CHAPTER 4: Criminal Liability - Fill-in-the-Blank Flashcards
Preliminary, Anticipatory, and Inchoate Crimes
In criminal law, there are three broad stages before the substantive (principal) crime: preliminary, anticipatory, and inchoate crimes.
Purpose of these offenses: to police and deter social harm before the substantive crime occurs; to address conduct that contributes to or facilitates the eventual crime.
Key idea: A person can be punished for planning, attempting, or agreeing to commit a crime even if the underlying crime is not committed.
A wants B to kill C. If B is hired and kills C, B is guilty of murder; A can be guilty as an accessory or principal. If B tries but fails, both A and B can be guilty of attempted murder. If B agrees to kill but does not attempt, A and B can be guilty of conspiracy. Even if B refuses, A can still be liable for solicitation.
Three core questions in considering preliminary offenses:
Where and when does non-criminal conduct become criminal by a further act?
Which preliminary offense, if any, has the suspect committed?
When does the principal offense begin so the state can charge the preliminary or principal offense?
Planning vs. completion: preliminary crimes can be charged even if the underlying crime does not occur; the planning/attempt to commit the crime is itself criminal.
Not all crimes are planned; impulsive or spontaneous crimes may not have formal planning. Events can prevent completion of a crime.
Example of threats against the president: expressing intent to commit a crime can, in some contexts, lead to arrest or detention even without an actual plan executed.
Overview of the chapter: explores liability for preliminary offenses and the limitations on them, including Wharton rule implications and other doctrines.
Important definitions:
Solicitation: an attempt to get another person to commit a crime; may be complete even if the solicited party refuses or does not cooperate.
Conspiracy: an agreement between two or more persons to commit an unlawful act, often with an overt act in furtherance.
Attempt: a substantial step toward the commission of a crime that is not yet completed.
The terms are discussed with emphasis on how liability arises before the substantive crime and how proof is established.
Solicitation (Incitement) to Commit a Crime
Definition: an attempt to obtain another person’s agreement to commit a crime; can be charged even if the other party does not participate or if the crime is not completed.
General vs specific solicitation statutes:
States often have general solicitation statutes covering solicitation to commit any crime (in addition to specific statutes for particular crimes, e.g., prostitution, bribery).
Example general statute (Wisconsin): ext{Wis. Stat.} ext{§ } 939.30 with the language requiring intent that a felony be committed by the solicited person.
Federal example: 18 ext{ U.S.C. } ext{§ } 373 requires evidence that the defendant actively solicited the crime with intent; corroboration is often required.
Elements and proof:
Prosecution typically must show more than a casual suggestion; the defendant’s intent is demonstrated by incriminating statements or conversations overheard by police (e.g., under corroboration requirements).
Some jurisdictions require corroboration or other evidence of intent; others impose corroboration-like limits (Texas § 15.03(b) requires corroboration of the solicited crime).
Illustrative cases and points:
Illinois case where a prison inmate mailed solicitations to murder a drug addict; the solicitation conviction relied on intercepted communications showing intent, even though the target did not cooperate.
Michigan case: defendant offered money to kill a key witness; conviction upheld despite later statements de-emphasizing the plan.
Utah case: Arave – conviction for soliciting a minor for sexual acts upheld despite the lure involving a minor; shows solicitation can apply to attempts involving victims other than the solicited party when the statute covers those circumstances.
Specific to online/Internet enticement: modern context includes using chat rooms to entice or entrap, including policy and legal responses to pedophilia online.
Important note: Some jurisdictions treat solicitation as complete at the moment of the offer or solicitation, regardless of whether it is communicated or accepted; other contexts require corroboration or a more substantial demonstration of intent.
Conspiracy to Commit a Crime
Core concept: conspiracy is an agreement between two or more persons to commit an unlawful act, often punished as a separate offense in addition to the underlying crime.
Rationale for conspiracy statutes:
Increased potential harm to society when parties coordinate; greater chance of success and concealment; conspirators are harder to detect.
Bilateral vs unilateral approach:
Bilateral approach (traditional/common-law approach): requires two or more guilty parties to be convicted; if A is guilty and B is not, A’s conviction could be reversed.
