Inchoate Offenses

Question 1

Attempt Elements

Answer 1

Person Must:

1. perform a substantial step towards commission of the crime,
2. with intent to commit the crime.

Question 2

VA Attempt Elements

Answer 2

Attempt is:

• A direct act,
• That was done with intent to commit a crime,
• but which falls short of completing the crime.

Question 3

Possible Attempt Defenses

Answer 3

• Abandonment of attempt is no defense
• Impossibility of success

Question 4

Unintentional Crimes and Attempt

Answer 4

A defendant cannot attempt unintentional crimes. That means that there are no attempt versions of:

• reckless crimes
• negligent crimes
• felony murder

Question 5

Intent Elements for Attempts

Answer 5

1. intent to complete the conduct constituting the attempted crime, and
2. any intent necessary for attempted crime

Question 6

Impossibility Defense

Answer 6

1. “Legal” impossibility is a defense.
   
   • Def: attempting something thinking it’s a crime but it turns out not to be
2. “Factual” impossibility is NOT a defense.
   
   • Def: can’t complete a crime because the facts are different than intended

Question 7

Impossibility vs. Mistake of Fact and Law

Answer 7

• Impossibility situations all involve mistaken beliefs by the defendants that the attempts will be successful
  
  • MoF-mistaken fact caused you to commit a crime and MoL- you thought it wasn’t legal due to previous statute
• the impossibility defense applies only in attempt prosecutions
  
  • MoF/MoL applies in many offenses

Question 8

Factual Impossibility

Answer 8

• It will be impossible for D to:
  
  • perform the conduct she has set out to perform; or
  • cause the result she has set out to cause
• BUT D mistakenly believes she will be successful.
• D has no impossibility defense and is guilty of attempt.

Question 9

Legal Impossibility

Answer 9

• D’s intended conduct would not constitute a crime if completed.
• But D thinks it would be a crime because D is mistaken about the criminal law.
• This is legal impossibility. D has a defense and is not guilty of attempt.

Question 10

SItuations where D is Mistaken about Circumstances

Answer 10

• D’s intended conduct if completed would not constitute a crime, because one of the circumstances is not what is required for the crime.
• BUT D is mistaken about this circumstance.
• If the circumstance was as D believed it to be, her intended conduct would constitute a crime.
• This is factual impossibility. D has no defense and is guilty of attempt.
  
  • But some courts characterize it as legal impossibility

Question 11

Solicitation Elements

Answer 11

1. asking someone to commit an offense;
2. with intent that the person commit that offense.

Question 12

Rejected Solicitation

Answer 12

Solicitation is a crime even if it is immediately rejected.

Question 13

Conspiracy Elements

Answer 13

1. entering into an agreement to commit a crime; and
2. with the intent that the crime be committed.

Question 14

Conspiracy Overt Act Requirement

Answer 14

Modern statutes often require an overt act in furtherance by one member of the group.

Question 15

Conspiracy Defenses

Answer 15

• withdrawal
• no “meeting of minds” (acquittal of co-conspirators)
• impossibility (not a defense)

Question 16

Co-Conspirator Rule

All members of a criminal conspiracy are guilty of crimes committed by other members of that conspiracy if those crimes are both:

committed in furtherance of the scheme;

a foreseeable result of the scheme.

Answer 16

All members of a criminal conspiracy are guilty of crimes committed by other members of that conspiracy if those crimes are both:

1. committed in furtherance of the scheme;
2. a foreseeable result of the scheme.

Question 17

Defense of Withdrawal from the Conspiracy

Answer 17

• Withdrawal is no defense to the crime of conspiracy.
• An effective withdrawal is a defense to a crime for which the defendant is liable under the co-conspirator rule.
  
  • Must be:
    
    • Fully communicated to all other members of the conspiracy; and
    • before the crime is committed.

Question 18

No “meeting of guilty minds” Defense

Answer 18

1. D charged with conspiracy must be acquitted upon proof that all other members of the alleged conspiracy have been acquitted or its equivalent.
2. Equivalents of acquittal:
   • not guilty by reason of insanity; or
   • person did not intend to go through with crime (had “secret reservations”).

Question 19

VA Conspiracy Rule

Answer 19

Conspiracy is committed when:

• there is an agreement
• between two or more persons
• with an intent to commit a felony.

Question 20

VA Police Officer as Co-Conspirator Rule

Answer 20

An accused may not be convicted for conspiracy with a police officer and the officer’s confidential informant.

Question 21

VA Conspiracy Overt Act Requirement

Answer 21

A conspiracy is committed when the agreement to commit the offense is complete.

Question 22

VA Conspiracy Conviction Rule

Answer 22

• If a defendant has already been tried and convicted of an act that he also conspired to commit, he can’t be charged for conspiracy of that crime.
• Exceptions:
  
  • Conspiracy conviction is not barred if based on acts separate from the substantive conviction
  • A defendant may be convicted of both the completed offense and conspiracy if the convictions occur in a single trial

Question 23

VA Conspiracy Acquittal Rule

Answer 23

If a defendant is acquitted of the underlying felony, then a subsequent prosecution for conspiracy is barred.

Question 24

VA Hearsay Exception for Co-Conspirators

Answer 24

Statements made in furtherance and during the course of a conspiracy (as if made by the co-conspirator) are an exception to the hearsay rule.