Inchoate Crimes

What does the Merger doctrine provide?

Merger does NOT address what a prosecutor can do in charging and bringing to trial because it is jury’s job to determine liability. Doctrine of merger is only about the end process/final product, after trial.

• Attempt—A person can be charged with, and tried for, both the attempt and the completed offense for a particular crime. If the jury comes back with guilty on both of those, judgment may not be entered against the defendant, and the defendant may not be sentenced, for both the attempt and the completed offense. The attempt merges up.

• Conspiracy—A person can be charged with, and tried for, conspiracy, attempt, and the completed offense for a particular crime. If the jury comes back with guilty on all 3, the attempt will merge up, but conspiracy will not merge ever. Does NOT merge

• Solicitation—A person can be charged with, and tried for, conspiracy or attempt and solicitation. If the jury comes back with guilty on both, solicitation would merge up, into the higher offense. Solicitation merges up.

What is the common law definition of Attempt?

• She intentionally engages in sufficient conduct so as to be deemed to move from preparing to commit the crime to perpetrating the crime

• Does so with the intent that the conduct result is the Commission of that crime.

  • Intent to commit the conduct constituting attempt

  • Intent that the conduct result in the commission of the crime

What is the Actus Reus element for Attempt?

that point in time when the defendant is trying to commit the crime. (preparing is not enough, they must be trying to do it)

What is the Last Act Test used to measure whether the Actus Reus element for attempt has been satisfied?

Last Act—A person has committed the actus reus for attempt when she performs all the acts necessary for the Commission of the target offense. The defendant did everything in their power to commit the crime (ex: pulled trigger on gun). Test during the early common law. Not a great way to prevent crime. You must wait until the trigger is pulled. Everything until that point would not result in this charge.

What is the Physical Proximity Test used to measure whether the Actus Reus element for attempt has been satisfied?

Physical Proximity—A person has committed the actus reus for attempt when she is physically close to performing all the acts necessary for the Commission of the target offense. (ex: at the bank, ready to rob it). Defendant is physically close to completing the crime.

What is the Dangerous Proximity Test used to measure whether the Actus Reus element for attempt has been satisfied?

Dangerous Proximity—A person has committed the actus reus for attempt when she is dangerously close to performing all the acts necessary for the Commission of the target offense. (ex: dangerously close to arriving at the bank. More severe the crime is, the earlier in time we will allow someone to be found in dangerous proximity.) Defendant is dangerously close to completing the crime.

What is the Indispensable Element Test used to measure whether the Actus Reus element for attempt has been satisfied?

Indispensable element—A person has committed the actus Reus for attempt only when she has acquired all indispensable elements necessary to commit the target offense. (ex: she needs layout of the bank, getaway car, weapon to threaten those inside, etc.). Defendant must have everything needed to commit the crime.

What is the Probable Desistance Test used to measure whether the Actus Reus element for attempt has been satisfied?

Probable Desistance—a person has committed the actus Reus for attempt when she has performed sufficient conduct so that, in the ordinary and natural course of events, the target offense will result unless an external source intervenes. (ex: she’s done enough that if we just let it be, she is going to go through with the bank robbery.). Defendant does not need to have all of the tools yet, but if things continue the way they are going, we know that the crime is going to happen.

What is the Substantial Step (MPC) Test used to measure whether the Actus Reus element for attempt has been satisfied?

Substantial Step (MPC)—a person has committed the actus Reus for attempt when she has committed acts, or omitted to commit acts, that constitute a substantial step in a course of conduct planned to culminate in his commission of the target offense. Conduct is NOT a substantial step unless it is strongly corroborative of the actor's criminal purpose. Examples per MPC:

• Lying in wait or reconnoitering the place.

• Searching for, or following, the victim.

• Enticing the victim to go to the place of crime.

• Unlawful entry to the place of the crime.

• Possession of materials for the crime near the place of the crime and there is no lawful use for those materials.

• Possession of materials for the crime if they are specially designed for such unlawful use or which can serve no lawful purpose under the circumstances.

• Soliciting an innocent agent to engage in conduct constituting an element of the crime.

What is the Res Ipsa Loquitor/Unequivocally Test used to measure whether the Actus Reus element for attempt has been satisfied?

Res Ipsa Loquitor/Unequivocally—A person has committed the actus reus for attempt when her conduct manifests an intent to commit a crime. Once we know the mens rea, any behavior that confirms that mens rea, at that point, they have now done the actus reus for attempt.

What is the difference between a Complete Attempt and an Incomplete Attempt?

Complete attempt—When a person, acting with the requisite mens rea, does everything in her power to commit a crime, but some external circumstance prevents the crime from being committed.

