Inchoate Crimes: Attempt, Solicitation, Conspiracy

Question 1

Attempt (CL)

Answer 1

(1) intent to commit crime and (2) some acts in furtherance of that intent (3) failure to commit crime

Question 2

What type of crime is attempt?

Answer 2

SPECIFIC INTENT. Prosecutor must prove defendant intended to commit the targeted offense

Question 3

complete attempt

Answer 3

defendant does everything possible to effectuate the crime but but doesn’t cause the result of the particular offense (e.g., shoots but misses)

Question 4

incomplete attempt

Answer 4

defendant stops short of completing offense, either by his own accord or by intervention of a 3rd party (e.g., actor is lying in wait but victim doesn’t come home)

Question 5

Common law tests for attempt (6)

Answer 5

(1) physical proximity approach; (2) dangerous proximity approach; (3) indispensable element approach; (4) probable desistance approach; (5) equivocally approach (res ipsa loquitur test)

Question 6

MPC Attempt

Answer 6

a person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, purposely does or omit to do anything which, under the circumstances as he believes them to be is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime

Question 7

Physical proximity approach

Answer 7

act must be sufficiently proximate to the intended crime (geographically and physically; not set statement of proximity). Must approach sufficiently near to the completed offense to constitute a “direct movement” toward the commission of the offense after preparations made. FOCUS: what is left to be done?

Question 8

Dangerous proximity approach

Answer 8

3 factors to assess if act has gone beyond “mere preparation”: (1) nearness of danger; (2) substantiality of harm; and (3) apprehension felt. (essentially physical proximity test but adds last 2 elements)

Question 9

Indispensable element approach

Answer 9

what remains to be done by the perpetrator to complete the crime? It looks at whether there’s an indispensable element missing to the completion of the crime.

Question 10

Probable desistance approach

Answer 10

PAST THE POINT OF NO RETURN! The accused’s conduct must pass the point where most people would think better of their conduct and desist. A reasonable person in defendant’s shoes is unlikely to not commit the crime but for the intervention of an extraneous force, such as the police or discovering circumstances making it too difficult to complete the crime

Question 11

Equivocality approach (res ipsa loquitur test)

Answer 11

Look at defendant’s conduct (as if on muted TV) and at that point it can be determined what the defendant intends to do; there is no other way to interpret these facts than to mean that the defendant is trying to commit the completed offense

Question 12

Criminal Attempt (MPC)

Answer 12

A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or (c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime

Question 13

Substantial Step (MPC)

Answer 13

Conduct shall not be held to constitute a substantial step under this section unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law
-“strongly corroborative of criminal purpose” –>
-Focuses on what has already been done
-Acting w/ culpability for the commission of the completed crime
-Purposely engages in conduct which would constitute crime if circumstances were as he believes them to be

Question 14

Six circumstances that do not constitute a substantial step under MPC (non-exhaustive)

Answer 14

(1) lying in wait, searching for or following the contemplated victim of the crime;
(2) survey the place contemplated;
(3) unlawful entry
(4) possession of specially designed materials or those having no lawful purpose under the circumstances
(5) possession of such materials at or near place of commission
(6) soliciting an innocent agent to engage in conduct

Question 15

Is attempted assault a crime?

Answer 15

no

Question 16

Mens rea for attempt crimes

Answer 16

Must be specific intent or purposely/ knowingly –> cannot be negligence or recklessness (can’t intend an unintentional crime)

Question 17

Factual impossibility

Answer 17

defendant was mistaken about facts, but if defendant was correct, crime would’ve been accomplished

Question 18

Legal impossibility

Answer 18

facts of the crime make it so there’s no “legal” crime; defendant thinks he’s receiving stolen goods but they’re not actually stolen

Question 19

“True” legal impossibility

Answer 19

if person’s objective was accomplished, but there was no criminal violation, the person can’t be held criminally liable for an attempt can’t be punishment or prosecution

Question 20

Is factual impossibility a defense to an attempt to commit an offense involving a minor when the purported minor doesn’t actually exist?

Answer 20

NO

Question 21

Does CL recognize abandonment or or renunciation defense?

Answer 21

NO

Question 22

When confronted with an attempted crime, what must you first identify?

