Inchoate Offenses

Question 1

Define solicitation.

Answer 1

Asking someone to commit a crime with the specific intent that the crime be committed. The crime is the asking - so you can still be guilty even if nothing more happens.

Question 2

Define conspiracy.

Answer 2

An agreement between two or more people with the intent to commit a crime and an overt act in furtherance of the crime.

Question 3

Define overt act.

Answer 3

Any act (even if simply preparatory) is enough if performed by either of the co-conspirators.

Question 4

What is the bilateral approach to conspiracy?

Answer 4

For an agreement, there must actually be 2 guilty minds. If all parties but one are acquitted or it turns out the operation was a sting (and the police officer wasn’t actually agreeing) - no conspiracy.

Question 5

What is the unilateral (NY) approach to conspiracy?

Answer 5

A person is guilty of conspiracy even if the other parties are acquitted or just pretended to agree. Only one guilty mind is required.

Question 6

What is the Wharton Rule (followed in NY)?

Answer 6

The agreement for a conspiracy must include the number of people necessary to commit the substantive offense + 1.

Question 7

Define vicarious liability (Pinkerton) in conspiracy.

Answer 7

In addition to conspiracy, a defendant will be liable for all other crimes committed by his co-conspirators when those crimes are foreseeable and in furtherance of the conspiracy.

Question 8

What is NY’s vicarious liability rule for co-conspirators?

Answer 8

There is no vicarious liability for one who merely conspires and does not participate in the crimes committed by co-conspirators.

Question 9

When is impossibility by mistake of fax a defense to conspiracy?

(e.g. conspiracy to murder, but the person already died)

Answer 9

Impossibility is never a defense to conspiracy.

Question 10

Define attempt in NY.

Answer 10

NY uses the Proximity Test:

The conduct must be dangerously close to committing the substantive crime.

Question 11

Define attempt under the MPC/Majority approach.

Answer 11

MPC uses the Substantial Step Test:
The conduct constitutes a substantial step towards commission of the crime if it strongly corroborates the actor’s criminal purpose.

Question 12

What mental state is required for attempt?

Answer 12

The specific intent to commit the underlying crime.

Unintentional crimes cannot be attempt - because you were not attempting to do something unintended…

Question 13

Is factual impossibility a defense to attempt?

Answer 13

No.
A physical or factual condition unknown to the D that prevents the underlying crime from taking place is not a defense to attempt.

Question 14

Is legal impossibility a defense to attempt?

Answer 14

MBE: Yes
NY: No!
A legal circumstance or status unknown to D prevents successful completion of the crime.

Question 15

Under common law, is withdrawal a defense to conspiracy, solicitation, attempt or the substantive offense?

Answer 15

Withdrawal is not a defense to inchoate offenses - it is a defense to the substantive offense if done properly.

Question 16

What is the effect of withdrawal under common law?

Answer 16

The person is still guilty of conspiracy but will not be held liable for crimes committed by his co-conspirators after the withdrawal.

Question 17

What must a person to do withdraw from a conspiracy, solicitation, or attempt?

Answer 17

1. renounce the criminal purpose before the offense is committed,
2. make a sincere and SUCCESSFUL effort to prevent the commission of the substantive offense.
3. renunciation must be complete and voluntary (change of heart/not fear of getting caught)

Question 18

What is the merger rule for solicitation?

Answer 18

Common law: solicitation merges with the completed crime.

NY: solicitation does not merge.

Question 19

What is the merger rule for attempt?

Answer 19

Common law & NY: attempt merges with the completed offense.

Question 20

What is the merger rule for conspiracy?

Answer 20

Conspiracy does not merge.