Inchoate Crimes

Question 1

What are the 3 inchoate criminal offenses?

Answer 1

1) Solicitation 2) Conspiracy 3) Attempt

Question 2

What are the 2 elements of criminal solicitation?

Answer 2

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

Question 3

What are the 2 elements of conspiracy?

Answer 3

1) an agmt btwn 2 or more other ppl to commit a crime, plus an overt act in furtherance of the crime 2) with the specific intent to do two things (i) enter into an agmt; AND (ii) to accomplish the objectives of the conspiracy

NOTE: An agmt need not be express can be proven INDIRECTLY by conduct that is a “concert of action” torwards a common goal.
Overt act = any act, even if merely preparatory, performed by ANY of the co-conspirators.
Completion is Unnecessary: the essence of the crime of conspiracy is the agreement.

Question 4

Is it possible to have a one-person conspiracy? NOTE: NY Distinction

Answer 4

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! ∆ may be guilty of conspiracy EVEN IF the other parties are acquitted or were just pretending to agree (the unilateral approach)

Question 5

What is the Wharton rule?

Answer 5

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

Question 6

What is vicarious liability? NOTE: NY Distinction

Answer 6

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.

Question 7

Is impossibility ever a defense toconspiracy?

Answer 7

NO! Impossibility (factual or legal) is NEVER a defense to a charge of conspiracy

Question 8

What are the 2 elements of attempt? NOTE: NY Distinction

Answer 8

1) An overt act BEYOND mere preparation 2) w/ the specific intent to commit the underlying crime

Two tests for determining what constitutes beyond mere preparation

NY/Common law “Proximity” Test = ∆ must engage in conduct that gets dangerously close to the commission of the crime

Majority/MPC “Substantial step” test = ∆ must engage in conduct that constitutes a substantial step towards the completion of the crime, provided that conduct strongly corroborates the actor’s criminal purpose.

You CANNOT attempt UNINTENTIONAL crimes, so NO attempt for (i) recklessness crimes; (ii) negligence crimes; OR (iii) felony murder

Question 9

Is withdrawal/abandonment/renunciation from an inchoate crime possible? NOTE: NY Distinction

Answer 9

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: Withdrawal IS an affirmative defense to solicitation AND conspiracy IF the ∆ (i) completely and voluntarily renounces AND (ii) prevents the commission of the underlying crime Abandonment IS an affirmative defense to attempt IF the ∆ (i) completely and voluntarily renounces AND (ii) as a result, does not commit the underlying crime

Question 10

What are the merger rules for inchoate offenses? NOTE: NY Distinction

Answer 10

Solicitation and attempt merge with the completed crime. NY DISTINCTION: Solicitation does NOT merge.
Conspiracy: DOES NOT merge. Period.