Criminal Law - Inchoate Offenses

Merger doctrine

When the target offense of an inchoate offense is actually completed, the inchoate offense merges with the target offense. D can only be charged with the target offense.

Potential defenses to an inchoate crime

• Acquittal

• Impossibility (factual or legal)

• Renunciation

• Withdrawal

Acquittal (majority rule)

Even if all other Ds are acquitted, the last D may still be convicted.

Acquittal (minority rule)

If all other Ds are acquitted, then the last D’s conviction must also be precluded.

Factual impossibility

The crime can’t be completed due to a factual or physical circumstance.

Legal impossibility

D falsely imagined that his conduct was illegal.

Renunciation elements — D must have . . .

• persuaded the other party to not commit the target offense; OR

• otherwise prevented the commission of the crime; OR

• overtly renounced his involvement completely and voluntarily

A COMPLETE and VOLUNTARY renunciation means that . . .

. . . D’s involvement was completely revoked; AND

. . . no new circumstances (such as belief that he will get caught) can cause the renunciation.

Withdrawal elements — Only prevents liability for crimes committed after D’s withdrawal; AND D either . . .

• prevented the goal of the crime; OR

• communicated his withdrawal to all other co-offenders; OR

• notified the police if notification of all co-offenders is impossible.

Solicitation elements

1. ACTUS REUS — Asking, inciting, counseling, advising, urging, or commanding another to commit a crime

2. MENS REA — General intent to communicate; specific intent to consummate the target offense

3. CAUSATION (assumed)

4. ATTENDANT CIRCUMSTANCES — Receipt variances

Common law receipt of solicitation rule

D’s liability for solicitation requires actual receipt of the criminal request by an intended solicitee.

M.P.C. receipt of solicitation rule

Whether the intended solicitee received the request is irrelevant to D’s liability.

Defenses available for solicitation

Renunciation

Renunciation as a defense is available in:

• Common law jurisdictions only

• M.P.C. jurisdictions only

• Both types of jurisdictions

(pick one)

M.P.C. jurisdictions only

The merger doctrine APPLIES / DOES NOT APPLY to solicitation. (pick one)

APPLIES

Elements of conspiracy

1. ACTUS REUS — An express or implied agreement between 2+ persons

2. MENS REA — General intent to enter into the agreement; specific intent to achieve the objective of the agreement

3. CAUSATION (assumed)

4. ATTENDANT CIRCUMSTANCES — An overt act

Common law bilateral conspiracy rule

At least 2 guilty minds are required to commit a conspiracy.

M.P.C. unilateral conspiracy rule

Only one guilty mind is required to commit a conspiracy.

Common law (majority) overt act rule

Any overt act is sufficient.

Common law (minority) overt act rule

The overt act must be a substantial step to the crime.

M.P.C. overt act rule

An overt act is not required to prove a conspiracy; an agreement is sufficient.

The merger doctrine APPLIES / DOES NOT APPLY to conspiracy. (pick one)

DOES NOT APPLY

Defenses available for conspiracy

• Acquittal (under the minority rule)

• Withdrawal

• Renunciation, IF D thwarted the success of the crime

Counting conspiracies

The number of chargeable conspiracies is equal to the number of agreements between 2+ people, NOT the number of crimes the 2+ people agreed to commit.

Charging conspiracy

Conspiracies are charged in addition to the target offenses in the agreement and all of the offenses that were reasonably foreseeable in furtherance of the agreement.

Wharton rule (common law)

Crimes that can only be committed by 2 people cannot merge into conspiracy; very narrow, and typically only applies to:

• Adultery

• Bigamy

• Dueling

• Incest

Escalante rule

Members of a conspiracy do not have to know all the participants in or the purposes of the conspiracy.

Perry rule

Members of a conspiracy don’t need to all meet together at the same time to reach the criminal agreement.

Pinkerton doctrine for co-conspirator liability

All members of a conspiracy are liable for the crimes that are committed by any other members of the conspiracy if the crime they committed are reasonably foreseeable AND in furtherance of the objectives of the crime.

Entrapment rule

Government agents cannot implant the disposition to commit a criminal act in an innocent person’s mind.