Inchoate Offenses and Accomplice Liability

Question 1

What is attempt?

Answer 1

Performance of an act that would be a crime if successful

Question 2

What is the common law mental state requirement for attempt?

Answer 2

Specific intent to commit the particular crime attempted.

Question 3

What is the MPC mental state requirement for attempt?

Answer 3

A combination of puposely and knowingly. In most situations, it will be purposely as to the underlying crime. If the offense is a result of conduct (e.g. murder) the mental state can be knowingly.

Question 4

What is the overt act requirement for attempt? (2 tests)

Answer 4

Common law: proximity test
MPC: substantial step test

Question 5

Does attempt merger into the substantive offense?

Answer 5

Yes. If the crime is completed, the attempt merges into the completed crime.

Question 6

What could happen is a defendant is charged with the completed crime? With only attempt?

Answer 6

If charged with the completed crime, the defendant may be found guilty of either the completed crime or the attempt. If charged with only attempt, cannot be convicted of the completed crime.

Question 7

How is attempt typically punished?

Answer 7

One level down from the underlying offense

Question 8

What is an overt act?

Answer 8

The overt act requirement focuses on whether the defendant has crossed the line from mere preparation into perpetration of the completed offense.

Question 9

What is the common law proximity test for overt act?

Answer 9

The common law proximity test looks to how much the defendant had left to do to complete the crime.

Question 10

What is the MPC substantial step test for overt act?

Answer 10

The substantial step test looks backward concerning what the defendant had done in furtherance of the completed crime. The act must be done in pursuance of the intent, and more or less directly tending to the commission ofthe crime. It must be more than mere preparation.

Question 11

What are examples of conduct that may constitute a substantial step? (7)

Answer 11

1. Lying in wait, searching for or following the contemplated victim of the crime
2. Enticing or seeking to entice the contemplated victim of the crime to go to the place that the crime will be committed
3. Recon of the place contemplated for the commission of the crime
4. Unlawful entry of a structure, vehicle, or enclosure in which it is contemplated that the crime will be committed
5. Possession of materials to be employed in the commission of the crime, that are specifically designed for such unlawful use or that can serve no lawful prupose of the actor, under the circumstances
6. Possession, collection, or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if such possession, collection, or fabrication serves no lawful purpose of the actor under the circumstances
7. Soliciting an innocent agent to engage in conduct constituting an element of the crime

Question 12

For attempt, must the defendant know of attendant circumstances of the underlying crime?

Answer 12

Yes. The defendant must know of the existence of any attendant circumstances that the completed crime requires.

Question 13

For attempt, will reckless or negligent mental state suffice?

Answer 13

No. Reckless or negligent mental states will not be sufficient for an attemt charge.

Question 14

What is the relationship between attempt and felony murder?

Answer 14

For felony murder, the intent is to commit the underlying offense, not to kill someone. You only need hte intent for the underlying offense.

Question 15

What is required for a charge of attempted homicide?

Answer 15

The intent to kill someone

Question 16

What are the two types of the impossibility defense?

Answer 16

1. Legal impossibility: completed all the acts, but does not amount to a crime
2. Factual impossbility: intends to commit crime but can’t due to unknown circumstance to defendant

Question 17

Is impossibility a valid defense?

Answer 17

Factual impossibility is never a defense. At common law, legal impossibility is a valid defense. The modern approach is to deny both types.

Question 18

When is the abandonment/withdrawal defense available?

Answer 18

The defense of abandonment is only available when the defendant voluntarily abandons his efforts to commit the crime and voluntarily prevents its commission. Voluntarily means that the decision must originate with the defendant, not as a result of extrinsic factors that increase the probability of detection.

Question 19

For attempt, is abandonment available as a defense? Common law v. MPC

Answer 19

MPC: yes, if voluntary and complete
Common law: no

Question 20

What is solicitation?

Answer 20

Solicitation of another to commit a crime

Question 21

What is the mental state required for solicitation?

Answer 21

Specific intent that person solicited commit the crime

Question 22

What constitutes soliciting?

Answer 22

asking, enticing, counseling, advising, urging, or commanding

Question 23

How can intent be proven with solicitation?

Answer 23

Intent can be inferred from the circumstances of the ask

Question 24

Is there an overt act requirement for solicitation?

Answer 24

No.

Question 25

When is the solicitation complete?

Answer 25

The solicitation is completed at the time of the ask. It does not require that the underlying crime be completed, that the person solicited agree to commit the crime, or that a subject condition be fulfilled.

Question 26

Can a person be solicited to solicit another?

