parent-child relationship–both parents have an affirmative duty to protect their child/children).

Question 2

Does solicitation merge with conspiracy?

Answer 2

Yes. If solicitation BECOMES conspiracy, the defendant CANNOT be found guilty/convicted of BOTH conspiracy and solicitation (must be one or the other).

Question 3

Does conspiracy merge with the completed crime?

Answer 3

No. A defendant CAN be found guilty/convicted of BOTH the conspiracy to commit a crime AND the underlying (i.e. the conspired) crime itself. NOT NECESSARILY both, but CAN be both.

Question 4

Is factual impossibility a defense to attempt?

Answer 4

No. Consider, e.g., attempting to sell a white powder you believe to be cocaine but that is in actuality baking powder.

Question 5

Define “accessory after the fact”

Answer 5

Someone who SHIELDS, SHELTERS, OR ASSISTS another, knowing that the other has committed a felony, in order to help the felon escape arrest, trial, or conviction.

The felony must be complete at the time aid is rendered.

An AATF is not liable for the principal crime, but rather for the less serious offense of accessory after the fact.

Question 6

Is mere presence sufficient for accomplice liability?

Answer 6

No. There must be active involvement–but words alone can suffice.

Question 7

What are the actus reus and mens rea requirements for accomplice liability?

Answer 7

ACTUS REUS - aiding, abetting, encouraging, or facilitating the commission of a crime.

MENS REA - proof that the accomplice acted with a culpable mental state (i.e. with the intent that the crime be committed).

The accomplice must have
(1) the intent to assist the primary party; and
(2) the intent that the primary party commit the offense charged.

Question 8

Is legal impossibility a defense to attempt?

Answer 8

Yes. Can’t be convicted of a crime that’s not a crime.

Question 9

What is the common law standard for “overt act beyond mere preparation”?

Answer 9

Dangerous proximity to success.

Question 10

What is factual impossibility?

Answer 10

If the facts were as the defendant believed them to be, the defendant would have committed a crime.

Question 11

Can a corporation and a single agent acting on behalf of the corporation (e.g. an officer) conspire?

Answer 11

No.

Question 12

What is the modern (Model Penal Code (MPC)) standard for “overt act beyond mere preparation”?

Answer 12

Substantial Step Towards Completion

Question 13

What are the actus reus and mens rea requirements for attempt?

Answer 13

Actus reus: overt act beyond mere preparation

Mens rea: SPECIFIC INTENT to carry out the target crime

Question 14

Is abandonment a defense to attempt under the common law?

Answer 14

No. At common law, once a defendant commits an act beyond mere preparation, she is guilty of attempt even if she later changes her mind and abandons her criminal plan (cf. MPC).

Question 15

When can a person be found guilty of accomplice liability for rendering legal assistance?

Answer 15

For mens rea, intent can be inferred when the accomplice (think: attorney) renders legal assistance if the accomplice has:
(1) knowledge of illegal purpose; and
(2) stake in the outcome

Question 16

Is withdrawal a defense to solicitation?

Answer 16

No. However, a solicitor, who solicits and then withdraws, remains guilty for solicitation but avoids accomplice liability.

Question 17

What are the actus reus and mens rea requirements for solicitation?

Answer 17

Actus reus: inciting, urging, counseling, or commanding another to commit a crime

Mens rea: with the specific intent to incite another person to commit a crime

Question 18

Is mistake of law a defense to conspiracy?

Answer 18

NO

Question 19

What is the scope of accomplice liability?

Answer 19

Liability for intended crime AND ALL OTHER foreseeable crimes committed by the principals

Question 20

What is the Wharton Rule?

Answer 20

At common law, where two (or more) people are necessary to commit a crime, there cannot be a conspiracy to commit that crime unless more parties participate in the agreement than the number of participants required by the criminal statute.

Question 21

Does attempt merge with the completed crime?

