Inchoate Offenses

Question 1

Attempt

Answer 1

• In most states, a person is guilty of attempt if the person: (1) had the specific intent to commit a crime; AND (2) took an overt act sufficiently beyond mere preparation (most states and the MPC require a “substantial step” toward the completion of the crime).
• The attempt merges with the underlying crime. Thus, a person CANNOT be convicted for attempting to commit a crime and the crime itself.
• In most jurisdictions, abandonment or withdrawal is NOT a defense. Legal impossibility is a defense to an attempt crime, but factual impossibility is NOT a defense.

Question 2

Conspiracy–General Rule

Answer 2

Conspiracy is a specific intent crime, and requires:
(1) an express or implied agreement between two or more people;
(2) intent to enter into the agreement;
(3) intent to pursue
an unlawful objective (at common law this element would be required to be met by ALL parties of the agreement, while the modern trend & MPC only require it to be met by ONE party), AND
(4) the commission of an overt act in furtherance of the unlawful objective (under common law no overt act was required).

The overt act DOES NOT need to be criminal in nature; any act (including preparation) taken by a co-conspirator in furtherance of the unlawful objective is sufficient.

Question 3

Conspiracy–Co-conspirator liability and Withdrawl

Answer 3

Co-conspirators are liable for BOTH the conspiracy itself AND all foreseeable crimes committed by other co- conspirators in furtherance of the unlawful objective. Conspiracy DOES NOT merge with the completed crime, and therefore a defendant can be charged with the conspiracy to commit the crime and the crime itself. Withdrawal is NOT defense to the conspiracy, but is a defense for crimes committed by co-conspirators after the withdrawal.

Question 4

Solicitation

Answer 4

A person is guilty of solicitation if:

(1) he requests another person to commit a crime (or join in the commission of a crime);
(2) with the specific intent that the crime be committed; AND (3) the other person receives the request. Solicitation merges with the substantive offense. Generally, there are NO defenses once the solicitation is complete.