Answer 26

Yes. In the usual solicitation case, a defendant directly asks another person to commit a crime. However, a defendnat can solicit a person to solicit a third person to commit a crime.

Question 27

Does solicitation merge into the greater offense?

Answer 27

Yes. If the solicitation leafs to the completed offense solicited, then the solicitation is merged into the greater offense. The defendant could be tried for both and convicted of both, but the sentence would merge into the higher offense.

Question 28

How is solicitation typically punished?

Answer 28

Two levels down from the underlying offense

Question 29

Is withdrawal/abandonment a defense to solicitation?

Answer 29

Generally, no

Question 30

What is a conspiracy?

Answer 30

An agreement between two or more people to commit a crime

Question 31

What is required for the object of conspiracy?

Answer 31

The object of the conspiracy must be criminal or a lawful object achieved by criminal means

Question 32

Is an overt act required for conspiracy?

Answer 32

At common law, no. Under MPC, the majority approach, an overt act is required, but an act of mere preparation, in furtherance of the conspiracy is enough.

Question 33

What is the mental state requirement for conspiracy?

Answer 33

The specific intent to (1) enter into agreement and (2) achieve the objective.

Question 34

How much evidence is needed to link a defendant to a conspiracy?

Answer 34

Once the government proves the existence of a conspiracy, only slight evidence is needed to link a defendant to the conspiracy.

Question 35

What is the MPC approach to agreements to conspiracy?

Answer 35

The unilateral approach: This approach requires that only one party have genuine criminal intent. Under this approach, a defendant can be convicted of conspiracy if they conspire with one person only and that person is an undercover police officer or confidential informant.

Question 36

What is the common law approach to agreements to conspiracy?

Answer 36

The bilateral approach: This approach requires at least two guilty minds. Put another way, two people who are actually committed to the illegal plan. If one person in two-party agreement is only feigning agreement, there is no conspiracy.

Question 37

Under the bilateral approach to conspiracy, what ahppens if a person is acquitted?

Answer 37

Is a person is acquitted, then the last one standing cannot be convicted of conspiracy because two guilty minds are required. It must be an acquittal. If the co-conspirator is never charged or enters a plea agreement, the defendant can still be convicted.

Question 38

When does a conspiracy end?

Answer 38

A conspiracy ends upon completion of the wrongful objective, otherwise it is ongoing. The government intervening does not automatically end the conspiracy.

Question 39

Are acts of concealment part of conspiracy?

Answer 39

Acts of concealment are not party of the conspiracy unless agreed to in advance.

Question 40

Is withdrawal/abandonment a defense to conspiracy?

Answer 40

Generally, no, except for further crimes of coconspirators.

Question 41

Does conspiracy merge into the underlying offense?

Answer 41

No. Conpsiracy and the completed crime are distinct offenses and do not merge. A defendant can be convicted of both.

Question 42

How does joinder work with conspiracy?

Answer 42

Joinder may bring coconspirators together in one case. A conspiracy charge provides a common link and demonstrates the existence of a common plan for purposes of joinder. Multiple conspiracies can be joined so long as they are related as part of a common scheme.

Question 43

How does severance work with conspiracy?

Answer 43

A motion to sever may be granted if it appears that the defendant will be prejudiced by a joint trial with other defendants. The defendant has to burden of proof and must demonstrate clear and substantial prejudice. There is a presumption against severance because closely related charged shuold be tried together.

Question 44

What is a chain conspiracy?

Answer 44

A chain conspiracy is when the conspirators act separately and successively, but the actions of each coconspirator benefits the overall conspiracy.

Question 45

What is a wheel conspiracy?

Answer 45

A wheel conspiracy is when a central figure interacts separately with peripheral coconspirators in furtherance of the conspiracy.

Question 46

Must the defendant know all of the circumstances or participants of a conspiracy?

Answer 46

No. The defendant does not have to know all of the circumstances of the agreement or all of the participants in a conspiracy. The defendant must have more than mere knowledge of a criminal plan to establish the needed intent.

Question 47

How can intent for conspiracy be determined?

Answer 47

Intent can be inferred from the defendant’s knowledge of the agreement and a stake in the outcome.

Question 48

What is the Pinkerton rule?

Answer 48

The Pinkerton rule established vicarious liability for the actions of coconspirators. The overt act of one member of a conspiracy is attributable to all other members ofthe conspiracy.

Question 49

When does Pinkerton liability attach? (3)

Answer 49

Pinkerton liability attaches when (1) the government proves beyond a reasonable doubt that a conspiracy exists; (2) that the substantive offese was committed in furtherance of the conspiracy; and (3) that the substantive offense was reasonably foreseeable as a natural outgrowth of the conspiracy.

