Inchoate Offenses Flashcards
What are inchoate offenses
Inchoate offenses: a step toward the commission of a crime, with the step itself being serious enough to warrant punishment
What are target offenses with inchoates
the crime the defendant is attempting to commit, conspiring to commit, or soliciting to commit
What is attempt
The steps taken toward the commission of a crime that surpass the “locus poenetentiae” (the point of no return)
What is the evidentiary issue with attempt
was the attempt complete or incomplete
What is a complete attempt
All steps have been taken and every act has been done but the defendant is unsuccessful in the intended result. (Defendant either assumes some fact mistakenly [i.e. pulled trigger thinking gun was loaded but it wasn’t] OR is unsuccessful in the attempt [shoots and misses the victim])
WHat is an incomplete attempt
Defendant does some of what he intended but then desists or is prevented from continuing (begins crime but sees a police officer and desists, or begins to commit a crime but thinks better of it and voluntary abandons the crime)
What is the actus reus of CL attempt
drawing the line between preparation and perpetration. Mere preparation is NEVER enough. Focus is on what the defendant hasn’t done yet
What are the seven tests for attempts
these tests seek to prove whether the defendant has crossed the line of LP. these legal tests are applied by the judge not the jury
1) Last act test
2) Physical proximity test
3) Dangerous proximity test
4) Indispensable fact test
5) Abnormal step test
6) probable distance test
7) Res Ipsa/unequivocal conduct test
What is the last act test
Defendant has performed all the acts he believes are necessary to complete the crime (ignites the bomb but it doesn’t blow)
What is the physical proximity test
One step before the last act (just has to ignite the bomb)
What is the dangerous proximity test
Dangerously near completion of the offense. The more serious the nature of the offense, the further away from completion the actions need to be before they qualify as an attempt
What is the indispensable element test
Defendant has obtained all the elements “indispensable” for committing the crime (ex. has gun loaded but not direct line of sight)
What is the abnormal step test
Defendant has taken steps that are beyond the point that normal law abiding citizens would take
What is the probable distance test
Guilty if they pass the point of no return, where they are past the point at which an ordinary person is likely to abandon their criminal behavior
What is the res/ipsa/unequivocal test
The physical conduct of the defendant unequivocally demonstrates an intent to complete the crime (look at what the defendant was doing, what he did, and NOT what was said) (ex. the case where the guy threatend to kill a guy at a bar, later drove out to the field, and walked toward the cop after loading his gun. cant say for certain what his intention was based on his verbal statements alone)
Analyze this attempt hypo with the common law tests “Reed is arrested on a plane with C-4 in his shoe. Can he be convicted for attempt under:”
Dangerous Proximity test? Yes (crime is so dangerous and he is so close)
Res Ipsa Loquitor test? Yes (the act of having C-4 speaks for itself)
Abnormal Step? Yes (putting C4 in your shoe and getting on a plane is abnormal)
Indispensable element test? Yes (he has every element he needs to ignite it
Physical proximity test? no (he hasn’t committed the last act )
What is the dual MR requirement of attempt
- intent to commit the actus reus
- Intent (purpose) to bring about the substantive offense (have to have purpose to produce the result, knowledge, recklessness, and negligence are not enough)
Can you attempt murder and voluntary manslaughter
yes because they have an intent to kill element
Can you attempt involuntary manslaughter, depraved heart murder, and felony murder
No because you cannot attempt what you don’t intent to do (cannot attempt any unintentional crime)
How does MPC view attempt
- shifts the focus from the act to the mens rea. Do the acts the defendant has already done strongly corroborate
What is completed attempt in MPC
Easy to determine defendants state of mind b/c the last act already occurred; the act just wasn’t successful
What is an incomplete attempt in MPC
Harder to determine because the last act hasn’t occurred; focus on the defendants state of mind
What does attempt actus reus look like in MPC
- Judges instructions to jury are really asking the jury if they are satisfied the act is substantial enough that it leaves only one inference (purpose)
- MPC lists conduct that may be held as substantial step. if the Defendant committed an act on the list, the judge must instruct the evidence be considered by the jury on whether the defendant was attempting a crime :
a. Lying in wait
b. Enticing or seeking to entice the victim
c. Gathering info about the place where crime will occur
d. Unlawful entry of a structure
e. Possession of materials to use in committing the crime that serve no other purpose but the unlawful one
