Inchoate Crimes/Offenses Flashcards
Inchoate Offenses
what are they?
criminal conduct (forming the mens rea) designed to culminate in the commission of a substantive offense, but has failed to do so (inchoate/incomplete conduct).
○ Inchoate crimes are typically treated as a lesser offense than the substantive crime.
Attempt
Basic rule
An attempt occurs when…
1) D has the specific intent to commit the target offense
2) And D’s overt act passes beyond preparation in furtherance of his specific intent.
Attempt Rule
1st element elaborated
Majority rule: cannot have attempted 2nd degree murder when…
the extreme recklessness disregard to human life is at odds with attempt (that req specific intent
Attempt Rule
1st element elaborated
Minority rule: all that is needed is…
the intent do the dangerous act (for attempt) but here there is just an absence of causation needed to establish attempt
Attempt Rule
2nd element elaborated
Preparation–devising or arranging means necessary for commission
Attempt–direct movement toward the commission after prep, thus must be manifested by acts that would complete the offense
Attempt Rule
2nd element
on the Last Act test: requires that the D performed…
the very last act needed before the target offense is completed
The further we travel into letting the D to complete the act–> the better we can intervene and prevent the D to change their mind
Attempt Rule
2nd element
on the Last Act test in People v. Murray
Facts: Δ declared he wanted to marry his niece, planned to elope, and requested for a witness to go for a magistrate to perform the ceremony.
Court held: could D not be convicted because he had yet to reach the last step prior to the commission of the crime; he was still in the preparation stages
Attempt Rule
2nd element
on the Dangerous Proximity Test: requires that D’s step brings D within…
a dangerous proximity of completing the target offense
Where D has immediate nearness to the location
Attempt Rule
2nd element
on the Dangerous Proximity Test on People v. Rizzo
Facts: D and 3 others planned to rob a man of payroll; Δ was to identify the man; Δs were driving around looking for him, but were being followed by police; Δ hopped out and into a building when police arrested everyone in the car.
Court held: Δ could not be found guilty of attempt if they had not found the person they intended to rob; there were no acts that were proximate enough to its accomplishment that in all reasonable probability the crime itself would have been committed, but for timely interference.
Attempt
2nd Element
on MPC Substantial Test: D must have done or omitted to do…
something that constitutes a substantial step toward the commission of the target offense
Attempt
2nd Element
on MPC Substantial Test:…and the sub step must corroborate with the culpability if…FACTORS
1) lying in wait, searching for or following Victim (V)
2) enticing V to go to the place contemplated for the crime
3) casing/examining the place contemplated for the crime
4) unlawful entry of a structure, vehicle or enclosure in which is contemplated for the crime
5) possession of materials to be employed in the crime that are specifically designed for such unlawful purpose
6) possession, collection or fabrication of materials to be employed in the crime, where such possession, collection or fabrication serves no lawful purpose
7)soliciting an innocent agent to engage in conduct constituting an element of the crime
Attempt
Indispensable Element Test
a variation of the proximity tests which emphasizes any indispensable aspect of the criminal endeavor over which the actor has not yet acquired control
Attempt
Probable Desistance Test
the conduct constitutes an attempt if, in the ordinary and natural course of events, without interruption from an outside source, it will result in the crime intended
Attempt
Abnormal Step Approach
an attempt is a step toward crime which goes beyond the point where the normal citizen would think better of his conduct and desist
Attempt
Unequivocality Test
an attempt is committed when the actor’s conduct manifests an intent to commit a crime
Attempt
Abandonment Defense rule where its rejected because…
once Δ has crossed the line between preparation and attempt with D’s overt act–> Δ cannot withdraw without criminal liability.
Attempt
MPC Renunciation variation of
Abandonment
D is not guilty of attempt if his conduct is a complete and voluntary renunciation of Δ’s criminal purpose
the renunciation is not voluntary if motivated by circumstances which increase the probability of detection or make the accomplishment of the actual crime more difficult
the renunciation must not be motivated by a decision to postpone the conduct or to transfer the effort to another victim/criminal effort.
Solicitation RULE
it occurs when
a person counsels, induces, or incites another person to
commit a crime
Solicitation elements
1) Mens Rea
○ he intentionally invites, requests, commands, hires, or encourages another to commit a crime, with the specific intent
2) Actus Rea
○ The overt act of D’s communication carries D’s specific intent
attempted solicitation = is considered solicitation
The attempt to encourage someone, whether they reject it or whether or not it is received, does not make a difference.
Solicitation
is there a defense to abandoning solicitation?
NO!!!
bc just the mere overt act of making the communication to other in which solicitation is found complete thus prevents D from claiming the abandonment
Solicitiation
MPC 5.02 Solicitation
D is guilty if:
…D has the purpose of promoting or facilitating its commission he:
□ commands
□ encourages
□ OR requests another (3rd) person to engage in specific conduct that would constitute
□ the crime
□ OR an attempt to commit the crime
Solicitation
MPC Solicitation doesn’t allow for punishment for both solicitation and….
Attempt!!
