Inchoate Offenses

Question 1

What are Inchoate Offenses

Answer 1

Inchoate means incomplete. There are three inchoate offenses:

1) Solicitation
2) Conspiracy
3) Attempt

Question 2

Solcitation

Answer 2

Solicitation consists of:
1) asking, inciting, counseling, advising, urging, or commanding another to commit a crime;
2) with the intent that the person solicited commit the crime

NOTE: it is not necessary that the person solicited agree to commit the crime

Question 3

GA Solicitation

Answer 3

In GA, an individual commits solicitation when, with the intent that another person engage in conduct constituting a felony, the individual solicits, requests, commands, or otherwise attempts to cause the other person to engage in such conduct.

It is not a defense that the person solicited could not be found guilty of the substantive crime.

Question 4

Defenses to Solicitation

Answer 4

It is not a defense that the person solicited is not convicted, not that the offense solicited could not in fact have been successful (factual impossibility)

However, it is a defense that the solicitor could not be found guilty of the completed crime because of a legislative intent to exempt them

EX: a minor female could not be guilty of solicitation of statutory rape by urging an adult male to have intercourse with her, because she could not be guilty of the completed crime.

Question 5

Merger of Solicitation

Answer 5

1) if the person solicited commits the crime solicited, both that person and the solicitor can be held liable for that crime

2) if the person solicited commits acts sufficient to constitute attempt, both parties can be liable for attempt

3) if the person solicited agrees to commit the crime, but doesn’t commit sufficient acts to constitute attempt, both parties can be held liable for conspiracy

HOWEVER, under the doctrine of merger, the solicitor cannot be punished for bother the solicitation and these other offenses

Question 6

Conspiracy

Answer 6

Conspiracy requires:
1) an agreement between two or more persons;
2) an intent to enter into the agreement; and
3) an intent by at least two persons to achieve the object of the agreement

The object of the agreement must be criminal or achievement of a lawful object by criminal means

NOTE– GA Requires an overt act

Question 7

GA Conspiracy

Answer 7

In GA, a person commits the offense of conspiracy to commit a crime when the person, together with at least one other person, conspires to commit any crime and any one of such persons commits an overt act to bring about the object of the conspiracy.

Question 8

Agreement Requirement (Conspiracy)

Answer 8

The parties must agree to accomplish the same objective by mutual action

However, the agreement need not be express. It may be inferred from joint activity - that is a concert of action towards a common goal.

Question 9

Overt Act (Conspiracy)

Answer 9

At common law, the conspiracy was complete when the agreement with the requisite intent was reached.

The majority (including GA) require an act in furtherance of the conspiracy be performed.

Any act, even an act of mere participation, is sufficient, and it may be performed by one of the co-conspirators.

Question 10

Mental State (Conspiracy)

Answer 10

Conspiracy is a specific intent crime

Parties must have (1) the intent to enter into an agreement and (2) the intent to achieve the objective of the conspiracy

Question 11

Completion Unnecessary (Conspiracy)

Answer 11

The essence of the crime of conspiracy is the agreement. Completion of the conspired objective is unnecessary for conviction.

Question 12

Traditional Bilateral Approach (Conspiracy)

Answer 12

Common law and GA require at least two guilty minds for conspiracy. If one person in a two party agreement is only feigning agreement, the other party cannot be convicted of conspiracy.

Question 13

Acquittal Under Bilateral Approach (Conspiracy)

Answer 13

The acquittal of all persons whom a defendant is alleged to have conspired precludes conviction of the remaining defendant.

However, in some jurisdictions, a conviction for conspiracy against one defendant is allowed to stand when the alleged co-conspirator is acquitted in a separate trial.

Question 14

Agreement with Protected Persons under Bilateral Approach (Conspiracy)

Answer 14

If members of a conspiracy agree to commit a crime designed to protect persons within a given class, persons within that class cannot be guilty of the crime itself or conspiracy to commit that crime.

The nonprotected person cannot be guilty of conspiracy if the agreement was with the protected person only.

Question 15

Modern Unilateral Approach (Conspiracy)

Answer 15

Followed by the MPC, requires only one party have a genuine criminal intent.

Under the unilateral approach, a defendant can be convicted of conspiracy if they conspire with one person only and that person is a police officer undercover (sting operations are allowed)

Question 16

Wharton Rule (Conspiracy)

Answer 16

Under the Wharton Rule, where two or more people are necessary for the commission of the substantive offense (adultery), there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime. (takes three people to conspire to commit adultery)

Question 17

Wharton Rule when Necessary Parties are not Provided For

Answer 17

The Wharton rule does not apply to agreements with necessary parties not provided for by the substantive offense. Both parties may be found guilty of conspiracy even though both parties are necessary for the substantive offense.

EX: if a state prohibits sale of narcotics and imposes criminal liability on the seller only, both the buyer and seller can be found guilty of conspiracy to sell narcotics - even though both parties are necessary for commission of the substantive offense.

