Inchoate Offenses Flashcards
1
Q
Solicitation
A
Elements:
- (1) inciting, counseling, advising, urging, or commanding another to commit a crime
- (2) with the intent that the person solicited commit the crime
Things not required:
- person solicited respond affirmatively
- any overt act by soliciting party
- solicitation is complete when D asks solicitee to commit the felony
Defense:
Legislative Intent to Exempt Solicitor from Liability
- Ex — minor-victim cannot be guilty of solicitation of statutory rape by urging an adult to have intercourse with her — because she could not be guilty of the completed crime
Non-Defenses
- Person Solicited is Not Convicted
- Impossibility
- Offense solicited could not in fact have been successful.
- Renounce / Withdraw
- Maj — Not a Defense
- MPC — recognizes as Defense
- if D prevents commission of the crime, such as by persuading person solicited not to commit the crime.
Merger
- Merges with the target offense
- Attempt — If solicitee commits acts sufficient to be liable for attempt — both parties can be liable for attempt
- But solicitation merges with attempt
- Conspiracy — If solicitee agrees to commit the crime, but does not commit acts sufficient for attempt — both parties can be held liable for conspiracy.
- But solicitation merges with conspiracy
2
Q
Solicitation
Only Substantive Defense?
A
Legislative Intent to Exempt Solicitor from Liability
- Ex — minor-victim cannot be guilty of solicitation of statutory rape by urging an adult to have intercourse with her — because she could not be guilty of the completed crime
Non-Defenses
- Person Solicited is Not Convicted
- Impossibility
- Offense solicited could not in fact have been successful.
-
Renounce / Withdraw
- Maj — Not a Defense
- MPC — recognizes as Defense
- if D prevents commission of the crime, such as by persuading person solicited not to commit the crime.
Elements:
- (1) inciting, counseling, advising, urging, or commanding another to commit a crime
- (2) with the intent that the person solicited commit the crime
Things not required:
- person solicited respond affirmatively
- any overt act by soliciting party
- solicitation is complete when D asks solicitee to commit the felony
Merger
- Merges with the target offense
- Attempt — If solicitee commits acts sufficient to be liable for attempt — both parties can be liable for attempt
- But solicitation merges with attempt
- Conspiracy — If solicitee agrees to commit the crime, but does not commit acts sufficient for attempt — both parties can be held liable for conspiracy.
- But solicitation merges with conspiracy
3
Q
Conspiracy
A
- (1) an Agreement between Two or More Persons
- (2) Intent to Enter into the Agreement
- (3) Intent to Commit the Target Crime or Pursue the Unlawful Objective (2+ people)
- **(4) Further Overt Act
(1) an Agreement between Two or More Persons
- “Meeting of the minds”
- Express agreement is not required — may be inferred from joint activity
- Parties do not need to know of each other’s existence
(2) Intent to Enter into the Agreement
(3) Intent to Commit the Target Crime or Pursue the Unlawful Objective (2+ people)
- Object of the Conspiracy
- must be criminal or achievement of the lawful object by criminal means
**(4) Further Overt Act
- CL — no overt act required — agreement itself was the culpable act (the actus reus)
- conspiracy was complete when the agreement with the requisite intent was reached
- Maj — overt act in furtherance of the conspiracy (target crime)
- any slight act (mere preparation) will suffice
__________________________________
TWO PLUS PARTIES — prong three etc.
(A) Unilateral Approach — MPC / Modern
- Only one party is required to have genuine criminal intent.
- D can be convicted of conspiracy if he conspires with one person who lacks actual intent (e.g., is an undercover cop)
(B) Bilateral Approach — CL
- Requires at least two “guilty minds” — two persons who are actually committed to the illicit plan.
- If one person in a two party agreement is only feigning agreement (undercover cop), the other party cannot be convicted of conspiracy.
Husband & Wife
- CL — couldn’t conspire together
- Maj — abandoned in most states
Corporation & Agent
- CL — no conspiracy btwn Corp and a single Agent acting on its behalf.
- Modern Split — split of authority as to whether the agents of Corp can be deemed co-conspirators with Corp
Wharton Rule
- Where two or more people are necessary for the commission of the substantive offense (e.g., adultery, dueling), no conspiracy — unless more parties participate in the agreement than are necessary for the crime
- Ex — because it takes two people to commit adultery, it takes three people to conspire to commit adultery
- Sale of narcotics??