Answer 21

Yes. The defendant CANNOT be found guilty/convicted of BOTH attempt and the completed crime (must be one or the other).

Question 22

Modernly (think MPC), is abandonment a defense to attempt?

Answer 22

Yes. Modernly (under the MPC), a voluntary abandonment before the completion of the substantive crime is an affirmative defense (the defense of renunciation).

Question 23

What is the effect of acquittal of co-conspirators?

Answer 23

If ALL other co-conspirators are ACQUITTED, the remaining defendant cannot be convicted of conspiracy because the acquittals prove that there was no one with whom the defendant conspired.

ACQUITTAL IS KEY. If other co-conspirators are not brought to justice (i.e. not apprehended or not prosecuted), the defendant can still be convicted of conspiracy).

Question 24

What is the scope of co-conspirator liability?

Answer 24

EACH co-conspirator is liable for the crimes of ALL OTHER CONSPIRATORS if the crimes were reasonably foreseeable (natural and probable consequence) and committed in furtherance of the conspiracy even if unintended.

Question 25

What is the effect of withdrawal from a conspiracy?

Answer 25

No defense to conspiracy charge (guilty when agreement was made and overt act completed)
No defense to substantive crimes already committed in furtherance of the conspiracy
NO LIABILITY for further crimes of conspiracy not yet completed when the defendant withdraws

Question 26

What are the requirements for an effective withdrawal from accomplice liability?

Answer 26

Depends on what accomplice has done:
Accomplice merely encouraged? THEN Discourage crime before committed
Accomplice rendered aid (assistance beyond merely encouragement)? THEN Neutralize the assistance OR prevent crime from occurring (alert 5-0)

Question 27

What is legal impossibility?

Answer 27

An attempt is considered to be a legal impossibility when the defendant has completed all of her intended acts but her acts fail to constitute a crime.

That is, if what the person was attempting to do was actually not a crime even though she thought it was, then she cannot be found guilty of attempt.

Question 28

Are words alone sufficient for accomplice liability?

Answer 28

YES - if they constituted encouragement and approval of the crime

Question 29

Define an accomplice

Answer 29

Someone who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime.

An accomplice is liable for the principal crime EVEN IF the defendant ultimately uses an alternative means to accomplish the crime(s).

Question 30

What are the requirements for an effective withdrawal from a conspiracy?

Answer 30

Affirmative act that notifies ALL co-conspirators
AND
Sufficient time for co-conspirators to abandon crime

Question 31

Does solicitation merge with the completed crime?

Answer 31

Yes. If the person solicited completes the crime, the defendant CANNOT be found guilty/convicted of BOTH solicitation and accomplice liability (must be one or the other).

Question 32

Is mistake of fact a defense to conspiracy?

Answer 32

Yes. If the facts were as the alleged co-conspirator honestly believed them to be, the conspirators would not be committing a crime and, therefore, there is no intent to pursue an unlawful objective and no criminal liability for conspiracy.

Question 33

What is the definition of conspiracy?

Answer 33

An agreement between two or more people to commit a crime.

Question 34

Is an overt act required for conspiracy liability?

Answer 34

Majority rule = YES

Minority rule and common law = NO. At common law, liability for conspiracy only requires the agreement, with no overt act required. The MPC only requires an overt act for non-serious crimes.

Question 35

What is accomplice liability?

Answer 35

If one aids, abets, encourages, or facilitates the commission of a crime with the intent that the crime be committed, one can be found guilty under the theory of accomplice liability. IT IS IMPORTANT TO NOTE THAT accomplice liability is not a separate offense but rather an alternative way to be found guilty of the primary offense.

Question 36

Define a principal

Answer 36

The party or parties who actually engage in the criminal act or omission. There is no requirement that the principal is actually prosecuted (e.g. principal never arrested) in order to find accomplice liability.

Question 37

At common law, could a husband and wife conspire? Modernly?

Answer 37

Common law - no.
Modernly - yes.