Inchoate Crimes Flashcards
What are the inchoate crimes and what is the required intent?
The inchoate offenses are solicitation, conspiracy, and attempt. Inchoate offenses are specific-intent crimes.
Traditionally, what is the doctrine of merger? How does this apply under modern law?
Traditionally, under the doctrine of merger, if a person’s conduct constitutes both a felony and a misdemeanor, then the misdemeanor merges into the felony, and the person can be convicted of the felony but not the misdemeanor. However, if the crimes are of the same degree, i.e., all felonies or all misdemeanors, then there is no merger of the crimes.
Under modern law, solicitation and attempt are said to “merge” into the completed crime (defendant may be tried, but not punished, for both). There is no merger for conspiracy.
In other words: Under the MPC, a defendant may be concurrently prosecuted, but not punished, for more than one inchoate offense (i.e., solicitation, conspiracy, and attempt) based on conduct designed to culminate in the commission of the same crime.
Note: The Double Jeopardy Clause generally prohibits a defendant from being convicted of both a crime and a lesser-included offense (i.e., an offense all the elements of which are also elements of the more-significant crime), such as robbery and larceny. Many jurisdictions characterize this prohibition as a “merger” of the lesser-included offense into the greater.
What are the elements of solicitation?
Solicitation is the:
i) Enticing, encouraging, requesting, or commanding of another person;
- -may also take the form of incitement
- -Crime is completed upon the encouragement
- -The other person need not agree to commit the crime (but if they do, then the solicitor and the person solicited may also become co-conspirators)
ii) To commit a crime;
iii) With the intent that the other person commits the crime.
What are the defenses to solicitation?
Renunciation: Not at common law, but under the MPC voluntary renunciation may be a defense, provided the defendant thwarts the commission of the solicited crime
Factual impossibility: If a solicitor is part of a group that was meant to be exempted by the statute, then the solicitor cannot be guilty of solicitation (e.g., a minor female soliciting sex cannot be guilty of statutory rape)
What are the elements of conspiracy?
Conspiracy is:
i) An agreement;
- -Can be oral
- -Can be inferred from a concerted action by the defendants
- -It is only necessary that all co-conspirators agree to further the common scheme or plan. Multiple conspiracies arise when the objectives and/or crimes are not committed in furtherance of the same agreement, common scheme, and plan.
ii) Between two or more persons;
- -UWorld: Bilateral theory of conspiracy requires two guilty minds; no conspiracy when one of two parties is an undercover officer and feigns agreement.
- -BUT: modern trend and the MPC is to allow a “unilateral” conspiracy. Under this approach, the focus of liability is on the individual defendant and his agreement to the object of the conspiracy. A unilateral conspiracy may be formed when only one party actually agrees, such as when another party merely feigns agreement (e.g. the other conspirator is a governmental agent or pretends to go along with the crime to warn police), or if the alleged co-conspirators are ultimately acquitted.
- -In jurisdictions that follow the bilateral approach to conspiracy, a conspirator cannot be convicted of conspiracy if all other conspirators are acquitted at the same trial. In other circumstances, such as when co?conspirators are never tried or apprehended, a conspirator may be convicted of conspiracy if the prosecution proves the existence of a conspiracy.
iii) To accomplish an unlawful purpose;
- -When the purpose of a criminal statute is to protect a type of person (e.g., a statutory rape statute protects the underage participant), there is no conspiracy between the protected party and the targeted defendant
- -Under federal law and the modern trend, “unlawful purpose” is limited to criminal conduct. In some states, even the achievement of a lawful purpose through illegal means can be the subject of a conspiracy.
iv) With the intent to accomplish that purpose.
Note: The majority rule and federal law, as well as the MPC, now require the commission of an overt act.
- -When an overt act is required, the conspiracy crime is not complete until the overt act is performed in furtherance of the conspiracy.
- -The overt act can be performed by any co-conspirator, with or without the knowledge of all co-conspirators.
- -The overt act can be lawful or unlawful.
- -The MPC does NOT require an overt act if the conspiratorial crime is a felony in the first or second degree.
- -Contrast attempt: To constitute attempt, the defendant must have taken a substantial step toward commission of the crime. A mere preparatory act is insufficient for attempt.
What is the Wharton Rule?
Under the Wharton Rule, if a crime requires two or more participants (e.g., adultery) there is no conspiracy unless more parties than are necessary to complete the crime agree to commit the crime. Although there is no conspiracy, the participants may be found guilty of the underlying crime itself. Because the MPC does not require the participation of at least two conspirators, this rule does not apply to conspiracies under the MPC.
Can a corporation conspire with its own agents?
A corporation can conspire with its own agents with some limitations. In some jurisdictions, there can be no conspiracy between a corporation and a single agent of that corporation. A conspiracy between the corporation and multiple agents of the same corporation may, in most jurisdictions, satisfy the plurality requirement. A corporation or its agents can enter into a conspiracy with another corporation or agents of that corporation.
What is the intent requirement for conspiracy?
Conspiracy is a specific-intent crime. A conspirator must have the intent to agree and the intent to commit the criminal objective. The intent to agree may be inferred from the conduct of the parties.
Example: Conspiracy to commit arson requires specific intent, even though the substantive offense of arson only requires malice. Similarly, a conspiracy to commit a strict-liability crime requires intent.
