Inchoate Crimes: Solicitation, Conspiracy, and Attempt

Question 1

What is inchoate?

Answer 1

It means partly in existence or imperfectly formed
Solicitation, conspiracy, and attempt are inchoate because they are steps toward the completion of an intended target crime

Question 2

What is solicitation?

Answer 2

the offense of asking someone else to commit or join in a crime (specific intent crime)
*solicitation is complete when you ask them to do something with intent to do something

Question 3

What is the actus reus and mens rea for solicitation?

Answer 3

actus reus: requesting another person to commit or join in a specified crime
mens rea: the intent that the crime be committed

Question 4

Does solicitation merge?

Answer 4

Yes, if the solicitee agrees to commit the crime, a conspiracy is formed and solicitation merges into the conspiracy

Question 5

What is a conspiracy?

Answer 5

A conspiracy is an agreement between two or more persons to commit a crime (specific intent crime)

Question 6

What is the actus reus and mens rea for conspiracy?

Answer 6

Actus reus: agreement to commit a crime (agreement can be verbal and can be inferred)
Mens rea: (1) intent to agree, and (2) intent to commit the target offense

Question 7

In addition to agreement and intent, what else does California require?

Answer 7

California requires an overt act in furtherance of the conspiracy. At least one overt act must occur. Once the overt act is complete, conspiracy is complete.

Question 8

What happens if a person agrees to commit a crime, but withdraws before an overt act is committed?

Answer 8

The person is not guilty of conspiracy or any post-withdrawal crimes committed by the remaining conspirators

Question 9

Does conspiracy merge?

Answer 9

No, conspiracy is a separate crime from the target crime and does not merge. You can be charged with both the conspiracy and the target crime. If the target offense is not completed or attempted, conspiracy remains.

Question 10

What happens if a later person joins an ongoing conspiracy?

Answer 10

The later joiner is not responsible for crimes committed by the conspirator before the person joined the conspiracy

Question 11

What is necessary to withdraw from a conspiracy?

Answer 11

To withdraw, you need to:
Affirmatively reject the conspiracy and communicate that rejection to the other members of the conspiracy known to the person

Question 12

What are the three circumstances for accomplice liability?

Answer 12

1. If you join conspiracy, you are usually an accomplice to the offenses contemplated by the conspiracy
2. It is possible to be an accomplice without being a conspirator
3. It is possible to be a conspirator without being an accomplice

Question 13

What are the conspiratorial agreements?

Answer 13

1. Single agreements: whether the object of a single agreement is to commit one or many crimes
2. multiple agreements: The number of agreements determine the number of conspiracies
   *In California, it is impossible to conspire with himself; two or more people must agree.

Question 14

When does conspiracy end?

Answer 14

When the goal is either attained or defeated

Question 15

What circumstances are used to prove a conspiracy?

Answer 15

The circumstances relevant are:
1. association with alleged conspirators;
2. knowledge of the commission of the crime;
3. presence at the scene of the crime; and at times
4. participation in the object of the conspiracy

*mere presence at the scene is not enough

Question 16

What is required for conspiracy to commit murder?

Answer 16

To be guilty of conspiracy to commit express malice murder, the conspirators need to:
1. Agree or conspire;
2. with a specific intent to kill; and
2. to commit the overt act in furtherance of such agreement

Question 17

What are the two type of conspiracies?

Answer 17

Simple: one, two, three, fifteen conspire to rob a bank
Complex: a large scale drug distribution operation

Question 18

What is a chain conspiracy?

Answer 18

Production>Manufacturer>Smuggler>High Level Dealers> Street dealers
Each person is a link in a conspiratorial chain, and all conspirators are tried together for purposes of conspiracy liability.

1. knowledge of one another (dont need to know actual identities)
2. knowledge of community interest—the success depends on the success of others in the agreement

Question 19

What is a wheel conspiracy?

Answer 19

A single individual or small group where the hub transacts some type of illegal business with separate individuals or spokes who may or may not know each other

One conspiracy: if the spokes are to some degree mutually dependent on the continuing success of the hub—then there may be one conspiracy involving the hub and all or some of the spokes
Multiple conspiracies: If there are twenty five individuals—spokes know nothing of each other and are not somehow mutually dependant on the continuing success of the hub

Question 20

What is a seller of lawful goods/services in a conspiracy entail?

Answer 20

A merchant who provides lawful goods and services is not in a conspiracy with a customer simply because the merchant knows or suspects that the customer intends to put the goods or services to unlawful ends

Question 21

How can a seller of lawful goods/services be charged?

Answer 21

To be charged:
1. Have knowledge + intent to further the illegal cause
2. Gives advice on how the criminal should use his services in this way; or
3. Have a stake in the illegal venture

Question 22

Can a buyer be guilty of conspiracy in a buyer-seller agreement?

Answer 22

No, mere proof of the buyer-seller agreement without any prior understanding is not enough—mere association or acquiesence is not enough

Question 23

What is the natural and probable consequence doctrine?

Answer 23

A conspirator is liable for a non-target crime committed by a co-conspirator when the non-target crime furthers the conspiracy and the non-target crime is a natural and probable consequence of the conspiracy, that is , the non-target crime is foreseeable.

Question 24

What are co-conspirators not criminally responsible for?

Answer 24

1. the act of another member that does not further the common plan or is not a natural and probable consequence of the common plan
2. the acts of another person who was not a member of the conspiracy even if the acts of the other person helped accomplish the goal of the conspiracy
3. For the acts of other conspiracy members that are done after the goal of the conspiracy has been completed

Question 25

What is Wharton’s rule?

Answer 25

Wharton’s rule applies in certain crimes, where two people are needed for the commission of the crime.

If this rule applies, only the target offense can be prosecuted; the conspiracy merges with the crime

*Legislative history claims Wharton’s rule is inapplicable as the legislature intended to charge people of the crimes and the conspiracy

Question 26

What is an attempt?

Answer 26

A direct movement toward the commission of the crime after preparation.

actus reus: a direct but ineffectual step toward completion of the target crime

Question 27

What are the elements for attempt?

Answer 27

1. A specific intent to commit the crime (mens rea)
2. a direct but ineffectual step toward completion of the target crime (actus reus)

*the offender does not have to take the last step proximate to completing a crime in order to cross the line separating preparation from attempt—when criminal design is clearly shown, slight acts in furtherance are enough to show attempt

Question 28

What is complete attempt?

Answer 28

Defendant took every step she intended to take to commit the crime, but for some reason the crime was not committed

Question 29

What is an incomplete attempt?

Answer 29

Steps remain to be taken before the crime can occur. For some reason, the defendant stops or is stopped

*if defendant crossed the line that separates preparation from attempt, a crime occurred

Question 30

What are the three tests for an incomplete attempt?

Answer 30

1. Proximity Approach Test
2. Equivocality Test
3. The Model Penal Code Test

Question 31

What is the proximity approach test?

Answer 31

Ask “how close did the defendant get to completing the offense?”
1. the # of acts remaining before crime occurs—(more steps, less likely; less steps; more likely)
2. the distance to be covered before the crime occurs (propinquity)
3. how close in time the offender got to completing the crime
4. how clear defendant’s intent is

*sometimes when proof of intent is clear, the line crossed earlier

Question 32

What is the equivocality test?

Answer 32

View the D’s actions if watching a closed circuit TV feed with no sound:
1. If D’s conduct points unequivocally to attempt, D is guilty
2. If D’s conduct was equivocal, no attempt

Question 33

What is the Model Penal Code approach to an incomplete attempt?

Answer 33

Asks whether defendant committed an act that was a “substantial step in a course of conduct planned to culminate in the commission of the crime.” (How far did the defendant go toward completing the crime?
The behavior helps determine whether an incomplete attempt occurred, was there:
1. Lying in Wait
2. Searching for the victim
3. Convincing the victim to go to the place where the crime will be perpetrated
4. Reconnoitering the location where the crime will be committed
5. Possession of burglar’s tools or other instruments for use in the crime

Question 34

Does the attempt merge?

Answer 34

Yes, the attempt merges into the conviction

Question 35

What is needed for attempted murder?

Answer 35

Defendant must:
1. intent to kill; and
2. there needs to be a direct but ineffectual act toward accomplishing the intended killing

Question 36

What is the “kill zone” theory?

Answer 36

The nature and scope of the attack, while directed at a primary victim are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in the victim’s vicinity—you have to create a kill zone

Question 37

What is attempting the impossible?

Answer 37

A person cannot be guilty of attempting to commit a crime when under the circumstances, it was impossible to commit the crime.

Today, most states, including California, and the Model Penal Code, reject this idea that one cannot be guilty of attempting to commit a crime that it would be impossible to commit