Unilateral approach (Model Penal Code influence): a defendant can be guilty of conspiracy with another person even if that other person is not guilty or is merely feigning agreement; does not require the other party to be criminally liable.
MPC § 5.03(1): a person is guilty of conspiracy with another person if they agree that they or one of them will engage in conduct that constitutes the crime; the other party need not be guilty.
Overt act requirement:
Many state conspiracy statutes require an overt act in furtherance of the conspiracy.
Federal statute 18 U.S.C. § 371 generally requires an overt act; however, other federal statutes (e.g., § 846 for drug conspiracies) do not contain an overt act requirement.
Supreme Court guidance (Salinas v. United States; Whitfield v. United States) clarifies the presence or absence of the overt act requirement depending on the statute modeled after the Sherman Act vs. the common-law conspiracy framework.
Wharton Rule:
The rule that crimes needing more than one person to complete (e.g., bigamy, dueling, gambling, adultery) cannot be charged as conspiracy if the number of participants is exactly the number required to commit the underlying crime.
Ianelli v. United States clarifies that the Wharton rule applies to conspiracy to commit crimes that require multiple participants, and only where Congress intended to permit such prosecutions; it can be bypassed if more than the minimum number of participants are involved in the conspiracy or if the underlying crime allows broader liability.
For drug distribution, there must be at least a deliverer and a buyer; when only those two participate, conspiracy may be blocked by the Wharton rule, but if more parties are involved, conspiracy can be charged along with the substantive drug offenses.
Impossibility, Abandonment, and Withdrawal:
Impossibility defense: United States v. Jimenez Recio rejected the idea that impossibility defeats conspiracy liability; the essence is the agreement itself, not the success of the underlying crime.
United States v. Min (2013): conspiracy to rob a stash house that was part of an FBI sting is still complete upon agreement; impossibility is not a defense.
Abandonment/Withdrawal: withdrawal from conspiracy generally does not exonerate the conspirator; the conspiracy is complete at the time of agreement. Some jurisdictions (and MPC) provide defenses for complete and voluntary renunciation of criminal purpose, particularly when the conspirator thwarted the plan and prevented the crime; the state bears the burden to show withdrawal before the limitation period.
Smith v. United States (2013): defendant bears the burden to prove withdrawal before the statute of limitations; the prosecution need not prove non-withdrawal.
The Crime and Overt Act/Differences with Attempt:
Conspiracy typically requires agreement to commit the offense plus an overt act in furtherance (at least in many jurisdictions).
Attempt requires a substantial step toward the commission of the crime; the two concepts share the notion of “overt act” but have different triggers (agreement vs. substantial step).
Internet conspiracy example:
An online chat room scenario where a defendant makes an agreement to commit sex with a minor and the undercover officer participates; courts have recognized unilateral conspiracy liability even where the other party was an undercover agent.
The Wharton Rule
The rule: certain crimes require multiple participants for commission (e.g., dueling, bigamy, gambling, adultery, incest, pandering for prostitution, receiving a bribe, distribution of illegal drugs).
Policy rationale: conspiracy punishes partnerships in crime and prevents hidden coordination among multiple actors; if the crime already requires two or more participants, charging conspiracy when exactly those participants are involved may be inappropriate unless more participants exist.
Ianelli v. United States: the Wharton rule applies to federal conspiracies involving gambling statutes requiring multiple participants; Congress intended to permit conspiracy prosecutions alongside the underlying crime when more participants are involved.
Drug distribution: because the underlying crime requires at least two participants (deliverer and recipient), conspiracy charges are typically barred under the Wharton rule unless there are more than the necessary participants involved.
Defeating Wharton via additional evidence: if there is evidence of a long-term, ongoing relationship or repeated sales involving more participants, conspiracy charges can be joined with the underlying drug offenses.
Impossibility, Abandonment, and Withdrawal (Conspiracy and Attempt)
Impossibility defense generally rejected for conspiracy and attempt; the essence is the agreement or the attempt, not whether the underlying crime could actually occur.