Incomplete attempt—When a person, acting with the requisite mens rea, does something less than all the actus reus required for the crime.

In early common law, you could have criminal liability for complete attempts. Courts then started to attach liability even for incomplete attempts. So, while the Last Act is a sufficient condition to impose liability for attempt, it is not a necessary condition for doing so.

What is the Mens Rea element for Attempt?

Dual mens rea:

1. Intent to commit the conduct constituting attempt

2. Intent that the conduct result in the commission of the crime

The behavior must be intentional for the specific purpose of engaging in the specific crime

MPC--A person has the mens rea for attempt if she acts with the “purpose of engaging in the conduct or causing the result.”

Why was Renunciation not a defense to Attempt under the Common Law? Why does the MPC recognize this defense and what are its elements?

Once you commit the crime, you can’t undo it. So, once you have committed the attempt, you can’t say never mind. Once there is a convergence of mens rea and actus reus, the attempt is done and you can’t say never mind.

MPC recognizes it to give people incentives to stop criminal behavior, particularly in light of liability being imposed earlier than the completed attempt.

Renunciation elements under MPC

• Actus Reus—Abandon effort to commit the crime OR otherwise prevent its commission

• Mens Rea—Voluntary renunciation of criminal purpose AND complete renunciation of criminal purpose.

  • Voluntary Renunciation—Renunciation is not voluntary if it is motivated in whole or in part, by a concern about the probability of detection or apprehension or about the difficulty of accomplishing the criminal purpose.

  • Complete Renunciation—Renunciation is not complete if it is temporary or contingent, such as postponing the criminal conduct until another time or transferring the criminal effort to another victim or similar objective.

What is the relationship of Solicitation to the other inchoate crimes? Is solicitation sufficient conduct to satisfy the actus reus for Attempt?

Solicitation is not enough to meet the attempt charge because it is still in the preparation stage, not the perpetration stage, which is where attempt is. Courts also generally do not impose liability for an attempt to solicit. Solicitation is the earliest point at which we impose liability in the common law approach.

What are the elements of Solicitation under the Common Law?

Solicitation is when a person intentionally asks, commands, or entices another to commit a crime, with the intent that the other person commit that crime.

Actus Reus: 

• One of the following:

  • Asking another; OR

  • Commanding another; OR

  • Enticing another

• To commit a crime

Dual Mens Rea:

• Intentionally doing the actus reus AND

• With the intent that the other person commits that crime.

Who is an Innocent Instrumentality? Can such a person be charged with Solicitation? What liability can there be if the Innocent Instrumentality commits the conduct necessary for a crime?

The innocent instrumentality is a person who commits the actus reus, but while being unaware that they are engaging in criminal behavior.  

The innocent instrumentality, whether a non-human or a non-culpable human agent, is not guilty of the crime because, despite satisfying the actus Reus, there is no men's rea.

As such, the defendant who used the innocent instrumentality is not guilty of solicitation because they are not asking someone else to commit a crime. The other person has no idea they are committing a crime.

Rather, the innocent instrumentality rule provides that a person is guilty of the underlying crime if, acting with the men's area required for the commission of the offense, she uses an innocent instrumentality to commit the crime. (Defendant has mens rea but uses some other person, object, robot, dog, etc. for the actus reus).

Did the common law recognize attempted solicitation as a crime? How is the MPC different?

Courts also generally do not impose liability for an attempt to solicit. Solicitation is the earliest point at which we impose liability in the common law approach.

Uncommunicated solicitation—State v. Cotton—inmate was soliciting someone on the outside to commit a crime and put it in the mail. Mail was screened.

• Common law—if solicitation is not communicated, no crime has been committed. Person must receive the message. Ex: Mailing the letter is not solicitation, once received, it is.

• MPC—if solicitation is communicated, but not received, it is a crime. It is immaterial that the actor fails to communicate with the person he solicits to commit a crime if his conduct is designed to affect such communication. Ex: Mailing the letter is solicitation, even if never received.

Did the common law recognize renunciation as a defense to solicitation? How is the MPC different?

Common Law—Not a defense to solicitation.

MPC—renunciation is a defense:

• Actus Reus—Persuade others to not commit the crime OR otherwise prevent its Commission.

• Mens Rea—Voluntary renunciation of criminal purpose AND complete renunciation of criminal purpose.

  • Voluntary Renunciation—Renunciation is not voluntary if it is motivated in whole or in part, by a concern about the probability of detection or apprehension or about the difficulty of accomplishing the criminal purpose.

  • Complete Renunciation—Renunciation is not complete if it is temporary or contingent, such as postponing the criminal conduct until another time or transferring the criminal effort to another victim or similar objective.

