Inchoate Offenses

Question 1

Conspiracy Elements:

Answer 1

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 objective of the agreement.

The object of the conspiracy must be criminal or the achievement of the lawful object by criminal means.

Question 2

Unlike the common law, a majority of states require: (Conspiracy)

Answer 2

An overt act, but an act of mere preparation will suffice.

Question 3

Conspiracy Agreement Requirement

Answer 3

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.

Question 4

Modern Trend - Conspiracy

Answer 4

The modern trend follows the M.P.C.’s “unilateral” approach to conspiracy, which requires that only one party have genuine criminal intent.

Accordingly, 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 working undercover.

Question 5

Traditional Rule (Conspiracy Agreement Requirement)

Answer 5

At common law, a conspiracy requires at least two “guilty minds,” that is, persons who are actually committed to the illicit plan.

Under this “bilateral” approach, if one person in a two party agreement is only feigning agreement, the other party cannot be convicted of conspiracy.

Question 6

Wharton Rule

Answer 6

Under the Wharton Rule, where two or more people are necessary for the commission of the substantive offense (for example, adultery, dueling), there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime

Question 7

Effect of Acquittal of Some Conspirators

Answer 7

Under the traditional view, the acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant.

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

Question 8

Conspiracy Mental State

Answer 8

Conspiracy is a specific intent crime.

Parties must have: (1) the intent to agree and (2) the intent to achieve the objective of the conspiracy.

Question 9

Overt Act

Answer 9

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

The majority rule, followed by most states, is that an act in furtherance of the conspiracy must be performed.

If you are operating under the majority rule that requires an agreement plus an overt act, any little act can be an overt act in furtherance of the conspiracy, even an act of mere preparation.

Question 10

Termination of Conspiracy

Answer 10

A conspiracy usually terminates upon completion of the wrongful objective. Unless agreed to in advance, acts of concealment are not part of the conspiracy.

Question 11

A conspirator may be held liable for crimes committed by other conspirators if the crimes

Answer 11

(1) were committed in furtherance of the objectives of the conspiracy and

(2) were foreseeable.

Question 12

Defenses (Factual Impossibly) Conspiracy

Answer 12

Factual impossibility is not a defense to conspiracy.

Question 13

Defenses (Withdrawal) Conspiracy

Answer 13

Generally, withdrawal from the conspiracy is not a defense to the conspiracy, because the conspiracy is complete as soon as the agreement is made and an act in furtherance is performed.

Withdrawal may be a defense to crimes committed in furtherance of the conspiracy,

Question 14

To withdraw, a conspirator must:

Answer 14

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.

Question 15

Solicitation consists of:

Answer 15

asking, inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime.

It is not necessary that the person solicited agree to commit the crime.

Question 16

Solicitation - Merger

Answer 16

If the person solicited commits the crime solicited, both that person and the solicitor can be held liable for that crime.

However, under the doctrine of merger, the solicitor cannot be punished for both the solicitation and these other offenses.

Question 17

Solicitation Defenses

Answer 17

It is not a defense that the person solicited is not convicted, nor that the offense solicited could not in fact have been successful (factual impossibility).

In most jurisdictions, it is not a defense that the solicitor renounces or withdraws the solicitation. The M.P.C. recognizes renunciation as a defense if the defendant prevents the commission of the crime,

Question 18

Attempt is:

Answer 18

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

Question 19

Attempt requires:

Answer 19

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

Question 20

Attempt Intent

Answer 20

Defendant must intend to perform an act and obtain a result that, if achieved, would constitute a crime.

Regardless of the intent necessary for the completed offense, an attempt always requires a specific intent

Question 21

Attempt Overt Act

Answer 21

The defendant must commit an act beyond mere preparation for the offense.

Question 22

Attempt “Proximity Test” Requires:

Answer 22

That the act be “dangerously close” to successful completion of the crime (Traditional Rule)

Question 23

Overt Act (MPC/Majority)

Answer 23

Substantial Step

Question 24

Attempt Defenses (Abandonment)

Answer 24

Abandonment is not a defense at common law. (If the defendant had the intent and committed an overt act, the defendant is guilty of attempt despite the fact that they changed their mind and abandoned the plan before the intended crime was completed.)

The M.P.C., followed in a number of jurisdictions, provides that a fully voluntary and complete abandonment is a defense.

Question 25

Attempt Defenses (Legal Impossibility)

Answer 25

If the defendant, having completed all acts that they had intended, would have committed no crime, they cannot be guilty of an attempt to do the same if they fail to complete all intended acts.

Legal impossibility is a defense, albeit rare.

Question 26

Prosecution for Attempt

Answer 26

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.