Inchoate Crimes

Question 1

What is an Inchoate offense?

Answer 1

An offense anticipating a further criminal act.

An offense whose elements do not require that a specific result be obtained in order for a defendant to be guilty of the offense.

An inchoate offense is a crime of preparing for or seeking to commit another crime. The most common example of an inchoate offense is “attempt”. “Inchoate offense” has been defined as: “Conduct deemed criminal without actual harm being done, provided that the harm that would have occurred is one the law tries to prevent.”

Question 2

What are the three Inchoate Crimes?

Answer 2

1) Solicitation 2) Attempt 3) Conspiracy

Question 3

What is Solicitation?

Answer 3

Requesting, urging, or tempting someone to commit [a crime] with the intent that the solicitee commit [the crime].

The crime of solicitation is committed when the defendant advises, encourages, induces or requests another person to either commit a crime or join the defendant in committing a crime.

As far as the required mens rea is concerned, the defendant can be convicted of solicitation if the prosecution can show that he acted volitionally and with the intent to cause the solicited individual to commit the crime.

As far as the actus reus is concerned, the only act required for the crime of solicitation is the advising, encouraging, inducing or requesting of another person to commit the crime. In other words, as soon as the defendant asks another person to commit a crime or encourages him to do so, he has committed the act of solicitation.

Solicitation does not require that the person solicited actually commit the crime. In fact, the defendant can be convicted of solicitation even if the person solicited completely ignores the request. See State v. Schleifer, 121 A. 805 (Conn. 1923). For example:

Rubin stops Clay on the street and asks Clay if he would like to help him rob a bank. Clay keeps walking and doesn’t even bother to answer Rubin’s question. In this case, even though Clay has not so much as acknowledged Rubin, Rubin can be convicted of solicitation because the solicitation was committed simply by the request that Clay help him with the robbery.

In the event that a defendant solicits another person to commit a crime and the person he solicits actually commits the crime, the defendant becomes an accessory before the fact and the defendant can therefore be convicted for both the solicitation and for his role as an accessory.

Another important point regarding solicitation is that a solicitation of a person to commit a crime “merges” with the completed crime. A person cannot be convicted of both solicitation to commit a specific crime and the completed crime.

As with attempt, solicitation to commit a crime is a “lesser included offense” of the completed crime. Therefore, a defendant who is put on trial for a murder cannot later be put on trial for soliciting someone else to commit that same murder. Since one offense is a lesser included offense of the other, putting the defendant on trial for both would violate the “double jeopardy” clause of the Fifth Amendment, which prohibits trying a defendant twice for the same offense.

Question 4

What is the Mens Rea for Solicitation?

Answer 4

Specific Intent

Question 5

What defenses are available to Solicitation?

Answer 5

Refusal by solicitee - No Defense. Lack of communication - No defense if conduct designed to communicate.

Question 6

Will Solicitation merge into the completed crime?

Answer 6

Yes

Another important point regarding solicitation is that a solicitation of a person to commit a crime “merges” with the completed crime. A person cannot be convicted of both solicitation to commit a specific crime and the completed crime.

Question 7

What is Conspiracy?

Answer 7

Agreement by two or more persons to commit [a crime] with the intent that [the crime] be committed.

In its most basic sense, a conspiracy is simply an agreement between two or more people to commit a crime. However, there are several requirements that must be met in order for a defendant to have actually committed the crime of conspiracy. The first requirement is the men’s rea requirement which actually has two prongs. The first prong is that the defendant must have actually intended to agree to commit a crime. The second prong is that the defendant must have intended to accomplish the objective of the conspiracy when he entered into the agreement. In other words, in order for the men’s rea requirement to be satisfied, the defendant must intend to form an agreement with others to commit a crime and, at the time the defendant made the agreement, he must have intended to do what he would need to do in order to bring about the objective of the conspiracy (ie. the commission of the crime) as well. For example:

Rubin asks Clay if he will work with Rubin to rob the First National Bank of Hollywood. Clay agrees to help Rubin but, in his mind, Clay plans on turning Rubin in to the police before the robbery actually takes place. In this situation, Clay is not guilty of conspiracy because, although he intended to agree with Rubin, he did not intend to accomplish the objective of the conspiracy when he made the agreement.