In some jurisdictions, impossibility can be viable if the plan as conceived is not a crime at all (i.e., legal impossibility).
Abandonment/Withdrawal: renunciation may be a defense in attempt or conspiracy in certain jurisdictions or under MPC-style provisions if abandonment is complete and voluntary and the defendant thwarted the plan; otherwise, abandonment typically does not defeat liability.
The Model Penal Code, and some state codes, include explicit renunciation defenses for attempts and conspiracies, requiring voluntary and complete renunciation of criminal purpose before the crime is completed.
The Crime of Attempt
Attempt is the act of trying to commit a crime that is not yet completed; it is a separate offense that can be charged independently of whether the underlying crime is completed.
Actus Reus (the act requirement): major debate historically; modern trend favors the MPC "substantial step" test as the standard for what constitutes a sufficient act to constitute an attempt.
MPC § 5.01(1)–(2):
(1) A person must have intent to commit a crime.
(2) Conduct constituting a "substantial step" toward the commission of the offense, which strongly corroborates the actor’s criminal intent.
Substantial step: means conduct that is strongly corroborative of the criminal purpose; acts need not be the very last act but must go beyond mere preparation.
Mens rea (mental state) in attempt: often requires intent to commit the completed crime; for completed crimes with specific intent (e.g., murder), attempt generally requires the same specific intent to achieve that result; some crimes with generalized or no specific intent (e.g., some forms of manslaughter) create doctrinal tension on whether an attempt can be charged.
Examples of substantial steps (illustrative cases):
United States v. Heyn: building a pipe bomb intended to blow up a car was a substantial step toward attempted murder.
United States v. Wesley: contacting accomplices, planning a getaway, and surveillance steps supported attempted robbery.
State v. Stensaker; State v. Legins: possession or possession-like steps and proximity to the target can suffice for attempted manufacture or attempted robbery.
Internet-era cases: attempts to groom or entice a child via chat rooms; courts distinguish between acts that satisfy the substantial step requirement and mere online conversations;
United States v. Young (8th Cir. 2010): several grooming chats culminating in an agreement to meet for sex satisfied the substantial step for attempted incitement of a child.
United States v. Winckelmann (Armed Forces, 2011): an online chat that did not, by itself, satisfy the substantial step for attempted enticement of a child; a later action was not proven to be a substantial step.
Impossible, factual vs legal impossibility in attempt:
Historically: factual impossibility (attempting to pick an empty pocket) vs legal impossibility (attempting to commit an act that would not be a crime) were treated differently.
Modern trend (and MPC) rejects the defense of impossibility as a defense to attempt, except where the contemplated act would not be criminal at all.
Abandonment of an attempt:
Abandonment defenses exist in some jurisdictions; MPC recognizes a defense for voluntary renunciation under circumstances manifesting a complete and voluntary renunciation of the criminal purpose.
Key cases illustrate that abandonment must be truly voluntary and not caused by external pressures such as fear of being caught.
Internet chat room attempts:
The defense of legal impossibility is generally rejected in enticement cases; courts typically require evidence of intent to entice a minor and an overt act toward that end.
Practical implications: the proximity of the act to completion and the nature of the intent determine whether a defendant is guilty of attempt; different jurisdictions may apply slightly different tests (substantial step, dangerous proximity, etc.).
Overt Acts: Conspiracy versus Attempt
Both conspiracy and attempt require some form of conduct that goes beyond mere thought; conspiracy requires an overt act in many jurisdictions, while attempt requires a substantial step.
Key question: which requirement is easier to prove in practice?
Illustrative contrasts (cases from the same jurisdiction):
Collier v. State (Indiana): separate question about whether driving toward an estranged wife’s workplace with weapons constitutes attempted murder.
Conn. v. State (Ind. App. 2011): two defendants involving conspiracy to kill a witness; questions whether a subsequent act (surveillance by a sister) satisfied the overt act/attempt requirement; analysis depends on the jurisdiction’s approach to overt acts and substantial steps.
Ohio and other jurisdictions: attempted felony murder not cognizable where felony murder statutes cover unintended deaths; demonstrates the alignment between attempt and the completed offense.
