Inchoate Crimes; Parties

Question 1

What is an inchoate offense? (Q) (Russo)

Answer 1

An inchoate offense is a crime that is anticipatory or preparatory, and for which a defendant can be held criminally liable without completing the target crime. The three inchoate offenses are:

attempt,
conspiracy, and
solicitation.

Question 2

Under the common law, what is a criminal attempt? (Q) (Russo)

Answer 2

Under the common law, a criminal attempt occurs when an actor, with the intent to commit a crime, engages in some act that is in furtherance of the crime (Sunstantial Step), but that does not result in the completion of the crime.

Question 3

What is the mens rea for attempt? (Q) (Russo)

Answer 3

The mens rea for attempt is specific intent. To be convicted of an attempt to commit a crime, the defendant must have acted with the specific intent to commit the underlying crime, known as the predicate offense.

Question 4

Can an actor attempt a general intent crime? (Q)

Answer 4

No. An actor cannot attempt a general intent crime. If a crime is based on unintentionally causing a particular result, then it is not possible to attempt to commit that crime. By definition, because those crimes do not involve specific intent, an actor cannot be said to have intended an unintended result.

Question 5

Under the standard common-law definition of attempt, is it possible to attempt a crime requiring a mental state of recklessness or negligence? (Q)

Answer 5

No. Under the standard common-law definition of attempt, it is impossible to attempt a crime requiring a mental state of recklessness or negligence. An attempt occurs when a defendant acts with the specific intent to commit the underlying offense. Reckless and negligent offenses are, by definition, unintentional. They cannot be attempted, because a defendant cannot intend to bring about an unintentional result.

Question 6

How does the MPC define the actus reus for attempt? (Q) (Russo)

Answer 6

Under the MPC, the actus reus for attempt is the defendant’s taking a “substantial step” toward committing the underlying offense. The step must be sufficient to corroborate the defendant’s intent to commit the offense, such as waiting for or luring an intended victim; surveilling or entering the scene of the intended crime; or even possessing instrumentalities of the offense, when the instrumentalities have no alternative lawful purpose. SUBSTANTIAL STEP

Question 7

What is the substantial step approach to attempt? (Q) (Russo)

Answer 7

The substantial step approach to attempt imposes liability on an actor who has performed an act or omission that constitutes a substantial step toward achieving the commission of the crime. A substantial step requires conduct that strongly corroborates an actor’s criminal intent.

A majority of jurisdictions and the MPC use the substantial step approach to attempt.

Question 8

Under the MPC, could surveilling a place to commit a crime constitute a substantial step in an attempt? (Q) (Russo)

Answer 8

Yes. Surveilling a place to commit a crime could constitute a substantial step in an attempt. The MPC lists several other examples of conduct that constitute a substantial steps, such as:

waiting for, searching for, or following an intended victim;
luring or trying to lure a victim to a place to commit the crime;
unlawfully entering a building or other location for the crime;
possessing materials designed to be used in the crime, or which have no lawful use under the circumstances;
possessing or constructing materials to be used in committing a crime, at or near the crime’s intended location, if the materials have no lawful use under the circumstances; and soliciting an innocent person to commit some element of the crime.

Question 9

What is the proximity test for attempts? (Q) (Russo)

Answer 9

The proximity test is an approach used in some jurisdictions to define the point at which a defendant’s actions are close enough to completing a crime to satisfy the actus reus for attempting to commit that crime.

Jurisdictions vary in their standards of what constitutes sufficiently close. Some courts require some act that is indispensable to the success of the crime, while others require an act that brings the defendant physically or temporally close (i.e., dangerously close) to completing the crime.

Question 10

What is the probable desistance approach to attempt? (Q) (Russo)

Answer 10

The probable desistance approach to attempt asks whether the actor reached the point at which a typical person with the actor’s intent would voluntarily change his mind and give up the attempt.

Question 11

If a defendant is charged with a crime and the facts are sufficient to show that the crime was completed, can the defendant be convicted of either the attempt or the completed crime? (Q) (Russo)

Answer 11

Yes. If a defendant is charged with a crime and the facts are sufficient to show that the crime was completed, the defendant can be convicted of either the attempt or the completed crime. This is because the attempt is considered a lesser included offense of the primary crime.

