Inchoate Offenses

Question 1

What are the three inchoate offenses?

Answer 1

• attempt
• conspiracy
• solicitation

Question 2

What are the elements req’d to convict someone of conspiracy?

Answer 2

(a) an agreement between 2+ ppl (b) intent to enter into the agreement and (c) an intent by 2+ ppl to achieve the objective of the agreement.

+ the objective of agreement must be criminal OR objective achieved thru criminal means

c/l - no overt act req’d
MPC - over act req’d, mere prep sufficient

Question 3

Does agreement in conspiracy need to be express?

Answer 3

No, can be inferred from joint activity

Question 4

What is required of the ‘agreement” parties enter into for a conspiracy? What happens when only one party has criminal intent?

Answer 4

Agreement = agree to accomplish same objective by mutual action.

Under MPC, unilateral approach = if one party does NOT have criminal intent, other can still be charged with conspiracy (e.g. undercover cop + person with criminal intent)

Under c/l, both parties must have criminal intent, (e.g. if one person is joking and the other has criminal intent, then 2nd person not liable)

Question 5

What is the Wharton Rule?

Answer 5

The Wharton rule says that if, e.g., 2 ppl are required to commit a crime, then for a conspiracy to occur there needs to be at least one more person involved, e.g. 3 (adultery, dueling).

Note: this does not apply to necessary parties not provided for, so if two parties are necessary for commission of crime, but the state only holds one liable, the other can be held liable for conspiracy (tho not the crime, remember). (e.g. seller sells drugs to buyer, statute provides for liability for seller but not buyer, buyer can be held liable for conspiracy)

Question 6

What happens when someone is in a protected class and makes agreement to commit that crime with someone outside the class?

Answer 6

Neither can be held liable for conspiracy.

Question 7

What happens when a co-conspirators are acquitted, and one remaining co-conspirator is being charged with conspiracy?

Answer 7

D may not be convicted if all co-conspirators have been acquitted. BUT if others are not pursues and D is charged alone, can still be convicted.

Question 8

What mental state is required for conspiracy?

Answer 8

Specific intent, so (a) intent to agree and (b) intent to achieve objective of the conspiracy.

Note: remember, in c/l bilateral approach, BOTH parties need intent

Question 9

What form of action is required to convict of conspiracy?

Answer 9

Under c/l, none. Majority of states follow MPC, which says some overt act to further conspiracy - mere prep suffices.

Question 10

When does a conspiracy terminate? Why is this important?

Answer 10

A conspiracy terminates upon completion of the wrongful objective. Acts of concealment after the fact are not considered part of the conspiracy.

This is relevant b/c statements of co-conspirators are admissible if they were made during conspiracy in furtherance of it.

Question 11

When will a co-conspirator be liable for the crimes of other co-conspirators that were not the direct object of the conspiracy?

Answer 11

When the crimes (1) were committed in furtherance of the conspiracy and (2) were foreseeable.

Question 12

What are not the defenses to conspiracy?

Answer 12

NOT:

• factual impossibility
• withdrawal, b.c conspiracy is complete as soon as agreement + overt act (but withdrawal could be defense to crimes in furtherance of conspiracy)

Question 13

What must a co-conspirator do to effectively withdraw from a conspiracy?

Answer 13

Perform affirmative act that notifies all parties involved + give notice in time for plans to be abandoned + neutralize any assistance if given

Question 14

What are the elements of solicitation?

Answer 14

(a) person asks, incites, counsels, advises, urges, or commands another to commit a crime and (b) with the intent that the person commit the crime.

Question 15

What are/are not defenses to solicitation?

Answer 15

defense: solicitor could not have been found guilty of crime due to leg intent

NOT defenses:
- factual impossibility
- person asked is not convicted 
- person asked does not complete crime
- solicitor renounces or withdraws ask
    BUT:  Under MPC, renunciation will be a defense if they prevent commission of crime

Question 16

If person commits crime or attempts to after being solicited, what crimes may solictor/actor be convicted of?

Answer 16

If person commits crime, both can be held liable wrt crime, one for crime other for solicitation. OR both can be held liable for crime, one as primary other as accomplice.

If person commits acts in attempt of crime, then they can be convicted of attempt, other for solicitation. Or both for attempt.

If person agrees but doesn’t do anything sufficient for attempt, then both can be convicted of conspiracy.

BUT, solicitor can NOT be convicted both of solicitation and any of these offenses (conspiracy, attempt, etc)

Question 17

What are the elements of attempt?

Answer 17

act done with intent to commit a crime, req’s (1) specific intent and (2) an overt act in furtherance of the crime

(1) D must intent to perform an act that would constitute a crime if performed (Note: even if intended crime does not require specific intent, it is req’d for attempt)
(2) over act - must be beyond mere prep, c/l courts use “proximity test,” i.e. must be dangerously close to committing crime, MPC follows “substantial step”

Question 18

Can someone attempting a crime that requiring negligence or recklessness?

Answer 18

No, cannot intend to be negligent or reckless.

Question 19

What are/not defenses to attempt?

Answer 19

NOT a defense:

• abandonment - not at c/l, but under MPC fully voluntary and complete abandonment is
• factual impossibility (i.e. could not have performed steps

Defense:
- legal impossibility - i.e. steps as D intended to perform them wouldn’t have resulted in the commission of a crime

Question 20

What may a D be charged with if they attempted and completed the crime?

Answer 20

Either attempt or completion, not both.