Inchoate Crimes

Question 1

What are the elements of accomplice liability?

Answer 1

Participation in the offense with the required intent.

This can be through encouraging or assisting the primary actor with knowledge that primary actor is going to commit the offense and intent to encourage or assist the primary actor in doing so.

Question 2

Can D be guilty of accomplice if the primary actor is acquitted?

Answer 2

Yes. Sucks to suck.

Question 3

What is an attempt?

Answer 3

It is a crime to attempt to commit an offense, and requires that:

1. a substantial step in the commission of the crime
2. with intent to commit the crime

Question 4

Can a person be guilty of attempt for an unintentional crime?

Answer 4

No. D cannot attempt an unintentional crime such as a reckless crime, negligent crimes, or felony murder.

Question 5

What are the possible defenses for attempt crimes?

Answer 5

Abandonment of attempt = no defense

Impossibility of success

Question 6

If convicted for attempt, can you be convicted for the completed crime?

Answer 6

No. If charged with attempt, you can only be convicted of attempt.

Question 7

What are the impossibility defenses for attempt crimes?

Answer 7

There is “legal” impossibility, which is a defense. This is when D thinks it is a crime to do something but what she is doing is actually not a crime.

“Factual” impossibility is not a defense. Reason - if every fact had been as D intended, the crime would have been completed. Therefore, D should be guilty for an attempt.

Question 8

What is the general rule regarding defenses for solicitation?

Answer 8

Generally, withdrawal/renunciation is not sufficient defense to solicitation. MPC recognizes this as a defense IF D prevents the commission of the substantive crime.

Question 9

What is solicitation?

Answer 9

It is asking someone to commit an offense with the intent that the person commit that offense.

Question 10

Can a person be convicted of solicitation even if the other person rejects the idea?

Answer 10

Yes. See what happened to Joe Exotic?

Question 11

What is conspiracy?

Answer 11

It is entering into an agreement (2+) to commit a crime with the intent that the crime is committed. Modern statutes often require an overt act in furtherance of the conspiracy.

Question 12

What is the co-conspirator rule?

Answer 12

All members of a conspiracy are guilty of crimes completed by other members of the conspiracy if those crimes are in furtherance of the conspiracy and are a foreseeable result of the scheme.

Question 13

Is withdrawal a defense to conspiracy?

Answer 13

Generally no. Withdrawal from a conspiracy requires that withdrawal is fully communicated to all members of the conspiracy and must take place before the crime is committed.

Question 14

What is the “meeting of the minds” defense?

Answer 14

D can escape liability for conspiracy if: not guilty by reason of insanity or person did not intend to go through with the crime (undercover cop).

Question 15

D may be convicted of the principal offense and ______:

a) solicitation to commit that offense
b) conspiracy to commit that offense
c) an attempt of that offense
d) conspiracy, attempt, or solicitation to commit that offense

Answer 15

b) conspiracy to commit that offense

Solicitation and attempt merge into the principal offense.

Question 16

T/F: At common law, conviction of the principal was required for conviction of an accessory.

Answer 16

True, but most jurisdictions have abandoned this requirement.

Question 17

T/F: A gas station attendant will not be liable for arson for knowingly selling a gallon of gasoline to the arsonist, but if the gas station attendant charged the arsonist $100 for the gallon of gas may constitute a sufficient stake in the venture to constitute attempt.

Answer 17

True. Accomplice liability must have the intent to assist the principal in the commission of the crime and have the intent that the principal do so. Generally, look to see if accomplice intended to facilitate the commission of the crime and acted with recklessness or negligence.

Question 18

T/F: It is a defense that the person solicited is not convicted.

Answer 18

False. A person who solicits another for a crime will still be found guilty even if the person they solicited did not commit the crime or was convicted.

Question 19

What is the modern MPC trend for conspiracy?

Answer 19

The modern trend is that only one party needs to have genuine criminal intent (e.g. D is convicted of conspiracy for trying to work with an undercover cop)

Question 20

T/F: If D and other conspirors and only D is charged and tried, D can be convicted.

Answer 20

True.

Question 21

T/F: If D is charged and tried and all others have been acquitted, then D cannot be convicted.

Answer 21

True.

Question 22

T/F: Generally, withdrawal from a conspiracy is not a defense to the conspiracy.

