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CRIMINAL LAW

Inchoate Offenses Outline





Inchoate Offenses



 Inchoate offenses are specific intent crimes

 There are three inchoate offenses

 Common law: the major inchoate crimes are attempt, conspiracy, and

solicitation.

 MPC: The major inchoate crimes in the Model Penal Code are attempt,

conspiracy, and solicitation, defined in Article 5.





Attempt



 Definition of Attempt

o A criminal attempt is an act that, although done with the intention

of committing a crime, for one reason or another falls short of

completing the crime.



o Common Law: An attempt is an act that falls short of completion

of a specific criminal offense, committed with the intent to commit

that offense.



o MPC: The text of § 5.01(1) is confusingly drafted. Note that it

divides attempts into two categories:

 Those where the defendant has completed all planned

behavior; and

 Those where the defendant falls short of completing all

planned behavior.



 Elements of Attempt

o Specific intent to commit a crime;

o A substantial step beyond mere preparation in the direction of the

commission of the crime



 Mens Rea

o Common Law: Attempt at common law is a specific intent

offense. The specific intent required is an intent to engage in all of

the conduct, result, and circumstance elements that would

constitute a completed criminal offense. It does not encompass the

conclusion that completion of the conduct would constitute a crime.

An attempt cannot be committed recklessly or negligently. An

attempt to commit a strict liability offense also requires a specific

intent.





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o MPC: The mens rea for attempt is a purpose to engage in the

conduct actually engaged in by the defendant, plus the required

mens rea towards the elements of the object offense (the offense

the defendant is charged with attempting to commit). Divide the

elements of the object offense into conduct, result, and

circumstance elements and note any ambiguities:

 (a) The defendant must have a purpose to engage in all of

the conduct elements of the object offense;

 (b) In cases where the defendant has completed all planned

behavior, the defendant must have a purpose to cause all of

the result elements of the object offense or must believe that

all of the result elements of the object offense will occur

without any further conduct by the defendant;

 (c) In cases where the defendant falls short of completing all

planned behavior, the defendant must have a purpose to

cause all of the result elements of the object offense;

 (d) The defendant must have the same mens rea for all

circumstance elements as is required for those elements of

the object offense; and

 (e) The defendant must also have at least the mens rea

required by the object offense—thus any additional mens rea

requirements of the object offense must also be satisfied.

Recklessness, negligence, or strict liability can apply to

circumstance elements in an attempt under the Model Penal

Code (in cases where the object offense does so). They

cannot, however, apply to result elements.



o The word attempt means to try; it implies an effort to bring about a

desired result. Hence an attempt to commit any crime requires a

specific intent to commit that particular offense.



o People v. Gentry



o Bruce v. State: a criminal attempt consists of a specific intent to

commit the offense coupled with some overt act in furtherance of

the intent which goes beyond mere preparation.



 Actus Reus

o Common Law: One must distinguish between acts of preparation

and the occurrence of the attempt. The common law has developed

a number of tests for making this determination:







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 (a) The "last proximate act," which focuses on whether the

defendant has done the last act and is adequate as a test of

inclusion, but inadequate as a test of exclusion;

 (b) The "physical proximity tests," which focus on the

dangerousness of the defendant's conduct, on what remains

to be done to complete the offense; and

 (c) The "probable desistance tests," which focus on the

dangerousness of the defendant, on what the defendant has

already done and the likelihood that a crime will be

completed. This is a hard problem with no easy answer.



o MPC: There are three important aspects of the Model Code

approach to the preparation-attempt problem:

 (a) The defendant must take a "substantial step" toward the

commission of the offense;

 (b) The substantial step must be "strongly corroborative" of

the defendant's purpose to engage in the object offense; and

 (c) § 5.01(2) contains a non-exclusive list of conduct that

may constitute a substantial step.



o U.S. v. Mandujano: Distinction between mere preparation and

attempt



1. Physical proximity doctrine: the overt act required for an

attempt must be proximate to the completed crime, or

directly tending toward the completion of the crime, or must

amount to the commencement of the consummation.

