Inchoate Crimes

Question 1

INCHOATE CRIMINAL OFFENSES

What are the 3 inchoate criminal offenses?

Answer 1

1) Solicitation
2) Conspiracy
3) Attempt

NOTE: ALL 3 REQUIRE SPECIFIC INTENT

Question 2

SOLICITATION

What are the 2 elements of criminal solicitation?

Answer 2

MENTAL STATE = SPECIFIC INTENT

ELEMENTS OF 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 DOES NOT MATTER IF other PERSON AGREES/COMPLETES the crime

Question 3

CONSPIRACY

What are the 2 elements of conspiracy?

Answer 3

MENTAL STATE = SPECIFIC INTENT

ELEMENTS OF Conspiracy =Agreement + Overt Act
AGREEMENT
1a) the specific intent to enter into an agmt (w/ 1 or more other ppl) to commit a crime; AND
1b) The specific intent is wrt:
(i) ENTERING the agmt; AND
(ii) ACCOMPLISHING the OBJECTIVES of the conspiracy NOTE: can be proven INDIRECTLY by conduct that is a “concert of action” towards a common goal

OVERT ACT
2) an overt act in furtherance of the crime
NOTE: ANY overt act, even preparatory, performed by ANY of the co-conspirators is sufficient

NOTE: completion is NOT necessary
NOTE: the agmt ALONE is suffiicent

Question 4

ONE PERSON CONSPIRACY

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!
A ∆ may be guilty of conspiracy EVEN IF the other parties are acquitted or were just pretending to agree
(the unilateral approach)
Note: This approach facilitates the use of sting operations

Question 5

WHARTON RULE

What is the Wharton rule?

Answer 5

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
(e.g. cannot charge two parties for dueling which rqrs two people and ALSO for conspiracy to duel)

***NOTE: NY follows the Wharton rule

Question 6

VICARIOUS LIABILITY (PINKERTON)

What is the rule for vicarious liability wrt conspiracy?

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

CAN IMPOSSIBILITY BE A CONSPIRACY DEFENSE?

Is impossibility ever a defense toconspiracy?

Answer 7

Is impossibility ever a defense toconspiracy?

NO!

Impossibility (factual or legal) is NEVER a defense to a charge of conspiracy

Question 8

ATTEMPT

What are the 2 elements of attempt?

NOTE: NY Distinction

Answer 8

MENTAL STATE = SPECIFIC INTENT

ELEMENTS OF Attempt =
1) An overt act BEYOND mere preparation;

OVERT ACT TEST UNDER MPC/MAJORITY RULE
“Substantial step” test = conduct that constitutes a SUBSTANTIAL STEP towards the completion of the crime is sufficient (provided the conduct strongly corroborates the actor’s criminal purpose)

OVERT ACT TEST UNDER NY RULE
***NY DISTINCTION = “proximity” test = conduct that gets dangerously close to the commission of the crime

2) w/ the 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

Question 9

CAN IMPOSSIBILITY BE AN ATTEMPT DEFENSE?

Is impossibility a defense to attempt?

NOTE: NY Distinction

Answer 9

CAN IMPOSSIBILITY BE AN ATTEMPT DEFENSE?

Maybe…
1) Legal impossibility = if the ∆, having completed ALL the acts that he intended PLUS having full information abt the facts DIDN’T commit a crime

Legal impossibility IS a defense to attempt

***NY DISTINCTION: Legal impossibility is NOT a defense to attempt in NY

2) Factual impossibility = if the substantive crime is incapable of completion b/c of some physical or factual condition unknown the the ∆ (he doesn’t have full information)

Factual impossibility is NOT a defense to attempt

Question 10

WITHDRAWAL / ABANDONMENT FROM AN ATTEMPT

Is withdrawal/abandonment from an inchoate crime possible?

NOTE: NY Distinction

Answer 10

COMMON LAW =
Withdrawal is NOT a defense to an inchoate defense

EXCEPTION:

a) 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
b) BUT ∆ is STILL liable for crimes committed prior to withdrawal

***NY DISTINCTION:
Withdrawal IS an affirmative defense to solicitation AND conspiracy IF ∆:
(i) voluntarily/completely renounced the act; AND
(ii) prevented the commission of the object crime

Abandonment IS an affirmative defense to attempt IF ∆:
(i) manifests a voluntary/complete renunciation of his
actions; AND
(ii) he avoids the commission of the object crime by
abandoning the criminal effort

Question 11

MERGER RULE FOR INCHOATE CRIMES

What are the merger rules for inchoate crimes (i.e. solicitation, conspiracy and attempt)?

NOTE: NY Distinction

Answer 11

SOLICITATION: merges w/

 (i) attempt; 
 (ii) conspiracy;AND 
 (iii) the completedtarget crime			

***NY DISTINCTION: Solicitation does NOT merge (i.e. it stays as a separate crime)

ATTEMPT: merges w/ the completed target crime (ONLY)

CONSPIRACY: DOES NOT merge. Period. (i.e. it stays a separate crime) (BAR EXAM FAVORITE QUESTION!)