Answer 22

True. Conspiracy is complete upon the agreement with the requisite intent and an overt act. Withdrawal may be a defense to crimes committed in furtherance of the conspiracy and withdraw is not effective until conspirator notifies all members of the conspiracy and neutralizes their assistance to the conspiracy.

Question 23

T/F: D is always guilty of conspiracy once there is an agreement, requisite intent, and overt act.

Answer 23

True. Even if D said they were backing out, warned the police, hid the weapons, etc. D’s withdraw can be a defense to crimes committed in furtherance of the conpisracy.

Question 24

If D were able to complete all of the acts that they intended to do, and if all the attendant circumstances actually were as D believed them to be, would D have a committed a crime?

Answer 24

If yes, then the impossibility is factual and not a defense. aka D is guilty.

Question 25

An officer on routine patrol noticed a flashlight moving within a darkened house and stopped to investigate. The suspect, who had broken into the home to steal valuables, caught sight of the patrol car, dropped the bag of valuables as he was about to carry them out of the house, and tried to sneak out the back way. The officer saw him sneaking out and seized him. The suspect, who had a lock-picking device in his possession, pulled out two $100 bills from his wallet, stating that he did not take anything and would like to forget the whole thing. The officer took the money, stating that she would give him a break this time around, and let the suspect go.

How may the officer be charged in this situation?

Answer 25

The officer is an accessory after the fact to burglary. An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. The crime committed by the principal must have been completed at the time aid is rendered.

Here, the officer had a duty to arrest the suspect and failed to do so, instead letting him go. Her failure to act under these circumstances constituted sufficient assistance to the suspect to make her liable as an accessory after the fact. She almost certainly knew that the suspect had committed the felony of burglary, as she saw him with a flashlight in the darkened house and caught him sneaking out the back way with a lock-picking device in his possession. Under these facts, she can be liable as an accessory after the fact to burglary.

Question 26

A statute in the jurisdiction, which was enacted with the express purpose of preventing public employees from taking advantage of the status of illegal aliens, made it a felony to accept money or other benefits in exchange for issuing a state identification card. During an undercover investigation, an illegal alien was recorded offering $500 to a clerk in exchange for issuance of a card. The clerk agreed to the deal and later that day exchanged the card for the money, after which both parties were arrested.

In a jurisdiction following the common law approach to conspiracy, which of the following statements is correct?

A - clerk can be convicted of violating the statute and conspiracy to violate the statute, and the illegal alien can be convicted of no crime.

B - clerk can be convicted only of violating the statute, and the illegal alien can be convicted of no crime.

C - clerk can be convicted only of violating the statute, and the illegal alien can be convicted as an accomplice to violation of the statute.

D - The clerk can be convicted of violating the statute and conspiracy to violate the statute, and the illegal alien can be convicted of conspiracy to violate the statute.

Answer 26

(B) The illegal alien cannot be convicted of a crime under the statute because it was enacted for his protection, and the clerk cannot be convicted of conspiracy under the statute because the illegal alien, who would otherwise be liable as an accomplice, is not subject to conviction because of a legislative intent to exempt him. If a statute is intended to protect members of a limited class from exploitation or overbearing, members of that class are presumed to have been intended to be immune from liability, even if they participate in the crime in a manner that would otherwise make them liable. Thus, the illegal alien would not be liable as an accomplice under the statute, making (C) incorrect.

The clerk clearly can be convicted for the substantive offense, but he cannot be convicted of conspiracy. One of the implications of the common law requirement that there be at least two guilty parties in a conspiracy arises when the crime involves members of a class protected by the statute. If members of a conspiracy agree to commit an act that violates a statute designed to protect persons within a given class, a person within that class not only cannot be guilty of the crime itself, as discussed above, but also cannot be guilty of a conspiracy to commit the crime.

Question 27

The defendant discovered that his friend had hit and killed a pedestrian while driving that afternoon, and that he had fled from the scene of the crime before the police arrived. To keep his friend out of trouble, the defendant fixed all the dents in the car caused by the collision and had the vehicle painted a different color. The friend, distraught about hitting and killing someone, eventually turned himself in and told the police what he had done and what the defendant had done for him. The defendant was charged as an accomplice to vehicular manslaughter in a state that follows the modern trend regarding accomplice liability.

How should the defendant be found?

