Inchoate Offenses Flashcards
What are the three inchoate offenses?
Conspiracy
Solicitation
Attempt
Conspiracy
What are the elements of a conspiracy?
Heavily tested
(a) agreement between 2+ people
(b) intent to enter into agreement (intent to agree)
(c) intent to achieve (unlawful) objective of conspiracy agreement (by 2+ people)
(d) an overt act in furtherance of conspiracy (includes act of mere preparation) (majority)
* Not required under common law
(b) Unilateral v. Bilateral Approach
* Unilateral (MPC): only one party must have genuine criminal intent
* Bilateral (common law): requires at least two guilty minds (if one party is pretending agreement, other party can’t be convicted of conspiracy)
(c) Achieve criminal objective or achieve lawful objective via criminal means
Conspiracy
What is the Wharton Rule?
Likely won’t be on bar exam
There’s no conspiracy if committing substantive offense requires 2+ people (ex. adultery, dueling) unless more parties participate than necessary
Conspiracy
What’s effect of acquittal on conspirators?
If D + other co-conspirators tried and all others are acquitted, D cannot be convicted of conspiracy.
If only D convicted for conspiracy (ex. others not caught yet), D can be convicted of conspiracy.
Conspiracy
When does a conspiracy terminate?
Upon completion of wrongful objective
Acts of concealment are NOT part of conspiracy (unless parties agree in advance)
Conspiracy
What is a conspirator’s liability for co-conspirators crimes?
Liable for co-conspirators’ crimes IF (1) crimes committed in furtherance of conspiracy’s objectives and (2) were foreseeable
Conspiracy
Are there defenses to conspiracy?
Factual impossibility NOT defense.
Withdrawal generally NOT defense because conspiracy is “complete” as soon as agreement made/overt act done.
* Might be defense to crimes committed in furtherance of conspiracy (by other conspirators)
Conspiracy
When is a withdrawal from conspiracy effective?
(a) Conspirator performs affirmative act (b) notifying all members of conspiracy of withdrawal (c) early enough so that members can abandon plans
If conspirator provided aid, must neutralize assistance.
Conspiracy
Does conspiracy merge with completed crime?
NO
Solicitation
What are elements of solicitation?
Asking, inciting, counseling, advising, urging, or commanding another to commit crime
+
Intent that the person solicited commit crime
Doesn’t matter if person solicited didn’t agree to commit crime
Solicitation
Are there any defenses to solicitation?
Defense: Legislative intent to exempt
* Ex. Minor can’t be guilty of soliciting statutory rape by urging adult to have sex with her bc she can’t be guilty of completed crime
NOT defenses: factual impossibility, withdrawing/renouncing solicitation
* MPC: Renunciation is defense if D prevents commission of crime
Solicitation
Law of merger for solicitation?
Person solicited commits crime: person + solicitor liable for crime
Person solicited attempts crime: person + solicitor liable for attempt
Person solicited agrees to crime: person + solicitor liable for conspiracy
Solicitor can’t be punished for both solicitation and the above offenses.
Attempt
What are the elements of attempt?
(a) Specific intent to commit a crime/cause the harm prohibited by the statute and (b) an overt act in furtherance of that intent (c) that falls short of completing the crime
* Overt act must be BEYOND mere preparation
* If D was only reckless (and didn’t have specific intent) with respect to the substantive crime, cannot be guilty of attempt
* Ex. For arson, malice satisfies arson’s mental state requirement but NOT for attempt.
AKA performance of an act that would be a crime if successful
(a) Overt act must be BEYOND mere preparation
* Proximity test (traditional): act must be “dangerously close” to successfully completing crime
* Substantial Step test (MPC/majority): act/omission must be “substantial step” in course of conduct
(b) Ex. Even intent to inflict serious bodily injury is sufficient to establish murder, attempted murder requires specific intent to kill the person.
Attempt
What are the defenses to attempt?
(a) Abandonment
* MPC: defense if fully voluntary and complete abandonment
* Common law: not a defense
(b) Legal impossibility (rare)
NO: factual impossibility
Attempt
Does attempt merge into substantive offense?
Yes.
D charged only with completed crime can be guilty of completed crime OR an attempt, but D charged only with attempt can’t be convicted of completed crime.
Review
