Inchoate Offenses Flashcards
Define solicitation. What is the required mental state? Is completion necessary?
Definition: Asking someone to commit a crime, with the intent that the crime be committed.
Mental State: Specific intent that someone commit a crime.
Completion Unnecessary: The crime is in the asking of solicitation. (Note: It doesn’t matter whether the other person agrees or whether the crime is actually committed.)
Define conspiracy. What is the required mental state? Is completion necessary?
Definition: An agreement between two or more people to
commit a crime, plus an overt act in furtherance of the crime.
“Overt Act”: Any act of preparation (minimal requirement). Traditionally, the common law did not require an overt act, but the majority of states now do. (mere preparation is enough)
Mental State: A specific intent to accomplish the conspiracy’s objective.
Completion Unnecessary: The crime is in the agreement (plus the overt act).
Under common law, can you have a one-person conspiracy? What is the rule?
No. There must be at least two guilty minds, both of whom actually agree to accomplish the conspiracy’s objectives (the “bilateral” approach).
If all other parties to the agreement are acquitted, the last remaining defendant cannot be convicted.
Under model penal code, can you have a one-person conspiracy? What is the rule?
Yes. Under the unilateral approach, a defendant may be guilty of conspiracy even if the other parties are acquitted or were just pretending to agree.
Under conspiracy, what is the common law rule regarding vicarious liability?
In addition to conspiracy, a defendant will be liable
for other crimes committed by his co-conspirators, so long as those crimes
(a) were in furtherance of the conspiracy’s objective, and (b) were foreseeable (natural and probable consequences).
In VA, when is conspiracy committed? Is an overt act required?
Bilateral Approach: Conspiracy is committed when there is an agreement between two or more persons, entered into with the intent to commit a felony.
(a) Police Officer as Co-conspirator: An accused may NOT be convicted for conspiracy with a police officer and the officer’s confidential informant. (only one guilty mind)
No Overt Act Required: A conspiracy is committed when the agreement to commit the offense is complete.
In VA, what is the rule regarding convictions and conspiracy? Are there any exceptions?
If a defendant has already been tried and convicted of an act that he also conspired to commit, he is subject to conviction only for the completed substantive offense (i.e. may not thereafter be convicted for the underlying conspiracy).
Exceptions:
1) A conspiracy conviction is not barred where it is based on acts separate from the substantive conviction.
2) Defendant may be convicted of BOTH the completed substantive offense and the underlying conspiracy if the convictions occur in a single trial.
3) Acquittal: If a defendant is acquitted of the underlying felony (or an attempt), then a subsequent prosecution for conspiracy is barred.
4) Cross-Over VA Essay Issue: co-conspirator’s hearsay exception: statement made in furtherance and during course of conspiracy (as if made by the co-conspirator).
Under the Model Penal Code, what is an attempt?
This is the majority test. Conduct that is a substantial step towards the crime and strongly corraborative of a criminal purpose.
Under the Common Law, what is an attempt?
Conduct that gets dangerously close to the commission of the crime (sometimes called the “dangerous proximity test”).
Under VA law, what is an attempt?
A direct act done with the intent to commit the crime, but which falls short of completing the crime.
What is the required mental state for attempt? What is the rule?
The specific intent to commit the crime.
The Rule: You cannot attempt unintentional crimes. That means, there are no attempt versions of:
(a) reckless crimes, or
(b) negligent crimes, or
(c) felony murder.
It is possible to attempt malice, general intent, or strict liability crimes, but only if the D specifically intends to commit the crime.
Define factual impossibility as it pertains to attempt. What is the rule?
Definition: The claim that it was impossible to complete the crime because of some circumstance beyond the defendant’s control.
The Rule: Factual impossibility is NOT a defense to attempt.
Define legal impossibility as it pertains to attempt. What is the rule?
Definition: The claim that it was impossible to complete the crime because what the defendant was trying to do was not illegal.
The Rule: Legal impossibility IS a defense to attempt.
Under the common law, what happens when a solicitor, co-conspirator, or attempter changes his mind?
Withdrawal is NOT a defense.
One Wrinkle: Once D withdraws from a conspiracy he will no longer be vicariously liable for crimes committed by his co-conspirators after he left the conspiracy (D is still guilty of conspiracy).
Under the model penal code, what happens when a solicitor, co-conspirator, or attempter changes his mind?
Withdrawal can be a defense, but only if:
1) the D voluntarily and completely renounces the solicitation, conspiracy, or attempt, and
2) the renunciation is based on a “change of heart,” not a fear of failing or being caught.