f. Possession of materials at or near the contemplated crime scene (rat poison students)
g. Soliciting an innocent agent
what is the mens rea of attempt in MPC
purpose to bring about the target offense
What are the defenses to attempt
impossibility, abandonment(CL)/renunciation (MPC)
What are the three impossibilities
pure factual impossibility, pure legal impossibility, hybrid impossibility
What is pure factual impossibility
If the facts had been as the defendant assumed them to be, he will be convicted of attempted _____)
This is never a defense to attempt charge
This happens when the attempt fails b/c a fact the defendant assumed when he engaged in the conduct was wrong (ex. thought gun was loaded but it wasn’t)
What is pure legal impossibility
defendants erroneous factual assumption nullifies the ability to consummate the offense
- This is the only effective defense to attempt
- You cant attempt a crime that wasn’t a crime to begin with
(EX Ex. ∆ thinks he is committing statutory rape, but the age is really 16 and not 15, so she is legally able to have sex with him. Can’t be guilty of attempt b/c there was no crime
Ex. ∆ attempts to steal from B what actually ends up belonging to him. Can’t be convicted of stealing something that actually belongs to you
Ex. “Stealing” ketchup when it was free anyway)
What is hybrid impossibility
Only in some CL jurisdictions who haven’t gotten rid of it
- Defendants erroneous factual assumption nullifies a requisite attendant circumstance
- Factual mistake relates to a legal element that is usually an AC
- When the goal was illegal, but where there is a factual mistake related to the AC
-Ex. When ∆ shoots with intent to kill A but A has been replaced with a mannequin
Ex. When ∆ shoots with intent to kill deer, but deer is a stuffed toy
Ex. Attempting to bribe a juror, but the guy isn’t a juror
What is abandonment (CL)
When the defendant voluntarily gives up, or abandons, the crime, the locus peonetentiae is moved and its like the attempt never occurred in the first place (it can’t be because he heard an alarm, saw a cop, guard dogs or is afraid of being caught)
- It’s a legal fiction b/c in CL they act like there was never an attempt in the first place, even though if he had been caught in that first act, he’d have been guilty
Accomplices can get off too
What is renunciation (MPC)
When the defendant voluntarily gives up, or renounces, the crime, or he does something that foils the crime, the crime of attempt is erased
Attempt is attempt. if that act was a substantial step, it was attempt, but defendant can renounce his criminal purpose.
Ask: has the defendant passed the LP? Did the defendant voluntarily renounce the crime?
Solves problem with accomplices: Even if D renounces his criminal purpose, the accomplice may still be found guilty of attempt or the crime
What is solicitation
The crime of asking, enticing, inducing, or counseling of another to commit a crime
When is solicitation complete
Complete as soon as the defendant asks someone to commit the target offense
Does solicitation merge
yes it merges into the crime if the crime is actually committed. Once D asks someone to commit the crime and that person does, the defendant is charged with the crime not solicitation.
Solicitation is only an offense when the person doesn’t agree to the crime
What is the actus reus of solicitation
asking, enticing, procuring, the commission of a crime
What is the dual MR of solicitation
Intent to procure
Intent (purpose) to consummate the target offense
What was the original CL variant of solicitation
effective communication of solicitation (solicitor had to have been successful in notifying the solicitee)
What is the MPC variant of solicitation
“uncommunicated solicitation” As long as the defendant believes he has communicated the solicitation, even if the solicitee never received notice, then the crime of solicitation is complete
EX The case where the ∆ tried to mail two letters to his wife to get the daughter not to testify against him
What is the major difference between CL and MPC solicitation
uncommunicated solicitation under CL is attempt to solicit (double inchoate) and under MPC it is still solicitation
What is conspiracy
The crime of agreeing to commit a crime
What is the conspiracy rule at CL
must be at least bilateral (the second person the defendant makes the agreement with must actually be agreeing to commit the crime and not just pretend)
What is the conspiracy rule at MPC
may be unilateral. the defendant thinks the other person really agreed although they may be a cop or someone pretending to agree to set them up
What is the actus reus of conspiracy
agreement (the act) to commit the crime (reus)
What is the mens rea of conspiracy
intent (purpose) to agree
Intent to commit target offense (cannot conspire to commit a reckless or negligent act (so no depraved hear or involuntary manslaughter)
Knowledge isn’t usually enough to prove purpose UNLESS there is only one use for the product and it is illegal, then knowledge becomes purpose
Can you be charged with conspiracy to commit second degree murder?