Focuses on what remains to be done.



2. Dangerous proximity doctrine: a test given impetus by

Justice Holmes whereby the greater the gravity and

probability of the offense, and the nearer the act to the crime,

the stronger is the case for calling the act an attempt.

Focuses on what remains to be done.



3. Indispensable element test: a variation of the proximity

tests which emphasizes any indispensable aspect of the

criminal endeavor over which the actor has not yet acquired

control. Focuses on what remains to be done.



4. Last act test: no longer used. Beyond preparation but not

completed the last act before completed offense. (Note that a





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substantial act can fall nearly anywhere on the continuum).

Focuses on what remains to be done.



5. Probable desistance test: the conduct constitutes an

attempt if, in the ordinary and natural course of events,

without interruption from an outside source, it will result in

the crime intended. Focuses on what has occurred.



6. Abnormal step approach: an attempt is a step toward the

crime which goes beyond the point where the normal citizen

would think better of his conduct and desist. Focuses on

what has occurred.



7. Res ipsa loquitur or unequivocality test: an attempt is

committed when the actor’s conduct manifests an intent to

commit a crime. Focuses on what has occurred.



8. Substantial step. Focuses on what has occurred.



 Impossibility

o Factual impossibility is not a defense to a charge of attempt.



o Common Law: "True legal impossibility" is where the defendant

seeks to do something that is not a crime. Asking whether the

defendant has the mens rea for attempting to commit a criminal

offense will identify all such cases. "Legal" impossibility occurs if

the act as completed would not constitute a crime. "Factual"

impossibility occurs if the crime cannot be completed because of

some physical or factual condition unknown to the defendant.

"Legal" impossibility is a defense; "factual" impossibility is not a

defense. The trouble is that any standard "impossibility" situation

can be placed in either category. Some analyze "impossibility"

cases by distinguishing between primary and secondary intent.

"Primary" intent is a fictional attribution of an intent to do what was

actually done. "Secondary" intent is the defendant's actual intent,

what the defendant thought was being done. "Primary" intent is

then said to be the appropriate measure of attempt liability. The

trouble is that those who use this distinction convict some

defendants on the basis of their primary intent and some on the

basis of their secondary intent, without telling you how to tell which

is which. What one should do is ask mens rea and actus reus

questions in the normal manner. First ask the mens rea questions.

This will eliminate cases of "true legal impossibility." Ask it in the



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normal manner, that is, by asking what the defendant actually

intended to do. Then ask the actus reus question. If the

"proximity" approach is taken, the question will be whether, based

on what remains to be done, the defendant has completed enough

conduct to constitute an attempt. If the "probable desistance"

approach is taken, the question will be whether, based on what the

defendant has already done, the defendant has completed enough

conduct to constitute an attempt.



o MPC: It is not punishable under the Model Penal Code to attempt

to do something that is not a crime, even if the defendant believes

that it is a crime ("true legal impossibility"). The "legal" and

"factual" impossibility cases are handled by the following rule: the

defendant is guilty of an attempt if the offense would have occurred

had the facts been as the defendant believed them to be, except

when the behavior is silly, as in shooting to kill with a water pistol.

The Model Code permits the charge in such cases to be reduced or

dismissed. Receiving stolen property is defined to include cases

where the defendant "believes" the property probably has been

stolen. This takes care of the Jaffe case. The Model Code solution

has been criticized. The "strong corroboration" requirement does

not apply to cases where the defendant has completed all planned

behavior. Some "impossibility" cases thus might pose an

unacceptable risk of convicting the innocent based on entirely

ambiguous behavior.