Takeaway: overt act requirements are a tool to distinguish conspiratorial liability from mere planning or attempt liability; the presence or absence of an overt act, and its sufficiency, depends on the statute and jurisdiction.
Internet Chat Rooms and Enticement Statutes
A modern context for attempts and solicitation: use of chat rooms to entice minors for unlawful sexual conduct.
Typical legal framework: statutes criminalizing enticement or attempted enticement of a child via electronic communications; examples include Virginia’s enticement statute (using computers or communication systems).
Key legal issues in internet enticement cases:
The “substantial step” requirement in attempt prosecutions involving online communications.
The rejection of a legal impossibility defense in most cases where the defendant believes the target is a minor, even if the target turns out not to be a minor.
The role of undercover law enforcement in enticement cases and the evidentiary burdens for proving intent and steps taken toward the crime.
Notable cases: U.S. v. Murrell (11th Cir. 2004) – enticement attempt convictions relied on chat-room communications; State v. Patel (Wash. 2010) – attempted rape of a child involving an undercover officer; Alabama and other jurisdictions – renunciation defenses applied in various contexts.
Practical takeaway: internet enticement prosecutions emphasize the need to show a clear intent to commit a crime and a substantial step toward that crime, even when the target is anonymous or a police officer posing as a minor.
Parties to the Principal Crime
Terminology: the parties to a crime include principals and accomplices; modern systems have consolidated categories into a coherent framework under the Model Penal Code and federal statutes.
Common-law categories (historical overview):
Principal in the first degree: person who actually commits the crime.
Principal in the second degree: present at the crime or aided in its commission.
Accessory before the fact: aided in planning or preparation but was not present at the crime.
Accessory after the fact: aided after the crime was committed.
Modern liability framework:
18 U.S.C. § 2: a person who commits the crime or who aides or abets the commission of the crime may be convicted as a principal.
MPC § 2.06(3): creates “accomplice” liability for those who assist in the commission of the offense.
Post-crime liability: those aiding after the fact may be charged with separate offenses (e.g., Hindering Apprehension; Misprision of a Felony).
Accomplice liability (aider and abettor):
Requires: (i) an act of assistance or encouragement; (ii) a mental state that the accomplice intends to facilitate the principal’s crime.
Rosemond v. United States (2014): Supreme Court clarified intent in accomplice liability under 18 U.S.C. § 2; the government must prove that the defendant knew in advance that a cohort would bring a gun to the crime; continued participation after the gun is shown does not satisfy intent; focus is on knowledge and opportunity to withdraw before the crime is completed.
Encarnacion-Ruiz (First Circuit, 2015): accomplice liability may require knowledge of victim’s status in certain crimes (e.g., minor in child-pornography context).
“Natural and probable consequences” doctrine: some jurisdictions apply it to accomplice liability, but several jurisdictions limit it or reject it in differing contexts (e.g., California in premeditated murder cases).
Common design or plan rule (Pinkerton):
Under Pinkerton v. United States, a conspirator can be held liable for crimes committed by co-conspirators if those crimes were in furtherance of the conspiracy and were foreseeable.
The scope of liability: all co-conspirators can be charged for acts of others that occur in furtherance of the common plan; the degree of foreseeability influences liability.
Example: concealing weapons during a drug conspiracy can lead to all conspirators being liable for possessing a gun during distribution if foreseeability supports it.
Conspiracy liability vs. accomplice liability:
Conspiracy liability typically extends to acts committed in furtherance of the conspiracy and foreseeably connected to the plan; accommodations for withdrawal and renunciation may apply depending on jurisdiction.
Accomplice liability focuses on the offender who intentionally aided or encouraged the crime and the mental state at the time of aiding.
Liability Theories and Related Concepts
Accomplice liability (aider and abettor):
Must include both an act of aiding and an intent to facilitate the principal’s crime.
The Rosemond framework emphasizes pre-offense knowledge and the opportunity to withdraw; continuing involvement after the crime begins does not satisfy the intent requirement.
