Assessing the Essay

What should you compare when assessing your response against a model answer?

Whether your response identifies the same primary issues, rules, legally significant facts, and conclusions.

How should the legal issues in an essay be organized?

The answer should address one issue at a time and progress logically from one issue to the next.

What are the two principal elements of attempt?

(1) The specific intent to commit the target crime and (2) an overt act beyond mere preparation in furtherance of that crime.

What act is required for attempt under the Model Penal Code and majority rule?

An act constituting a substantial step toward the commission of the target crime.

What mens rea is required for attempted murder?

The specific intent to kill.

Can attempted murder be established through a lesser form of malice, such as reckless indifference?

No. Attempted murder requires the specific intent to kill.

Why did Wife possess the mens rea required for attempted murder?

Wife decided to kill Husband and intended for him to consume a lethal dose of poison.

What conduct constituted Wife’s substantial step toward murdering Husband?

She placed a lethal dose of poison in Husband’s hamburger and offered it to him intending that he eat it.

Why is poisoning the hamburger more than mere preparation?

Because Wife had already placed the lethal poison in Husband’s food and presented the food to him for consumption.

Is Wife guilty of attempted murder even though Husband did not eat the poisoned hamburger?

Yes. The crime of attempt does not require completion of the intended offense.

What is the proper conclusion regarding attempted murder?

Wife may be charged with attempted murder because she specifically intended to kill Husband and took a substantial step toward doing so.

What is criminal solicitation?

Asking, inciting, counseling, advising, urging, or commanding another person to commit a crime with the specific intent that the person commit it.

When is the crime of solicitation complete?

The moment the defendant asks, urges, advises, or commands the other person to commit the crime with the required intent.

Must the person solicited agree to commit the crime for solicitation to occur?

No. Solicitation is complete when the request is made with the required specific intent.

How did Wife solicit Son to murder Husband?

She asked Son to cut Husband’s brake line so that Husband would die when he drove around dead man’s curve.

When did Wife’s solicitation of Son become complete?

As soon as she asked Son to cut the brake line with the intent that Son kill Husband.

How did Wife solicit Boyfriend to murder Husband?

She told Boyfriend that she wanted to rekindle their relationship but that he first had to get Husband “out of the way.”

When did Wife’s solicitation of Boyfriend become complete?

As soon as she urged Boyfriend to kill Husband with the intent that he do so.

What happens to solicitation if the person solicited agrees to commit the crime?

The solicitation merges into conspiracy.

What happens to solicitation if the person solicited attempts or completes the requested crime?

The solicitation merges into the attempt or completed offense.

Why does Wife’s solicitation of Son merge into conspiracy?

Because Son agreed to participate in the plan to murder Husband.

Why does Wife’s solicitation of Boyfriend merge into the completed offense?

Because Boyfriend actually murdered Husband.

May Wife be charged with solicitation even if the offense later merges?

Yes. However, she cannot be separately convicted of solicitation if she is also convicted of the greater offense into which it merges.

What is the proper conclusion regarding solicitation?

Wife may be charged with soliciting Son and Boyfriend, but she cannot receive separate solicitation convictions if she is convicted of the relevant conspiracies or completed murder.

What is a conspiracy?

An agreement between two or more people to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.

What are the intent requirements for conspiracy?

The parties must intend to enter into the agreement, and at least two parties must intend to achieve its unlawful objective.

What additional element do most jurisdictions require for conspiracy?

An overt act in furtherance of the conspiracy.

How substantial must the overt act for conspiracy be?

It may be a very minor act; an act amounting to mere preparation is sufficient.

How does the overt-act requirement for conspiracy differ from the act requirement for attempt?

Conspiracy generally requires only a minor act or mere preparation, while attempt requires conduct beyond mere preparation, such as a substantial step.

When did the conspiracy between Wife and Son arise?

When Son agreed to Wife’s plan to murder Husband, assuming the required overt act also occurred in a jurisdiction that requires one.

What demonstrated Wife’s intent to enter the conspiracy and achieve its objective?

She asked for Son’s assistance and explained her plan to kill Husband.

What demonstrated Son’s intent to enter the conspiracy and achieve its objective?

He agreed to the plan, drove to the store, and purchased tools to cut Husband’s brake line.