 Abandonment

o Common Law: Once an attempt has been committed,

abandonment is not a defense at common law.



o MPC: The Model Penal Code contains an abandonment defense,

which has three dimensions:

 (a) The defendant must abandon the effort or otherwise

prevent commission of the offense (abandonment is not a

defense to cases falling within § 5.01(1)(a));

 (b) The abandonment must involve a renunciation of the

criminal purpose that is "complete" ("complete" means not

motivated by a decision to postpone the crime until later or to

a different but similar objective or victim); and

 (c) The abandonment must involve a renunciation of the

criminal purpose that is "voluntary" ("voluntary" means not

motivated by an increase in the probability of detection or





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getting caught or by a change in circumstances that makes it

more difficult to commit the crime).



 Grading

o Common Law: Attempt was a misdemeanor at common law.

Modern statutes vary widely in their grading schemes.



o MPC: An attempt is an offense of the same grade and degree as

the offense attempted, except that an attempt to commit a capital

felony or a felony of the first degree is a felony of the second

degree.



 MPC Cumulative Punishment: It is not permissible to convict the

defendant of both a completed offense and an attempt to commit that same

offense. Nor can there be a conviction of more than one inchoate offense for

conduct designed to culminate in commission of the same crime.



 Assault with Intent

o Common Law: "Assault with intent" offenses emerged in order to

upgrade the punishments for attempts to commit serious crimes

that came very close to fruition. They are unnecessary in codes

that punish attempts severely.



o MPC: There are no "assault with intent" offenses in the Model

Code.





Conspiracy



 Definition

o Common law: A conspiracy is a combination between two or more

persons for the purpose of accomplishing an unlawful act or a lawful

act by unlawful means.



o MPC: Conspiracy is limited in the Model Penal Code to agreements

to achieve objectives that are themselves criminal.



o Conspiracy is an agreement between two or more persons to

accomplish some criminal or unlawful purpose, or to accomplish a

lawful purpose by unlawful means.

 The agreement does not have to be express.

 People can be part of a conspiracy even if they don’t know

each other.



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o Each conspirator is liable for all crimes of his co-conspirator if the

crimes were committed in furtherance of the conspiracy and were

foreseeable.



 Actus Reus

o Common law: The actus reus of conspiracy is an agreement

between two or more persons to achieve an objective prohibited

by the applicable law of conspiracy. Some statutes require an

overt act in addition to the agreement, but any act will do. The

common law did not require an overt act. A single agreement

with multiple objectives is a single conspiracy. Multiple

agreements can constitute multiple conspiracies. Some use the

"wheel with spokes" and "chain" analogies to think about this

problem, but these images are none too helpful since the issue is

whether there is one agreement or several and either a "wheel"

or a "chain" can consist of either arrangement. The key is who

can be joined together in an agreement with a common

objective. The common law required at least two guilty parties

to the agreement. Under some modern statutes and decisions,

however, it is enough if one party thinks there is an agreement.

The common law also precluded a conviction of conspiracy where

the object of the agreement was a crime that itself required

concerted action (Wharton's Rule). This rule does not apply

where the agreement involves more parties than it takes to

commit the object offense. The Supreme Court has held that

Wharton's Rule limits the federal conspiracy statute only as a

matter of statutory construction, applicable for particular

substantive offenses only when in accord with Congressional

intent. Often a "victim" cannot be convicted of a conspiracy with

the perpetrator of an offense. But a person who would alone be

incapable of committing an offense can be guilty of conspiring

with a person capable of committing the offense that the capable

person will commit it. Co-conspirators need not actually know

each other, so long as they know of each other. A husband and

wife could not be guilty of conspiracy at common law. Many

jurisdictions have changed this rule today.



o MPC: An agreement that the defendant or another party to the

conspiracy will commit an offense, attempt to commit it, or

solicit its commission; or an agreement that the defendant will

aid in the planning of the commission of a crime, an attempt to

commit it, or its solicitation. Proof of an overt act is required,



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except for a conspiracy to commit a felony of the first or the

