Inchoate Offenses and Accomplice Liability

Inchoate Offenses

(only begun) class of crimes committed by taking steps toward committing another crime 

1. Attempt 

2. Conspiracy

3. Soliticitation

Attempt - Common Law

 Defendant engaged in an overt act or omission with the intent to commit the underlying offense but fails to do so → lesser punishment than target offense 

 CL Attempt: Overt Act Test (dangerous proximity)

D must come “dangerously close” (i.e., “very near”) to completing underlying offense. (What remains to be done?)

• Rule 1: Intent alone not enough (proscription against thought crimes)

• Rule 2: Mere preparation not enough; must do more

Is attempt a specific or general intent crime at CL?

specific

Attempt MPC: Substantial Step Test

an act that is “strongly corroborative of the actor’s criminal purpose. Indicators: 

1. lying in wait, searching for, or following V

2. enticing V to location of crime

3. reconnoitering

4. unlawful entry into location where crime contemplated

5. possession of materials specially designed for crime, or which could serve no lawful purpose of actor under the circumstances

6. possession of materials near crime site with no lawful purpose

7. soliciting agent to commit

Attempt - MPC

 Defendant purposefully engages in an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime → punishment is equal except for the most serious offenses (homicide)

Defenses to attempt

1. pure legal impossibility

2. hybrid legal impossibility

3. factual impossibility

4. abandonment

Attempt - Pure Legal Impossibility defense

Defendant intended to commit a crime, but the action was not actually illegal 

✅✅Valid under MPC and Common Law

Attempt - hybrid legal impossibility defense

Defendant intended to commit a crime but was mistaken about the legal status that makes the crime impossible 

✅❌Valid only at Common Law

Attempt - factual impossibility defense

 Defendant mistaken about a fact, making it impossible for Defendant to commit underlying crime

❌❌Invalid defense at both common law and MPC 

Attempt - exception to the factual impossibility defense

Inherent Factual Impossibility

Attempt - Inherent Factual Impossibility

Defendant’s act so unlikely to result in the underlying crime that Defendant not guilty.

✅❌Valid only at Common Law, MPC will approach with judicial discretion 

Attempt - Abandonment Defense - MPC

Renunciation of Criminal purpose 

Test: D must demonstrate “complete and voluntary renunciation of his criminal purpose.” Not renunciation if motivated by circumstances that:

1.  Increased probability of D’s detection

2. Made it more difficult for D to complete the crime OR

3. Indicated D’s decision to just postpone conduct or transfer to

Attempt - Abandonment Defense - CL

❌Common law: Once defendant engages in overt act, attempt in complete even if defendant later decides not to go through with it.  

Solicitation (CL & MPC)

 Defendant invites, requests, commands, hires or encourages another person (b) to commit a specific crime, with the intent that b commits that crime 

Solicitation - Rules

1. Defendant does not need to be convicted of underlying offense 

2. B does not need to be convincted of underly

   1. B does not have to agree to commit the crime

Solicitation - Merger Doctrine

defendant cannot be convicted of both solicitation and the underlying offense. If convicted of the underlying offense it merges. 

defense for solicitation

abandonment (CL) & Renunciation (MPC)

Solicitation - Abandonment/Renunciation Defense CL

Invalid❌

Solicitation is complete upon invitation, even if the defendant changes their mind 

Solicitation - Abandonment/Renunciation Defense MPC

Valid✅

Under circumstances of complete and voluntary renunciation, defendant must: 

1. persuade B not to commit the underlying crime; OR

2. otherwise prevent commission of the underlying crime

Conspiracy CL

Agreement by 2 or more people to commit a particular crime

Conspiracy - Merger Doctrine CL

No merger, you can be convicted of conspuiracy and underlying offense (unlike attempt & solicitation)

Does conspiracy CL actus reus require an overt action?

No, it is complete when agreement is made

Conspiracy CL Mens Rea

Bilateral Approach, both people must agree

Conspiracy MPC

A person is guilty of conspiracy to commit a crime if, with purpose of promoting or facilitating its commission they:

1. Agree with the other persons(s) that they will engage in conduct constituting the crime, or an attempt or solicitation of that crime 

2. Agree to aid other person in planning of that crime, or an attempt or soliciation of that crime

Does conspiracy MPC actus reus require an overt action?

Yes, the defendant must take an overt act in pursuance

Conspiracy MPC Mens Rea

Unilateral Approach, only one person must agree

Conspiracy defenses

1. Abandonment/Renunciation  

2. Wharton’s Rule

3. Pinkerton Rule - Common Law Only 

Conspiracy - Abandonment/renunciation defense CL

 Common Law  Invalid❌

Conspiracy is complete upon agreement, even if the defendant changes their mind 

But it can be used as a defense of subsequent crimes. The defendant must: 

1. notify all co-conspirators AND

2. neutralize any assistance that D provided.

Conspiracy - Abandonment/renunciation defense MPC

Valid✅

Under circumstances of complete and voluntary renunciation, defendant must: 

1. thwart success of conspiracy AND 

2. manifest complete & voluntary renunciation of criminal purpose.

Conspiracy - Wharton’s Rule defense

Doctrine: Where 2 or more people necessary for the commission of the underlying crime, the crime of conspiracy requires more parties than are necessary for the agreement. 

• Adultery (sexual relation btw married & other person) – requires 2 people to commit 

• Conspiracy requires 3 people (e.g., a matchmaker). (applies also to bigamy, incest, dueling – crimes inherently involving 2 people

Conspiracy - Pinkerton Rule CL

Doctrine: D liable for all crimes committed by co-conspirators if crimes were:

1. in furtherance of the conspiracy;

2. within scope of conspiracy; AND

3. reasonably foreseeable consequence of agreement.

Accomplice Liability

A theory of liability where a defendant is convicted of a crime for helping another commit it

not an independent crime

Inchoate Offenses

Independent crimes for which a defendant can be convicted

Difference (Accomplice vs Inchoate)

Accomplice liability is a theory to convict of the target offense while inchoate offenses are standalone crimes

Principal in the First Degree (P1)

The person who actually commits the crime

Principal in the Second Degree (P2)

One who assists with intent and is present at the scene

Accessory Before the Fact (A1)

One who assists with intent but is not present at the scene

Accessory After the Fact (A2)

One who helps after the crime to avoid arrest trial or conviction

Equal Liability (Common Law)

P1 P2 and A1 are equally liable

Lesser Liability (Common Law)

A2 is less liable than principals and A1

Common Law Procedural Rule

Charging documents had to be precise and P1 had to be tried and convicted before accessories

A1 Doctrine

Defendant assists P with intent that P commit the crime but is not present

A1 Actus Reus

Affirmative assistance by words or acts mere presence is insufficient

A1 Mens Rea

Intent to help P commit the crime

A1 Causation

P must commit the crime but A1 need not be necessary to its success

A2 Doctrine

Defendant assists P in avoiding arrest trial or conviction after the crime

A2 Actus Reus

Helping P avoid legal consequences

A2 Mens Rea

Intent to help P avoid arrest trial or conviction

MPC 2.06 Rule

A person is liable if they are an accomplice in the commission of a crime

MPC Accomplice Definition

One who with the purpose of promoting the offense aids or attempts to aid

MPC Principal Requirement

Accomplice can be convicted even if the principal is not

MPC vs Common Law

No distinction between principals and accessories all are treated equally

Natural and Probable Consequences Doctrine

Accomplice is liable for the target offense and any reasonably foreseeable additional crimes

Foreseeability Standard

Crime must be a natural probable and ordinary consequence of the intended offense