- Exception — Rule Doesn’t Apply / Won’t Prevent Conspiracy Charge for Agreements with “Necessary Parties Not Provided For” by the substantive offense
- both parties may be guilty of conspiracy even though both are necessary for commission of the substantive offense
-
c.f. — Agreement with Person in “Protected Class”
- If members of a conspiracy agree to commit a crime designed to protect persons within a given class, persons within that class cannot be guilty of the crime itself or of conspiracy to commit that crime.
- Likewise, the non-protected person cannot be guilty of conspiracy if the agreement was with the protected person only.
-
Effect of Acquittal of Some Conspirators
- CL — Acquittal of All Persons with whom D is alleged to have conspired Precludes Conviction of D
- If D and others allegedly conspired and only D is charged and tried (e.g., other parties not apprehended or prosecuted), D can be convicted
- Some CL Jxds allow conviction to stand when the alleged co-conspirator is acquitted in a separate trial.
- CL — Acquittal of All Persons with whom D is alleged to have conspired Precludes Conviction of D
4
Q
Conspiracy
Further Overt Act Requirement
A
- CL — no overt act required — agreement itself was the culpable act (the actus reus)
- conspiracy was complete when the agreement with the requisite intent was reached
- Maj — overt act in furtherance of the conspiracy (target crime)
- any slight act (mere preparation) will suffice
__________________________________
- (1) an Agreement between Two or More Persons
- (2) Intent to Enter into the Agreement
- (3) Intent to Commit the Target Crime or Pursue the Unlawful Objective (2+ people)
- **(4) Further Overt Act
(1) an Agreement between Two or More Persons
- “Meeting of the minds”
- Express agreement is not required — may be inferred from joint activity
- Parties do not need to know of each other’s existence
(2) Intent to Enter into the Agreement
(3) Intent to Commit the Target Crime or Pursue the Unlawful Objective (2+ people)
- Object of the Conspiracy
- must be criminal or achievement of the lawful object by criminal means
__________________________________
TWO PLUS PARTIES — prong three etc.
(A) Unilateral Approach — MPC / Modern
- Only one party is required to have genuine criminal intent.
- D can be convicted of conspiracy if he conspires with one person who lacks actual intent (e.g., is an undercover cop)
(B) Bilateral Approach — CL
- Requires at least two “guilty minds” — two persons who are actually committed to the illicit plan.
- If one person in a two party agreement is only feigning agreement (undercover cop), the other party cannot be convicted of conspiracy.
Husband & Wife
- CL — couldn’t conspire together
- Maj — abandoned in most states
Corporation & Agent
- CL — no conspiracy btwn Corp and a single Agent acting on its behalf.
- Modern Split — split of authority as to whether the agents of Corp can be deemed co-conspirators with Corp
Wharton Rule
- Where two or more people are necessary for the commission of the substantive offense (e.g., adultery, dueling), no conspiracy — unless more parties participate in the agreement than are necessary for the crime
- Ex — because it takes two people to commit adultery, it takes three people to conspire to commit adultery
- Sale of narcotics??
- Exception — Rule Doesn’t Apply / Won’t Prevent Conspiracy Charge for Agreements with “Necessary Parties Not Provided For” by the substantive offense
- both parties may be guilty of conspiracy even though both are necessary for commission of the substantive offense
-
c.f. — Agreement with Person in “Protected Class”
- If members of a conspiracy agree to commit a crime designed to protect persons within a given class, persons within that class cannot be guilty of the crime itself or of conspiracy to commit that crime.
- Likewise, the non-protected person cannot be guilty of conspiracy if the agreement was with the protected person only.
-
Effect of Acquittal of Some Conspirators
- CL — Acquittal of All Persons with whom D is alleged to have conspired Precludes Conviction of D
- If D and others allegedly conspired and only D is charged and tried (e.g., other parties not apprehended or prosecuted), D can be convicted
- Some CL Jxds allow conviction to stand when the alleged co-conspirator is acquitted in a separate trial.
- CL — Acquittal of All Persons with whom D is alleged to have conspired Precludes Conviction of D
5
Q
Conspiracy
Two or More Parties
intent to
- enter in agreement
- commit target crime / pursue unlawful objective
A
(A) Unilateral Approach — MPC / Modern
- Only one party is required to have genuine criminal intent.