Answer 22

Whether it’s a RESULT or CONDUCT crime –> Result crimes require that you “ratchet up” intent / Conduct crimes don’t need mens rea proved (can be done negligently or recklessly)

Question 23

Test for Jury Instructions (Patterson)

Answer 23

1.) Does the instruction correctly state the law?
2.) Is there evidence on record supporting the instruction?
3.) Does the substance of the tendered instruction is covered by other instructions which are given?

Question 24

Does conspiracy merge?

Answer 24

NO

Question 25

Solicitation merges into…

Answer 25

CONSPIRACY

Question 26

Attempt merges into…

Answer 26

COMPLETED CRIME

Question 27

Solicitation (CL)

Answer 27

asking another person to join in a course of criminal conduct with the intent that the other person commit the crime or participate in its commission (usually punished less severely than an attempt to commit a crime)

Question 28

Solicitation (MPC)

Answer 28

A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission, he commands, encourages, or requests another person to engage in specific conduct that would constitute such crime or an attempt to commit such crime or would establish his complicity in its commission or attempted commission

Question 29

Uncommunicated Solicitation (MPC)

Answer 29

it is immaterial that the actor fails to communicate with the person he solicits to commit a crime if his conduct was designed to effect such communication

Question 30

Renunciation of criminal purpose (MPC)

Answer 30

it is an affirmative defense that the actor, after soliciting another person to commit a crime, persuaded him not to sod so or otherwise prevented the commission of the crime, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose

Question 31

Innocent instrumentality

Answer 31

when one person uses another to commit a crime w/o the other knowing (ex: John removing a TV from Jack’s house bc Amy said it was hers, but she really just wanted John to steal if for her)

Question 32

Solicitation and Attempt

Answer 32

similar b/c it’s a preliminary step toward the completion of a crime that usually doesn’t come to fruition, but in attempt there’s actually an overt act; solicitation doesn’t require the person solicited to do anything at all

Question 33

Solicitation and conspiracy relationship?

Answer 33

solicitation is preparatory to the crime of conspiracy

Question 34

Criminal Conspiracy (MPC)

Answer 34

a person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (1) agrees w/ such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or (b) agrees to aid such other person in the planning or commission of such crime or of an attempt or solicitation to commit such crime

Question 35

Overt Act (MPC)

Answer 35

No person may be convicted of conspiracy to commit a crime other than a felony of the first or second degree unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired (doesn’t require proof of an overt act for serious crimes, but does for lower-level offenses)

Question 36

Unilateral (MPC) - MINORITY

Answer 36

allows for a prosecution of one person in a conspiracy when no one else participates (ex: when 2nd “party” is an undercover officer)

Question 37

Wharton’s Rule

Answer 37

when crime of its very nature requires 2 people, courts have precluded use of conspiracy (ex: you can’t prosecute the crime of adultery as conspiracy; MPC rejects this rule)

Question 38

Capacity to commit the objective offense

Answer 38

even if a person cannot commit the substantive offense, they can still be convicted of a conspiracy to commit the crime

Question 39

Overt Act (CL)

Answer 39

not required to prove CL Conspiracy; can be clearly proved by evidence; doesn’t need to be criminal in itself, only that it be a step in committing the conspiracy

Question 40

Abandonment/Renunciation

Answer 40

if there’s proof of agreement and overt act (if necessary), then the crime is complete and can’t be abandoned unless certain standards are met –> must inform others and maybe police (MPC: (1) thwart success of conspiracy (2) renounce his criminal purpose)
NOT ACCEPTED BY COMMON LAW

Question 41

Attempt, solicitation, and conspiracy are all ________ intent crimes.

Answer 41

DUAL (1 actus reus, 2 mens rea)

Question 42

Defense to solicitation under MPC

Answer 42

RENUNCIATION: it is an affirmative defense that the actor, after soliciting another person to commit a crime, persuaded him not to do so otherwise prevented the commission of the crime, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose

Question 43

What elements must the gov’t prove for conspiracy?

Answer 43

(1) there was a conspiracy with an illegal purpose, (2) the defendant was aware of the conspiracy, and (3) that he knowingly became a part of it.

Question 44

MPC Conspiracy: Punishment when the target offense is committed

Answer 44

a person may not be convicted and punished for both the conspiracy and the object of the conspiracy or its attempt, unless prosecutor proves that the conspiratorial agreement involved the commission of additional offenses not yet committed or attempted

Question 45

CL Conspiracy: Punishment when the target offense is committed

Answer 45

conspiracy does not merge into the attempted or completed offense that was the object of the conspiracy; they are treated as separate and distinct offenses