Please note that, many times, the prosecution will prove the requisite intent by showing that the defendant had a stake in the venture he was planning with his co-conspirators. In other words, the prosecution can prove intent by demonstrating that the defendant was going to benefit, either financially or otherwise, if the object of the conspiracy was successfully carried out. This allowance is, of course necessary, as it would be almost impossible to actually show what was going through the defendant’s mind at any given time. Therefore, circumstantial evidence is allowed, and indeed is prevalent, when trying to prove the state of mind of a defendant.

As far as the actus reus requirement for conspiracy is concerned, at common law, a conspiracy is completed as soon as an agreement between one or more people is made. See Williams v. United States, 218 F.2d 276 (4th Cir. 1954). However, most jurisdictions today also require that there must have been at least one “overt act” taken in furtherance of the conspiracy by at least one of the conspirators for there to have been a chargeable criminal conspiracy. This overt act need not take place at the time or location of the conspiracy. For example:

Fred and Barney agree to rob the First National Bank of Bedrock. Without more than just an agreement, most jurisdictions today would not hold Fred or Barney liable for conspiracy. However, if Fred drives the getaway car to the bank and parks it outside the bank so that Barney will have a means of escape, both Fred and Barney would immediately be guilty of conspiracy. (Fred’s overt act crystallizes the conspiracy and thus makes Barney guilty as well.) Even if the crime is planned for Wednesday night and on Monday, Fred goes out and buys a gun for Barney to use during the robbery, this would be considered an overt act and both parties would immediately be guilty of conspiracy.

It is important to remember that it takes two people to enter into an agreement. If one party does not intend to enter into an agreement, the second party cannot be convicted of a conspiracy. For example:

Darryl is a drug dealer who is about to import a large shipment of heroin from south of the border. Darryl has recently become friends with Doc and he asks Doc if he would like to help him import and distribute the heroin. Doc agrees to help Darryl. What Darryl does not know is that Doc is a federal narcotics agent who has been investigating Darryl. Before Darryl is able to pick up the shipment, Doc has him arrested. In this case, Darryl cannot be charged with conspiracy because Doc never intended to enter into an agreement with him. Since it takes two people to agree on something, and Doc never intended to enter into an agreement, there was no agreement for Darryl to enter into. Darryl cannot therefore be convicted for conspiracy.

Question 8

Within Conspiracy, what are the elements necessary to “Agreement”?

Answer 8

1) Much less than required for a civil contract 2) each conspirator need not know all the details 3) conspirators can join at any time

Question 9

Within Conspiracy, under “Two or More Persons”, what is the Wharton Rule?

Answer 9

When a crime by its very nature requires more than one perpetrator, then in order to have a conspiracy you need the requisite number plus one.

Question 10

Within Conspiracy - Two or More Persons - Wharton Rule, what crimes were an example of the Wharton Rule?

Answer 10

Adultery/Dueling

Question 11

Within Conspiracy - Two or More Persons - under “Two Guilty Minds”, what is a Feigned Agreement?

Answer 11

If there is only one guilty mind - then no conspiracy

Question 12

Within Conspiracy - Two or More Persons - under “Two Guilty Minds”, what happens in the event of Acquittal of Co-Conspirator?

Answer 12

When one co-conspirator is found not guilty, the other co-conspirator may be found guilty as long as not tried in a single proceeding that results in an inconsistent verdict

Question 13

Within Conspiracy, what constitutes “To Commit a Crime”?

Answer 13

Unlawful purpose - almost always a crime

Question 14

Within Conspiracy, what Mens Rea satisfies “Intent that the Crime be Committed”?

Answer 14

Mens Rea: Specific intent that the crime be committed. Note: Financial stake in the outcome will suffice

Question 15

Within Conspiracy, what is “An Overt Act”?

Answer 15

An act in furtherance of the conspiracy.

An act taken by one of the parties of a conspiracy in furtherance of one or more of the criminal objectives of the conspiracy.

Question 16

Within Conspiracy, do most jurisdictions require an “Overt Act”?