Common design or plan (conspiracy) liability:
The Pinkerton rule applies to conspiracies; co-conspirators can be liable for crimes committed by others in furtherance of the conspiracy if those crimes were foreseeable.
The scope of liability depends on foreseeability and whether the acts were committed in furtherance of the conspiracy.
The Wharton Rule integrated into conspiracy doctrine:
The Wharton rule states that conspiracy cannot be charged for crimes requiring more than one person when the number of participants is exactly the number necessary to commit the underlying offense, unless more participants are involved.
Parties who can be treated as principals:
Under most jurisdictions today, all who knowingly participate in or facilitate the crime can be charged as principals; others who aid after the fact are subject to post-crime offenses.
The role of the law in policing the chain of liability:
The focus is on whether conduct in concert with others constitutes planning, aiding, or involvement in the underlying crime; the liability framework is designed to prevent evading punishment by avoiding direct involvement while still participating in the scheme.
Post-Crime Offenses
Definition: offenses that parties commit after the main crime has been completed, typically involving assistance to the criminal or the investigation process.
Common examples:
Harboring or aiding felons
Obstructing or resisting an officer in the course of enforcing law
Misprision of a felony (failure to report a known felony)
False reports to law enforcement
Compounding a crime (agreement to withhold evidence or to refrain from prosecuting a crime)
Perjury or obstructing justice (as related to testimony or interference with the legal process)
Practical purpose: facilitate law enforcement, justice administration, and accurate adjudication; deter obstructive or deceptive conduct that would impede investigations or prosecutions.
Strict Liability vs. Vicarious Liability
Strict liability offenses:
Do not require proof of mental fault (mens rea); the government must prove the prohibited act occurred.
Example: many statutory rape laws treat the age of the victim as a strict liability element (lack of knowledge or intent regarding age).
Vicarious liability (accountability for others’ actions):
Framework (Model Penal Code, § 2.06): liability may attach to a person for the acts of another under several theories (e.g., accomplice liability, conspiracy liability, or respondeat-like liability in certain statutory schemes).
Categories include: causing innocent or irresponsible people to commit acts; being an accomplice by soliciting, aiding, or failing to prevent; statutory classifications of liability for a class of persons implicated by statute.
Figure 4.1: The Various Stages of Crimes
Diagrammatic representation of the stages from thoughts to post-crime offenses:
Thought (idea) -> Planning/Preparation -> Solicitation/Conspiracy -> Attempt -> Commission of the crime -> Post-crime offenses (e.g., obstruction, harboring, perjury).
LO 1 through LO 7 reflect the progression and liability at each stage:
LO 1: Thoughts alone are not crimes; liability arises with steps toward completion or with persuading others to commit the crime.
LO 2: Corroborating evidence in solicitation prosecutions supports proving unequivocal intent to persuade another to commit a crime.
LO 3: Conspiracy requires at least two persons’ agreement and often an overt act; many statutes drop overt act requirements at the federal level for some conspiracies (e.g., drug conspiracies).
LO 4: Impossibility defense in attempt generally unavailable unless what was attempted was not a crime.
LO 5: Abandonment defenses and withdrawal are sometimes recognized; otherwise, the attempt/conspiracy remains complete.
LO 6: Pinkerton rule – conspirators may be liable for others’ crimes committed in furtherance of the conspiracy if foreseeable.
LO 7: Parties to the principal crime include those who commit, aid, or facilitate, and those who aid after the fact fall into post-crime liabilities.
Case Analysis and Writing Exercises (Representative Scenarios)
Example 1: Accomplice liability for driving while intoxicated in a crash scenario where the defendant urged the intoxicated driver to speed; analyze mental state and liability for accomplice liability in vehicle-related offenses.
Example 2: Online weapons purchase and threats case (Oduwole): evaluate attempt to commit a terrorist threat in light of online communications and threatened violence; consider the role of intent, steps taken, and the state’s burden of proof.
Example 3: Brantley case (misprision of felony): analyze whether concealing a crime by providing or failing to report information constitutes misprision; identify the elements and how they apply to the factual scenario.