- D can be convicted of conspiracy if he conspires with one person who lacks actual intent (e.g., is an undercover cop)
(B) Bilateral Approach — CL
- Requires at least two “guilty minds” — two persons who are actually committed to the illicit plan.
- If one person in a two party agreement is only feigning agreement (undercover cop), the other party cannot be convicted of conspiracy.
Husband & Wife
- CL — couldn’t conspire together
- Maj — abandoned in most states
Corporation & Agent
- CL — no conspiracy btwn Corp and a single Agent acting on its behalf.
- Modern Split — split of authority as to whether the agents of Corp can be deemed co-conspirators with Corp
Wharton Rule
- Where two or more people are necessary for the commission of the substantive offense (e.g., adultery, dueling), no conspiracy — unless more parties participate in the agreement than are necessary for the crime
- Ex — because it takes two people to commit adultery, it takes three people to conspire to commit adultery
- Sale of narcotics??
- Exception — Rule Doesn’t Apply / Won’t Prevent Conspiracy Charge for Agreements with “Necessary Parties Not Provided For” by the substantive offense
- both parties may be guilty of conspiracy even though both are necessary for commission of the substantive offense
-
c.f. — Agreement with Person in “Protected Class”
- If members of a conspiracy agree to commit a crime designed to protect persons within a given class, persons within that class cannot be guilty of the crime itself or of conspiracy to commit that crime.
- Likewise, the non-protected person cannot be guilty of conspiracy if the agreement was with the protected person only.
-
Effect of Acquittal of Some Conspirators
- CL — Acquittal of All Persons with whom D is alleged to have conspired Precludes Conviction of D
- If D and others allegedly conspired and only D is charged and tried (e.g., other parties not apprehended or prosecuted), D can be convicted
- Some CL Jxds allow conviction to stand when the alleged co-conspirator is acquitted in a separate trial.
- CL — Acquittal of All Persons with whom D is alleged to have conspired Precludes Conviction of D
_______________________________________
- (1) an Agreement between Two or More Persons
- (2) Intent to Enter into the Agreement
- (3) Intent to Commit the Target Crime or Pursue the Unlawful Objective (2+ people)
- **(4) Further Overt Act
(1) an Agreement between Two or More Persons
- “Meeting of the minds”
- Express agreement is not required — may be inferred from joint activity
- Parties do not need to know of each other’s existence
(2) Intent to Enter into the Agreement
(3) Intent to Commit the Target Crime or Pursue the Unlawful Objective (2+ people)
- Object of the Conspiracy
- must be criminal or achievement of the lawful object by criminal means
**(4) Further Overt Act
- CL — no overt act required — agreement itself was the culpable act (the actus reus)
- conspiracy was complete when the agreement with the requisite intent was reached
- Maj — overt act in furtherance of the conspiracy (target crime)
- any slight act (mere preparation) will suffice
6
Q
One conspirator may be held liable for crimes committed by other conspirators if the crimes were _________
A
- (1) Committed in Furtherance of the Objectives of the Conspiracy, and
- (2) Foreseeable
- i.e., the crimes were “a Natural & Probable Consequence” of the conspiracy
Note — Accomplice Liability
One conspirator may, by virtue of his participation in the scheme, meet the requirements for “aiding and abetting” the commission of crimes by his co-conspirators and therefore be liable for those crimes as an accomplice.
7
Q
Complex Conspiracies
Number of Conspiracies When Multiple Party Involved
A
(1) Chain Relationship
- Single, large conspiracy in which all parties to sub-agreements are interested in the single large scheme.
Liability
- All members are liable for the acts of the others in furtherance of the conspiracy.
Examples
- Terrorist attack
- In a large Narcotics Ring, a smuggler brings heroin into the country and sells it to a wholesaler. The wholesaler sells it to numerous retailers. How many conspiracies? One, because this is a “chain” situation. Because the smuggler-wholesaler agreement and the wholesaler-retailers agreements were all part of a scheme in which all participants were interested, there is only one conspiracy.
(2) Hub-and-Spoke Relationship
- Multiple independent conspiracies linked by a common member.
- One participant enters into sub-agreements, each involving different persons.