second degree. A single agreement with multiple criminal

objectives is a single conspiracy. Multiple agreements that are

part of a "continuous conspiratorial relationship" constitute a

single conspiracy. Multiple agreements in other contexts

constitute multiple conspiracies. The Model Code permits

conviction on the basis of a "unilateral" agreement, that is, an

agreement which the defendant thinks has been made with

another person. The Model Code does not explicitly adopt

Wharton's Rule. But it does preclude multiple convictions for a

conspiracy and its object offense, and thus makes Wharton's

Rule unnecessary at least in this respect. A person who cannot

be guilty of an offense as a perpetrator or an accomplice cannot

be guilty of a conspiracy to commit that offense. A person who

lacks a particular characteristic necessary for the commission of

an offense may be guilty of a conspiracy to commit that offense,

so long as the person believes that some member of the

conspiracy has that characteristic. The parties to a conspiracy

need not know each other, so long as they know of each other.

There is no reason why a husband and wife cannot be convicted

of conspiracy under the Model Penal Code.



 Mens Rea

o Common Law: Conspiracy at common law requires a specific

intent. There must be an intent to agree. There must be an

intent to achieve a common objective or set of objectives that is

within the prohibition of the crime of conspiracy as defined in the

applicable jurisdiction. A purpose to promote the illegal venture

should be required, but that purpose can be proved by inference

from knowing participation in the venture. A "corrupt motive"

(knowledge that the agreement is illegal) is required by some

courts for conspiracies to commit regulatory or public welfare

offenses. Most commentators and courts believe today that this

element is inappropriate.



o MPC: The defendant must have a purpose to promote or

facilitate each conduct and result element of the object offense,

must know or believe that all circumstance elements of the

object offense will exist, and must satisfy any additional mens

rea elements contained in the object offense. Each party to the

conspiracy must be shown to have had the mens rea for the

same crime. An intent to agree is included by implication. The

Model Code does not adopt the Powell "corrupt motive" doctrine.



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 Impossibility

o Common law: Impossibility problems rarely arise in conspiracy

cases. It is not a punishable conspiracy for two persons to agree

to do something not prohibited by the law of conspiracy, even

though they think it is. The conspiracy is complete upon the

making of the agreement (and commission of the overt act,

where required). This will usually be before any impossibility

problem could arise. But an impossibility problem can arise if

the parties agree as to how a particular crime will be committed

and it cannot be committed in that manner. In such cases,

liability for conspiracy will be measured by the facts as the

parties believed them to be.



o MPC: Since impossibility problems rarely arise in conspiracy

cases, the Model Code does not cover them explicitly. It is not

punishable under the Model Penal Code to conspire to do

something that is not a crime, even if the defendant believes

that it is a crime. The defendant is guilty of conspiracy if the

crime would occur on the facts, as the defendant believes they

will be.



 Abandonment as a Defense

o Common law: Once a conspiracy has been committed,

abandonment is not a defense at common law.



o MPC: The Model Code contains an abandonment defense, which

has two dimensions:

 (a) The defendant must have "thwarted the success of the

conspiracy"—withdrawal from the conspiracy is not enough

standing alone; and

 (b) The abandonment must constitute a "complete and

voluntary" renunciation of the criminal purpose. The terms

"complete" and "voluntary" have the same meaning as in the

abandonment defense for attempt.



 Duration: Accomplishment, Abandonment, or Withdrawal

o Common law: A criminal conspiracy is a continuing offense. Its

duration matters for purposes of applying the statute of limitations,

the co-conspirator's hearsay exception, for determining the venue

for trial, and for determining liability for substantive offenses

committed in furtherance of the conspiracy. A conspiracy is over

when all of the planned crimes have been committed. This time



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can be extended if the prosecutor can prove that an agreement to

conceal was an express part of the original agreement (which is

hard) or that the objective of the conspiracy was such that

concealment was an integral part of its success (which is easier).