Endnotes and Helpful Concepts
Key statutory and case references (selected):
Ore. § 161.435(1) (Oregon solicitation statute)
18 \text{U.S.C.} \S 373 (federal soliciting statute)
18 \text{U.S.C.} \S 371 (general conspiracy statute; overt act requirement often present)
21 \text{U.S.C.} \S 846 (drug conspiracy; no overt act requirement in some contexts)
\text{M.P.C.} \S 5.03(1) and \S 5.01 (2) (Model Penal Code – conspiracy and attempt definitions)
\text{M.P.C.} \S 2.06 (3) (accomplice liability)
Roback-case-like references: Rosemond v. United States; United States v. Encarnacion-Ruiz; Salinas v. United States; Whitfield v. United States; United States v. Shabani; United States v. Min; United States v. Jimenez Recio; Smith v. United States; Jimenez Recio (2003) (impossibility and conspiracy).
Concepts to remember:
The Wharton Rule limits conspiracy charges for crimes requiring multiple participants when the number of conspirators equals the minimum required for the underlying offense; additional conspirators can defeat the rule.
The Pinkerton doctrine extends liability for conspirators to crimes committed by co-conspirators if they were foreseeable and in furtherance of the conspiracy.
Distinctions between solicitation, conspiracy, and attempt rest on whether the act is planning, agreement, or substantial step toward the underlying crime.
Abandonment/renunciation defenses may relieve liability in certain jurisdictions if complete, voluntary renunciation occurs before the crime is completed and the defendant prevents the outcome.
Overall takeaway: The three primary inchoate offenses (solicitation, conspiracy, attempt) are designed to address social harm before the main crimes occur, with liability tied to intent, agreement, and steps toward completion; liability for accomplices and conspirators extends beyond the principal actor to cover shared criminal purposes and foreseeable consequences.
Quick Glossary (Key Terms)
solicitation: attempt to induce another to commit a crime
conspiracy: agreement between two or more to commit an unlawful act, often with an overt act
attempt: substantial step toward the commission of a crime not yet completed
Wharton rule: prevents conspiracy charges where the crime requires two or more participants, unless additional participants exist
overt act: an action that furthered the conspiracy (in many statutes)
substantial step: MPC standard for attempt; conduct strongly corroborative of intent
Pinkerton rule: liability of conspirators for others’ crimes committed in furtherance of the conspiracy, if foreseeable
accomplice liability: criminal liability for those who aid or abet a crime with intent to facilitate it
post-crime offenses: offenses committed after a crime (e.g., obstruction, misprision)
strict liability: liability without proof of mens rea
vicarious liability: liability for the acts of another person, under statutory provisions or common-law principles
renunciation/abandonment: voluntary and complete renunciation of criminal purpose can serve as a defense in some contexts
Note on LaTeX and formatting
All statute citations and numerical references have been rendered in LaTeX where appropriate, e.g.:
ext{Ore. } ext{§ } 161.435(1)
18\ \text{U.S.C. } \S 371
\text{M.P.C. } \S 5.01(2)
LaTeX is used for formulas, section references, and numeric codes to aid precision and readability.
TITLE: Criminal Liability: Inchoate Crimes – Comprehensive Notes
Solicitation: attempt to induce another to commit a crime
Conspiracy: agreement between two or more to commit an unlawful act, often with an overt act
Attempt: substantial step toward the commission of a crime not yet completed
Wharton rule: prevents conspiracy charges where the crime requires two or more participants, unless additional participants exist
Overt act: an action that furthered the conspiracy (in many statutes)
Substantial step: MPC standard for attempt; conduct strongly corroborative of intent
Pinkerton rule: liability of conspirators for others
’ crimes committed in furtherance of the conspiracy, if foreseeableAccomplice liability: criminal liability for those who aid or abet a crime with intent to facilitate it
Post-crime offenses: offenses committed after a crime (e.g., obstruction, misprision)
Strict liability: liability without proof of mens rea
Vicarious liability: liability for the acts of another person, under statutory provisions or common-law principles
Renunciation/abandonment: voluntary and complete renunciation of criminal purpose can serve as a defense in some contexts