Inchoate Offenses Flashcards
Inchoate Crimes
- Attempt
- Solicitation
- Conspiracy
These are conduct crimes.
Inchoate offenses were recognized to promote more effective crime prevention.
Inchoate Crimes
Culpability
Merger
Attempt
A person can be charged with, and tried for, both the attempt and the completed offense for a particular crime.
However, judgment may not be entered against the defendant, and the defendant may not be sentenced, for both the attempt and the completed offense.
So, if a jury convicts the defendant of both, the attempt will merge into the completed offense and the judge will only enter judgment. and sentence the defendant for, the completed offense.
Merger
Conspiracy
A person can be charged with, and tried for, conspiracy, attempt and the completed offense for a particular crime.
Unlike attempt, however, the crime of conspiracy does not merge.
So, if the jury convicts the defendant of all three, while attempt will merge, conspiracy will not.
So there will be two convictions: conspiracy and the completed offense.
Merger
Solicitation
Solicitation merges, like attempt.
So, if a person is charged with, and tried for, solicitation, conspiracy, attempt and the completed offense for a particular crime, and if the jury comes back with guilty on all counts, we would be left with two convictions: conspiracy and the completed crime.
While conspiracy does not merge into a higher offense, solicitation merges into conspiracy.
Common Law
Attempt
A person is guilty of attempting to commit a crime if
- she intentionally 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 that the conduct results in the commission of a crime.
Common Law
Attempt
Mens Rea Elements
Attempt requires a dual mens rea and so it is a specific intent crime.
A person has the mens rea for attempt if she acts with:
- Intent to commit the conduct constituting attempt and
- Intent that the conduct results in the commission of the crime
Common Law
Attempt
Mens Rea Requirement
While intentionally is commonly understood in the common law as purposely or knowingly, for attempt the defendant must act purposefully.
This does not mean knowledge is irrelevant. If the defendant acted knowingly, the jury may infer the defendant wanted to engage in the conduct or wanted to cause the result.
MPC
Attempt
Mens Rea
A person has the mens rea for attempt if she acts with the purpose of engaging in the conduct or causing the result
Exceptions:
- A person is guilty of an attempt to cause a criminal result if she believes the result will occur, even if she doesn’t want it to.
- For attendant circumstances elements, it is sufficient that the actor possessed the degree of culpability required to commit the target offense.
MPC
Attempt
Actus Reus
An actor must do or omit to do something that is a substantial step towards the commission of a crime.
Common Law
Attempt to Aid
A person is not liable for attempt to aid if the person she aids does not commit or attempt to commit the offense.
MPC
Attempt to Aid
A person may be convicted of a criminal attempt, although no crime was committed or attempted by another if
- the purpose of her conduct was to aid another in the commission of the offense and
- such assistance would have made her an accomplice in the commission of the crrime if the offense had been committed or attempted
Common Law
Attempt
Actus Reus
Attempt requires the defendant to engage in conduct that moves beyond preparation to commit the crime to perpetration of the crime.
Jurisdictions have developed a number of tests to determine if a defendant has committed sufficient conduct to meet this actus reus requirement.
Attempt
Factors to Consider
- Whether he act in question appears to be dangerously close to causing tangible harm, so that police intervention cannot realistically be delayed.
- The seriousness of the threatened harm - the more serious it is, the further back in the series of events that lead up to the crime we’ll go to find the defendant guilty
- The strenth of the evidence about the actor’s mens rea - the clearer his intent is, the less proximate his acts need to be in the commission of the offense
Attempt
Actus Reus Tests
Last Act
Physical Proximity
Dangerous Proximity
Indespensable Element
Probably Desistance
Substantial Step (MPC)
Res Ipsa Loquitior / Unequivocabity
Attempt
Actus Reus Tests
Culpability
Attempt
Actus Reus Tests
Last Step
A person has committed ther actus reus for attempt when she performs all the acts necessary for the commision of the target offense.
Attempt
Actus Reus Tests
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.