However, the defendant cannot be convicted for both the attempt and the primary crime. This is due to the merger doctrine, under which the lesser included offense is absorbed into the greater offense. (Merger Russo)

Question 12

What is the defense of factual impossibility? (Q) (Russo)

Answer 12

The defense of factual impossibility is a defense to attempt in which the defendant asserts that, despite the defendant’s criminal objective, some fact or circumstance unknown to the defendant prevented the completion of the crime. Classic examples are attempting to pick an empty pocket, or trying to shoot someone with an unloaded gun.

Most jurisdictions do not recognize factual impossibility as a defense to attempt.

Question 13

What is the defense of legal impossibility? (Q) (Russo)

Answer 13

The defense of legal impossibility arises if the completed act would not have been a crime, even if circumstances were as they believed the defendant to be. For example, attempting to purchase stolen goods that were not, in fact, stolen is not a crime, even if the defendant believed the goods were stolen when he tried to purchase them. Because it is not a crime to do something that is not criminal, an attempt to do a non-criminal act is similarly not criminal.

Although legal impossibility was historically a defense to attempt, the MPC and many modern jurisdictions reject it. Cases of legal impossibility are often hard to distinguish from those of factual impossibility, which has led to widespread criticism of the defense.

Question 14

What is the defense of abandonment? (Q) (Russo)

Answer 14

The defense of abandonment, sometimes called renunciation, is a defense to attempt in which the defendant claims he should not be held liable because he turned away from his criminal scheme before completing the crime. Most courts do not recognize the abandonment defense.

A few jurisdictions and the MPC recognize the defense if the abandonment is voluntary, i.e., if the defendant’s cessation of criminal activity is motivated by the complete repudiation of the defendant’s criminal purpose. Abandonment is not considered voluntary if the defendant is deterred by unexpected difficulties in completing the crime, fear of detection, or by the decision to wait for a more favorable time to commit the crime.

Question 15

Under the MPC, what is the renunciation defense to attempt? (Q) (Russo)

Answer 15

Under the MPC, the renunciation defense to attempt absolves a defendant of liability for attempt if the defendant abandons the effort to commit the crime or otherwise prevents its commission. The defendant must have done so under circumstances manifesting a complete and voluntary renunciation of criminal purpose.

The renunciation does not count as voluntary if motivated by changing circumstances increasing the probability that the attempted offense will be thwarted, or otherwise decreasing its likelihood of success. A renunciation defense will fail if the defendant has merely postponed the attempted crime until a more advantageous time, or if the defendant’s plans simply evolve into an attempt to commit a different offense with a similar objective or victim.

Question 16

A man entered a bank, intending to rob it. Upon seeing two police officers inside, the man changed his mind and left without doing anything in pursuit of a robbery. The officers were at the bank because they had been alerted to the man’s plans. They followed the man out of the bank and arrested him. When the man turned to leave the bank, he genuinely abandoned any plan to commit the robbery.

Under the MPC approach, has the man established an affirmative defense of renunciation to the attempted bank robbery?

Answer 16

No. The man has not established the affirmative defense of renunciation to the attempted bank robbery. Under the MPC, to successfully raise renunciation as an affirmative defense to attempt, a defendant must have abandoned the crime, or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of criminal purpose. The renunciation is not voluntary if made in response to unforeseen circumstances that diminish the attempted crime’s likelihood of success.

Here, the man abandoned the planned robbery after he saw the officers inside the bank and realized that their presence made the robbery less likely to succeed. This type of abandonment is not voluntary under the MPC’s approach. The man therefore cannot rely on renunciation to escape liability for the attempted bank robbery.

Question 17

Under the common-law, what is the dangerous proximity test? (Russo)

Answer 17

An act in order to be a criminal attempt must be immediately and not remotely connected with and directly tending to the commission of an offense. (Rizzo)

Question 18

What is the common law definition of conspiracy? (Q) (Russo)

Answer 18

At common law, a conspiracy is:

(1) An agreement between two or more people to commit an unlawful act
(2) Specific intent or purpose to achieve the goal or object of the conspiracy
(3) Overt act in furtherance of the conspiracy

Question 19

In common-law conspiracy, must the conspirators’ agreement to commit a crime, or a lawful act by criminal means, be explicit? (Q) (Russo)

Answer 19

No. In common-law conspiracy, the conspirators’ agreement to commit a crime, or a lawful act by criminal means, need not be explicit. It may be either explicit or implicit. The agreement can be manifested by express words or inferred from the parties’ course of conduct.