Answer 16

Yes

Question 17

Within Conspiracy, how is liability determined?

Answer 17

Each conspirator is liable for crimes committed by other conspirators (Pinkerton Rule) if: 1) crimes were in furtherance of the conspiracy, and 2) crimes were foreseeable

Question 18

What defenses are available to Conspiracy?

Answer 18

1) Impossibility 2) Member of Protected Class.

Note: Abandonment/Withdrawal is not a defense to Conspiracy (you can’t unring the bell) but it IS a defense to subsequent crimes arising from the conspiracy.

Question 19

Within Conspiracy - Defenses - Abandonment/ Withdrawal is not actually a defense to Conspiracy, it is a defense to:

Answer 19

Subsequent crimes

Question 20

Within Conspiracy - Defenses - Abandonment/Withdrawal, what elements are necessary for Abandonment as a valid defense to subsequent crimes?

Answer 20

1) Withdrawal is communicated to all co-conspirators, and 2) ample time remains to abandon conspiracy 3) if item supplied, effort must be made to recover the item

Question 21

Will Conspiracy merge into completed crime?

Answer 21

No

Question 22

What is Attempt?

Answer 22

A substantial step toward the completion of [the crime] with the specific intent to commit [the crime].

The intent or mens rea aspect of attempt has two elements to it. The first is that the defendant must have intent to commit an act that is necessary for the commission of a crime or an act that will result in the commission of the crime. The second is that the defendant must have the intent for the result of the crime itself. Keep in mind that this second element is missing from all crimes except specific intent crimes. To commit a crime of intent, a defendant must actually desire the criminal result to come about.

As far as the actus reus element of attempt is concerned, what is required is the commission of an act that represents a step toward the committing of the crime. However, this step must be something beyond simple “preparation.” See State v. Bereman, 276 P.2d 364 (Kan. 1954).

Although case law has established a number of different definitions as to what constitutes an act that progresses toward the commission of the crime, the most straightforward definition comes from the Model Penal Code which requires that 1) the act be a substantial step in the events that are supposed to result in the commission of the crime; and 2) that the act be strong evidence of the defendant’s criminal purpose. See United States v. Jackson, 560 F.2d 112 (2nd Cir. 1977).

Question 23

What is the Mens Rea required for Attempt?

Answer 23

Specific intent to commit the target offense

Question 24

Does Attempt qualify for Transferred Intent?

Answer 24

No, unless a death has occurred to an in unintended victim.

If A attempts to shoot B and misses, and kills C, the crime is attempted murder of B and first degree murder of C - the intent transferred to C.

Question 25

What defenses are available to Attempt?

Answer 25

1) Abandonment/Withdrawel 2) Impossibility

Question 26

When is Abandonment/Withdrawal a valid defense to Attempt?

Answer 26

If withdrawal is voluntary and complete.

The second possible defense against a charge of attempt is withdrawal. The traditional rule was that withdrawal from an attempt was never a defense even if it was completely voluntary. See United States v. Shelton, 30 F.3d 702 (6th Cir. 1994). However, the Model Penal Code and the statutes that are based on it allow withdrawal to be used as a defense so long as two conditions are met. First, the withdrawal (the abandonment of the attempt) must be entirely voluntary. This means that the withdrawal cannot be based on any circumstances regarding the difficulty of actually committing the crime or the chances of being caught that the defendant was unaware of when he began his attempt. For example:

Mitch decides to rob the First National Bank of Grand Cayman. He then proceeds to case out the bank and gather special drilling tools that he will use in breaking into the bank’s vault. However, Mitch eventually realizes that the security at the bank is better than he initially thought it would be and so he abandons his plan to rob the bank. In this situation, although Mitch has withdrawn from his attempt to rob the bank, he can still be convicted of the attempt because his withdrawal was not completely voluntary. Rather, it was based on circumstances that Mitch was unaware of initially that relate to the difficulty of successfully committing the crime.

Had Mitch woken up on the morning of the robbery and decided not to rob the bank because stealing is not the right thing to do, that would be an entirely voluntary withdrawal and would therefore offer him a legitimate defense to a charge of attempted robbery.