- Hub — common member
- Spoke — sub-agreements
Liability
- Although the common member will be liable for all of the conspiracies, members of the individual conspiracies are not liable for the acts of the other conspirators.
- If it is established that the sub-agreements are reasonably independent of each other the situation will be regarded as involving numerous different and independent conspiracies.
- Ex — members of each agreement (other than the common member) have little or no interest in whether the other agreements succeed
Examples
- College Applications Scheme
- Fraudulent Loan Applications — for different applicants
8
Q
Termination (end of)
Conspiracy
A
Completion of the Target Crime
- Gov’s defeat of the conspiracy’s objective does not automatically terminate the conspiracy
Concealment
- Unless agreed to in advance, acts of concealment are not part of the conspiracy
9
Q
Conspiracy
Substantive Defenses
A
Factual Impossibility — NOT a defense
Withdrawal
- NOT a defense to the Conspiracy Itself — bcas the conspiracy is complete as soon as the agreement is made and an act in furtherance is performed
- cannot withdraw from the conspiracy itself
- CAN be a Defense to co-conspirators’ subsequent crimes in furtherance of the conspiracy
- including the target offense
Withdrawal Reqs
- Affirmative Act that Timely Notifies
- D must perform an affirmative act that notifies all co-conspirators of his withdrawal
- Timely — the notice must be given in time for the members to abandon their plans (for the target offense)
- Accomplice Liability Issue
- If D has also provided assistance as an accomplice — he must try to neutralize the assistance
Punishment — No Merger
- Conspiracy and the completed crime are distinct offenses; i.e., there is no merger. D may be convicted of and punished for both.
10
Q
Attempt
A
Incomplete act that would be a crime if completed
done with intent to commit a crime
___________________________________________
(1) Overt Act
- Beyond “Mere Preparation”
- But Short of Completion
CL — Proximity Test
- Act is Dangerously Close to successful completion of the crime
- Ex — Attempted Murder — pointing a loaded gun at an intended victim and pulling the trigger, only to have the gun not fire or the bullet miss
MPC / Maj — Substantial Step Test
Act / omission must constitute
- (1) a substantial step in a course of conduct planned to culminate in the commission of the crime
- (2) that strongly corroborates actor’s criminal purpose
Ex — buying gun, bullets… and driving to victims house
___________________________________________
(2) Done with (Specific) Intent to Achieve the Underlying Offense
- D must intend to
- (i) perform an act, and
- (ii) obtain a result
- which, if achieved, would constitute a crime
Always Requires Specific Intent
- D must have the specific intent (to perform acts / obtain results that constitute the underlying crime) — even if lesser mens rea suffices for target offense
- Ex — Attempted Murder
- D must have had the specific intent to kill another person — even though the mens rea for murder doesn’t necessarily require a specific intent to kill
- Ex — Attempted Murder
-
Strict Liability Crimes — possible
- D must act with the intent to bring about the proscribed result.
- Ex — D is guilty of attempted statutory rape if he intends to have sex with a minor and performs acts to do so
- D must act with the intent to bring about the proscribed result.
-
Reckless / Negligent Crimes — No Attempt Possible
- Attempt is logically impossible for crimes with a mens rea of recklessness / negligence
- Ex — D cannot be convicted of negligent homicide
- Thus, these are insufficient
- Reckless disregard of an obvious or high risk that a particular harmful result might occur from the conduct.
- Awareness by the D that he is acting in a proscribed way and that any attendant circumstances required by the crime are present.
___________________________________________
Merger
- attempt merges into completed crime
- Prosecution Procedure
- D charged only with a completed crime may be found guilty of the completed crime or an attempt, but D charged only with attempt may not be convicted of the completed crime.
___________________________________________
- *Defenses**
(1) Legal Impossibility - If D, having completed all acts that he had intended, would have committed no crime, he cannot be guilty of an attempt to do the same if he fails to complete all intended acts.
- Legal impossibility is a defense, albeit rare.
(2) Factual Impossibility — Not Defense
- Def — crime is incapable of completion due to some physical / factual condition, unknown to D
- Ask Yourself — if D were able to complete all of the acts that he intended to do, and if all of the attendant circumstances actually were as D believed them to be, would D have committed a crime?”