MPC takes a 2-fold approach to solicitation:

1. It broadens the reach of solicitation laws by including uncommunicated solicitation.

2. It mitigates the expanded reach of solicitation by adopting the renunciation defense.

What are the elements of Conspiracy under the Common Law?  Under Modern Approach?  Under MPC? 

Common Law: 

• Actus Reus

  • There is an agreement between two or more persons to commit a criminal act

• Mens Rea

  • With the intent to agree AND

  • With the intent that the agreement lead to the commission of that crime.

Modern Approach: 

• Actus Reus

  • There is an agreement between two or more persons to commit a criminal act AND

  • At least one person commits an overt (open) act to further the conspiracy.

• Mens Rea

  • With the intent to agree AND

  • With the intent that the agreement lead to the commission of that crime.

MPC:

• Actus Reus

  • Agrees with another

  • To engage in conduct that constitutes the crime AND

  • Commits an overt act if the target crime is less than a second-degree felony (over act not required for higher than 2^nd degree felony)

• Mens Rea

  • With the purpose of promoting or facilitating Commission of that crime. (still dual mens rea, must have intent to engage in the behavior too)

Does the agreement for conspiracy need to be express? 

No, not in Common law, modern approach, or MPC. Implicit agreement is enough.

Does each conspirator have to agree to each part of the substantive offense?

No, not in Common law, modern approach, or MPC. So long as they agree to some, it is fine.

Under common law only—the agreement can be either to do an unlawful act or do to a lawful act by criminal or unlawful means.

• It is a conspiracy to agree to perform a civil wrong.

• It is a conspiracy to agree to perform an act that, while being neither a criminal or civil wrong, is considered immoral or dangers to the public health or safety.

Under Modern Approach and MPC:

• An overt act by any one party to a conspiracy is sufficient basis to prosecute every member of the conspiracy.

  • 3rd party can join after the act and still be liable because they are joining the conspiracy.

Due to the dual mens requirements, under all 3 bodies of law:

• One cannot be guilty of a conspiracy to commit an unintentional crime.

• One cannot be liable for the conspiracy if the other conspirator lacks part of the mens rea.

What is the common law plurality requirement? How is the MPC different?

What is one of the people was an undercover cop?

Common law—no conspiracy because 2+ people had to agree AND have the requisite mens rea. Common law requires plurality.

MPC—recognizes unilateral conspiracy. So long as the defendant has the requisite actus reus and mens rea, the defendant is liable irrespective of the other person’s mens rea (or lack thereof). MPC does not require plurality.

How did the Common Law determine how many conspiracies a defendant had entered into? How is the MPC different?

Common law—Braverman v. United States (1942). Each agreement is a separate conspiracy. So, agreement to rob 3 banks is 1 agreement, thus 1 conspiracy. BUT, if they agreed to rob 1 and then did and then agreed to rob another, that is 2 agreements, thus 2 conspiracies.

MPC—each agreement is a separate conspiracy. However, multiple agreements are the same conspiracy if they arise from a continuous conspiratorial relationship. So, agreement to rob 3 banks is 1 agreement, thus 1 conspiracy. AND, if they agreed to rob 1 and then did and then agreed to rob another, that is the same conspiratorial relationship, thus 1 conspiracy.

MPC took 2-fold approach:

1. It broadened the reach of conspiracy laws by limiting the over act requirement to less serious crimes and by adopting a unilateral theory of conspiracy

2. It mitigated the expanded reach of conspiracy by rejecting the Braverman approach to the number of conspiracies.

Did the common law recognize renunciation as a defense to conspiracy? How is the MPC different?

Common law—renunciation is not a defense.

MPC

• Actus Reus—thwart the success of the conspiracy

• Mens Rea—Voluntary renunciation of criminal purpose AND complete renunciation of criminal purpose.

  • Voluntary Renunciation—Renunciation is not voluntary if it is motivated in whole or in part, by a concern about the probability of detection or apprehension or about the difficulty of accomplishing the criminal purpose.

  • Complete Renunciation—Renunciation is not complete if it is temporary or contingent, such as postponing the criminal conduct until another time or transferring the criminal effort to another victim or similar objective.

One important difference between the common law and the Model Penal Code when it comes to Conspiracy involves the minimum number of persons it takes to form a conspiracy. What is that difference?

Common law—both must agree and have the requisite mens rea. Requires a minimum of 2.

MPC—if they agree, but only 1 overly acts, still a conspiracy. You can be liable even if you come in after the act. Defendant is culpable so long as they have requisite actus rea and mens rea, irrespective of the other person’s mens rea. Requires only 1.