Second, in order for the withdrawal to be valid under the Model Penal Code, the withdrawal must be complete. That is to say, the defendant must completely cancel his plans to commit the crime. If he only postpones his plans to commit the crime it is not considered a complete withdrawal and he can still be charged with the attempt.

Question 27

What is the process in determining the elements of Impossibility as a valid defense to Attempt?

Answer 27

Take the facts as the defendant believed them to be and then ask “Is it a crime”?

Question 28

Within Attempt - Defenses - Impossibility, when taking the facts as the defendant believed them to be and then asking “Is it a crime” - if the answer is Yes, then:

Answer 28

If Yes - Seen as factual impossibility which is no defense (unless the chance of success is too remote).

Factual impossibility is where the defendant sets out to commit an act that, if successful, would constitute a crime but, because of certain factors that the defendant does not know about, it is impossible for him to actually commit the crime. In this situation, the defendant’s mistake is not in regard to the actual law but, rather, in regard to the factual circumstances surrounding his actions. This is considered factual impossibility, and factual impossibility is not a defense to a charge of attempt. See People v. Fiegelman, 33 Cal. App. 2d 100 (1939). For example:

Knowing it is a crime to sell marijuana, Bob goes out and sells Peter what looks to be a dime bag of pot. Bob is not a particularly bright drug dealer and he accidentally sells Peter a bag of oregano. In this case, it is impossible for Bob to actually violate the crime of selling marijuana because the substance he has sold is not marijuana. However, Bob’s mistake is not one regarding the law. Bob knows that it is illegal to sell marijuana and it is, in fact, illegal. Rather, his mistake involves the circumstances surrounding his actions. That being the case, even though it is impossible for Bob to violate the law he is trying to violate, this is only a factual impossibility and, since factual impossibility is not a defense to attempt, Bob can be convicted of the attempt to sell marijuana.

Question 29

Within Attempt - Defenses - Impossibility, when taking the facts as the defendant believed them to be and then asking “Is it a crime” - if the answer is No, then:

Answer 29

If No - Seen as legal impossibility which is a valid defense.

The general rule is that if the impossibility is a “legal” impossibility, the defendant can mount an impossibility defense. However, if the impossibility is only a “factual” impossibility he cannot mount the defense. See People v. Dlugash, 41 N.Y.2d 725 (1977).

Legal impossibility is basically where the defendant sets out to commit an act that he thinks is criminal. However, his actions are not, in fact, illegal. In this case the defendant’s misunderstanding concerns the law itself. In other words he mistakenly believes that the law criminalizes his actions when in fact it does not. In such a case the defendant will be able to mount an impossibility defense. For example:

The city of Kingston has passed a law allowing the free use of marijuana. The law is to go into effect on April 1st and, as of April 1st, the use and sale of marijuana will be legal. Bob is under the mistaken impression that marijuana will only be legalized on May 1st. Nevertheless on April 15th, believing that his actions are criminal, Bob sells marijuana to Peter. In this case, Bob is not guilty of attempt to sell marijuana because he can mount an impossibility defense. The reason for this is that it is legally impossible to commit the crime he was trying to commit. In this case, Bob’s mistake was in regard to the law itself. Bob set out to commit a criminal act by selling marijuana but, because of his misunderstanding the law, his actions were in fact legal. Since it was clearly legally impossible for Bob to commit the crime he attempted to commit, he has a viable impossibility defense in this case.

Question 30

Does Attempt merge into the completed crime?

Answer 30

Yes

Question 31

What does it mean when a crime will merge with another crime?

Answer 31

Merger is the combining of a less serious criminal charge with a more serious criminal charge when both charges arise from the same set of facts or circumstances

Question 32

What does a “lesser included offense” mean?

Answer 32

The combining of a less serious criminal charge with a more serious criminal charge when both charges arise from the same set of facts or circumstances.

Question 33

What mens rea is sufficient for ATTEMPTED Murder/Robbery?

Answer 33

Only the express intent to kill can be used for attempted murder. No implied malice will suffice.

Attempted Murder - A substantial step toward the completion of murder with the specific intent to kill.

Attempted Robbery - A substantial step toward the completion of a robbery with the specific intent to rob.