Solicitation
MPC Solicitation on Renunciation
If D persuaded a person he solicited…
not to commit the crime or prevented the commission of the target offense
Impossibility
CL Factual Impossibility rule
A circumstance in which a person commits an act that would otherwise constitute a criminal offense, however, the attendant facts and circumstances unknown to the actor make it impossible to commit the crime
Impossibility
CL Factual Impossibility rule
Thus FI is…
not a defense to crim liability–>and D can be convicted of attempt
Impossibility
CL Legal Impossibility rule
An activity that the defendant believes to be unlawful, but that does not constitute a crime
Impossibility
CL Legal Impossibility rule
Thus LI is…
…..a defense to criminal liability–> cannot be convicted of attempt in CL
Impossibility
MPC take on CL Impossibility Doctrine
D is guilty of Attempt when:
- (a) mistake does not make a difference
- OR (b) where the lack of causation does not make a difference
- OR © when there is an interruption, or stopping, where the defendant was unable to do all they wanted to do
Thus MPC would find all this as legal impossibility while finding attempt at the charge
Complicity
what is it?
One became responsible for another person’s crime by joining, rather than causing
Complicity
CL Complicity Aiding & Abetting rule
○ abet: to aid by presence, actual or constructive, and incitement
○ aid: also the presence for the purposes of such actual assistance as the circumstances may demand or admit of, and the incitement and encouragement which the fact of such presence for such purposes naturally imports and implies
CL Complicity Traditional Approaches
P in the 1st Degree is…
Present at the scene and commits at least one actus reus element of the offense
CL Complicity Traditional Approaches
P in the 2nd Degree is…
Present at the scene but does not assist/commit any elements of the crime
ex. Getaway driver
CL Complicity Traditional Approaches
Accessory BEFORE the fact is…
Not actually at the scene of the crime but helped prepare before
○ ex. Planner or supplier
● D commanded, counseled, encouraged, or aided the principal in the first degree in committing the felony but was not actually or constructively present at the scene
CL Complicity Traditional Approaches
Accessory AFTER the fact is…
Not at the scene, did not help in the crime, or before, only joined after the fact
○ ex. Person providing a hideout
● plays no role in the prep or commission, but assisted felon in the eluding capture or destroying evidence- punished to a lesser degree than the other D’s
CL Complicity Modern Approach
D is guilty of complicity when:…
1) he is intending to assist the commission of the crime
2) AND he assisted or encouraged in the commission of the crime
CL Complicity Modern Approach
1st element elaborated
where the accomplice must share the same knowledge and purpose of the principal/person completing the crime for the crime to succeed
CL Complicity Modern Approach
2nd element elaborated
can be Instrumentality - lending a car or a gun, supplying information or surveillance
OR can be Emotional –encouragement
CL Complicity on Feigned Accomplice rule
An individual who participates in a felony as a feigned accomplice…
in order to entrap another is not criminally liable for the felony.
○ Entrap–to get the other D in trouble with the law
D must share the same knowledge and purpose of the principal actor
MPC Complicity
requires that accomplices act…
with purpose of promoting or facilitating the commission of the offense he:
○ solicits the other person to commit it, or aids or agrees
○ OR attempts to aid the other person in planning or committing it, or (having a legal duty to prevent the crime) fails to make the proper effort to prevent it
MPC Complicity on finding D guilty when they aid & assist with…
the culpability lvl less than knowingly –> negligence
1) intended to promote or facilitate another’s unlawful or dangerous conduct, and
(2) acted with the culpable mental state specified in the underlying statute with respect to the result
MPC Termination of AL
D is not an accomplice if he…
he terminates his complicity prior to the commission of the offense and
i. wholly deprives it of effectiveness in the commission of the offense
ii. OR gives timely warning to the law enforcement authorities of otherwise makes proper effort to prevent the commission of the offense
CL Complicity
Culpability for 2nd Crimes
where D’s have a common design to do….
an unlawful act, then whatever act any one of them does in furtherance of the common design is the act of all and all are equally guilty of whatever crime is committed
Requires foreseeability
Here D is guilty of 1st and 2nd crime
CL Complicity
Culpability for 2nd Crimes
D must participate in the crime with…
full knowledge of the extent and character of the crime
■ D must have advanced knowledge
■ Does not require foreseeability
■ Here D is guilty of 1st crime but not the 2nd crime only if he knowingly or purposefully aid or encourage the crime
MPC 2.06 (1)(2)(3)(a)(i)(ii)
Liability for conduct of another (Complicity)
(1) guilty for own conduct or another’s conduct
(2) guilty for another’s conduct when he’s an accomplice of other
(3) see regular MPC complicity rule flash card
MPC 5.01(3) Guilty of Attempted Aiding
a person who engages in conduct…
designed to aid another to commit a crime is guilty of an attempt to commit the crime
Conspiracy
what is it?
Concerted action by two or more persons to accomplish some unlawful purpose
● Conspiracy is diff from other 2 inchoate offenses bc it requires an agreement bw people while other don’t include it.