Answer 27

The defendant should be found not guilty as an accomplice. Parties to a crime are divided into three different categories: 1) principals are those who, with the requisite mental state, actually engage in the act or omission that causes the criminal result; 2) accomplice is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the offense; and 3) accessory after the fact, who receives, relieves, comforts, or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction.

Unlike an accomplice, an accessory after the fact has committed a separate crime with a punishment unrelated to the felony committed. In the instant case, it is clear that the defendant aided his friend in avoiding capture, that he provided no aid to the substantive offense, and that he did not intend the substantive offense to occur. Thus, he is an accessory after the fact and not an accomplice.

Question 28

Under the majority view, which of the following inchoate crimes does not merge into the completed crime?

Answer 28

conspiracy

Question 29

A father was angry at his son’s coach because the coach would never let the son into a game. In order to exact revenge, the father decided to plant an incendiary device on the coach’s front porch. The father believed the device would start a fire that would destroy the coach’s home and perhaps injure him as well. However, the father made a mistake while assembling the incendiary device, and it was impossible for the device to do any harm. When the device went off, it did nothing more than produce a foul odor.

If the father is charged with attempted murder and attempted arson in a common law jurisdiction, which of the following decisions is most likely to be reached by the court?

A - The father is guilty of attempted murder and attempted arson.

B - The father is guilty of attempted murder, but he is not guilty of attempted arson.

C - The father is not guilty of attempted murder, but he is guilty of attempted arson.

Answer 29

The father lacked the specific intent to kill that is required for attempted murder. However, the circumstances surrounding the “incendiary device” constitute factual impossibility and will not afford the father a defense to attempted arson. Criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing that crime. To be guilty of attempt, the defendant must have the intent to perform an act and obtain a result that, if achieved, would constitute a crime. Regardless of the intent that would suffice for the completed offense, attempt always requires a specific intent to commit the target offense. Also, the defendant must have committed an act beyond mere preparation for the offense. Here, to be guilty of attempted murder, the father must have had the specific intent to kill his son’s coach, even though the intent to inflict great bodily injury would be sufficient mens rea for murder. However, the facts indicate that the father intended at most only to injure the coach rather than kill him. Thus, the father cannot be guilty of attempted murder. However, the father did intend to burn the coach’s home; therefore, he had the specific intent to commit arson by means of placing an incendiary device on the coach’s porch, and his placing the device was an act beyond mere preparation for this crime. Although the device could not have actually burned the coach’s house, it is no defense to attempt that it would have been impossible for the defendant to complete his plan. This is factual impossibility and is not a defense. Thus, the father is guilty of attempted arson.

Question 30

A locksmith knew that his friend had been having marital troubles. The friend had told the locksmith that he suspected his wife was having an affair with his rival. One afternoon, the friend, visibly upset, asked to borrow some of the locksmith’s tools, telling him that he knew that his rival was going to meet up with his wife later that day. The locksmith gave his friend the tools, advising him not to do anything that he would regret later. The friend stated that it would be others who would have regrets. The friend went to his rival’s apartment and picked the door lock with the locksmith’s tools. He found his wife and rival in bed together. The friend stabbed his rival, seriously wounding him. A few minutes later the locksmith called the apartment to try to warn the rival that his friend might come over. After the friend was arrested, he agreed to plead guilty to aggravated battery and attempted voluntary manslaughter in exchange for testifying against the locksmith, who was charged as an accomplice to attempted murder.

Can the locksmith be convicted of that charge?

A - Yes, because he recklessly disregarded a substantial risk to human life and was not provoked.

B - Yes, because his failed attempt to neutralize his assistance did not prevent the crime from occurring and therefore did not constitute an adequate withdrawal.

C - No, because he did not have the requisite intent to be liable as an accomplice.

D - No, because an accomplice cannot be found guilty of a more serious offense than that for which the principal has been convicted.

Answer 30

The locksmith cannot be convicted as an accomplice because he did not have the requisite intent for attempted murder. To be convicted as an accomplice under the prevailing rule, a person must have given aid, counsel, or encouragement with the intent to aid or encourage the principal and the intent that the principal commit the substantive offense. Mere knowledge that a crime would result from the aid provided is generally insufficient for accomplice liability. Here, the locksmith did not provide the tools to the friend with the intent that he kill the rival. His knowledge that the friend might be intending harm to the rival is not sufficient to establish the intent to kill required for attempted murder.