Inchoate Offenses Flashcards
Conspiracy generally
Most tested inchoate crime
Requires
- an agreement between two or more persons
- an intent to enter into the agreement, and
- an intent by at least two persons to achieve the objective of the agreement
Objective must be criminal or the achievement of the lawful object by criminal means
Overt act and conspiracy
Common law - conspiracy was complete when the agreement with the requisite intent was reached
Majority, followed by most states - act in furtherance of the conspiracy must be performed
- any little act can be an overt act
- mere preparation will suffice
Agreement - unilateral approach
Parties must agree to accomplish the same objective by mutual action
Modern trend follows the MPC’s unilateral approach - only one party has the genuine criminal intent
Agreement - bilateral approach
Parties must agree to accomplish the same objective by mutual action
At common law, a conspiracy requires at least two guilty minds - persons who are actually committed to the illicit plan
Acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant
Mental state - conspiracy
Specific intent crime
Parties must have the intent to agree and the intent to achieve the objective of the conspiracy
Termination of conspiracy
Important because acts and statements of co-conspirators are admissible against a conspirator only if they were done or made in furtherance of the conspiracy
Conspiracy usually terminates upon competition of the wrongful objective
Acts of concealment - conspiracy
Unless agreed to in advance, acts of concealment are not part of the conspiracy
Liability for co-conspirators’ crimes
A conspirator may be held liable for crimes committed by other conspirators if the crimes
- were committed in furtherance of the objectives of the conspiracy, and
- were foreseeable
Factual impossibility - conspiracy
Factual impossibility is not a defense to conspiracy
Withdrawal - conspiracy
Generally, withdraws from the conspiracy is not a defense to the conspiracy because it is complete as soon as the agreement is made and an act in furtherance is performed
May be a defense to crimes committed in furtherance
Withdrawal effective - conspiracy
To withdraw, 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 also provided assistance as an accomplice, they must try to neutralize the assistance
Merger - conspiracy
No merger
Conspiracy and the completed crime are distinct offenses - defendant can be convicted and punished for both
Solicitation generally
Asking, inciting, counseling, advising, urging or commanding another to commit a crime
With the intent that the person solicited commit the crime
- not necessary that person solicited agree to commit
Merger - solicitation
Solicitor cannot be punished for both the solicitation and the completed offense, the attempt, or conspiracy
Solicitation merges into conspiracy
Attempt
Act done with intent to commit a crime but falls short of completing the crime
Requires
- specific intent,
- overt act in furtherance of the crime
Attempt - intent
Defendant must intend to perform an act and obtain a result that, if achieved, would constitute a crime
Always requires specific intent regardless of the intent necessary for the completed offense
Cannot intend to be negligent - no attempted negligent crimes or reckless crimes
Attempt - overt act
Defendant must commit an act beyond mere preparation for the offense
- overt act required for attempt is much more substantial than overt act required for conspiracy
Traditional vs MPC
Attempt, overt act - traditional view
Traditionally, most courts followed the proximity test - the act be dangerously close to successful completion of the crime
Attempt, overt act - modern / MPC
Today, MPC and most criminal codes require that the act or omission constitute a substantial step in a course of conduct planned to culminate in the commission of the crime that strongly corroborates the actor’s criminal purpose
Abandonment - attempt
Not a defense at common law - intent and committed overt act, guilty of attempt despite changed mind and abandoned plan
But MPC provides that a fully voluntary and complete abandonment is a defense
- must fully be complete and voluntary
Legal impossibility - attempt
If defendant, having completed all acts that intended, would have committed no crime, cannot be guilty of attempt to do same if they fail to complete all intended acts
Rare but legal impossibility is a defense
Factual impossibility - attempt
Describes the situation when the substantive crime is incapable of completion due to some physical or factual condition, unknown to the defendant
Not a defense
Merger - attempt
Attempt does merge with completed crime - can’t be charged with both