As long as their actions give rise to an inference of agreement to the criminal scheme, multiple parties can agree to a conspiracy even without meeting each other or knowing each other’s identities.

Question 20

What is the actus reus of conspiracy at common law? (Q) (Russo)

Answer 20

The common-law actus reus of conspiracy is the formation of an agreement with another person to commit a crime. In some jurisdictions, the agreement itself suffices for the actus reus of the conspiracy offense. Federal law and many jurisdictions require in addition that at least one conspirator take an overt act in furtherance of the conspiratorial agreement.

Question 21

Under the common law of conspiracy, what is a bilateral conspiracy? (Q) (Russo)

Answer 21

Under the common law of conspiracy, a bilateral conspiracy is a genuine agreement between two or more people to commit a crime. At common law, a conspiracy had to be at least bilateral, i.e., involving at least two people.

Question 22

What is a unilateral conspiracy? (Q) (Russo)

Answer 22

A unilateral conspiracy arises when only one individual harbors the specific intent to further a putative conspiracy’s criminal objective and enters an agreement with someone else believing that the other person is also agreeing to the joint criminal enterprise. This can occur if one of the people agreeing to commit a crime is feigning agreement, as in the case of an undercover law-enforcement officer.

At common law, a conspiracy had to be bilateral, with at least two parties in actual agreement. The Model Penal Code and some modern jurisdictions follow a unilateral approach, which requires only one person’s agreement. In these jurisdictions, a defendant can be convicted of conspiracy for entering into an illicit agreement with an undercover agent or an informant who is only feigning agreement and does not intend for the conspiracy to go forward.

Question 23

Under the modern common law, can a husband and wife be convicted of conspiracy? (Q) (Russo)

Answer 23

Yes. Under the modern common law, most jurisdictions permit a husband and wife to be convicted of conspiracy. Historically, the common law did not recognize conspiracies between spouses.

Question 24

Can a person be convicted of conspiring with a person who is in a class of people that a statute was designed to protect? (Q) (Russo)

Answer 24

No. A person cannot be convicted of conspiring with a person who is in a class of people that a statute was designed to protect. For example, if a statute criminalizes prostitution but exempts prostitutes from liability, a person who commits an act of prostitution with a prostitute cannot be convicted of conspiracy to commit prostitution.

Question 25

What is the mens rea for the crime of conspiracy? (Q) (Russo)

Answer 25

To satisfy the mens rea for the crime of conspiracy, a person must act with the specific intent to further the conspiracy’s objective to commit the underlying offense. Knowing that participation in a conspiracy may further the conspiracy is not sufficient; a person must have the specific intent to promote the conspiracy itself. The conspirators must have any specific mental state that is required for the targeted crime.

Question 26

Under the common law of conspiracy, must the parties to a conspiracy intend to achieve an unlawful goal that is the object of the conspiracy? (Q) (Russo)

Answer 26

Yes. Under the modern common law of conspiracy, the parties to a conspiracy must intend to achieve an unlawful goal that is the object of the conspiracy. For the parties to be liable, the conspiracy’s objective must be either the commission of a crime or the achievement of some lawful goal by criminal means, and the parties must share the intent to achieve this unlawful goal. The goal of the conspiracy may also encompass matters beyond the crime itself, such as the distribution of illegal proceeds.

Question 27

Under the common law, is impossibility a defense to conspiracy? (Q) (Russo)

Answer 27

No. Under the common law, impossibility is not a defense to conspiracy. This applies to both factual and legal impossibility.

Question 28

For a particular defendant to be found guilty of conspiracy, must that defendant commit an overt act in furtherance of the conspiracy? (Q) (Russo)

Answer 28

No. Most jurisdictions and the MPC do not require that a particular defendant personally committed an overt act in furtherance of the conspiracy in order to be found guilty of the conspiracy. The overt act in furtherance of the conspiracy may be committed by any member of the conspiracy. An individual defendant need not engage in any conduct beyond entering into the criminal agreement, so long as at least one conspirator has taken one overt act in furtherance of that agreement.

The purpose of the overt-act requirement is to provide tangible evidence that the conspiracy was at work. Thus, in most jurisdictions, an overt act does not need to be an element of the crime, nor does it need to be a sufficient step to constitute an attempt.