CL Conspiracy rule
The D’s have the…
1) specific intent to commit the crime
2) AND an overt act in furtherance of the unlawful agreement bw at least 2 people
CL Conspiracy
1st element elaborated
D has knowledge and purpose
□ Use direct or circumstantial evidence to find specific intent
Where D is benefitting directly from the conspiracy–>thus wants the crime to happen
OR even if D doesn’t a stake in the action–> the crime itself as an inherent danger finds D’s knowledge & purpose
CL Conspiracy
2nd element elaborated
on inferring complicity and being in advance
Existence of assent can be inferred and it does not have to be in advance
□ agreement can be established if the parties act with a common intent and purpose, even if they acted individually.
Keep in mind that external factors may prevent 1 person from being guilty of conspiracy thus–>the 2nd person could not be guilty of conspiracy
□ A conspiracy does not end automatically when its object becomes impossible to achieve.
CL Conspiracy
2nd element elaborated
on the agreement itself
Overt Act
□ conspiracy focuses on the agreement itself and any overt act in furtherance of the agreement will suffice
® the overt act needed to commit a conspiracy may be a preliminary act of mere preparation that furthers the agreement but falls short of taking an action to commit the agreed crime.
◊ Further if even one member of the agreement takes an act to further the group’s agreement, that one action satisfies the second element for all group members.
CL Conspiracy
what did Dobson say regarding the overt act of attempt using the last act vs. using it for conspiracy?
the overt act of Attempt using the Last Act is more lax than the overt act for Conspiracy
CL Conspiracy
CL Pinkerton rule
a party to a continuing conspiracy may be guilty when….
the substantive offense is committed by one of the conspirators in furtherance of the conspiracy even though he does not participate in the substantive offense or have any knowledge of it
◊ So Foreknowledge for AL is not required
Exception: if the crime could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement–>then D may not be guilty of conspiracy
MPC 2.06 rejects Pinkerton rule
a person is guilty of an offense if he…
commits it by his own conduct or by the conduct of another person for which he is legally accountable or both
CL Conspiracy
Hearsay Exception
an out-of-court statement made by….
one co-conspirator in furtherance of the conspiracy is admissible against all co-conspirators, so long as there is a preponderance of evidence of the existence of a conspiracy
Termination of Conspiracy
CL Impossiblity is not a defense bc…
the agreement is not terminated just because the conspirators are unable to complete the substantive crime- extends to circumstances where the object was never attainable
Termination of Conspiracy
is there a defense for MPC Impossibility for Conspiracy??
No!!
Termination of Conspiracy
CL Abandonment
D may raise this defense but he is…
still responsible for their part of the conspiracy;
Thus D can just walk away although he is not specifically thwarting the criminal purpose
Termination of Conspiracy
MPC Abandonment
abandonment occurs if:
He advises other co-conspirators of his abandonment
OR he informs law enforcement of the existence of the conspiracy and his participation
Termination of Conspiracy
CL Withdrawal is not a complete defense although…
D withdraws –> he can’t ignore potential consequences of previous actions but is no longer liable for actions of former co-conspirators
□ must “thwart”→ inform others and renounce criminal purpose
Termination of Conspiracy
MPC 5.03 Renunciation
requires that the D…
thwart the success of the conspiracy, under the circumstances manifesting a complete and voluntary renunciation of the criminal purpose
□ Thwarting–ensuring that all the other co-conspirators do not succeed
More than mere demanding that they withdraw
CL Unilateral Conspiracy rule
where A and B agree to commit a crime, but
but B is a person that cannot be convicted of conspiracy be they are a:
○ undercover cop,
○ citizen that never intended to actually commit the crime
○ or some special excuse.
Does MPC 5.03(1) Unilateral Conspiracy follow the CL approach too?
yes!!! where a person (just 1 person)…
is guilty of conspiracy if with the purpose of promoting or facilitating its commission if he:
A. Agrees with other person(s) to engage in conduct of crime or attempt, or solicit or
B. Agrees to aid another in the planning or commission of such crime, attempt or solicitation.
CL Bilateral Conspiracy rule
there is not agreement of conspiracy…
where one party never intends to carry out the crime
its the majority approach
CL Wharton’s rule for Conspiracy
if a substantive crime assumes that 2 ppl will agree to commit it–>
then conspiracy cannot be charged
○ (exception to the principle that a conspiracy is a distinct crime from the target offense).
Scope of the Conspiracy
Single v. Multiple Conspiracies
Factors include:
a. If there was a common goal
b. Whether agreement included a continuous result requiring the continuous cooperation of conspirators.
c. Extent to which participants overlap in the various dealings.
d. Location
e. Time between conspiracies
f. Overlap of participants
g. Overt acts
h. If the role played by Δ are similar between the indictments
Conspiracy
CL Blockburger Test
ensure that each offense…
has a fact that the other offense does not
Cannot make 2 charges on same set of facts (ie. larceny merges into robbery if both were committed regarding same facts)
Conspiracy
CL Identical Elements Test
after eliminating the evidence necessary to support a charge…
…,the remaining evidence must be sufficient to support the remaining charge(s)
○ Cannot use the same evidence for multiple charges
Conspiracy
CL Merger Doctrine
At CL, conspiracy does…
…not merge into the attempted or completed offense that is the object of the agreement.
