Inchoate Offenses

Question 1

What are the Three Incohate (Incomplete) Offenses?

Answer 1

• Conspiracy
• Solicitation
• Attempt

Question 2

Elements of Conspiracy

Answer 2

A conspiracy requires:
(1) an agreement between two or more persons
(2) intent to enter into that agreement, and
(3) an intent by at least two persons to achieve the unlawful objective of the agreement (or a lawful objective by unlawful means).

Common Law: Conspiracy is complete when the agreement with the requisite intent was reached.

Majority of states require an overt act, but an act of mere preparation will suffice.

Question 3

The Agreement Requirements for Conspiracy

Answer 3

Parties must agree to accomplish the same objective by mutual action.

The agreement may be inferred from joint activity

Question 4

Unilateral Approach to Conspiracy

Answer 4

Modern Trend and MPC

Requires that only one party have genuine criminal intent.

E.g., D can be convicted of conspiracy even if they conspire with an undercover police officer (who does not have criminal intent)

Question 5

Bilateral Approach to Conspiracy

Answer 5

At common law, a conspiracy requires at least two “guilty minds.”

e.g., If one person is only feigning agreement, the other party cannot be convicted of conspiracy.

Question 6

Wharton Rule

Answer 6

A rule that bars a conviction for conspiracy to commit a crime that by definition can be committed only by two people acting together (e.g., bigamy, prostitution, or dueling.) unless more parties participate.

E.g., it takes three people to conspire to commit adultery

Question 7

What does the Wharton Rule NOT apply to?

Answer 7

When the substantive offense does not provide for both parties, but both parties are necessary for the crime to occur.

E.g., only the SELLER is criminally liable for the sale of narcotics, not the buyer, but both are necessary for the drug sale to take place. Both can be convicted of conspiracy to sell narcotics.

Question 8

When is a conspiracy completed?

Answer 8

Common Law: When the agreement with the requisite intent was reached.

Majority rule: An overt act in furtherance of the conspiracy must be performed (including an act of mere preparation)

Question 9

Termination of a Conspiracy

Answer 9

Usually terminates upon completion of the wrongful objective.

NOTE: Acts and statements of co-conspirators are admissible against a conspirator ONLY IF they were done or made in furtherance of the conspiracy. If conspiracy terminates, anything said after than is inadmissible.

Acts of concealment are not part of the conspiracy (and therefore admissible against a co-conspirator) unless agreed to in advance.

Question 10

Liability for Co-Conspirator’s Crimes

Answer 10

A conspirator 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 11

Withdrawal as a Defense to Conspiracy

Answer 11

NOT a defense to the conspiracy itself (conspiracy is complete as soon as the agreement is made and an act in furtherance is performed.)

May be a defense to crimes committed in furtherance of the conspiracy AFTER withdrawal, but not a defense to the conspiracy itself.

Question 12

Factual Impossibility as a Defense to Conspiracy

Answer 12

NOT A DEFENSE

Question 13

When is Withdrawal from a Conspiracy Effective

Answer 13

Conspirator must perform an affirmative act that notifies all members of the conspiracy of their withdrawal.
- Notice must be given in time for the members to abandon their plans.
- Conspirator must try to neutralize the assistance provided by them

Question 14

Elements of Solicitation

Answer 14

Solicitation is the of asking of another to commit a crime, with the intent that the person solicited commit the crime.

NOT necessary that the person solicited agrees to commit the crime.

Question 15

Defenses to Soliciation

Answer 15

The solicitor cannot be found guilty of the completed crime if there is a legislative intent to exempt them (e.g., a minor female cannot be guilty of solicitation of statutory rape by urging an adult male to have intercourse with her).

MPC: Renunciation is a defense (i.e., the defendant prevents the commission of the crime, such as by persuading the person solicited not to commit)

Question 16

Solicitation and the Merger Doctrine

Answer 16

Cannot be punished for both solicitation and the actual crime/attempt/conspiracy.

Question 17

Elements of Attempt

Answer 17

Attempt requires:
(1) Specific intent, and
(2) An overt act in furtherance of the crime (beyond mere preparation)

Traditional/Proximity Test: Dangerously close to completion
Modern/Majority Test: Substantial step in course of conduct

Question 18

Defenses to Attempt

Answer 18

Legal Impossibility: If the defendant would have committed no crime if they completed all intended acts, they cannot be guilty of an attempt to do the same.

Factual Impossibility is NOT a defense

MPC ONLY
A fully voluntary and complete abandonment is a defense.

Question 19

What is NOT a defense to Attempt

Answer 19

Abandonment (Not a defense at CL ONLY)
If the defendant had the intent and committed an overt act, the defendant is guilty of attempt even if they changed their mind and abandoned the plan before the intended crime was completed.

The M.P.C., followed in a number of jurisdictions, provides that a fully voluntary and complete abandonment is a defense.

Factual Impossibility

Question 20

Prosecution for Attempt

Answer 20

If D is charged with a completed crime, may be found guilty of the completed crime OR an attempt.

If D is charged only with attempt, may not be convicted of the completed crime.

Question 21

Effect of Acquittal of Other Co-Conspirators

Answer 21

If the defendant and others allegedly conspired and only the defendant is charged and tried, the defendant can be convicted of conspiracy.

BUT if the defendant is charged and tried and all the others have been acquitted, the defendant cannot be convicted.