Inchoate Crimes Flashcards
What are the 3 inchoate criminal offenses?
1) Solicitation
2) Conspiracy
3) Attempt
What are the 2 elements of criminal solicitation?
Solicitation =
1) asking someone to commit a crime;
2) w/ the specific intent that the crime be committed
NOTE: the crime is the ASKING; it doesn’t matter whether the other person agrees/completes the crime
What are the elements of conspiracy?
Conspiracy =
Required Act:
1) an agreement between two or more people to commit a crime (need not be express, can be proved by conduct); AND
2) an overt act in furtherance of the crime (can be committed by any of the co-conspirators)
Mental State:
Specific intent to (i) enter in the agmt; AND (ii) accomplish the objectives of the conspiracy
NOTE: Completion is unecessary. The agmt is the “essence” of the crime.
Is it possible to have a one-person conspiracy? NOTE: NY Distinction
Common law rule = NO! There must be at least 2 guilty minds (bilateral approach) NOTE: If the other parties to the agmt are acquitted, the last remaining ∆ CANNOT be convicted
NY DISTINCTION = YES! A ∆ may be guilty of conspiracy EVEN IF the other parties are acquitted or were just pretending to agree (the unilateral approach)
What is the Wharton rule?
When two or more ppl are NECESSARY for the commission of the substantive offense, there is NO CONSPIRACY unless MORE parties participate in the agmt than are necessary for the crime
NOTE: NY follows the Wharton rule
What is the rule for vicarious liability w/ respect to conspiracy? NOTE: NY Distinction
Common law (“Pinkerton”) rule = In ADDITION to the conspiracy, a ∆ will be liable for OTHER crimes committed by his co-conspirators, SO LONG AS those crimes:
1) were committed in furtherance of the conspiracy; AND
2) were foreseeable
NY DISTINCTION: NO vicarious liability for one who merely conspires and DOES NOT particpate in the crime commited by a co-conspirator
Is impossibility ever a defense toconspiracy?
NO! Impossibility (factual or legal) is NEVER a defense to a charge of conspiracy
What are the elements of attempt? NOTE: NY Distinction
Required Act: An overt act BEYOND mere preparation (NY uses proximity test; majority/MPC is substantial step)
Mental State: specific intent to commit the underlying crime
You CANNOT attempt UNINTENTIONAL crimes, so NO attempt for (i) recklessness crimes; (ii) negligence crimes; OR (iii) felony murder
NOTE: transferred intent does NOT apply to attempt crimes
Is withdrawal/abandonment from an inchoate crime possible? NOTE: NY Distinction
Common law: withdrawal is NOT a defense to an inchoate defense
EXCEPTION: Once ∆ withdraws (i.e. lets the other co-felons know) from a CONSPIRACY he will no longer be vicariously liable (Pinkerton) for crimes committed by his co-conspirators AFTER he left the conspiracy (BUT is liable for crimes committed prior to withdrawal)
NY DISTINCTION:
Solic & Consp: Withdrawal IS an affirmative defense to solicitation AND conspiracy IF the ∆ (i) voluntarily/completely renounced the act; AND (ii) prevents the commission of the underlying crime
Attempt: Abandonment IS an affirmative defense to attempt IF the ∆ (i) completely/voluntarily renounces his actions; AND (ii) does not commit the underlying crime
What are the merger rules for inchoate crimes (i.e. solicitation, conspiracy and attempt)? NOTE: NY Distinction
Solicitation: merges with conspiracy, attempt, and completed crime
NY DISTINCTION:
Solicitation does NOT merge (i.e. it stays a sep crime)
Attempt: merges w/ the completed target crime (ONLY)
Conspiracy: DOES NOT merge. Period. (i.e. it stays a sep crime)
What is the difference between the “Proximity” Test and the “Substantial Step” Test for attempt?
Proximity Test (common law/NY): ∆must engage in conduct that gets dangerously close to the commission of the crime
Sub Step Test (MPC/majority): ∆must engage in conduct that constitutes a subs step and conduct strongly corroborates criminal purpose
