Inchoate Offenses

Question 1

Attempt

Answer 1

2 tests

1: Dangerous proximity test
It requires that a person, with the specific intent to commit a crime, engage in conduct that goes beyond mere preparation and comes very close to the successful completion of the crime.

2: MPC: Substantial step test
Model Penal Code approach. The crime of attempt under the Code requires the defendant to take a substantial step that is strongly corroborative of the defendant’s criminal purpose. (Less favorable to defendants)

Attempt is a dual intent crim. Must have
Dual intent - intent to commit both:
(1) the act and
(2) the target offense

For example:
Must have specific (dual) intent for attempt murder.
• Must intend the act (shooting a person) and
• Must intend the result (death).

Attempt will merge into the completed crime

Question 2

Conspiracy

Answer 2

2 Tests

Common Law (Pinkerton):
An agreement between 2 or more persons to do
either an unlawful act or a lawful act by unlawful
means*
1: Agreement + Objective + Mens Rea

2:It is not necessary that each conspirator agree
to commit the substantive object crime; also
not necessary to have tacit agreement
between co-conspirators

3:All members of conspiracy may be liable for
the substantive crime even if committed by
only one member, without a new agreement

4:Once agreement made, no withdraw from
conspiracy, only from substantive offense

Model Penal Code:
Guilty if with purpose of promoting or facilitating
commission of crime, agrees with such other
person or persons that they or one or more of
them will engage in conduct which constitutes such
crime or an attempt or solicitation to commit such
crime

1: All members of conspiracy need not know each
other

2: Not guilty of additional crimes of co-conspirators “if
completely unaware and did not influence at
all” [commentaries]

3:To terminate his part in the conspiracy, D must
advise others of abandonment or inform law
enforcement of the conspiracy

Question 3

Solicitation:

Answer 3

Elements of Solicitation:
At common law, the actus reas for solicitation can take the form of inviting, requesting, commanding, hiring, or encouraging another to commit a particular offense.

The mens rea of solicitation encompasses (1) the intent to perform the acts constituting the solicitation and (2) the specific intent that the other person commit the solicited offense.

The crime of solicitation occurs when the accused requests another to commit a crime, with the specific intent that the crime be committed. Under the Model Penal Code, the accused is guilty of solicitation even if he “fails to communicate with the person he solicits.” MPC §5.02(2). This means that, when Dillinger sent the letter asking Capone to kill the police officer, all the elements for solicitation were satisfied.

Question 4

Accomplice liability

Answer 4

Not a crime, but a theory.

The accomplice needs to provide active aid, counsel, encouragement, or assistance toward the commission of the crime.

Natural and probable consequence doctrine. Common Law, Rejected by MPC, requires the mens rea for the second crime.

1: Did the principal commit the target offense?
2: Was defendant an accomplice to the target offense?
3: Did principal commit a secondary crime?
4: Was crime reasonably foreseeable?