Inchoate Offenses - Solicitation, Conspiracy, and Attempt

Question 1

Conspiracy Elements

Answer 1

1. Agreement of 2+ (Agmt. may be inferred from joint activity)
2. Intent to (i) enter agreement (ii) achieve the objective of agreement. (MPC/Modern follow unilateral - only 1 to have criminal intent, could conspire w/undercover cop; CL is bilateral.)

Overt act in furtherance of conspiracy required under modern law Smallest act, like mere preparation (not under common law).

Does NOT merge into substantive offense.

Withdrawal NOT a defense except for further crimes of co-conspirators.

Question 2

Solicitation Elements

Answer 2

Asking, inciting, counseling, advising, urging, or commanding another to commit a crime.

Specific Intent that person solicited commit the crime. (solicited doesn’t have to agree).

YES Merges into Substantive Offense.

Withdrawal generally NOT a defense.

Question 3

Attempt

Answer 3

Performance of act that would be crime if successful. (beyond mere preparation).

Specific intent to commit the particular crime attempted.

MPC - substantial step test (traditional rule - act dangersouly close to success - pointing loaded gun and pulling trigger.).

Question 4

Wharton Rule

Answer 4

Conspiracy - If substantantive offense requires 2+ (dualing, adultery), then need more parties to agreement than necessary for crime. (takes 2 to tange, but 3 is a crime).

Does NOT apply to “necessary parties not provided for.”

Question 5

Effect of Acquittal of Some Conspirators

Answer 5

Traditional (acquittal of all persons with whom a D is alleged to have conspired precludes conviction of the remaining D.)

Acquittal shows no one else D could conspire w/,

Question 6

Conspiracy w/ person in “protected class.”

Answer 6

NO. No conspiracy.

Question 7

Termination of Conspiracy

Answer 7

Upon completion of wrongful objective.

Acts of concealment are NOT part of consipracy UNLESS agreed to in advance.

Statements of co-conspirators are admissible against co-conspirators only if they were done in furtherance of conspiracy.

Question 8

Liability for co-conspirator’s crimes

Answer 8

1. Committed in furtherance of objectives of conspiracy, and
2. Were foreseeable.

Question 9

Conspiracy defenses

Answer 9

Withdrawal: No. (complete on agreement an overt act). But can withdraw from crimes committed in furtherance (if conspire to murder, can withdraw and only be liable for conspiracy).

Withdrawal effective if: performs affirmative act that notifies all members of withdrawl in time for others to abandon palns. (if provided assistance, but nuetralize).

Factual Impossibility NOT a defense.

Question 10

Defenses to solicitation

Answer 10

Defense that the solicitor could
not be found guilty of the completed crime because of a legislative intent to exempt them (minor soliciting sex cannot be guilty of solicitation of statutory rape).

NOT a defense that solicited not convicted.

Withdrawal / renounce not generally allowed. But MPC allows renunciation of D prevents commission of crime.

Factual Impossibility NOT a defense.

Question 11

Defenses to Attempt

Answer 11

Abandonment:
- NOT under CL.
- MPC allows fully voluntary and complete abandonment as defense.

Legal Impossibility: YES. Even completing all planned acts would have committed no crime. (rare)

Factual Impossibity: NOT a defense. Situation where crime cannot be completed due to some physical or faction condition unknown to D.