Chapter 4 - Anticipatory/Inchoate Offenses

Inchoate: comes from the Latin word incoare/incohare which means, to begin

Inchoate Crime: anticipatory crime/offense

inchoate/anticipatory crimes mean crimes that are incomplete or failed

3 main common inchoate offenses

1. Criminal attempt (most common anticipatory offenses)

2. Criminal solicitation

3. Criminal conspiracy

3 main reasons for making inchoate acts criminal offenses

1. Law enforcement personnel must be able to intervene before the commission of a substantive crime.

2. Acts done in preparation for a crime act point to the defendant’s inclination to commit a crime. 

3. Preparatory acts should not go unpunished just because the perpetrator was not able to finish the criminal act.

2 elements of attempt

1. The specific intent to commit a crime.

2. An act or conduct in furtherance of the intent to commit the crime that goes beyond mere preparation = Substantial Steps

7 types of substantial steps

1. Lying in wait, searching/following the victim 

2. Enticing, seeking to entice the victim to go where the crime will be committed 

3. Reconnoitering the place where the crime will occur 

4. Unlawfully entering a structure, vehicle, or enclosure that is the contemplated scene of the crime 

5. Possessing materials to be used in a crime that was designed for the crime or that under the circumstances serve no lawful purpose. 

6. Possessing, collecting, or fabricating material to be used in the commission of a crime at or near the scene of the crime, where such possession, collection, or fabrication serves no lawful purpose. 

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

Should the offense of a criminal attempt require the same punishment as the actual crime that was being attempted? NO

The common law tests that rely on the time of old law

• Rubicon test

• Series of Acts test

• Last Act/Proximity test

2 categories of criminal attempt

1. When the accused has completed all the planned actions towards the crime but has failed to complete the substantive crime. 

2. When the accused has NOT completed all planned actions towards the crime and for that reason, in particular, has failed to complete the substantive crime.

Scenario: Some criminals were planning to rob a high-end jewelry dealer on his route from store to store. The police were tipped off about this scheme and arrested these criminals while they were searching for the jewelry dealer.

Question: Was this a case of attempted robbery? Detail your answer and support it. They were in a preparation stage, meaning this is not attempted robbery, therefore bearing substantial evidence they are innocent.

Specific intent to commit a crime

This primary element of criminal attempt requires two types of intent on the part of the accused to occur simultaneously. 

1. Demonstrating the intent to commit the act(s) or to cause the result constituting the crime of attempt

2. Demonstrating the intent required to commit the substantive offense

Problems in attempt

1. Legal impossibility

2. Factual impossibility

3. Abandonment

Legal impossibility 

A person cannot be punished for attempting to do something that is not specified as a crime, even if this person misunderstands the law and believes it is a crime.

Factual impossibility 

A person can be found guilty of the crime of attempt even if it was factually impossible to commit the crime.

Abandonment

The defense of abandonment occurs when the accused voluntarily decides to abandon or quit any further steps toward the commission of the crime. This abandonment must be complete and absolute, not a temporary postponement. This defense is not recognized in all of the states.

Should we limit the crime of attempt only to serious offenses? No, because the person who thought of the act tried to complete it, so this means they were in the perpetration stage of a crime.

Solicitation definition via model penal code (MPC)

“with the purpose of promoting or facilitating a crime, commands, encourages, or requests another to engage in specific conduct which would constitute the crime or an attempt to commit a crime”

Which crimes are most common regarding solicitation? Prostitution

Two elements of solicitation

1. The intent that another person/party commit a crime The accused must intend that another person commit a crime and must act on this intent by attempting to communicate in some form to another person. This communication must inform the other person that the defendant desires the other party to engage in illegal conduct.

2. Asking, encouraging, or requesting another to commit a crime. Only spoken words or communicated thoughts are necessary. The other party does not have to act to make the crime complete.

1. Since a person can be convicted of solicitation simply for speaking certain words, do you think that is fair? 2. What is the harm in asking someone else to commit a crime? I feel being convicted of solicitation for speaking certain words is only fair if it's based on clear, credible evidence of criminal intent. The harm in asking someone else to commit a crime is that it creates a ripple effect of potential harm that extends beyond just the individual being asked to commit the act.

Problems with solicitation

• Communication to another party

• Request to commit a legal act

• Withdrawal of a solicitation

Characteristics of the modern approach

• Narrower definition

• Actus reus = overt act

• Does not merge (independent offense)

4 elements of conspiracy

1. An agreement between two or more persons 

2. With specific intent (for the purpose of) 

3. Achieving an unlawful objective or achieving a lawful objective in an unlawful manner 

4. The commission of an overt act in furtherance of the conspiracy

To apply a conspiracy charge, the specific intent for both intent to the conduct and intent to the result of the conduct are required. TRUE

Mere knowledge is enough for conspiratorial liability. FALSE

Specific intent

At its core, the very definition of conspiracy appears to require two separate and distinct patterns of intent or thought.

1. Because the definition of conspiracy requires an agreement, each party involved must have the intent to enter into the agreement to commit the same crime. 

2. All parties involved must have the same intent as it relates to the crime in question.

Two categories of those who Aid and Abet 

1. Accomplice An accomplice is a person who assists or promotes another to commit a crime. By soliciting another to commit a crime, aiding, agreeing to aid, or attempts to aid in planning/committing the offense, or having the duty to prevent the offense, fails to do so.

2. Accessory An accessory is one who, after an offense has been committed, aids, conceals, or warns a principal with the intent that the principal avoid arrest, prosecution, conviction, or punishment for the crime.

A real-life example of accomplice: someone who drives the car that flees the scene of a crime

A real-life example of an accessory: allowing a criminal to stay at your home or store stolen items there

Opinion on the Umbrella Man: I feel it makes sense that people were questioning the man because he was standing alone in the crowd with an umbrella in clear weather, which is something society has made not common. However, there was no concrete evidence linking the umbrella to any kind of weapon or conspiracy.