INCHOATE OFFENSES

Question 1

INCHOATE OFFENSES

Answer 1

• Inchoate: incomplete.
• 3 inchoate offenses.

Question 2

CONSPIRACY: Elements

Answer 2

• Conspiracy: most tested
• Conspiracy requires
  (1) agreement between 2/more people;
  (2) intent to enter into agreement; and
  (3) intent 2/more people to achieve agreement’s objective
• Object of conspiracy must be criminal
• Unlike CL, majority of states require overt act, but mere preparation will suffice.

Question 3

Agreement Requirement

Answer 3

• Parties must agree to accomplish same objective by mutual action.
• Agreement need not be express; may be inferred from joint activity.

Requirement of 2/More Parties
- See if jurisdiction follows unilateral/CL approach
Modern Trend—“Unilateral” Approach
- Follows M.P.C.’s “unilateral” approach: requires only 1 party have genuine criminal intent.
- D can be convicted if they conspire w/ 1 person only & that person is an officer working undercover.

— Traditional Rule—“Bilateral” Approach
- At CL, a conspiracy requires at least 2 “guilty minds,” (persons who are actually committed to illicit plan).
- If 1 person in a 2 party agreement is faking agreement, other party cannot be convicted of conspiracy.

Question 4

Wharton Rule

Answer 4

• Wharton Rule: If 2/more people are necessary for commission of substantive offense (ex. adultery, dueling), there is no crime of conspiracy unless more parties participate in the agreement than are necessary for crime (ex. b/c it takes 2 people to commit adultery, it takes 3 people to conspire to commit adultery).

Question 5

Necessary Parties Not Provided For

Answer 5

• Wharton Rule does not apply to agreements w/ “necessary parties not provided for” by substantive offense; both parties may be guilty of conspiracy even though both are necessary for commission of substantive offense.
• Ex. if state statute prohibits sale of narcotics & imposes criminal liability on seller only, both buyer & seller can be guilty of conspiracy to sell narcotics—even though both parties are necessary for commission of substantive offense

Question 6

Agreement with Person in “Protected Class”

Answer 6

• If members of a conspiracy agree to commit a crime designed to protect persons within a given class, persons w/in that class cannot be guilty of the crime itself/ of conspiracy to commit that crime.
• Likewise, nonprotected person cannot be guilty of conspiracy if agreement was w/ protected person only.

Question 7

Effect of Acquittal of Some Conspirators

Answer 7

• Traditional: acquittal of everyone D is alleged to have conspired w/ prevents conviction of remaining D.
• Conspiracy conviction against 1 D is upheld when alleged co-conspirator is acquitted in separate trial.

Question 8

tip

Answer 8

Acquittal is key here. If D & others allegedly conspired & only D is charged & tried (ex. other parties are not apprehended/not prosecuted), D can be convicted. But if D is charged & tried & all others have been acquitted, D cannot be convicted. (acquittals show there was no one w/ whom D could conspire.

Question 9

Mental State—Specific Intent

Answer 9

• Conspiracy is a specific intent crime. Parties must have:
  (1) intent to agree and
  (2) intent to achieve conspiracy’s objective .

Question 10

Tip

Answer 10

On exam, tie in SOM requirement w/ the “2/more parties” requirement. In states following CL bilateral approach, there must be 2 parties w/ specific intent to pursue an unlawful objective.

Question 11

Overt Act

Answer 11

• At CL, conspiracy was complete when agreement w/ requisite intent was reached.
• Majority rule: Must be an act in furtherance of conspiracy
• Any little act can be an overt act in furtherance of conspiracy, even an act of mere prep.

Question 12

Termination of Conspiracy

Answer 12

-Conspiracy usually terminates upon completion of wrongful objective.
- Unless agreed to in advance, acts of concealment are not part of conspiracy.
- Government’s defeat of conspiracy’s objective does not automatically terminate conspiracy.

Question 13

Liability for Co-Conspirators’ Crimes

Answer 13

• Conspirator may be liable for crimes committed by other conspirators if crimes
  (1) were committed in furtherance of conspiracy’s objective and
  (2) were foreseeable.

Question 14

Defenses

Answer 14

Factual Impossibility
- Not a defense to conspiracy.

Withdrawal
- Generally, withdrawal is not a defense, b/c conspiracy is complete as soon as agreement is made & act in furtherance is performed.
- May be a defense to crimes committed in furtherance of conspiracy, including substantive target crime of conspiracy.
- D can withdraw from liability for other conspirators’ subsequent crimes, but D cannot withdraw from conspiracy itself.