Question 29

A man asked a woman to help him rob a bank. The woman agreed. Later that day, without the woman’s knowledge, the man went to the bank and spent the afternoon wandering in and out of the lobby, watching the front of the building, and taking photographs of the surroundings. Law enforcement officers who had been monitoring the man saw him surveilling the bank and arrested him. After the man informed them of his earlier conversation with the woman, the officers arrested her, too. The jurisdiction’s conspiracy law had an overt-act requirement.

Are both the man and the woman guilty of conspiracy?

Answer 29

Yes. Both the man and the woman are guilty of conspiracy. Generally, conspiracy requires that one defendant agree with another to commit a crime, with the specific intent to carry out the crime. In a jurisdiction that requires that a defendant commit an overt act in furtherance of the conspiracy, any action sufficient to show that the conspiracy is at work will suffice. Only one member of the conspiracy need perform the overt act to trigger liability for all conspirators.

Here, the man and woman agreed to rob a bank, thus forming a conspiracy with the specific intent to commit a crime. The man spent the afternoon surveilling the bank, which was an overt act in furtherance of the conspiracy. The woman did not participate in this surveillance, but only one conspirator had to commit an overt act to trigger liability for all conspirators. The man and woman are thus both guilty of conspiracy.

Question 30

A man hailed a taxi. The man said to the driver, “What’s the fare to First National Bank? I’m going to rob it.” The driver replied that the standard fare would be seven dollars. The man said, “Great, let’s go,” and got in the cab. The driver drove the man to First National Bank, where the man paid the driver seven dollars and exited the cab. The driver drove away, and the man robbed the bank.

Is the taxi driver guilty of conspiracy to commit bank robbery?

Answer 30

No. The taxi driver is not guilty of conspiracy to commit bank robbery because the driver lacked the requisite mens rea. To commit conspiracy, a defendant must enter into an agreement with another to commit a crime, with the specific intent to further the agreement’s criminal objective.

Here, by giving the man a ride, the driver facilitated the robbery. But the facts do not indicate that the driver desired to help commit the robbery, or even that he knew that the ride would actually facilitate a robbery. On the contrary, the driver’s purpose was likely innocuous: to be paid the standard fare for transporting a customer. Accordingly, because the driver did not act with the specific intent to help commit the robbery, the driver is not guilty of conspiracy.

Question 31

A father and son agreed to rob a bank. Later that day, the father purchased two ski masks for use during the robbery. However, on the morning the planned robbery was to occur, the son called the father and said, “This is crazy, and I should never have agreed to it; I’m out.” The father accordingly robbed the bank alone.

Is the son guilty of conspiracy to commit bank robbery?

Answer 31

Yes. The son is guilty of conspiracy. Conspiracy is an agreement between two or more people to commit a crime, combined with (in some jurisdictions) at least one overt act in furtherance of the agreement. A conspirator may withdraw by providing the other conspirators clear notice, in time for them to abandon the conspiracy, but withdrawal ends only the conspirator’s liability for future crimes by the others; it does not extinguish liability for the conspiracy.

Here, the father and son agreed to rob a bank, and the father committed the overt act of buying ski masks to use during the robbery; this formed a conspiracy. The son withdrew from the conspiracy before the robbery by providing his father clear notice, so the son is not guilty of the bank robbery. But this withdrawal does not change the fact that the son had already agreed to commit a crime. Thus, the son is guilty of conspiracy.

Question 32

If conspirators agree from the outset to engage in a course of conduct that encompasses multiple crimes, are each of those crimes part of a different conspiracy? (Q) (Russo)

Answer 32

No. If conspirators agree from the outset to engage in a course of conduct that encompasses multiple crimes, then the crimes are treated as part of a single conspiracy. The same rule applies if a single criminal act violates multiple criminal statutes: there is only one criminal conspiracy.

A defendant may, however, be convicted of multiple conspiracies if he entered into more than one agreement to commit various crimes.

Question 33

What is abandonment of and withdrawal from of a conspiracy? (Q) (Russo)

Answer 33

Abandonment of and withdrawal from a conspiracy occurs if a conspirator:

takes an affirmative action withdrawing from the conspiracy,
timely communicates to all co-conspirators his withdrawal,
withdraws prior to the completion of the conspiracy’s objective, and
(in some jurisdictions and under the Model Penal Code) actively works to prevent the conspiracy’s unlawful objective from being completed.