- If yes, it is factual impossibility, and there is no defense.
- If no — this is rare. D most likely has a legal impossibility defense.
Examples
- Larceny — No $ in Wallet — physical condition
- In an attempt to steal V’s wallet, D sticks his hand in V’s pocket. The pocket is empty.
- D can be convicted of attempted larceny. The “emptiness” of V’s pocket is a physical condition.
- In an attempt to steal V’s wallet, D sticks his hand in V’s pocket. The pocket is empty.
- Statutory Rape — Minor-Victim is Actually Adult PO — attendant circumstance
- Adult PO, pretending to be a minor, arranges for a time and place for a sexual encounter with adult D.
- D can be convicted of attempted statutory rape — since D has engaged in conduct that would have constituted some sort of statutory rape crime had D been able to complete the crime and had the circumstances been as he believed them to be.
(3) Abandonment — Not Defense (except for MPC)
- Maj / CL — Abandonment is Not a Defense
- Liability for attempt arises once D commits an overt act concurrently with the intent to commit a crime
- Min / MPC — Yes
- Fully voluntary and complete abandonment is a defense
11
Q
Attempt
Mens Rea
A
- Intent to
- (i) perform an act, and
- (ii) obtain a result
- which, if achieved, would constitute a crime
Always Requires Specific Intent
- D must have the specific intent (to perform acts / obtain results that constitute the underlying crime) — even if lesser mens rea suffices for target offense
- Ex — Attempted Murder
- D must have had the specific intent to kill another person — even though the mens rea for murder doesn’t necessarily require a specific intent to kill
- Ex — Attempted Murder
-
Strict Liability Crimes — possible
- D must act with the intent to bring about the proscribed result.
- Ex — D is guilty of attempted statutory rape if he intends to have sex with a minor and performs acts to do so
- D must act with the intent to bring about the proscribed result.
-
Reckless / Negligent Crimes — No Attempt Possible
- Attempt is logically impossible for crimes with a mens rea of recklessness / negligence
- Ex — D cannot be convicted of negligent homicide
- Thus, these are insufficient
- Reckless disregard of an obvious or high risk that a particular harmful result might occur from the conduct.
- Awareness by the D that he is acting in a proscribed way and that any attendant circumstances required by the crime are present.
___________________________________________
Incomplete act that would be a crime if completed
done with intent to commit a crime
___________________________________________
(1) Overt Act
- Beyond “Mere Preparation”
- But Short of Completion
CL — Proximity Test
- Act is Dangerously Close to successful completion of the crime
- Ex — Attempted Murder — pointing a loaded gun at an intended victim and pulling the trigger, only to have the gun not fire or the bullet miss
MPC / Maj — Substantial Step Test
Act / omission must constitute
- (1) a substantial step in a course of conduct planned to culminate in the commission of the crime
- (2) that strongly corroborates actor’s criminal purpose
Ex — buying gun, bullets… and driving to victims house
___________________________________________
Merger
- attempt merges into completed crime
- Prosecution Procedure
- D charged only with a completed crime may be found guilty of the completed crime or an attempt, but D charged only with attempt may not be convicted of the completed crime.
___________________________________________
- *Defenses**
(1) Legal Impossibility - If D, having completed all acts that he had intended, would have committed no crime, he cannot be guilty of an attempt to do the same if he fails to complete all intended acts.
- Legal impossibility is a defense, albeit rare.
(2) Factual Impossibility — Not Defense
- Def — crime is incapable of completion due to some physical / factual condition, unknown to D
- Ask Yourself — if D were able to complete all of the acts that he intended to do, and if all of the attendant circumstances actually were as D believed them to be, would D have committed a crime?”
- If yes, it is factual impossibility, and there is no defense.
- If no — this is rare. D most likely has a legal impossibility defense.
Examples
- Larceny — No $ in Wallet — physical condition
- In an attempt to steal V’s wallet, D sticks his hand in V’s pocket. The pocket is empty.
- D can be convicted of attempted larceny. The “emptiness” of V’s pocket is a physical condition.
- In an attempt to steal V’s wallet, D sticks his hand in V’s pocket. The pocket is empty.
- Statutory Rape — Minor-Victim is Actually Adult PO — attendant circumstance
- Adult PO, pretending to be a minor, arranges for a time and place for a sexual encounter with adult D.
