Inchoate Offenses

Question 1

Attempt: justifications for punishing attempt

Answer 1

§ Provides a basis for law enforcement to intervene BEFORE offense can be committed (utilitarian)
□ Prevention of crime is socially good.
§ Retributive = still morally culpable
§ Expressive = We do not approve of an attempt. We condemn the impulse, even if you didn’t fully complete the crime.
CANNOT be deterrence – penalty of attempt isn’t likely to deter from the reward of the crime.

Question 2

Attempt: Merger

Answer 2

When the target offense is completed, the attempt merges with the crime.

Not charged with murder and attempted murder of the same person

Question 3

Attempt: complete v. incomplete

Answer 3

Complete attempt = actor performed every act necessary to achieve the criminal goal, but ultimately fails to achieve the goal (Ex: shoots, misses)

Incomplete attempt = the actor performs some of the acts necessary to achieve the criminal goal, but then desists or is prevented. (ex: caught during the commission, but did some of the steps, like loading and aiming gun).

Question 4

Attempts: punishment CL v MPC

Answer 4

CL = punished as misdemeanors (even when target is felony)

MPC = punish attempts same as completed crimes, except for felonies in the first degree.

Question 5

Attempt: Mens Rea — Common Law

Answer 5

Attempt is ALWAYS specific intent crime, even if it is an attempt of a general intent crime because attempt itself is a separate offense.

Requires two intents

1. The actor’s conduct itself (the act that is the attempt) must be intentional AND
2. The actor must, while engaged in attempt, intend to commit the target offense.

Jur split on how to interpret (2).
- some jur requires specific intent (purpose)
- others apply classic CL def to intent (encompassing known certainty)

Non example on how an attempt fails prong 2
— A fires a gun intentionally at B, with the intent to miss and scare him, A lacks the second prong of the dual intent

Question 6

Attempt: MPC 5.01 walkthru

Answer 6

If incomplete attempt = (1)(c) read in conjunction with (2) = was there a substantial step?

Complete
- Result crime.= (1)(b) = does/omits anything with the purpose of causing or belief it will cause the result without further conduct.
- Conduct crime = (1)(a) Purposely engaged in conduct that would constitute the crime IF attendant circumstances were as he believes them to be.

Question 7

Attempt: how does MPC approach preparation v. attempt?

Answer 7

5.01(1)(c)

asks if there was a substantial step in course of conduct towards completing a criminal offense (that is corroborative of the actors criminal purpose)

Before this though we have to keep in mind that the defendant must have acted with the culpability required for the target offense.

Question 8

Attempt: list common law tests

Answer 8

1. Physical proximity test
2. Dangerous proximity test
3. Indispensable element test
4. Probable desistance test
5. Res pisa loquitor (unequivocality test)

Question 9

Attempts: CL — Physical proximity test

Answer 9

If the actor has engaged in conduct that brings them close to committing the crime, and it is within their power to commit the crime almost immediately, they are guilty of attempt.

Question 10

Attempt: CL — Dangerous proximity test

Answer 10

Asks: how much did the D have left to do in order to commit the crime?

consider: nearness to danger of crime being achieved, degree of harm it would have caused, degree of apprehension felt by victim/society

Question 11

Attempt: CL — Indispensable element test

Answer 11

If there is an indispensable element over which the actor hasn’t yet gained control, the actor is insufficiently proximate to be guilty of attempt.

Question 12

Attempt: CL — Probable desistance test

Answer 12

Is the actor’s conduct (without external interruption) past the point of no return? Past the point that an ordinary person would be unlikely to voluntarily desist?

Question 13

Attempt: CL — Res ipsa / unequivocallity

Answer 13

Asks: when the defendant stopped progressing, was it clear that they had no other purpose than to commit the crime?

Does not look at statements

Question 14

Attempt: difference between MPC & CL preparation v. attempt

Answer 14

CL tests all mainly look forward at how CLOSE you are to completing the crime

MPC looks backward at what you have already done. Has it been a substantial step?

