Define
inchoate crimes
“Incomplete” crimes:
- Attempt
- Conspiracy
- Solicitation
What is the mens rea for attempt?
Specific intent to commit the underlying crime
What is the actus reus for attempt?
“Overt act” in furtherance of intent to commit underlying crime
Can you be charged with attempt for crimes that have a mens rea of recklessness or negligence?
No, because attempt requires specific intent to commit the underlying crime.
⚠️ Note: if D knows that a result is practically certain to occur, the requisite intent may exist for an attempt charge
What are the 3 tests to determine if there has been an overt act for an attempt?
- Dangerous Proximity Test (majority):
- Equivocality Test (minority)
- Substantial Step (MPC)
What is the dangerous proximity test?
Looks at whether D came within dangerous proximity to completing the crime, or “so near to the result that the danger of success is very great.”
What is the equivocality test?
Asks: is D’s conduct an unequivocal manifestation of their intent to complete the target offense?
Under the MPC, what is the substantial step test?
An act is an overt act if it is:
- A “substantial step in a course of conduct planned to culminate in [D’s] commission of the crime”; and
- Is strongly corroborative of D’s criminal intent
Does mere preparation qualify as a substantial step?
As a general rule, no - it must go beyond mere preparation.
What are examples of actions considered substantial steps under the MPC?
- Lying in wait, searching for or following the contemplated victim of the crime;
- Enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;
- Reconnoitering the place contemplated for the commission of the crime;
- Unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;
- Possession or collection of materials that serve no lawful purpose under the circumstances; or
- Soliciting an innocent agent to engage in criminal conduct
What is the impossibility defense to attempt?
Argues that even though D did everything he could to complete the offense, external circumstances thwarted his ability to successfully complete it.
⚠️ Remember to distinguish between factual and legal impossibility. Many states have outlawed the factual impossibility defense, but allow for the legal impossiblity defense.
What is factual impossibility and is it a successful defense to attempt?
Occurs when D is unable to complete a crime, but if the facts had been what D supposed them to be, the act would have been a crime.
Never a valid defense to attempt.
Ex. Max wants to buy meth from Ian, but Ian sold him cornstarch instead. Since Max thought that he was buying meth, the fact that he was sold cornstarch is not a valid defense.
What is legal impossibility and is it a valid defense?
Arises when the D thinks they are committing a crime, but their actions are actually lawful.
It is a valid defense.
Is renunciation a valid defense to attempt?
Renunciation is a valid defense under the MPC and in some states if:
- D completely and voluntarily withdraws (i.e. withdrawal is not based on apprehension of being caught or waiting for a better time);
- Before completion of the crime
⚠️ Many states have adopted the MPC’s recognition of the renunciation defense, but others have not. Make sure read the question carefully.
If D withdraws after learning that the police are aware of the plan, does this constitute a voluntary withdrawal?
No, withdrawing out of fear of from newly discovered information about being caught is not considered voluntary
However, if D has general fear about being caught, this will qualify as voluntary
Elements of common law solicitation
- Enticing, advising, requesting, or otherwise endeavoring to persuade another person;
- To commit a crime;
- With the intent the other person commits the crime
When is solicitation complete?
As soon as the D entices or encourages someone to commit a crime.
The other person does not need to agree to commit the crime
Is withdrawal a defense to solicitation?
Allowed by some courts and the MPC if:
- Renunciation was voluntary; and
- D prevents commission of the crime
⚠️ Not recognized by common law
Is factual impossibility a valid defense to solicitation?
No. Legal impossibility may be, but factual impossibility is not.
Is a solicitee’s refusal to complete the crime a valid defense to solicitation?
No because solicitation is complete as soon as D encourages, whether or not solicitee agrees is irrelevant
Distinguish between solitication and attempt
Solicitation: mere encouragement or inticement
Attempt: substantial steps taken to prepare for crime
Elements of conspiracy
- Intentional agreement between two or more persons;
- To commit an unlawful act or a lawful act by unlawful means; and
- An overt act in furtherance of the unlawful act (only required for half the states and the MPC)
Explain the overt act requirement for conspiracy under the MPC
- Act must be in furtherance of the conspiracy
- Mere preparation is not sufficient
- “One bad apple spoils the bunch” → If one co-conspirator does an overt act, it will be attributed to all persons involved
Is a “meeting of the minds” required for conspiracy?
No, only that the parties agree to pursue a common objective. Parties do not even need to know about each other.
