Inchoate ("Incomplete") Crimes

Question 1

Attempt

Answer 1

(1) Mental state: specific intent to complete the crime

(2) Act (actus reaus): act in furtherance of a crime.
MPC/majority: a substantial step that is strongly corroborative of the criminal purpose.
Common law: dangerous proximity test

Question 2

Defenses to attempt

Answer 2

(1) Impossibility
(2) Abandonment

Question 3

Impossibility

Answer 3

Factual impossibility: crime could not have been committed due to a
defendant’s mistake of fact. This is no defense.

True legal impossibility: “crime” that the defendant attempts to commit is actually not illegal. This generally is a defense.

Question 4

Abandonment for attempt

Answer 4

Majority rule: abandonment is not a defense to attempt.

MPC and some states: a complete and voluntary abandonment is a defense. To be complete and voluntary, defendant cannot plan to postpone crime and defendant cannot abandon it because he is afraid of being caught. It has to be an actual “change of heart” by the defendant.

Question 5

Conspiracy

Answer 5

(1) An agreement by two or more people to commit a crime +
(a) MPC has unilateral approach
(b) When a person is in a protected class (e.g., victim), he or she will not be guilty of conspiracy.

(2) (in some states) an overt act in furtherance of the crime +
(a) act can be preparatory or something very small (e.g., supplying goods or services).
(c) common law: no overt act required

(3) (in all states) the specific intent to enter into the agreement and accomplish its objectives.

Question 6

Wharton’s Rule

Answer 6

When two or more people are necessary for the commission of the crime, there is no conspiracy unless more are present (e.g., dueling, adultery, bigamy).

Question 7

Conspiracy: withdrawal

Answer 7

A defendant who withdraws from the conspiracy is liable for the conspiracy but not liable for the crimes committed in furtherance of the conspiracy that occurred after the withdrawal.

Question 8

Conspiracy: merger

Answer 8

A defendant can be convicted of conspiracy and the crime itself. (The crimes do not “merge” together.)

Question 9

Solicitation

Answer 9

Note: It makes no difference whether the person agrees to commit the crime and it makes no difference whether the crime actually ends up being committed.

The purpose of making solicitation a crime is to punish someone for merely asking without regard to what happens next.

Question 10

Solicitation defenses

Answer 10

Factual impossibility (e.g., the person solicited was an undercover agent) is no defense.

Changing one’s mind—“withdrawing” from the crime—is not a defense. (The theory is: you cannot “un-ask” a question.)

Question 11

Merger for inchoate crimes

Answer 11

Solicitation and attempt merge with the completed crime.

Conspiracy does not merge with the completed crime.