Question 50

Is Pinkerton rule majority or minorty?

Answer 50

The majority of states reject the Pinkerton rule because it vastly expands criminal culpability for coconspirators.

Question 51

What is accomplice liability?

Answer 51

When a person can be convicted of the crime of another when either before or during the commission of an offense, with the purpose of promoting the commission of the offense, he aids or agrees to aid or attempts to aid such other person in planning, committing, or attempting to commit the offense.

Question 52

Is mere presence sufficient for a conviction of accomplice liability?

Answer 52

No. Mere presence at a crime scene, even coupled with a refusal to interfere, does not amount to aiding in the commission of a criminal offense.

Question 53

Is mere encouragement sufficient for a conviction of accomplice liability? What is enouragement?

Answer 53

Yes. Mere encouragement is enough. Encouragement is the equivalent of conduct that by any means countenances or approves the criminal action of another, incuding encouraging or exciting a criminal act by words, gestures, looks, or signs.

Question 54

For accomplice liability, does encouragement have to be taken literally?

Answer 54

No. Encouragement does not have to be taken literally to constitute encouragement.

Question 55

What are 4 factors to consider in decidin if someone has provided encouragement to a criminal act?

Answer 55

1. Associating with the person who committed the crime before, during, or after the crime;
2. Acting as part of a show of force in the commission of the crime;
3. Attempting flight from the crime scene; and
4. Failing to assist the victim or seek medical help

Question 56

What is the common law approach to accomplice liability?

Answer 56

At common law, the parties were divided into four categories:
1. Principals in the first degree: committed the crime
2. Principals in the second degree: aided, advised, or encouraged and were present at crime
3. Accessories before the fact: assisted or encouraged but not present
4. Accessories after the fact: assisted escape, arrest, or punishment

Question 57

Under the common law approach to accessory liability, what was required for the conviction of an accessory?

Answer 57

Conviction of the principal

Question 58

What is the modern approach to accomplice liability?

Answer 58

The modern (majority) approach removes the distinctions between principals and accessories before the fact, treating them all as principals in the crime and imposing the same punishment. Accessory after the fact is separate crime with its punishment having no relationship to the principal offense.

Question 59

Under accessory liability,

What if there are mutliple defendants but it is unknown who actually committed the crime?

Answer 59

When it is unknown who actually committed the crime, the prosecution can charge a defendant as both the principal and accessory. The jury can return a guilty verdict so long as the evidence supports either basis because the distinction is not relevant to the punishment.

Question 60

Is withdrawal/abandonment a defense to accessory liability?

Answer 60

Yes, if it is voluntary and complete. A mere withdrawal from involvement withuot taking any additional action is not sufficient.

Question 61

What is required of a withdrawal from accessory liability?(4)

Answer 61

The withdrawal:
1. Must occur before the crime becomes unstoppable;
2. If the person encouraged the crime, they must repudiate encouragement;
3. If the person aided by providing assistance to the principal, they must do everything possible to attempt to neutralize the assistance; and
4. Notifying the police or taking action to prevent the crime is also sufficient

Question 62

What is required of a defendant’s knowledge for accessory liability?

Answer 62

Accessory liability requires more than evidence of a general cognizance of criminal activity or suspicious circumstances. The government must prove that the defendant knew of the proposed crime.

Question 63

Under accessory liability,

What type of evidence can the government use to prove a defendant’s knowledge and specific intent? Examples? (5)

Answer 63

Circumstantial evidence, including:
1. Conversations related directly to the substance of the illegal activity;
2. Possession of documents related to the crime;
3. Exercise of authority within a conspiracy;
4. Receiving a share of the profits from the deal; or
5. Explicit confirmation of the nature of the crime

Question 64

What kind of intent is required for accomplice liability?

Answer 64

In general, accomplice liability requires dual intent: (1) the intent to assist the principal in the commission of a crime; and (2) the intent that the principal commit the underlying crime.

If the crime is one of recklessness or negligence, the second intent is changed to match it.

Question 65

What crimes are accomplices criminally culpable for?

Answer 65

Accomplices are criminally culpable for the crimes they aided in and for any other crimes committed in the course of that crime when the other crimes were probable or foreseeable.

Question 66

What is the relationship between accomplice liability and felony murder?

Answer 66

The combination of felony murder and accomplice liability will hold the accomplice criminally liable for the felony murder.

Question 67

How is the punishment determined for an accomplice when felony murder occurs?

Answer 67

1. Felony murder simplicitor (not large part/actor) = no death penalty
2. Major actor + high risk of death = death penalty