Attempt
Actus Reus Tests
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
Factors to Consider;
- Nearness of the danger
- Greatness of the harm
- Degree of apprehension felt
Attempt
Actus Reus Tests
Indispensable Element
A person has committed the actus reus for attempt only when she has acquired all indispensible elements necessary to commit the target offense.
Attempt
Actus Reus Tests
Probable Desistance
A person has committed the actus reus of attempt when she has performed sufficient conduct so that, in the natural and ordinary course of events, the target offense will result unless an external force intervenes
Attempt
Actus Reus Tests
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 if the actor’s criminal purpose.
Incomplete Attempt
If a person, acting with the requisite mens rea, does something less than all the actus reus required for the crime, that person may be liable for an incomplete attempt.
Attempt
Actus Reus Tests
Substantial Step (MPC) Examples
- Lying in wait or reconnoitering the place
- Searching for or following the victim
- Enticing the victim to go to the place of ther crime
- Unlawful entry into the place of the crime
- Possession of materials for the crime if they are specially designed for such unlawful use or which can serve no lawful purpose under the circumstances
- Soliciting an innocent agent to engage in conduct constituting an element of the crime
Attempt
Actus Reus Tests
Res Ipso Loquitor / Unequivocality Test
A person commits the actus reus for attempt when her conduct manifests an intent to commit a crime
Complete Attempt
If a person, acting with the requisite mens rea, does everything in her power to commit a crime, but some external circumstance prevents the crime from being committed, it is a complete attempt.
Treatment of Complete and Incomplete Attempts
They are treated the same for the purposes of liability and punishment.
Defense to Attempt
Renunciation
MPC 5.01(4)
Renunciation is a defense under the MPC.
Defense to Attempt
Renunciation
MPC 5.01(4)
Actus Reus
The actor must abandon the effort to commit the crime or otherwise prevent its commission.
Defense to Attempt
Renunciation
Common Law
Renunciation was not a defense to attempt during the common law because once one has committed a crime it cannot be undone.
Defense to Attempt
Renunciation
MPC 5.01(4)
Mens Rea
The actor must voluntarily renounce the crime and completely renounce the criminal purpose.
Defense to Attempt
Renunciation
MPC 5.01(4)
Voluntary Renunciation
Renunciation is not voluntary if it is motivated, on whole or in part, by a concern about the probability of detection or apprehension or about the difficulty if accomplishing the criminal purpose.
Defense to Attempt
Renunciation
MPC 5.01(4)
Complete Renunciation
Renunciation is 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
A person commits solicitation if she intentionally asks, commands or entices another to commit a crime, with the intent that the other person commit that crime.
Under the common law, solicitation only applies to felonies and serious misdemeanors.
Under the MPC, it applies to all crimes.
Common Law
Solicitation
Actus Reus
A person commits the actus reus of solicitation when she asks, commands or entices another to commit a crime
Common Law
Solicitation
Mens Rea
A person has the mens rea of solicitation when she intentionally engages in asking, commanding or enticing with the intent that the other person commit the crime.
No solicitation exists when the person intends to commit the crime herself but asks for help.
Common Law
Solicitation
Innocent Instrumentality
Defendants sometimes use an object or another person as an innocent instrumentality in the commission of an offense.
An innocent instrumentality is not guilty of the crime because, despite satisfying the actus reus, there is a lack of mens rea
The innocent instrumentality rule provides that a person is guilty of the underlying crime if, acting with the mens rea required for the commission of the offense, sue uses an innocent instrumentality to commit the crime.
MPC
Solicitation
A person is guilty of solicitation to commit a crime if
- the actor’s purpose is to promote or facilitate the commission of a substantive offense; and
- with such purpose, he commands, encourages, or requests another person to engage in conduct that would constitute the crime, an attempt to commit it, or would establish the other person’s complicity in its commission or attempted commission.
Solicitaion and Attempt
The general rule is that a solicitation by itself does not constitute an attempt to commit the crime solicited.
Some courts hold that a solicitation coupled with a slight act by the solictor in furtherance of it is an attempt.
Other courts say it’s an attempt if the solicitor commits overt acts that would constitute an attempt if the solicitor intended to commit the crme
Courts are generally reluctant to impose liability for attempted solicitations.