Question 15

When Withdrawal Effective

Answer 15

• Withdraw: conspirator must perform affirmative act that notifies all conspiracy’s members of withdrawal.
• Notice must be given in time for members to abandon plans.
• If conspirator provided assistance as accomplice, they must try to neutralize assistance

Question 16

tip

Answer 16

Withdrawal: important test issue. Conspiracy is complete upon agreement w/ requisite intent & an overt act. Since overt act can be mere prep, conspiracy is usually complete very soon after agreement. If crime is complete, D is guilty of conspiracy—even if the facts show they had 2nd thoughts, told their co-conspirators that they were backing out, warned police, hid weapons, etc. These actions come too late;
D is guilty of conspiracy. (Such actions may relieve D of criminal liability for co-conspirators’ acts after withdrawal, but they have no effect on crime of conspiracy.)

Question 17

Punishment—No Merger

Answer 17

• Conspiracy & completed crime are distinct offenses; no merger.
• D may be convicted of & punished for both.

Question 18

SOLICITATIOn: Elements

Answer 18

• Solicitation consists of:
  (1) Attempting to get another to commit a crime,
  (2) w/ intent that person solicited commit the crime.
• Not necessary that the person solicited agree to commit the crime.

Question 19

Defenses

Answer 19

• Not a defense that person solicited is not convicted, nor that offense solicited could not in fact have been successful (factual impossibility).
• Not a defense that solicitor renounces/withdraws solicitation.
• M.P.C.: it is a defense if D prevents commission of crime (ex. by persuading person solicited not to commit the crime)
• It is a defense that solicitor could not be found guilty of completed crime b/c of a legislative intent to exempt them (ex. a minor female cannot be guilty of solicitation of statutory rape by urging an adult male to have intercourse with her, because she could not be guilty of completed crime).

Question 20

Merger

Answer 20

• What if the person D asks to commit the crime agrees to do it?
• If person solicited commits the crime solicited, both that person & solicitor can be held liable for that crime.
• If person solicited commits acts sufficient to be liable for attempt, both parties can be liable for attempt.
• If person solicited agrees to commit the crime, but does not even commit acts sufficient for attempt, both parties can be held liable for conspiracy.
• Under the doctrine of merger, solicitor cannot be punished for both solicitation & these other offenses.

Question 21

ATTEMPT: Elements

Answer 21

• Attempt is an act, done w/ intent to commit a crime, that falls short of completion.
• Attempt requires
  (1) specific intent and
  (2) overt act in furtherance of the crime.

Question 22

Intent

Answer 22

• D must specifically intend to commit the crime that he attempted
• Regardless of the intent necessary for the completed offense, an attempt always requires a specific intent (intent to commit the attempted crime).

Question 23

Tip

Answer 23

Attempt to commit a crime defined as negligent production of a result (ex. negligent homicide) is logically impossible b/c a person cannot intend to be negligent. Thus, there can be no attempted negligent homicide, etc. Same for recklessness.

Question 24

Overt Act

Answer 24

• D must commit an act beyond mere prep for offense.
• Traditionally, most cts followed “proximity” test, requires that act be “dangerously close” to successful completion of crime (ex. pointing a loaded gun at an intended victim & pulling the trigger, only to have gun not fire/bullet miss its mark is sufficient).
• Today, most state criminal codes (& MPC) require that act/omission constitute a “substantial step towards commission of the crime” that strongly corroborates actor’s criminal purpose.

Question 25

Tip

Answer 25

Note that the overt act required for attempt is
much more substantial than the overt act required for conspiracy. Mere preparation is sufficient for conspiracy, but more is required for attempt.

Question 26

Defenses

Answer 26

Abandonment
- Not a defense at CL. If D had intent & committed an overt act, D is guilty of attempt
- M.P.C.: provides that a fully voluntary & complete abandonment is a defense.

Legal Impossibility
- If D, having completed all acts that they had
intended, would have committed no crime, they cannot be guilty of an attempt to do the same if they fail to complete all intended acts.
- Legal impossibility is a defense, albeit rare.

Factual Impossibility
- Factual impossibility describes the situation when substantive crime is incapable of completion due to some physical/factual condition, unknown to D.
- Factual impossibility is not a defense.

Question 27

Tip

Answer 27

If you get stumped on a question that asks you to decide whether impossibility is a defense, ask
yourself: “If D were able to complete all of the acts that they intended to do, and if all of the attendant circumstances actually were as D believed them to be, would D have committed a crime?” The answer usually will be yes, in which case the impossibility is factual and not a defense. In the unusual case where the answer is no, D most likely has a legal impossibility defense.

Question 28

Prosecution for Attempt

Answer 28

• A D charged only w/ a completed crime may be found guilty of completed crime/attempt, but a D charged only w/ attempt may not be convicted of completed crime.