- D can be convicted of attempted statutory rape — since D has engaged in conduct that would have constituted some sort of statutory rape crime had D been able to complete the crime and had the circumstances been as he believed them to be.
(3) Abandonment — Not Defense (except for MPC)
- Maj / CL — Abandonment is Not a Defense
- Liability for attempt arises once D commits an overt act concurrently with the intent to commit a crime
- Min / MPC — Yes
- Fully voluntary and complete abandonment is a defense
12
Q
Attempt
Factual vs Legal Impossibility
A
Legal Impossibility — Defense
Factual Impossibility — Not a Defense
(1) Legal Impossibility
- If D, having completed all acts that he had intended, would have committed no crime, he cannot be guilty of an attempt to do the same if he fails to complete all intended acts.
- Legal impossibility is a defense, albeit rare.
(2) Factual Impossibility — Not Defense
- Def — crime is incapable of completion due to some physical / factual condition, unknown to D
- Ask Yourself — if D were able to complete all of the acts that he intended to do, and if all of the attendant circumstances actually were as D believed them to be, would D have committed a crime?”
- If yes, it is factual impossibility, and there is no defense.
- If no — this is rare. D most likely has a legal impossibility defense.
Examples
- Larceny — No $ in Wallet — physical condition
- In an attempt to steal V’s wallet, D sticks his hand in V’s pocket. The pocket is empty.
- D can be convicted of attempted larceny. The “emptiness” of V’s pocket is a physical condition.
- In an attempt to steal V’s wallet, D sticks his hand in V’s pocket. The pocket is empty.
- Statutory Rape — Minor-Victim is Actually Adult PO — attendant circumstance
- Adult PO, pretending to be a minor, arranges for a time and place for a sexual encounter with adult D.
- D can be convicted of attempted statutory rape — since D has engaged in conduct that would have constituted some sort of statutory rape crime had D been able to complete the crime and had the circumstances been as he believed them to be.
___________________________________________
Abandonment — Not Defense (except for MPC)
- Maj / CL — Abandonment is Not a Defense
- Liability for attempt arises once D commits an overt act concurrently with the intent to commit a crime
- Min / MPC — Yes
- Fully voluntary and complete abandonment is a defense
___________________________________________
Incomplete act that would be a crime if completed
done with intent to commit a crime
___________________________________________
(1) Overt Act
- Beyond “Mere Preparation”
- But Short of Completion
CL — Proximity Test
- Act is Dangerously Close to successful completion of the crime
- Ex — Attempted Murder — pointing a loaded gun at an intended victim and pulling the trigger, only to have the gun not fire or the bullet miss
MPC / Maj — Substantial Step Test
Act / omission must constitute
- (1) a substantial step in a course of conduct planned to culminate in the commission of the crime
- (2) that strongly corroborates actor’s criminal purpose
Ex — buying gun, bullets… and driving to victims house
___________________________________________
(2) Done with (Specific) Intent to Achieve the Underlying Offense
- D must intend to
- (i) perform an act, and
- (ii) obtain a result
- which, if achieved, would constitute a crime
Always Requires Specific Intent
- D must have the specific intent (to perform acts / obtain results that constitute the underlying crime) — even if lesser mens rea suffices for target offense
- Ex — Attempted Murder
- D must have had the specific intent to kill another person — even though the mens rea for murder doesn’t necessarily require a specific intent to kill
- Ex — Attempted Murder
-
Strict Liability Crimes — possible
- D must act with the intent to bring about the proscribed result.
- Ex — D is guilty of attempted statutory rape if he intends to have sex with a minor and performs acts to do so
- D must act with the intent to bring about the proscribed result.
-
Reckless / Negligent Crimes — No Attempt Possible
- Attempt is logically impossible for crimes with a mens rea of recklessness / negligence
- Ex — D cannot be convicted of negligent homicide
- Thus, these are insufficient
- Reckless disregard of an obvious or high risk that a particular harmful result might occur from the conduct.
- Awareness by the D that he is acting in a proscribed way and that any attendant circumstances required by the crime are present.
___________________________________________
Merger
- attempt merges into completed crime
- Prosecution Procedure
- D charged only with a completed crime may be found guilty of the completed crime or an attempt, but D charged only with attempt may not be convicted of the completed crime.
