Inchoate Offenses

Question 1

What are the elements of solicitation?

Answer 1

Inciting, counseling, advising, urging, or commanding another to commit a crime with the intent that the person solicited commit the crime.

Question 2

What are the defenses to solicitation?

Answer 2

The solicitor cannot be found guilty where there is legislative intent to protect them (e.g., minor cannot be guilty of soliciting statutory rape)

Renunciation/withdrawal not a defense except under MPC if the solicitor prevents the commission of the crime

Not a defense that the person solicited not convicted or that the offense could not have been successful

Question 3

How does the doctrine of merger apply to solicitation?

Answer 3

Solicitation merges with the substantive offense, with attempt, and conspiracy (cannot be convicted of solicitation and these other offenses)

Question 4

What are the elements of conspiracy?

Answer 4

(1) an agreement between 2+ persons
(2) intent to agree
(3) intent to achieve the objective of the agreement
(4) majority rule requires an overt act in furtherance (any small act, even of mere preparation) — common law does not require this

— object must be criminal

Question 5

What are the two approaches to the two or more parties requirement?

Answer 5

Bilateral: two guilty minds/parties are required, meaning that if one of two conspirators is feigning agreement and does not have intent to commit the agreed upon crime then there is no conspiracy. Acquittal of coconspirators will preclude conviction of remaining defendant

Unilateral: modern trend/MPC – only one party to the conspiracy need have a criminal intent (applies where one conspirator is actually an undercover officer)

Question 6

What is the Wharton Rule?

Answer 6

Where 2 or more people are necessary for the commission of an offense, there is no conspiracy unless more parties participate than are necessary. E.g., if the crime is adultery, the two adulterers cannot be guilty of conspiracy, there need to be three people.

Not applicable to necessary parties not provided for by the statute

Question 7

What is the effect of “protected class” status on conspiracy liability?

Answer 7

A person cannot be guilt of conspiracy of a crime designed to protect the class of persons to which they belong (and under a bilateral approach, if the conspiracy is between them and a non protected person, the nonprotected person cannot be guilty either)

Question 8

What are the two common structures of complex multiparty conspiracies?

Answer 8

Chain — a single large conspiracy in which all parties to subagreements are part of single large scheme. All parties liable for the acts of others in furtherance

Hub-and-spoke — a number of independent conspiracies linked by a common member. The common member is liable for all, members of individual conspiracies not for other conspiracies

Question 9

What is the required intent for conspiracy?

Answer 9

Specific intent crime. — (1) intent to agree and (2) intent to achieve objective

Question 10

What is the overt act requirement?

Answer 10

Common law does not require an act beyond agreement.

The modern majority approach requires an act in furtherance, usually mere preparation is sufficient

Question 11

When does a conspiracy terminate?

Answer 11

Upon completion of the wrongful objective. Unless agreed to in advance, acts of concealment are not part of the conspiracy.
The government’s defeat of the conspiracy’s objective does not terminate the conspircy

Question 12

What is the scope of co-conspirators’ liability?

Answer 12

May be liable for the crimes of coconspirators if (1) committed in furtherance of the objectives and (2) foreseeable

Question 13

When are acts and statements of coconspirators admissible against one another?

Answer 13

Every act/statement done/made in furtherance of the conspiracy (terminates with the termination of the conspiracy)

Question 14

Is factual impossibility a defense to conspiracy?

Answer 14

No (not for any inchoate offense)

Question 15

What is the effect of withdrawal on a conspiracy charge?

Answer 15

Withdrawal is not generally a defense because the conspiracy is complete when there is an agreement + act in furtherance. It may only be a defense to crimes committed in furtherance of the conspiracy. To be effective the conspirator must perform an affirmative act notifying all members of their withdrawal given in time for the members to abandon plans. If they have given assistance as an accomplice, they must try to neutralize.

Question 16

What is the effect of the merger doctrine on conspiracy?

Answer 16

Conspiracy and the completed crime are distinct offenses and the defendant may be convicted of and punished for both

Question 17

What is attempt?

Answer 17

An act done with intent to commit a crime that falls short of completing the crime

Question 18

What is the requisite intent for attempt?

Answer 18

Specific intent crime even if substantive offense is general intent

Defendant must intend to perform an act and obtain a result that, if achieved, would constitute a crime

(E.g., to be guilty of attempt to commit murder you must intent to kill another person regardless of whether murder itself requires a specific intent to kill)

Question 19

What overt act is required for attempt?

Answer 19

The defendant must commit an act beyond mere preparation.

Traditional test — proximity test: the act must be dangerously close to successful completion

Modern (majority + MPC) — the act or omission must constitute a substantial step in a course of conduct planned to culminate in the commission of a crime strongly corroborating actor’s criminal purpose

Question 20

Can you attempt a crime where the intent is negligence or recklessness?

Answer 20

No because a person cannot intend to be reckless or negligent

Question 21

What are the defenses to attempt?

Answer 21

Legal impossibility (if the person Would have committed no crime if they had completed all acts as intended)
No defense of factual impossibility
No common law defense of abandonment but a defense under the MPC and some jds if it is fully voluntary and complete abandonment