Criminal Law: Inchoate Offenses

Criminal Law

Attempt - Specific Intent

  • Attempt is an incomplete crime where the mens rea involves the intent to complete the actus reus.
  • The key question is whether the defendant intended to commit the crime they attempted.
  • If the defendant had completed their intended actions, would it have resulted in the completed crime they are charged with attempting?
  • Proximity Test: Assesses how close the defendant came to completing the crime.
  • M.P.C. (Model Penal Code): The majority rule follows the substantial step approach to determine if a crime was committed.
  • The key consideration is whether the defendant's actions were inherently wrongful.
  • Impossibility is a consideration: Was it impossible for the defendant to commit the crime?
    1. Did the defendant use a certain method?
    2. Was the defendant acting in preparation? (If so, it might not be considered an attempt.)
    3. Was the defendant acting too remotely to be considered an attempt?
    4. Was the defendant’s conduct sufficiently blameworthy to merit the charge?

Tests to Ascertain Attempt

There are four tests to determine if a defendant has committed the criminal act of attempt:

  • Proximity test
  • Res ipsa loquitur test
  • Probable desistance test
  • The Model Penal Code’s substantial steps test

Attempt Defenses

  • Recklessness or negligence is logically incompatible with attempt because attempt requires intent.
  • Legally Impossible Rule: If the defendant completed all intended acts but still would not have committed a crime, they are not guilty of attempt.
  • Factual Impossibility: This is not a defense. If the crime was impossible to complete due to some physical or factual condition unknown to the defendant, it does not negate attempt.

Factors to Determine Criminal Attempt

  • Substantial Steps: Did the defendant take substantial steps toward committing the crime that strongly corroborate their criminal intent?
  • Proximity: How far did the defendant progress toward commission of the crime?
  • Probable Desistance: How much did the defendant have left to do to commit the crime?
  • Res Ipsa Loquitur: When the defendant stopped progressing, was it clear that the defendant had no other purpose than to commit the crime?

Inchoate Offenses

  • Inchoate Offenses: Solicitation, attempt, and conspiracy – committed prior to and in preparation for a more serious crime.
Solicitation
  • Solicitation (Common Law): A misdemeanor to solicit the commission of a felony or an act that would breach the peace or obstruct justice.
  • Breach of Peace: Is a violation of public tranquility and order. Examples include:
    • Assault
    • Negligent operation
    • Riot
    • Reckless operation
    • Operating under the influence of alcohol
    • Operating a moped recklessly or under the influence
    • Affray (fighting)
    • Resisting arrest
    • Disturbances
    • Assault and battery
  • Obstruction of Justice: Hindering an offender or any evidence from being apprehended, standing in the way of criminal investigations or prosecutions.
  • Elements of Solicitation: Inciting, counseling, advising, inducing, urging, or commanding another to commit a crime with the specific intent to commit the crime.
  • Solicitation is committed once one of these elements becomes apparent, regardless of whether the other person agrees to commit the crime.
  • If the underlying crime is completed, the solicitation merges with the completed crime; if the crime is not completed, the solicitor is charged with solicitation.
Defenses to Solicitation
  • Exemption: The solicitor could not be guilty of the intended crime due to legislative intent to exempt them. For example, a minor female could not be guilty of solicitation for statutory rape by urging a male to have intercourse with her because the law is designed to protect the minor.
  • Renunciation: A defense if the defendant prevents the commission of the crime (e.g., persuading the person not to commit the crime).
  • Factual Impossibility: Not a defense. For example, the person solicited was an undercover police officer.
  • Withdrawal: Not a defense once solicitation is made, even if the solicitor changes their mind.
Examples of Solicitation
  • Undesired sales attempts
  • Prostitution
  • Panhandling
  • Passing the hat (collection for charitable purposes)
  • High-pressured tactics (using emotion, physical intimidation, or coercion to force someone to make a purchase they don't want to make)
  • Intimidation to make someone lie under oath (perjury)
  • Giving bribes
  • Inciting a riot

Conspiracy

  • Conspiracy is a specific intent crime involving:
    1. An agreement between two or more persons.
    2. An intent to enter into an agreement.
    3. An intent to achieve or move in furtherance of the agreement.
  • The government must establish beyond a reasonable doubt that an agreement exists between two or more persons to engage in conduct that constitutes a crime and that subsequent to the agreement, one of the conspirators performed an overt act.
  • Specific intent to agree or conspire is required, especially when the crime is serious; mere knowledge is enough.
  • Agreements must be mutual and can be expressed through conduct; intent and awareness are necessary.
Exceptions to Conspiracy
  • Husband and wife: Common law typically held that they could not conspire together as they were viewed as one person.
  • Corporation and agent: The agent is working for the corporation and seen as one entity.
  • Protected parties: Parties that the legislature intended to protect cannot be part of a conspiracy related to that protection (e.g., in prostitution or serving alcohol to a minor).
  • Wharton Rule: There is no crime of conspiracy unless more parties participate in the agreement than are necessary to complete the target crime (e.g., two parties agree to duel – no conspiracy).
  • Pinkerton Rule: The overt act of one partner may be an act of all without a new agreement, especially to act. All conspirators are liable for all crimes committed in furtherance of the conspiracy. Note that Massachusetts does not follow this rule.
  • Conspiracy (Common Law): Complete with the agreement, but most states require an "act in furtherance" of the conspiracy.
  • Factual Impossibility: Not a defense; intent is still present.
  • Withdrawal: Once the agreement is made, the conspiracy is committed. The Model Penal Code recognizes withdrawal if the defendant tells the police of the crime that is about to take place.
  • A person may be liable for crimes committed by other members of the conspiracy until the crime is committed.

Conspiracy Schematics

  • Wheel Conspiracy:

    • Has a ringleader in the center.
    • Conspirators connected to the ringleader but not necessarily to each other.

  • Chain Conspiracy:

    • Conspirators linked in a chain, each dependent on the others to achieve the conspiracy's goal.