Because intent to agree and to commit the crime are elements of conspiracy, criminal liability for a conspiracy cannot be based solely on knowledge of the existence of the conspiracy. For example, a merchant who supplies goods to a conspirator knowing that the conspirator intends to use the goods in furtherance of the objective of the conspiracy is not a member of the conspiracy simply because the merchant possessed such knowledge. Instead, the merchant must take an additional step to show such intent, such as selling the goods at an exorbitant price, basing the price of the goods on a percentage of the conspiracy’s “take,” or ordering specially manufactured goods that the merchant does not normally sell.
What is the Pinkerton rule?
Under the Pinkerton Rule, a conspirator can be convicted of both the offense of conspiracy and all substantive crimes committed by any other co-conspirators acting in furtherance of the conspiracy.
Under the MPC, the minority view, a member of the conspiracy is not criminally liable for such crimes unless that member aids and abets in the commission of the crimes.
Describe liability for a “chain relationship” conspiracy versus a “hub-spoke relationship.”
1) Chain relationship
Persons who do not know each other can be members of the same conspiracy if there is a community of interest in the achievement of the object of the conspiracy. A community of interest is usually found when the activities of each person resemble links of a chain, such as a scheme to acquire and distribute drugs. In such a conspiracy, all of the members of the community of interest are liable for the acts of the others in furtherance of the conspiracy.
2) Hub-spoke relationship
A scheme that resembles a hub with spokes, such as the processing of fraudulent loans by one person that were submitted by numerous other individuals, is less likely to have a community of interest. In such a case, the “hub” and each “spoke” are usually treated as having formed a separate conspiracy from all of the other hub-spoke combinations. Thus, the common hub will be liable for all of the conspiracies, but the spoke members are not liable for the acts of the other conspirators.
Which are defenses to conspiracy?
• Factual impossibility (that it was factually impossible to complete the intended crime)
• Legal impossibility (that the intended act is not criminal in nature)
• Withdrawal
- Factual impossibility: not a defense.
- Legal impossibility: may be a defense.
- Withdrawal:
Federal/majority rule: Conspiracy does not come into existence until an overt act has been committed. Consequently, after there has been an agreement but before an overt act has been committed, a person may avoid criminal liability for conspiracy by communicating notice of his intent not to participate to the other potential co-conspirators or by informing the police about the agreement.
MPC/minority rule: Subsequent withdrawal is possible only if the defendant acts voluntarily to “thwart the success” of the conspiracy.
A defendant may limit his liability as a co-conspirator for the substantive crimes that are the subject of the conspiracy by withdrawing from the conspiracy at any time after it is formed. For this purpose, he may withdraw by giving notice to his co-conspirators or timely advising legal authorities of the existence of the conspiracy even though such an action does not thwart the conspiracy.
What is an attempt?
An attempt requires:
i) A substantial step toward the commission of a crime; coupled with
ii) The specific intent to commit the crime.
If the crime is successfully completed, the attempt is merged into the completed crime.
If the crime is successfully completed, the attempt is merged into the completed crime.
What counts as a substantial step for purposes of attempt?
Substantial step test: Mere preparation doesn’t count; the act must be conduct that tends to effect the commission of a crime. Any of the following acts may constitute a substantial step if they corroborate the defendant’s criminal purpose (from the MPC):
i) Lying in wait, searching for, or following the intended victim;
ii) Unlawful entry into the place contemplated for the commission of the crime;
iii) Enticing the intended victim to go to such place;
iv) Possession of materials specially designed for committing the crime;
v) Possession of materials to be used in the commission of the crime at or near the place of commission; and
vi) Soliciting an innocent agent to engage in criminal conduct.
“Dangerous proximity” test: Some states continue to apply the traditional common-law “dangerous proximity” test. Under this test, an attempt does not occur until the defendant’s acts result in a dangerous proximity to completion of the crime.
What is the intent requirement for attempt?
The defendant must possess the specific intent to perform an act or attain a result, which, if completed, would constitute the target crime, even if the target crime is not a specific-intent crime.
Example: Arson is not a specific-intent crime, but attempted arson is. An attempt to commit a strict-liability crime is also a specific-intent crime.
There is no attempt to commit negligent crimes like involuntary manslaughter because a defendant’s act cannot be both intentional and negligent.
Which are defenses to attempt?
• Factual impossibility (crime attempted is factually impossible to commit due to circumstances unknown to the defendant)
• Legal impossibility (act intended is not a crime)
• Abandonment
- Factual impossibility: not a defense.
- Legal impossibility: may be a defense. In such a case, even when statutes purport to have done away with the impossibility defense, there is always a provision that allows for legal impossibility.
- Abandonment:
Generally and at common law, once the defendant has completed the actus reus (whether by taking a substantial step toward or coming within dangerous proximity of the commission of the offense), the defendant may not legally abandon the attempt to commit the crime because of a change of heart. Upon the completion of the actus reus, the crime of attempt is completed; there can be no abandonment or withdrawal.
Some states do recognize voluntary abandonment as a defense to attempt. Even then, abandonment is not voluntary if it is motivated by a desire to avoid detection, a decision to delay commission of the crime until a more favorable time, or the selection of another similar objective or victim. Abandonment by the defendant does not constitute a defense for an accomplice who did not join in the abandonment or withdrawal.