A conspirator cannot withdraw by merely failing to participate further in the conspiracy. Nor may the conspirator participate in the conspiracy until its completion, withdraw, and then cite withdrawal as a defense. Of course, if a conspirator re-initiates contact with his co-conspirators, the defense of abandonment is unavailable.

Question 34

Does a conspirator’s abandonment of and withdrawal from a conspiracy end her involvement with the conspiracy? (Q) (Russo)

Answer 34

Yes. A conspirator’s abandonment of and withdrawal from a conspiracy ends her involvement with the conspiracy. However, withdrawal is not a complete defense to conspiracy, because the crime of conspiracy is complete upon the conspirator’s agreement to commit an unlawful act.

Withdrawal may limit the withdrawing party’s liability for the remaining conspirators’ subsequent crimes. Withdrawal also limits the conspirator statements that can be used against the withdrawing party and activates the statute of limitations as to the withdrawing party.

Question 35

Under the common law of conspiracy, must a conspirator withdrawing from a conspiracy formally notify all co-conspirators of the withdrawal? (Q) (Russo)

Answer 35

No. Under the common law of conspiracy, a conspirator withdrawing from the conspiracy is not required to formally notify all co-conspirators of the withdrawal. To withdraw, the conspirator must perform some affirmative act that is sufficient to place a reasonable person on notice of the withdrawal and that must be communicated to every other member of the conspiracy.

Question 36

What is renunciation of a conspiracy?

Answer 36

Renunciation of a conspiracy occurs when a conspirator, after conspiring to commit a crime, undermines the criminal objective of the conspiracy under circumstances that manifest a complete and voluntary rejection of the criminal activity. Renunciation, unlike withdrawal, can be a complete defense to conspiracy.

Question 37

What are the elements of solicitation? (Q) (Russo)

Answer 37

(1) Specific intent or purpose
(2) To solicit (hire, command, request, encourage, or invite)
(3) A third party to perform a crime

Question 38

Is solicitation a standalone criminal offense? (Q) (Russo)

Answer 38

Yes. Solicitation is a standalone criminal offense. Conduct constituting solicitation may also make the solicitor complicit in the underlying offense if the person solicited goes forward with the crime. But the solicitor can be convicted of solicitation even if the solicitation is immediately and definitively rebuffed.

Question 39

Is solicitation a specific-intent or a general-intent offense? (Q) (Russo)

Answer 39

Solicitation is a specific-intent offense. The solicitor must act with the purpose of promoting or facilitating the solicitee’s commission of a crime.

Question 40

Is renunciation a defense to solicitation in most jurisdictions? (Q) (Russo)

Answer 40

No. Renunciation is not a defense to solicitation in most jurisdictions. A person becomes guilty of solicitation at the moment the person invites, requests, commands, encourages, or counsels another person to commit a crime, with the purpose of getting the other person to commit the crime. This is true regardless of subsequent efforts to undo the solicitation.

However, the MPC recognizes the defense if the defendant persuades the person solicited not to commit the crime, or otherwise prevents the crime’s commission, under circumstances that show the defendant’s complete and voluntary renunciation of the criminal purpose.

Question 41

In criminal law, what are principals to a crime? (Q) (Russo)

Answer 41

In criminal law, a principal is a party who commits a crime with the required mens rea.

Question 42

In criminal law, what are accomplices? (Q) (Russo)

Answer 42

An accomplice is a person who knowingly provides aid, assistance or encouragement to the principal with the intent that the principal succeed in his criminal endeavor. An accomplice is sometimes called an accessory. An accomplice can be criminally liable to the same extent as the principal.

Question 43

What were the four categories of criminal actors recognized by the common law? (Q) (Russo)

Answer 43

Principal in the first degree, principal in the second degree, accessory before the fact, and accessory after the fact.

Question 44

What is a principal in the first degree? (Q) (Russo)

Answer 44

A principal in the first degree is the person or persons who perform the criminal act (actus reus) with the required mens rea.

Question 45

What is a principal in the second degree? (Q) (Russo)

Answer 45

A principal in the second degree is the person or persons who are actually or constructively present at the commission of the crime, and aids, abets, or encourages the principal in the first degree.

Question 46

What is an accessory before the fact? (Q) (Russo)

Answer 46

An accessory before the fact is the person or persons who are not present at the commission of the crime, but who aids, abets, or encourages the principal in the first degree before the crime has been committed.

Question 47

What is an accessory after the fact? (Q) (Russo)

Answer 47

An accessory after the fact is the person or persons who assist the principal in the first degree in avoiding apprehension or punishment after the commission of the crime.