Question 18

Termination of Conspiracy

Answer 18

A conspiracy usually terminates upon completion of the wrongful objective.

Unless agreed to in advance, acts of concealment are not part of the conspiracy.

The government’s defeat of the conspiracy’s objective does not automatically terminate the conspiracy.

Question 19

Liability of Co-Conspirators (Pinkerton Liability)

Answer 19

In addition to conspiracy, a conspirator may be held liable for other crimes committed by co-conspirators if the crimes

1) were committed in furtherance of the objective of the conspiracy; and
2) were foreseeable

Question 20

Impossibility (Conspiracy)

Answer 20

Factual impossibility is not a defense to conspiracy

EX: Two parties agree to kill Dudely, when they arrive he is already dead. They can still be convicted for conspiracy to commit murder.

Question 21

Attempt

Answer 21

Attempt is an act, done with intent to commit a crime, that falls short of completing the crime.

Attempt requires (1) specific intent plus (2) an overt act in furtherance of the crime

Question 22

Overt Act (Attempt)

Answer 22

A defendant must commit an act beyond mere preparation for the offense (it is much more substantial than the overt act required for conspiracy - mere preparation is sufficient for conspiracy)

Question 23

Common Law Proximity Test for Overt Act (Attempt)

Answer 23

The proximity test requires the act be dangerously close to successful completion of the crime

Question 24

Substantial Step Test for Overt Act (Attempt)

Answer 24

Most states, Including GA, (and the MPC) require that the act or omission constitute a substantial step in the course of conduct planned to culminate in the commission of the crime that strongly corroborates the actor’s criminal purpose.

Less stringent than the CL proximity test

Question 25

Intent (Attempt)

Answer 25

To be guilty of attempt, the defendant must intend to perform an act and obtain a result that, if achieved, would constitute a crime.

Regardless of the intent required by the substantive crime, an attempt always requires a specific intent to commit the offense.

Question 26

Unintentional Crimes (Attempt)

Answer 26

A person cannot attempt and unintentional crime since a person cannot intend to do something unintentionally.

Meaning there are no attempt versions of
– recklessness crimes
– negligence crimes
– felony murder

Question 27

Defenses for Attempt

Answer 27

Legal Impossibility – if the defendant, having committed all acts that they intended, would have committed no crime, they cannot be guilty of an attempt to do the same if they fails to complete all intended acts. (legal impossibility is a defense)

Factual Impossibility – Factual impossibility describes the situation when the substantive offense is incapable of completion due to some physical or factual condition, unknown to the defendant. Factual impossibility is NOT a defense.

Question 28

GA Defenses to Attempt

Answer 28

It is not a defense to a charge of attempt that the substantive crime was, under the attendant circumstances, factually or legally impossible to commit, if the crime could have been committed had the attendant circumstances been as the defendant believed them to be.

Question 29

Prosecution for Attempt

Answer 29

A defendant charged only with a completed crime may be found guilty of the completed crime or an attempt

BUT a defendant charged only with attempt may not be convicted of the completed crime.

Question 30

Withdrawal/Renunciation/Abandonment (Inchoate Offenses)

Answer 30

Most jurisdiction hold that withdrawal is not a defense to solicitor, co-conspirator, or attempt liability

Question 31

Withdrawal of Conspiracy Exception

Answer 31

Once a defendant withdrawals from a conspiracy, the defendant will not longer be vicariously liable for crimes committed by the co-conspirators AFTER the defendant left the conspiracy.

However, the defendant is still guilty of conspiracy and all foreseeable crimes committed by the co-conspirators prior to the defendant’s withdrawal.

Question 32

Effective Withdrawal of Conspiracy

Answer 32

To withdrawal, a 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.

If the conspirator has also provided assistance as an accomplice, they must try to neutralize that assistance.

Question 33

MPC Renunciation and Abandonment Exception

Answer 33

The MPC recognizes renunciation as a defense to solicitation if the defendant prevents the commission of the crime

The MPC provides that a fully voluntary and complete abandonment is a defense to attempt. The defendant’s change of heart cannot be motivated by the risk of apprehension, difficulty in completing the crime, or postponement to a more advantageous time.

Question 34

GA Abandonment and Withdrawal Defense

Answer 34

In GA, Abandonment is a defense to attempt, provided the change of heart was complete and voluntary.

A co-conspirator can be absolved of criminal responsibility for the crime of conspiracy itself if the co-conspirator withdraws before the occurrence of an overt act.

Question 35

Merger Rule for Inchoate Offenses

Answer 35

Solicitation and attempt merge with the completed crime. HOWEVER, conspiracy does not merge.

Question 36

GA Merger

Answer 36

In GA, conspiracy merges with the completed crime

A person may be convicted or either conspiracy to commit the crime or the completed crime, but not both.

A person may be convicted of either conspiracy or attempt to commit a crime, but not both.