Uncommunicated Solicitation
Common Law
It is not a crime.
Uncommunicated Solicitation
MPC 5.02 (2)
It is immaterial that the actor fails to communicate with the person he solicites to commit a crime if his conduct is designed to effect such communication.
Solicitation and Accomplice Law
If a person solicits someone to commit a crime and the second person does so, the solicitor is automatically an accomplice to that crime.
Defense to Solicitation
Renuciation
Common Law
It was not a defense under the common law.
Defense to Solicitation
Renuciation
MPC
It is a defense.
Defense to Solicitation
Renuciation
MPC
Actus Reus
The person must persuade others not to commit the crime or otherwise prevent its commission
Defense to Solicitation
Renuciation
MPC
Mens Rea
The person must voluntarily and completely renounce the criminal purpose
Conspiracy
Common Law
A person is guilty of conspiracy if
- there is an agreement between two or more people to commit a criminal act or a legal act through unlawful means
- with the intent to agree and
- with the intent that the agreement lead to the commission of a crime or legal act through unlawful means
Conspiracy
Modern Law
A person is guilty of conspiracy if
- there is an agreement between two or more people to commit a crime and
- at least one person commits an overt act to further the conspiracy
- with the intent to agree and
- with the intent that the agreement lead to the commission of the crime
Conspiracy
MPC
A person is guilty of conspiracy if she
- agrees with another to engage in conduct that constitutes the crime or an attempt or solicitation of the crime and
- commits an overt act if the target crime is less than a second degree felony
- or agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to committ such crime
- with the purpose of promoting or facilitating the commission of a crime
Conspiracy
Modern Law / MPC
Overt Act
An overt act by any one party to a conspiracy is a sufficient basis to prosecute every member of the conspiracy.
This includes members who joined the agreement after the act was committed.
Conspiracy
Agreement
The agreement can not only be to do an unlawful act but also to do a lawful act by criminal or unlawful means
Conspiracy
Plurality Requirement
Common Law
The common law did not recognize unilateral conspiracies; at least two people had to agree and have the requisite mens rea.
So if one of the parties lacked the mens rea, there would be no liability for conspiracy.
Conspiracy
Plurality Requirement
MPC
Trials
Since the MPC focuses on the individual, each individual’s conviction or aquittal does not affect the other’s as long as there is proof of an agreement
Conspiracy
Plurality Requirement
Common Law
Trials
If defendants have a joint trial and one is aquitted, the other must be aquitted. This rule is breaking down.
If the trials are separate and one is aquitted, the other doesn’t have to be
Conspiracy
Plurality Requirement
MPC
The MPC recognizes unilateral conspiracies. As long as the defendant has the requisite actus reus and mens rea, he is liable irrespective of the other person’s mens rea.
So even if one of the parties lacked the mens rea, there is liability for conspiracy.
Number of Conspiracies
Common Law
Under Braverman v. United States, each agreement is a separate conspiracy.
Number of Conspiracies
MPC
Generally, each agreement is a separate conspiracy, However, multiple agreements are the same conspiracy if they arise from a continuous conspiratorial relationship.
Proof of the Conspiracy
A conspiracy can be proved through director or indirect evidence.
A crime committed by people in a conspiracy is likely to look choreographed. If it doesn’t, a court will probably need more direct evidence to prove there is a conspiracy.
Defense to Conspiracy
Renunciation
Common Law
Renunciation was not a defense under the common law. However, if a person withdraws from a conspiracy, she may avoid liability for crimes the conspiracy commits after she withdraws.
Defense to Conspiracy
Renunciation
MPC
Renunciation is a defense
Defense to Conspiracy
Renunciation
MPC
Actus Reus
The person must thwart the success of the conspiracy.
Defense to Conspiracy
Renunciation
MPC
Mens Rea
The person must voluntarily and completely renounce the criminal purpose
Conspiracy and Other Offenses
It is possible to enter into an conspiracy without any parties committing solicitation.
It is possible for two or more people to be found liable for jointly committing an underlying crime even in the absence of a conspiracy.
