Inchoate Offenses Flashcards
ELEMENTS OF ATTEMPT
- Intentionally (MR) engages in sufficient conduct so as to be deemed to move from preparing to commit the crime to perpetrating the crime AND
- Does so with the INTENT (MR) that the conduct results in the commission of that crime
Can a person be charged with and tried for BOTH attempt and completed offense of a particular crime?
YES! A person can be charged with and tried for BOTH attempt and completed offense of a particular crime
Can you infer purpose from knowledge?
Yes - you can infer purpose from knowledge.
MR for Attempt under Common Law
[1] Intent to commit the conduct constituting
attempt; and
[2] Intent that the conduct result in the
commission of the crime
MR for Attempt under MPC
she acts with the purpose of engaging in the conduct or causing the result of the crime.
AR Tests for Attempt
- Last Act
- Physical Proximity
- Dangerous Proximity
- Indispensable element
- Probable desistance
- Substantial Step
- Res Ipsa Loquitur
LAST ACT – CL – Completed Attempt
A person has performed ALL acts necessary to commit crime, but didn’t due to external circumstances
- Everything in their power
- Gun misfires?
- Physical Proximity
A person has committed the actus reus for attempt when she is physically close to performing all the acts necessary for the commission of the target offense.
- Dangerous Proximity
- A person has committed the actus reus for attempt when she is dangerously close to performing all the acts necessary for the commission of the target offense.
- Under this test, the more severe the crime attempted, the further away from the completed attempt that liability will be imposed.
- Indispensable Element
A person has committed the actus reus for attempt only when she has acquired all indispensable elements necessary to commit the target offense
- Probable Desistance
A person has committed the actus reus for attempt when she has performed sufficient conduct so that, in the ordinary and natural course of events, the target offense will result unless an external source intervenes.
- Substantial Step (MPC)
- A person has committed the actus reus for attempt when she has committed acts (or omitted to commit acts) that constitute a substantial step in a course of conduct planned to culminate in his commission of the target offense.
- Conduct is not a substantial step unless it is strongly corroborative of the actor’s criminal purpose.
- Res Ipsa Loquitor / Unequivocality Test
A person has committed the actus reus for
attempt when her conduct manifests an
intent to commit a crime.
Is Renunciation a defense for Attempt under CL?
NO. Cannot undo a crime.
Is Renunciation a defense for Attempt under MPC?
Yes.
Elements of Renunciation as a Defense for Attempt under MPC?
[1] Abandon effort to commit the crime or [2] otherwise prevent its commission AND [3] Voluntary renunciation of criminal purpose; and [4] Complete renunciation of criminal purpose
Voluntary Renunciation - Attempt
NOT voluntary if it is motivated, in whole or in part, by a concern about the probability of detection or
apprehension or about the difficulty of accomplishing the criminal purpose.
Complete Renunciation - Attempt
NOT complete if it is temporary or contingent, such as
postponing the criminal conduct until another time or transferring the criminal effort to another victim or a similar objective.
SOLICITATION
D intentionally asks, commands, or encourages another to commit a crime, with the intent that the other person commit that crime.
Elements of Solicitation
Actus Reus - Asking another - Commanding another - Enticing another - To Commit a crime MR - Intentionally do so – the ask – and - With the intent that the other person commit that crime
INNOCENT INSTRUMENTALITY DOCTRINE
- Non-humans too
- D will sometimes ask other people to commit the crime and THAT PERSON is an innocent agent, that is not guilty b.c. they lack mens area.
- D is then NOT guilty of solicitation but the underlying crime.
Merger under Solicitation
Lesser crimes get merged w. bigger crimes so Solicitation merges into the greater offense.
Does solicitation by itself constitute attempt?
No. Solicitation by itself doesn’t constitute attempt.
Uncommunicated solicitation under CL
Not a crime - if not received, then no!
Uncommunicated solicitation under MPC
It is immaterial that the actor fails to communicate with the person he solicits to commit a crime if his conduct is designed to effect such communication.- AR & MR are met!
Is Renunciation a Defense for Solicitation under CL?
No.
Elements of Renunciation as a Defense for Solicitation under MPC
- Actus Reus
- [1] Persuade others to not commit the crime or
- [2] otherwise prevent its commission
- Mens Rea
- [3] Voluntary renunciation of criminal
- purpose; and
- [4] Complete renunciation of criminal
purpose.
Dual nature of conspiracy laws
crime in itself as well as a theory for extending liability in group criminality
Elements of conspiracy under CL (old)
- AR: the agreement between two or more people to commit criminal act
- MR: intent to agree AND intent that the agreement leads to the commission of that crime
Elements of conspiracy under NEW CL
- the agreement between two or more people to commit criminal act AND at least one of the two people have to commit an OVERT ACT (open) to further the conspiracy
with intent to agree AND intent that the agreement leads to the commission of that crime
Elements of conspiracy under MPC
AR
o agree with another
o to engage in conduct constitutes the crime
o if it’s a serious FIRST degree felony – no overt act needed.
o If it’s a less serious crime – overt act needed.
