Solicitation, Conspiracy, and Attempt

Question 1

Solicitation

Answer 1

Solicitation occurs when one requests or encourages another to commit a crime with the intent that the person solicited does commit the crime, regardless of whether they agree to do so.

Question 2

Conspiracy

Answer 2

Conspiracy is an agreement between two or more persons who intend to commit an unlawful act or a lawful act by unlawful means.

Question 3

Conspiracy agreement

Answer 3

The agreement can be implied or inferred and does not require that all persons commit the actual act.

Question 4

Conspiracy Knowledge

Answer 4

Mere knowledge is insufficient to establish the intent necessary to commit the unlawful act.

Question 5

Completion of Conspiracy

Answer 5

Conspiracy is complete when

a. At common law, the conspiracy occurred the moment the agreement was made, but. . .
b. The majority of jurisdictions now require an overt act, which can be as little as preparation, to form the conspiracy.

Question 6

A unilateral conspiracy

Answer 6

A unilateral conspiracy is allowed modernly, such that the party who agrees to commit the unlawful act can be convicted of conspiracy even if the other party does not agree to the conspiracy.

Question 7

Liability for crimes of co-conspirators

Answer 7

Conspirators are liable for the crimes of co-conspirators if the crimes were committed in furtherance of the objective and were reasonably foreseeable.

Question 8

Conspiracy Defense of Withdrawal

Answer 8

Once the agreement is made and the conspiracy is formed, one cannot withdraw from the conspiracy liability, but they can withdraw for purposes of future crimes of co-conspirators if they communicate their withdrawal to co-conspirators (federal law allows communications to authorities as well) and take an affirmative action to withdraw.

Question 9

Conspiracy Defense of Impossibility

Answer 9

Impossibility is not a defense

Question 10

Attempt

Answer 10

Attempt is an act done with intent to commit a crime and an affirmative act, or substantial step, in furtherance of the intent to commit the crime, beyond mere preparation.

Question 11

Merger

Answer 11

1. Solicitation and attempt merge into the actual crime so they cannot be charged in addition to the actual crime.
2. Conspiracy does not merge into the actual crime and can be charged in addition to the actual crime.

Question 12

Attempt Defenses

Answer 12

1. Factual impossibility is not a defense
2. Legal impossibility is a defense
3. Abandonment: the general rule is that if D went beyond mere preparation, abandonment is never a defense; however under the MPC defense if fully voluntary and is a complete renunciation.

Question 13

Wharton Rule

Answer 13

Under this rule, where two or more people are necessary for the commission of the substantive offense (adultery) there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime.