Inchoate Offenses

Question 1

What are the three inchoate offenses?

Answer 1

1. Solicitation
2. Conspiracy
3. Attempt

Question 2

Solicitation

specific intent

Answer 2

Asking someone to commit a crime, with the intent that the crime be committed.

Note: the crime is in the asking

Question 3

Conspiracy

specific intent

Answer 3

An agreement between two or more people to commit a crime, plus an overt act in furtherance of the crime with the specific intent to:

1. enter into an agreement; and
2. to accomplish the objective of the conspiracy

Note: the crime is in the agreement

Question 4

Agreement (conspiracy)

Answer 4

Need not be “express,” can be proved by conduct - that is, a “concert of action” toward a common goal.

Question 5

Overt Act (conspiracy)

Answer 5

ANY act, even if merely preparatory, performed by any co-conspirators. (Traditionally, the common law did not require an overt act, but most states now do)

Question 6

Bilateral Approach

common law–conspiracy

Answer 6

There must be at least two guilty minds, both of whom actually agree to accomplish the conspiracy’s objective. Therefore, if all other parties are acquitted, the last remaining defendant cannot be convicted

Question 7

Unilateral Approach

NY–conspiracy

Answer 7

A single defendant must be guilty of conspiracy even if the other parties are acquitted or were just pretending to agree. There is no defense to a conspiracy charge based on a co-conspirator’s irresponsibility, incapacity, or failure to have the requisite culpability for a crime.

Question 8

Wharton Rule

NY–conspiracy

Answer 8

When two or more people are necessary for the commission of the substantive offense, there is no conspiracy unless MORE parties participate in the agreement than are necessary for the crime. (e.g. a duel requires three people)

Question 9

Vicarious “Pinkerton” Liability

plus NY distinction

Answer 9

In addition to the conspiracy, the defendant will be liable for other crimes committed by his co-conspirators, so long as those crimes:

(1) were committed in furtherance of the conspiracy’s objective, AND
(2) were foreseeable

NY: No vicarious liability for one who merely conspires and does not participate in a crime committed by a co-conspirator

Question 10

Impossibility (conspiracy)

Answer 10

Impossibility is not a defense to a charge of conspiracy

Question 11

Attempt

intent

Answer 11

Requires an overt act beyond mere preparation with the specific intent to commit the underlying crime

Note: You cannot attempt unintentional crimes

Question 12

Proximity Test

NY and common law

Answer 12

The defendant must engage in conduct that gets dangerously close to the commission of the crime

Question 13

Substantial Step Test

majority and MPC

Answer 13

The defendant must engage in conduct that constitutes a substantial step towards the commission of the crime, provided that the conduct strongly corroborates the actor’s criminal purpose

Question 14

Withdrawal (all inchoate offenses)

general

Answer 14

(1) withdrawal is not a defense
(2) but once a defendant withdraws from a conspiracy he will no longer be vicariously liable for crimes committed by his co-conspirators after he left the conspiracy
(3) however, the defendant is still guilty of conspiracy and or all foreseeable crimes committed by his co-conspirators prior to his withdrawn

Question 15

Withdrawal (all inchoate offenses)

NY

Answer 15

(1) Solicitation and Conspiracy: withdrawal is an affirmative defense if the defendant
(a) completely and voluntarily renounces; and
(b) prevents the commission of the underlying crime
Note: if the object crime does not occur, the defendant has a defense to the anticipatory crimes only if his efforts prevented the commission of the object crime.

(2) Attempt: Abandonment by is an affirmative defense if the defendant
(a) completely and voluntarily renounces; and
(b) as a result, does not commit the underlying crimes
If these action don’t avoid the crime, then D must take affirmative steps that prevent the commission of the crime

Question 16

Merger Rules (inchoate offenses)
(plus NY Distinction)

Answer 16

(1) solicitation and attempt merge with the completed crime;
(a) in NY solicitation does not merge because it is an independently substantive crime. If crime is necessarily incidental to the commission of the crime it is not incidental (i.e., receiving a bribe)
(2) conspiracy does not merge

Question 17

Corroboration (solicitation)

NY

Answer 17

The defendant may be convicted upon testimony of the person solicited. If the person solicited qualifies as an accomplice, the accomplice rules apply

Question 18

Conspiracy

NY degrees

Answer 18

FIRST DEGREE: The defendant is over 18, the other person is under 16, and the conduct urged is a class A felony (same as first degree solicitation)
SECOND DEGREE: The conduct urged is a class A felony (same as second degree solicitation)
THIRD DEGREE: The defendant is over 18, the other person is under 16, and the conduct urged is a class B or C felony
FOURTH DEGREE: the conduct urged is a class B or C felony; or where the defendant is over 18, the other person is under 16, and the conduct urged is a felony
FIFTH DEGREE: the conduct urged is  a felony; or where D is over 18, the other person is under 16, and the conduct urged is a crime (same as fourth degree solicitation)
SIXTH DEGREE: With intent that another person engages in conduct constituting a crime, one solicits, requests, commands, importunes, otherwise attempts to cause the other person to engage in such conduct (same as fifth degree solicitation)

Question 19

Corroboration (conspiracy)

NY

Answer 19

The defendant may not be convicted upon uncorroborated testimony of a co-conspirator