13
Q
Abandonement
Defense to Attempt?
A
- Maj / CL — Not a Defense
- Liability for attempt arises once D commits an overt act concurrently with the intent to commit a crime
- Min / MPC — Defense
- Fully voluntary and complete abandonment is a defense
___________________________________________
(1) Legal Impossibility
- If D, having completed all acts that he had intended, would have committed no crime, he cannot be guilty of an attempt to do the same if he fails to complete all intended acts.
- Legal impossibility is a defense, albeit rare.
(2) Factual Impossibility — Not Defense
- Def — crime is incapable of completion due to some physical / factual condition, unknown to D
- Ask Yourself — if D were able to complete all of the acts that he intended to do, and if all of the attendant circumstances actually were as D believed them to be, would D have committed a crime?”
- If yes, it is factual impossibility, and there is no defense.
- If no — this is rare. D most likely has a legal impossibility defense.
Examples
- Larceny — No $ in Wallet — physical condition
- In an attempt to steal V’s wallet, D sticks his hand in V’s pocket. The pocket is empty.
- D can be convicted of attempted larceny. The “emptiness” of V’s pocket is a physical condition.
- In an attempt to steal V’s wallet, D sticks his hand in V’s pocket. The pocket is empty.
- Statutory Rape — Minor-Victim is Actually Adult PO — attendant circumstance
- Adult PO, pretending to be a minor, arranges for a time and place for a sexual encounter with adult D.
- D can be convicted of attempted statutory rape — since D has engaged in conduct that would have constituted some sort of statutory rape crime had D been able to complete the crime and had the circumstances been as he believed them to be.
___________________________________________
Incomplete act that would be a crime if completed
done with intent to commit a crime
___________________________________________
(1) Overt Act
- Beyond “Mere Preparation”
- But Short of Completion
CL — Proximity Test
- Act is Dangerously Close to successful completion of the crime
- Ex — Attempted Murder — pointing a loaded gun at an intended victim and pulling the trigger, only to have the gun not fire or the bullet miss
MPC / Maj — Substantial Step Test
Act / omission must constitute
- (1) a substantial step in a course of conduct planned to culminate in the commission of the crime
- (2) that strongly corroborates actor’s criminal purpose
Ex — buying gun, bullets… and driving to victims house
___________________________________________
(2) Done with (Specific) Intent to Achieve the Underlying Offense
- D must intend to
- (i) perform an act, and
- (ii) obtain a result
- which, if achieved, would constitute a crime
Always Requires Specific Intent
- D must have the specific intent (to perform acts / obtain results that constitute the underlying crime) — even if lesser mens rea suffices for target offense
- Ex — Attempted Murder
- D must have had the specific intent to kill another person — even though the mens rea for murder doesn’t necessarily require a specific intent to kill
- Ex — Attempted Murder
-
Strict Liability Crimes — possible
- D must act with the intent to bring about the proscribed result.
- Ex — D is guilty of attempted statutory rape if he intends to have sex with a minor and performs acts to do so
- D must act with the intent to bring about the proscribed result.
-
Reckless / Negligent Crimes — No Attempt Possible
- Attempt is logically impossible for crimes with a mens rea of recklessness / negligence
- Ex — D cannot be convicted of negligent homicide
- Thus, these are insufficient
- Reckless disregard of an obvious or high risk that a particular harmful result might occur from the conduct.
- Awareness by the D that he is acting in a proscribed way and that any attendant circumstances required by the crime are present.
___________________________________________
Merger
- attempt merges into completed crime
- Prosecution Procedure
- D charged only with a completed crime may be found guilty of the completed crime or an attempt, but D charged only with attempt may not be convicted of the completed crime.
14
Q
Impossibility
&
Ichoate Crimes
A
Factual Impossibility — never defense to inchoate crime
15
Q
Mens Rea
for Inchoate Crimes
A
Solicitation
- Specific intent
- that person solicited - commit the crime
Conspiracy
- Specific intent to:
- (1) enter into agreement; and
- (2) achieve unlawful objective
- Two Plus Persons
- (bilateral vs unilateral)
Attempt
- Specific intent to commit the particular crime attempted
- D must intend to
- (i) perform an act, and
- (ii) obtain a result
- which, if achieved, would constitute a crime