MR
o Agree to purpose of promoting or facilitating commission of crime
Does the agreement between the conspirators have to be express?
NO. The agreement between the conspirators need not be express
Do you have to agree to ALL of the substantive offense for it to conspiracy?
You do not have to agree to ALL of the substantive offense under conspiracy.
Under CL for conspiracy, what else can unlawful act mean besides a criminal wrong?
“unlawful act” or “lawful things by unlawful means” – could be a civil wrong – civil damages, OR immortal or dangerous to the public health or safety
Under modern law/MPC, can an overt act by one party be a sufficient basis to prosecute every member of the conspiracy?
YES. OVERT ACT by any one party is sufficient basis to prosecute every member of the conspiracy.
Can one be guilty of a conspiracy to commit an unintentional crime?
NO - One cannot be guilty of a conspiracy to commit an unintentional crime.
Can one be liable for conspiracy if the other conspirator lacks part of the mens rea?
No. One cannot be liable for conspiracy if the other conspirator lacks part of the mens rea.
Plurality requirement under CL for conspiracy
NEED to have 2 or more people, both having MRs
Plurality requirement under MPC for conspiracy
BOTH – BILATERAL AND UNILATERAL is also allowed - as long as that one person has the MR and AR, there are liable despite the other person’s MR or lack thereof.
Number of conspiracies under CL
each agreement is one conspiracy
Number of conspiracies under MPC
Generally, each agreement is a separate conspiracy BUT multiple agreements are the SAME conspiracy if they arise from a continuous conspiratorial relationship
Is there a defense of Renunciation under CL for conspiracy?
NO.
Elements of defense of Renunciation under MPC for conspiracy?
AR
[1]Thwartthesuccessoftheconspiracy
MR
[2]Voluntaryrenunciationofcriminalpurpose;and [3]Completerenunciationofcriminalpurpose.
Is it possible to enter into a conspiracy w.o. any of the parties committing solicitation?
Yes. It is possible to enter into a Conspiracy w.o. any of the parties committing solicitation
Is it possible for two or more persons to be found liable for jointly committing a crime without a conspiracy?
Yes. It is possible for two or more persons to be found liable for jointly committing a crime without conspiracy.
Merger under Conspiracy
Conspiracy does not merge! So a person can be found guilty of conspiracy AND a higher offense (attempted crime or completed crime.)
Accomplice Liability under CL - general idea
- Intentionally help someone else commit the substantial crime
- Also for crimes that were natural and foreseeable consequences of the original crime (extended liability)
Is there extended liability for accomplice crimes under MPC?
NO. Extended liability is rejected in MPC – Liability is not extended to crimes that the accomplice did not intend to assist.
Accomplice Liability under CL - Elements
ActusReus
[1] aidsanother or
[2]solicits,incitesorencouragesanother,or
[3]failstopreventanotherfromcommittingacrimedespiteadutytoact
Mens Rea
[4]withtheintenttoassisttheother;and [5]withtheintentthatsuchassistanceresultsin the commissionofthecrime
- PURPOSELY.
Is there such a crime as accomplice crime?
NO - No such crime as accomplice – but when these elements are met, the Primary and Secondary are equally liable for the underlying crime.
Accomplice Liability under MPC - Elements
ActusReus
[1] aids or ATTEMPTS TO AIDanother or
[2]solicits,incitesorencouragesanother,or
[3] failstopreventanotherfromcommittingacrimedespiteadutytoact
Mens Rea
[4]withtheintenttoassisttheother;and [5]withtheintentthatsuchassistanceresultsin commissionofthecrime
- PURPOSELY.
Does MPC Accomplice Liability include ATTEMPTS to AID another?
YES.
DEFENSES OF ACCOMPLICE LIABILITY
1.Legislative Exemption Rule and 2. Abandonment
Legislative Exemption Rule - Accomplice Liability
- member of the protected class of persons
- example: no liability for the underage victim in a statutory rape case
Abandonment - Accomplice Liability
- terminates a D’s future criminal liability
- doesn’t work for acts that have already happened
AR - Communicate withdrawal to principal
- AND
- Make bona fide efforts to give up crime
MR - Voluntary and complete abandonment
Does conspiratorial liability exist at CL or MPC?
NO. Just federal criminal liability.
Pinkerton Doctrine - Co-conspirator liability
A conspirator is liable for any substantive crimes by co-conspirator:
- Conspirator has no taken affirmative action to demonstrate withdrawal from conspiracy – not withdrawn AND
- Crime was done in furtherance of conspiracy – furthered AND
- Crime fell within the scope of the lawful project – within scope - AND
- Crime was reasonably foreseeable as necessary and natural consequence of the agreement
Timing under Accomplice liability
Starts when actions taken, not prior crimes.
Timing under Conspiratorial liability
if you agree to a conspiracy then you are liable for ALL crimes, even prior to agreement (PINKERTON CRITERIA).
Defense to Conspiratorial Liability
Similar to Renunciation for Conspiracy under MPC. Only limits future crimes, not in the past.
