Inchoate Offenses

Question 1

Attempt (generally)

Answer 1

Line between preparation (not enough) and perpetration

Tension between social policy and free thoughts
– How soon should a police officer be able to intervene?

Attempt merges into the target offense if it is successfully completed

Question 2

Incomplete attempts

Answer 2

When D fails to complete the last act necessary on his part to commit the target offense, either because D desists (changes their mind) or encountered an obstacle (ran into law enforcement)

Question 3

Complete attempt

Answer 3

When D does everything necessary on his part but fails to produce the intended result (ex: shoots and misses)

Question 4

Common law mens rea for attempt

Answer 4

Mens rea: dual intent

1. Intent to do the acts that bring D within proximity to committing the underlying offense, AND
2. Intent to commit the underlying offense

Question 5

Common law actus reas for attempt

Answer 5

Proximity tests

1. Physical proximity: Actor has apparent power to complete the crime almost immediately
2. Dangerous proximity (Holmes): The greater the gravity and probability of offense, the nearer the act to the crime, and the greater the apprehension that’s felt, the stronger the basis for attempt

Steps taken tests

1. Unequivocality test (res ipsa): D’s conduct alone must demonstrate criminal intent; would a reasonable person looking at D’s conduct know that the actor was going to commit a crime?
2. Probable desistance: Without interruption, will the natural course of events culminate in the commission of the crime? Has D reached a point of no return?

Question 6

Is abandonment a defense to CL attempt?

Answer 6

NO – cannot abandon attempt

Question 7

Common law impossibility as a defense for attempt

Answer 7

Impossibility

1. Factual: The objective of D is a crime, but some factual circumstance unknown to D prevented D from committing the crime; had the situation been as D desired it, it would have been a completed crime
   - - NOT a defense to attempt
2. Legal: D believes he is committing a crime, but he is not because the intended act is not criminal; even if D were to carry out the act, it would not be a crime
   - - Full defense to attempt

Question 8

MPC mens rea for attempt

Answer 8

Complete attempts

1. Conduct crimes: D’s conscious object is to engage in conduct that would constitute the substantive offense (purposely)
2. Result crimes: D does or fails to do anything with the purpose of causing (purposely) or with the belief that it will cause (knowingly) the result

Incomplete attempts: D purposely acts or fails to act in a manner that constitutes a substantial step toward committing the crime (purposely)

Question 9

MPC actus reus for attempt

Answer 9

D has taken substantial steps toward completion of the crime; actions/steps must corroborate D’s intent/criminal purpose

Question 10

Is renunciation a defense for MPC attempt?

Answer 10

YES
D must abandon his effort to commit the crime or otherwise prevent its commission under circumstances manifesting a complete and voluntary renunciation of criminal purpose
–genuine change of heart

Question 11

Common law mens rea for solicitation

Answer 11

dual intent

1. Intent to perform the acts constituting the solicitation, AND
2. Intent for the person they are soliciting to commit the crime

Question 12

Common law actus reus for solicitation

Answer 12

Invites, asks, induces, entices, or requests another to commit a crime
– nothing beyond this has to occur

Communication required to actually be received by solicitee

Merger: If solicitee agrees, does, or attempts to commit the crime, solicitation merges into the crime
– but if solicitee refuses, then solicitation stands on its own

Question 13

MPC solicitation

Answer 13

Mens rea: Acts with the purpose to promote or facilitate commission of the crime

Actus reus: Includes asking someone to do any act that would make them complicit in the crime; not confined to asking them to do the crime or attempt to do the crime

Communication does NOT have to reach solicitee
– actions must be designed to effect communication

Renunciation is a defense: Solicitor must talk solicitee out of doing the crime or prevent it from happening
– must happen before it merges into the crime

Question 14

Conspiracy (generally)

Answer 14

Agreement between two or more people to commit an unlawful act

Proof of an agreement may be based on circumstantial evidence (Azim factors); agreements do not have to be express

• relationship with co-conspirators
• participation in the crime
• awareness that the crime is happening
• presence at the scene at the crime

Can be an accomplice without there being a conspiracy (Cook)

Question 15

Common law mens rea for conspiracy

Answer 15

Mens rea: dual intent

1. Intent to agree, AND
2. Intent to commit the target offense (object of the conspiracy)

Bilateral requirement: Need 2 parties to intend the crime to be committed; otherwise, no conspiracy

Question 16

Common law actus reus for conspiracy

Answer 16

Forming/making the agreement
– once an agreement is formed, there is no abandoning it

Braverman rule: If there is one agreement to commit several crimes, that is only ONE conspiracy

Question 17

Is abandonment a defense to common law conspiracy?

Answer 17

Abandonment NOT a defense

• • can never avoid prosecution of a conspiracy; once agreement is formed, the crime has been committed
• • BUT may avoid prosecution of subsequent crimes if abandonment is completely voluntary

Question 18

Pinkerton Rule

Answer 18

Once a conspiracy is formed, each person is responsible for the actions in the conspiracy as long as those actions were in furtherance of the conspiracy

Common law only; MPC does not adopt

Question 19

Can you be convicted and punished for both conspiracy and underlying offense under common law?

Answer 19

YES – no merger

Question 20

MPC conspiracy

Answer 20

Mens rea: Acts with the purpose to promote or facilitate the commission of the crime

Actus reus: An agreement PLUS an overt act in furtherance of the conspiracy
– overt act needs to be a manifestation of the agreement being carried out, but need not be substantial (preparation is enough)

MERGER: if underlying offense has been attempted or completed, then the conspiracy merges with the attempt of the substantive offense

Renunciation IS a defense: Must be complete and voluntary, and it must thwart its success; have to do everything in your power to stop it
– must communicate intent to withdrawal with co-conspirators, or notify the authorities

Does NOT adopt Pinkerton Doctrine

Expands Braverman rule: If there is one agreement to commit several crimes or there is a continuous conspiratorial relationship, that is ONE conspiracy

Unilateral requirement: Conspiracy defined in terms of a single party; only one person needs to have the requisite mens rea in order for there to be a conspiracy
– focus is on the culpability of the individual actor rather than that of the group