The conspiracy is also over when the parties have abandoned its

objectives. It is over as to a single party when an effective

withdrawal is made. Withdrawal is effective when communicated to

all conspirators in time for them to abandon the conspiracy, in a

manner that would inform a reasonable person of an intent to

withdraw. One court has also required a successful effort to

persuade the others to abandon the conspiracy.



o MPC: A criminal conspiracy is a continuing offense. Its duration

matters for essentially the same reasons as at common law. A

conspiracy is over when all planned crimes have been committed or

when all parties have abandoned all planned crimes. Abandonment

is presumed if no overt act is committed during the period of the

statute of limitations. An individual may terminate participation in

a conspiracy by withdrawing in one of two ways:

 (a) Advising the other conspirators of the intent to

withdraw; or

 (b) Informing police of the conspiracy and one's own

participation in it.



 Liability for Substantive Offenses

o Conspiracy does not merge into the substantive offense

 Thus a person can be charged with murder and conspiracy to

commit murder.



o Common law: Conspirators are liable for conspiracy and any

offenses committed pursuant thereto, under the following rules:

 (a) All parties to the conspiracy are liable for any offense

committed by a conspirator which was explicitly contemplated

as part of the conspiracy; and

 (b) A co-conspirator is liable for all offenses committed by

other conspirators in furtherance of the conspiracy that were

"reasonably foreseeable" (the Pinkerton rule). Many are

critical of Pinkerton.



o MPC: Liability of conspirators for offenses committed in

furtherance of the conspiracy is governed by general rules of

complicity, covered in § 2.06. The traditional separate conspiracy

rules have been discarded.



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 Grading

o Common law: Conspiracy was a misdemeanor at common law.

Modern statutes vary widely in their grading schemes.



o MPC: A conspiracy is an offense of the same grade and degree

as the most serious planned offense, except that a conspiracy to

commit a capital crime or a felony of the first degree is a felony

of the second degree.



 Cumulative Punishment

o Common law: The common law permits punishment for both

the conspiracy and an offense that was its object. But many

States now preclude punishment for both. Of course, if the

conspiracy contemplates additional offenses then punishment for

offenses committed and the continuing conspiracy remains

appropriate.



o MPC: It is not permissible to convict the defendant of both a

completed offense and a conspiracy to commit that same

offense. Nor can there be a conviction of more than one

inchoate offense for conduct designed to culminate in

commission of the same crime. If the conspiracy has additional

criminal objectives not yet accomplished or for which the

defendant has not been prosecuted, however, conviction of the

conspiracy in addition to those crimes already committed

pursuant to it is permissible.





Solicitation



 Definition

o Solicitation is the asking another person to commit a crime.



o The crime ends when the defendant asks the other person to

commit the crime.



o Common-law: one requests or encourages another to perform a

criminal act. Doesn’t matter if the other person agrees, may matter

if the communication is received or understood (depends on

jurisdiction.). Common Law: Solicitation is encouraging another to

commit a crime, with intent that it be committed by the other

person.



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o MPC: The solicitation of any criminal offense is punished by the

Model Penal Code.



 Renunciation

o May be a defense that the solicitor voluntarily renounced his crime.

MPC allows the defense of renunciation so long as solicitor actually

prevents the commission of the crime (i.e. notifies the authorities.)



 Actus Reus

o Common law: Enticing, inciting, ordering, advising, counseling,

inducing, or otherwise encouraging another to commit a crime.

Actual communication is not essential, though the prosecution

may have to be for attempting to solicit. The States vary in

whether it is a crime to solicit any crime or only specified crimes.

At common law, it was a crime to solicit any felony, or any

misdemeanor that constituted a breach of the peace, an

obstruction of justice, or some other injury to the public welfare.

If the defendant is for some reason immune from conviction for

a particular crime, it will not be a crime to solicit the commission

of that offense.



o MPC: The defendant must command, encourage, or request

another to

 (a) Commit a crime;

 (b) Attempt to commit a crime; or

 (c) Become an accomplice in the commission of a crime. A

person who cannot be guilty of an offense as a perpetrator

or an accomplice cannot be guilty of a solicitation to

commit that offense.