Theoretically yes, so long as the theory is under purpose/intent to kill
What are the attendant circumstances of conspiracy
Two or more people
Overt act in furtherance of the crime
What is an over act
Legally made up locus poeneteniae
in most jurisdictions, in order to commit a conspiracy, you must commit an overt act
Concurrence point: that the act and MR concur because you did the overt act
Does conspiracy merge with the target offense
at CL: NEVER merges (defendant is charged with offense and conspiracy)
at MPC: Conspiracy doesn’t merge unless the object of the conspiracy is one crime (when the criminal gets charged he will only be charged for one offense) and that crime is consummated
- Ex. Conspire to steal one laptop and do it successfully. They would be charged with one count larceny b/c the one count merges with conspiracy.
- Ex. Conspire to steal 5 laptops but only steal one. They would be charged with one count larceny and one count conspiracy to steal 5 laptops.
- Ex. Conspire to steal 5 laptops and steal all 5. They would be charged with five counts larceny and one count conspiracy b/c the conspiracy was one agreement to steal the five (not five agreements).
What is co-conspirator liability
When a person who is not the actual perpetrator of a crime is held accountable as if he was
What is the pinkerton rule
Every co-conspirator is liable for any crime committed by any other co-conspirator that is in furtherance of the agreement and is foreseeable
What are acts in furtherance in pinkerton liability
If the goal of the act is not the goal of the conspiracy, then the co-conspirator is not guilty of the act
What is foreseeability in pinkerton liabillity
The act has to be foreseeable as something that could happen during the commission of the crime. Intervening superseding causes can sever co-conspirator liability
What is the basis of pinkeron rule
we impute liability based on the conspiratorial relationship between all parties. Therefore, accomplice liability is actually “derivative liability”
How do you prove an intentional agreement with direct evidence
Very rarely do you prove conspiracy by direct evidence of the actual agreement
How do you prove an intentional agreement with inference of agreement
Usually this is how you prove the agreement. Key is that the circumstances rule out the fair and rational hypothesis that it was a spontaneous crime b/c conspiracy must be made prior to the commission of the crime
- Co-Conspirators can make statements about other co-conspirators
Can you withdraw from conspiracy at CL
No because if you never commit the over act, there was enver an act in the first place (legal fiction because conspiracy is its own crime and it doesn’t merge with substantive offence even if the crime is never committed you can be charged with conspiracy)
How can withdrawal be used as a defense at CL
It can relate for. when you communicate to ALL conspirators (even those you don’t know) that you are out OR intervene to foil the plan. Still guilty of conspiracy, but severs Pinkerton liability
WHat is withdrawal from conspiracy at MPC
similar to attempt rule of renunciation
Can be used as a defense both forwards and backwards. must inform everyone that you are out, but if he cannot do that it severs pinkerton liability
WHat happens if the defendant intervenes and foils the crime at MPC for conspiracy
he can erase all guilty for conspiracy and future crimes (affirmative defense)
a. Was there a conspiracy? Yes
b. Was the ∆ a part of it? Yes
c. Should he be guilty? NO. Affirmative defense of renunciation b/c he never intended to go through with it proven through his foiling of the crime
What is the wharton rule
If the crime requires a plurality of participants (i.e. adultery, dueling, bribery) there is no crime of conspiracy UNLESS more persons participate in the agreement than are necessary for the crime
What are the exceptions to the wharton
if there is a statute that gives a specific law stating conspiracy
What is the legislative exemption doctrine
When the alleged co-conspirartor is the intended victim that the law seeks to protect, you cannot charge the defendant with conspiracy to commit the crime (Distribution of porn to a minor. the law is intended to protect minors)
What is the braverman doctrine
You charge the number of conspiracies based on the number of agreements and not the number of target offenses
b. Ex. Bombing the WTCenter killed 4,000 people. You don’t charge ∆ with 4,000 conspiracies to commit murder. You charge ∆ with one conspiracy and 4,000 murders
c. Ex. ∆ conspires to smuggle drugs into the country, sell them, and have a weapon on him while doing it to protect it. He can be charged with three counts of conspiracy because there are laws that prevent all three of those offenses.
What is the exception to the braverman doctrine
When the law prohibits an agreement for certain purposes, and one agreement has more than one purpose that is prohibited by a statute, then you can have multiple conspiracies