Question 48

Which two common-law categories of criminal actors are included in the modern term “accomplice”? (Q)

Answer 48

The common law divided defendants who aided and abetted a principal offender’s illegal conduct into two categories: (1) principals in the second degree and (2) accessories before the fact.

Principals in the second degree were present at the scene of the crime when they aided and abetted the principal actor, i.e., the principal in the first degree. Accessories before the fact aided and abetted the principal actor prior to the offense, but were not present at the scene. The modern term accomplice includes both principals in the second degree and accessories before the fact.

Question 49

If a principal offender commits a crime with the aid of an accomplice, what crime has the accomplice committed? (Q) (Russo)

Answer 49

If an accomplice aids and abets a principal offender in committing a crime, the accomplice is guilty of the same crime as the principal offender. Aiding and abetting a crime is not a standalone offense; for example, a person who aids and abets a murderer is guilty of murder, not of aiding and abetting murder.

Question 50

What is the mens rea for accomplice liability?

Answer 50

The mens rea for accomplice liability is intentionally aiding or encouraging the principal in committing the crime, with the specific intent to further its commission. The accomplice must have the same mens rea toward the underlying crime as the principal.

In order to find accomplice liability, most courts require that an alleged accomplice have some greater interest in the commission of the crime, or some intent to promote or facilitate the crime, beyond mere knowledge of the crime. Despite this general rule, some jurisdictions do impose liability for mere knowing assistance.

Question 51

What is the actus reus for accomplice liability? (Q) (Russo)

Answer 51

The actus reus for accomplice liability consists of either aiding the principal in committing the crime or encouraging the principal to commit the crime. It is not necessary that the accomplice commit the actus reus of the crime. It is, however, necessary that the accomplice provide aid, assistance or encouragement; a person’s mere presence at the scene of a crime is insufficient to make that person an accomplice.

Question 52

Can an accomplice be found guilty of a crime even if the principal has been acquitted or if the principal has not been tried? (Q) (Russo)

Answer 52

Yes. An accomplice can be found guilty of a crime even if the principal has been acquitted or has not been tried. An accomplice can also be found guilty of a crime even if the principal was convicted of a different offense or different degree of offense. Therefore, an accomplice’s liability is not strictly derivative liability.

Question 53

Can an accomplice be liable for additional crimes committed by the principal in the course of committing the crime that the accomplice aided?

Answer 53

Yes. An accomplice can be liable for additional crimes committed by the principal in the course of committing the crime that the accomplice aided. This liability requires that the additional offenses (1) are the natural and probable consequence of the crime aided, and (2) are committed in furtherance of the crime aided.

Question 54

Can a person be held liable as an accessory for providing assistance after a principal has committed a crime?

Answer 54

Yes. A person can be held liable as an accessory for providing assistance after a principal has committed a crime. Although the common-law term “accessory after the fact” is no longer widely used, the underlying concepts for imposing liability still exist.

Question 55

Is it possible for a person who is not there to be a principal in the first-degree? (Russo)

Answer 55

Yes. One who affects a criminal act through an innocent or unwitting agent is a principal in the first degree. (Bailey v. Commonwealth - Swatting)

Question 56

How do you find for aiding and abetting according to the natural and probably consequences doctrine? (Q) (Russo)

Answer 56

(a) have to have knowledge of the unlawful purpose of the perpetrator
(b) and intent or purpose of committing encouraging or facilitating the commission of the predicate or target offense
(c) by act or advise aided promoted encouraged or instigated the commission of the target crime
(d) defendant’s associate committed an offense other than the target crime
(e) the offense committed by the associate was a natural and probable consequence of the target crime that the defendant aided and abetted.

Question 57

Does conspiracy merge with the primary offense? (Q) (Russo)

Answer 57

Unlike attempt, the crime of conspiracy does not merge with the primary offense. Therefore, a defendant can be convicted of both the primary offense and conspiracy to commit the primary offense.

Question 58

How can renunciation serve as a defense to conspiracy? (Q) (Russo)

Answer 58

For renunciation to serve as a defense, the rejection of the criminal activity must be voluntary. A conspirator who abandons the conspiracy because of fear of detection, or due to unforeseen obstacles to achieving the criminal objective, may not invoke renunciation as a defense because in that case his rejection of the crime is not voluntary.