 Mens Rea

o Common law: Solicitation is a specific intent offense. The

defendant must intend that the person solicited commit an

offense that, in the relevant jurisdiction, can be the object of a

criminal solicitation.



o MPC: The defendant must have a purpose to promote or

facilitate the commission of a crime, which includes a purpose to

promote or facilitate all conduct and result elements of the

object offense, knowledge or belief that all circumstance

elements of the object offense will exist when the offense is





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committed, and any additional mens rea elements contained in

the object offense.



 Impossibility

o Common Law: Impossibility problems rarely arise in

solicitation cases. It is not a punishable solicitation for the

defendant to encourage conduct not prohibited by the law of

solicitation, even though the defendant thinks it is. The

solicitation is complete upon encouraging the commission of the

offense. This will usually be before any impossibility problem

could arise. But an impossibility problem can arise if the

defendant solicits a particular crime to be committed in a

particular manner and it cannot be committed in that manner.

In such cases, liability for solicitation is likely to be measured by

the facts, as the defendant believes them to be. In addition, it is

not a defense for the defendant to solicit another to commit a

crime if the person solicited is (unknown to the defendant)

incapable of committing the offense.



o MPC: Since impossibility problems rarely arise in solicitation

cases, the Model Code does not cover them explicitly. It is not

punishable under the Model Penal Code to solicit behavior that is

not a crime, even if the defendant believes that it is a crime.

The defendant is guilty of solicitation if the crime would occur on

the facts, as the defendant believes they will be.



 Abandonment

o Common law: Once a criminal solicitation has been committed,

it is not likely that abandonment will be recognized by the

common law as a defense.



o MPC: The Model Code contains an abandonment defense, which

has two dimensions:

 (a) The defendant must have persuaded the person solicited

not to commit the offense or "otherwise prevented the

commission of the crime"—a change of heart alone, even if

communicated to the person solicited, is not enough; and

 (b) The abandonment must constitute a "complete and

voluntary" renunciation of the criminal purpose. The terms

"complete" and "voluntary" have the same meaning as in the

abandonment defense for attempt.







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 Liability for Substantive Offenses

o Common law: The solicitor is liable for any offenses committed

by the person solicited under normal principles of accessorial

liability.



o MPC: Liability of a person who solicits an offense for offenses

committed pursuant to the solicitation is governed by general

rules of complicity, covered in § 2.06.



 Grading

o Common law: Solicitation was a misdemeanor at common law.

In most jurisdictions today, it is graded as a lesser offense than

attempt or conspiracy.



o MPC: A solicitation is an offense of the same grade and degree as

the offense solicited, except that solicitation of a capital crime or a

felony of the first degree is a felony of the second degree.



 Cumulative Punishment

o Common law: The defendant cannot be convicted of the separate

offenses of solicitation and aiding and abetting the solicited offense

or an attempt by the person solicited to commit the solicited

offense. Some courts hold that solicitation itself can amount to an

attempt; others disagree. It is clear in any event that the

defendant cannot be convicted both of solicitation and attempt

based on the same behavior. The defendant cannot be convicted

for both solicitation and conspiracy if the person solicited agrees to

commit the offense.



o MPC: It is not permissible to convict the defendant of both a

completed offense and a solicitation to commit that same offense.

Nor can there be a conviction of more than one inchoate offense for

conduct designed to culminate in commission of the same crime.





Other Inchoate Offenses



 Common Law: There are many other inchoate offenses. Crimes like

larceny and burglary are inchoate in nature. But one can be convicted for

attempting to commit, conspiring to commit, or soliciting those offenses.

There are also many inchoate offenses—like "assault with intent" offenses,

possession offenses, or vagrancy—which are designed to supplement the





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crime of attempt, either by increasing its punishment or allowing earlier

intervention of law enforcement in incipient crime.



 MPC: The Model Code continues the tradition of defining crimes like

burglary and theft in inchoate terms. And the defendant can be convicted

for attempting, conspiring to commit, or soliciting those offenses. Since

inchoate crimes are so severely graded, there are no crimes in the Model

Code (such as the traditional "assault with intent" offenses) designed to

supplement the crime of attempt by increasing its punishment. But there

are several other offenses designed to reach incipient criminality.









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