Question 15

Attempt specific defenses — Impossibility

Answer 15

1. Factual impossibility — actor’s goal constitutes a crime, but the crime is not completed due to his mistake or lack of knowledge about an attendant circumstance (not a CL or MPC defense)
2. Inherent factual impossibility — person trying to commit the crime in an unreasonable way — sink battleship with bb gun. may be a defense.
3. Pure legal impossibility — law does not actually prohibit an actor’s goal (part of principle of legality)
4. Hybrid legal impossibility — actor’s goal is criminalized, but he cannot commit the offense due to a factual mistake about the legal status of an attendant circumstance. (Defense at CL, but not under MPC). Pretty much the same as factual impossibility, but a matter of framing. “this is a legal impossibility because the LAW doesn’t prohibit shooting a tree trunk”

Question 16

Attempt specific defenses — Abandonment

Answer 16

Defense based on abandonment of criminal purpose and conduct. (not a defense at CL)
(narrowly D under MPC — requires complete and voluntary renunciation of criminal purpose)

consider whether it occurred too late

Question 17

Conspiracy — generally

Answer 17

An express or implied AGREEMENT between two or more individuals to commit a criminal act or a series of criminal acts

Question 18

Conspiracy: Overt act requirement

Answer 18

Common law = no overt act requirement
MPC 5.03(5) = over act required UNLESS felony in the first or second degree. Overt act in pursuance of the conspiracy has to be done by ANY member of the conspiracy.

Question 19

Conspiracy: bilateral v. unilateral

Answer 19

Common law = bilateral. If you have two people tried for conspiracy and one gets off, the other has to as well. It takes two to tango.

MPC = unilateral. If ONE person had the intent to enter into an agreement, they can be convicted. The other party has no impact

Question 20

Conspiracy: merger

Answer 20

Common law = conspiracy is a separate offense (never merges with target)

MPC 1.07 = merge if it is a single conspiracy to accomplish ONE criminal goal
BUT if larger conspiracy (rob multiple banks) then it would not merge.

Question 21

Conspiracy: Pinkerton doctrine

Answer 21

co-conspirators are criminally liable for each other’s overt acts in furtherance of the conspiracy as long as these acts are a reasonably foreseeable consequence of the unlawful agreement

Question 22

Conspiracy: mens rea — CL

Answer 22

Duel intents

1. intent to agree/conspire
2. intent to commit the target offense.

Conspiracy is ALWAYS a SPECFIC INTENT CRIM

Question 23

Conspiracy: Mens rea — MPC

Answer 23

requires “purpose of promoting or facilitating the target crime”

Question 24

Accomplice: Common Law

Answer 24

Requires the person provide actual assistance to the crime (but no agreement is required).

Passive behavior such as mere presence alone is NOT sufficient.
An affirmative act required (encouragement, advised, etc.)

Question 25

Accomplice: MPC

Answer 25

2.06

A person is an accomplice if “with the purpose of promoting or facilitating the commission of the offense” he
(i) solicits other person to commit it;
(ii) aids or agrees or attempts to aid other person in planning or committing it or
(iii) having a legal duty to prevent, fails to do so.

Or if his conduct is expressly declared by law to establish his complicity. ???

Question 26

Accomplice: Underlying crime requirement

Answer 26

Common law = target offense must have been COMPLETED by someone.

MPC 5.01(3) = can be guilty as accomplice even if the crime is not committed or attempted

Question 27

Accomplice: Mens Rea — CL & MPC

Answer 27

Common law dual intent:
1. Intent to do the acts that constitute assistance of the primary party AND
2. Intent that such assistance result in commission of the offense charged.

MPC: “with the purpose of promoting or facilitating the commission of the offense”

Question 28

Accomplice: Foreseeable consequences / Natural and Probable Consequences

Answer 28

Common Law Only

An accessory is liable for any criminal act which in the ordinary course of things was the natural and probable consequence of the crime that he advised or commanded, although such consequence may not have been intended by him.

Question 29

Accomplice: foreseeable consequences flowchart walkthru

Answer 29

First, did the primary party commit the target offense (or at least an inchoate version)?

2. If so, was the secondary party an accomplice in the commission of the target offense?
3. If so, did the primary party commit another crime or crimes beyond the target offense?
4. If so, was the latter crime or crimes reasonably foreseeable consequences of the original criminal act?

Question 30

Accomplice: MPC’s “version” of foreseeable consequences

Answer 30

Doesn’t have it, but could reach a similar result under MPC’s version of FMR.

Recklessness / indifferences PRESUMED for accomplice if murder occurs during commission or attempt of robbery, rape, arson, burglary, kidnapping, or felonious escape.

Question 31

Accomplice: Derivative defenses from primary party

Answer 31

Justification = if the primary party is found not guilty on the basis of a justification defense, the accomplice would be found not guilty on the basis of justification.

Excuse = if primary party is found not guilty on the basis of excuse and the accomplice does not have that excuse or another individual excuse, then the accomplice can still be convicted and held liable under accomplice liability.