Inchoate Offenses

Question 1

Inchoate (incomplete) offenses

Answer 1

1. Conspiracy
2. Solicitation
3. Attempt

Question 2

Conspiracy elements

Answer 2

1. An agreement between two or more persons
2. An intent to enter into the agreement (specific intent)
3. An intent by at least two persons to achieve the unlawful objective of the agreement; and (specific intent)
4. Overt act in furtherance of the conspiracy (except at common law)

Question 3

Conspiracy agreement requirement

Answer 3

Unilateral approach (MPC):
-Requires that only one party have criminal intent
-Allows conspiracy between one person and an undercover officer

Bilateral approach (common law):
-Requires at least two “guilty minds”
-If one person in a two person agreement is faking the agreement (i.e., undercover), the other party cannot be convicted of conspiracy
-If co-conspirators are acquitted, then D cannot be convicted of conspiracy

Question 4

Wharton rule (rarely tested old rule)

Answer 4

There is no criminal conspiracy unless more parties participate in the agreement than are necessary for the crime
-i.e., because it takes two people to commit adultery, it takes three people to conspire to commit adultery

Question 5

Overt act

Answer 5

Majority rule: conspiracy requires an act in furtherance of the conspiracy
-Any little act can be overt, even ac act of mere preparation
-No overt act requirement under common law

Question 6

Termination of conspiracy

Answer 6

A conspiracy terminates upon completion of the wrongful objective
-Acts of concealment are usually not part of the conspiracy
-Scope of conspiracy is important because only statements/acts made in furtherance of the conspiracy are admissible

Question 7

Co-conspirator liability

Answer 7

A coconspirator may be held liable for crimes committed by other conspirators if the crimes:
(1) were committed in furtherance of the objectives of the conspiracy; and
(2) were foreseeable

Question 8

Conspiracy defenses

Answer 8

Factual impossibility is not a defense to conspiracy

Withdrawal is not a defense to conspiracy because the crime is complete as as soon as the agreement with the requisite intent is made and an act overt (even mere preparation) is performed
-BUT withdrawal may be a defense to liability from other conspirator’s subsequent crimes
-Withdrawal requires affirmatively notifying all members of the conspiracy in time for the members to abandon their plans

Question 9

Conspiracy merger

Answer 9

Conspiracy and the completed crime are distinct offenses: there is no merger

Question 10

Solicitation elements

Answer 10

1. Asking another to commit a crime
   -Not required that the person agree to commit the crime
2. With the intent that the person solicited commit the crime (specific intent)

Question 11

Solicitation defenses

Answer 11

Factual impossibility is not a defense

Withdrawal is not a defense unless the defendant also prevents the commission of the crime
-i.e., by persuading the person not to do it

It is a defense that the solicitor could not be found guilty of the completed crime because of legislative intent
-i.e., female minor soliciting sex cannot be convicted of statutory rape because she could not be convicted of completed crime

Question 12

Solicitation merger

Answer 12

If the solicited person commits the solicited crime, both parties can be held liable for the substantive crime

If the solicited person commits acts sufficient to be liable for attempt, both parties can be held liable for attempt

If the person solicited agrees to commit the crime, but does not commit acts sufficient for attempt, both parties can be held liable for conspiracy

**If any of these situations apply, D cannot also be charged with solicitation

Question 13

Attempt elements

Answer 13

Performance of an act that would be a crime if successful

Elements:
1. Specific intent to commit a crime; and
-Must be attached to another crime
-Cannot attach to negligent or recklessness crimes
2. An overt act in furtherance of the crime
-CL proximity test or MPC substantial step test

Question 14

Overt act requirement of attempt

Answer 14

D must commit an act beyond mere preparation for the offense
-Common law: “dangerously close to committing crime”
-MPC: act or omission constitutes a “substantial step” towards completing the crime

Question 15

Attempt defenses

Answer 15

Factual impossibility is not a defense

Legal impossibility is a defense (very rare)
-Not actually a crime, but the person thinks it is

Abandonment: MPC provides that a fully voluntary and complete abandonment is a defense (no abandonment defense at CL)