What act satisfied the overt-act requirement for the Wife–Son conspiracy?

Son’s act of driving to the store and purchasing the necessary tools.

Did Son’s subsequent change of heart eliminate his liability for conspiracy?

No. The conspiracy was already complete following the agreement and overt act.

Is withdrawal a defense to an already completed conspiracy under the majority rule?

No. A subsequent withdrawal does not erase liability for the conspiracy itself.

What may an effective withdrawal accomplish?

It may prevent liability for subsequent crimes committed by other conspirators in furtherance of the conspiracy.

What is generally required for an effective withdrawal from a conspiracy?

The conspirator must perform an affirmative act that communicates the withdrawal to the other conspirators in time for them to abandon the plan.

Is merely changing one’s mind generally sufficient to establish withdrawal?

No. Withdrawal ordinarily requires timely communication or another affirmative act.

Why would an effective withdrawal matter to Son?

It could prevent him from being held liable for Wife’s or Boyfriend’s later crimes, although it would not eliminate his liability for the conspiracy itself.

How was the conspiracy between Wife and Boyfriend formed?

Wife urged Boyfriend to kill Husband, and Boyfriend agreed to do so.

What demonstrated Boyfriend’s intent to accomplish the conspiracy’s objective?

He immediately went to Husband’s home intending to kill him.

What act satisfied the overt-act requirement for the Wife–Boyfriend conspiracy?

Boyfriend’s act of going to Husband’s home to kill him; his subsequent shooting of Husband also clearly furthered the conspiracy.

Can Wife be charged with two conspiracies to murder Husband?

Yes. She entered into one agreement with Son and a separate agreement with Boyfriend.

Does conspiracy merge with the completed target offense under the modern and MBE rule?

No. A defendant may generally be convicted of both conspiracy and the completed substantive offense.

What is the proper conclusion regarding conspiracy?

Wife may be charged with both conspiracies, Son may be charged with the Wife–Son conspiracy, and Boyfriend may be charged with the Wife–Boyfriend conspiracy.

How is common-law murder defined?

The unlawful killing of another human being with malice aforethought.

What are the four mental states that may establish malice aforethought?

(1) Intent to kill, (2) intent to inflict great bodily injury, (3) reckless indifference to an unjustifiably high risk to human life, or (4) intent to commit a felony.

Why did Boyfriend commit common-law murder?

He went to Husband’s home intending to kill him and intentionally shot and killed him.

Which form of malice aforethought applies to Boyfriend?

Intent to kill.

What mens rea is generally required for accomplice liability?

The intent to aid, counsel, encourage, or facilitate the principal’s commission of the crime.

Must an accomplice personally commit the physical act constituting the offense?

No. A person may be liable by intentionally aiding, counseling, or encouraging the principal before or during the crime.

Why can Wife be liable for Husband’s murder as an accomplice?

She intentionally encouraged Boyfriend to kill Husband, and Boyfriend committed the encouraged murder.

Does Wife’s absence from the scene prevent accomplice liability?

No. An accomplice need not be physically present if she intentionally aided or encouraged the crime beforehand.

Does it matter that Boyfriend shot Husband instead of cutting his brake line?

No. Wife encouraged Boyfriend to kill Husband, and Boyfriend accomplished that intended criminal objective.

When may a conspirator be liable for a crime committed by another conspirator?

When the crime was committed in furtherance of the conspiracy and was a foreseeable consequence of the unlawful agreement.

Why was Husband’s murder committed in furtherance of the Wife–Boyfriend conspiracy?

Because killing Husband was the central objective of their conspiracy.

Why was Husband’s murder foreseeable to Wife?

Because Wife and Boyfriend specifically agreed that Husband would be killed.

Why can Wife be held liable for murder as Boyfriend’s co-conspirator?

Boyfriend killed Husband in furtherance of the conspiracy, and the killing was foreseeable because it was the conspiracy’s intended objective.

Under what two theories can Wife be charged with Husband’s murder?

Accomplice liability and co-conspirator liability.

What is the ultimate conclusion regarding Wife’s criminal liability?

Wife may be charged with attempted murder, conspiracy, and murder; she may also be charged with solicitation, although solicitation merges for purposes of conviction with the applicable conspiracies or completed offense.