Inchoate Offenses

Question 1

What are inchoate crimes? Name them. (3)

Answer 1

Inchoate crimes are incomplete.

(1) Conspiracy
(2) Solicitation
(3) Attempt

Question 2

What are the elements of conspiracy? (3+1)

Answer 2

(1) an agreement between two or more persons;
(2) an intent to enter into the agreement; AND
(3) an intent by at least two persons to achieve the objective of the agreement.
(4) [MAJORITY] AND an overt act (an act of mere preparation will suffice).

The object of the conspiracy must be criminal or the achievement of the lawful object by criminal means.

Question 3

What is the modern trend approach to the requirement of two or more parties for conspiracy?

Answer 3

The MPC’s “unilateral” approach, which requires that only ONE party have genuine criminal intent.

Under the unilateral approach, a defendant can be convicted of conspiracy if they conspire with one person only and that person is a police officer working undercover.

Question 4

What is the traditional rule regarding the requirement of two or more persons for conspiracy?

Answer 4

At common law, conspiracy requires at least two “guilty minds” (i.e., persons who are actually committed to the illicit plan).

Under this “bilateral” approach, if one person in a two party agreement is only feigning agreement, the other party cannot be convicted of conspiracy.

Question 5

What is the Wharton Rule?

Answer 5

Under the Wharton Rule, where two or more people are necessary for the commission of a crime (e.g., adultery, dueling), there is NO crime of conspiracy unless more people participate in the agreement than are necessary for the crime.

(For example, because it takes two people to commit adultery, it takes three people to conspire to commit adultery.)

Question 6

Does the Wharton Rule apply to agreements with “necessary parties not provided for” by the substantive offense? Explain.

Answer 6

No. Both parties may be guilty of conspiracy even though both are necessary for commission of the substantive offense.

For example, if a statute prohibits the sale of narcotics and imposes criminal liability on the seller only, both the buyer and seller can be guilty of conspiracy.

Question 7

What is the effect of acquittal of some conspirators under both the unilateral and bilateral approach?

Answer 7

Unilateral (modern): no effect, even if all other co-conspirators are acquitted, because the unilateral approach requires only one “guilty mind”

Bilateral (common law): if all other co-conspirators have been acquitted, defendant cannot be convicted. If convicted before co-conspirators are acquitted, the conviction will stand (some jurisdictions)

Question 8

Conspiracy is a _______ crime. Parties must have:

Answer 8

specific intent

(1) the intent to agree AND
(2) the intent to achieve the objective of the conspiracy

Question 9

Explain the common law and majority approaches to overt acts.

Answer 9

At common law, the conspiracy was complete when the agreement with the requisite intent was reached.

The majority rule followed by most states is that an act in furtherance of the conspiracy must be performed. (It can be a small act, including an act of preparation.)

Question 10

When does a conspiracy terminate? (3 main points)

Answer 10

A conspiracy usually terminates upon completion of the wrongful objective.

Acts of concealment are NOT part of the conspiracy, UNLESS agreed to in advance.

The government’s defeat of the conspiracy’s objective does not automatically terminate the conspiracy.

Question 11

Why is the point at which a conspiracy terminates important?

Answer 11

Acts and statements of co-conspirators are admissible against a conspirator ONLY IF they were done or made in furtherance of the conspiracy.

Question 12

A conspirator may be held liable for crimes committed by other conspirators if the crimes: (2)

Answer 12

(1) were committed in furtherance of the objectives of the conspiracy, AND
(2) were foreseeable

Question 13

Is factual impossibility a defense against conspiracy?

Answer 13

No. It is irrelevant whether the objective of the conspiracy is actually possible or plausible.

Question 14

May a conspirator withdraw? Is withdrawal a defense to conspiracy? Explain.

Answer 14

A conspirator may withdraw, but it is NOT a defense to conspiracy.

A conspirator can withdraw by performing some affirmative act that notifies his co-conspirators of his withdrawal, with enough time for co-conspirators to abandon their plans. The conspirator also must neutralize any assistance he has provided.

However, withdrawal is not a defense because the conspiracy is complete as soon as the agreement is made and an overt act is performed.

Withdrawal MAY BE a defense to any other crimes committed after the conspirator withdrew, including the central crime of the conspiracy.

Question 15

What are the elements of solicitation? (2)

Answer 15

(1) asking, [inciting, counseling, advising, urging, or commanding] another to commit a crime,
(2) with the intent that the person solicited commit the crime

It is not necessary that the person solicited agree to commit the crime.

Question 16

What if the person (P) the defendant (D) asks to commit a crime (solicitation) agrees to do it? (3 scenarios + exception)

Answer 16

(1) If P commits the crime, both P and D can be held liable for the crime.
(2) If P commits acts sufficient for attempt, both P and D can be held liable for attempt.
(3) If P agrees but does not commit acts sufficient even for attempt, both P and D can be held liable for conspiracy.

HOWEVER, under the doctrine of merger, the solicitor cannot be punished for BOTH the solicitation and the other offense.

Question 17

What is attempt? What are the elements of attempt? (2)

Answer 17

Attempt is an act, done with intent to commit a crime, that falls short of completing the crims.

Attempt requires:
(1) specific intent, PLUS

(2) an overt act in furtherance of the crime

Question 18

What is the intent requirement for attempt?

Answer 18

The defendant must intent to perform an act and obtain a result that, if achieved, would constitute a crime.

Regardless of the intent necessary for the completed offense, an attempt ALWAYS requires a specific intent (i.e., the intent to commit a crime).

Example: To be guilty of attempt to commit murder, the defendant must have had the specific intent to kill another person, even though the mens rea for murder itself does not necessarily require a specific intent to kill.

Question 19

What is the common law approach to the overt act requirement of attempt?

Answer 19

Traditionally, most courts followed the “proximity” test, which requires that the act be “dangerously close” to successful completion of the crime.

For example, pointing a gun at an intended victim and pulling the trigger only for the gun to misfire would be sufficient.

Question 20

What is the modern/MPC (majority) approach to the overt act requirement of attempt?

Answer 20

The act or omission must constitute a “substantial step” in a course of conduct planned to culminate in the commission of a crime that strongly corroborates an actor’s purpose.

NOTE: higher standard than for conspiracy

Question 21

What are the common law and MPC approaches to abandonment as a defense to attempt?

Answer 21

Under common law, abandonment is not a defense.

Under the MPC, abandonment is a defense ONLY IF it is fully voluntary and complete.

Question 22

Is factual impossibility a defense to attempt?

Answer 22

No

Question 23

Is legal impossibility a defense to attempt?

Answer 23

Yes, but it’s rare. Legal impossibility is when the defendant believes he is committing a crime, but isn’t.