HIERARCHY OF THE INCHOATE CRIMES

Substantive
Conspiracy
• Complete at • Complete upon crime
asking • Complete upon intent to commit • Complete when
underlying crime
formation of all elements
agreement + substantial step satisfied

Solicitation Attempt
INCHOATE CRIMES
CONSPIRACY, ATTEMPT, SOLICITATION
Solicitation:
„ With specific intent, a person
„ Encourages, solicits, incites, entices, advises, induces, urges, requests,
commands or otherwise causes another person to engage in
criminal conduct
„ Intent Element
„ Solicitor must intend that the solicitee perform the criminal act
„ It is no defense that the person solicited refused to commit the
crime, lacked capacity or withdrew
„ Offense is complete at time of solicitation (of the encouragement or
request), even if the target act is never completed
„ No express agreement is required for the crime of solicitation
CONSPIRACY
SEPARATE & DISTINCT CRIME
A conspiracy is formed (and completed) when there is
„ An agreement
„ Between two or more persons
„ With intent to accomplish an unlawful purpose;
„ Modern Trend: plus the commission of an overt act (legal or
illegal; with or without the knowledge of each conspirator) in
furtherance of the conspiracy

Unilateral Conspiracy (MPC) – eliminates plurality element

Co-conspirator cannot be convicted of conspiracy if all other

conspirators are acquitted at the same trial; if co-conspirators are
never tried or apprehended, then if prosecution can prove
existence of a conspiracy, one conspirator can be convicted
CONSPIRACY (CONTINUED)
Scope of Conspiracy
„ Pinkerton Rule – conspirator may be convicted of both the offense of the
conspiracy plus all substantive crimes committed by any other co-
conspirators acting in furtherance of the conspiracy – if they are naturally
foreseeeable.
Mens Rea
„ Swain – Is the intent to commit the underlying crime required? Or is only
the intent to agree required (conspiracy)?
Conspiracy is a specific intent crime – two intent elements:
„ Conspirator must have intent to agree and intent to commit unlawful act
„ Knowledge of the conspiracy, alone, insufficient to establish a person as a co-
conspirator
WHO IS A CO-CONSPIRATOR?
„ What is the meaning of intent in the context of conspiracy? How does it differ from
the definition of intent under the common law?
„ Conspirator requires PURPOSE to commit the underlying criminal act
„ People v. Lauria – is a person guilty of conspiracy if he furnishes an instrumentality that will be
used in an offense, or provides some service to the criminal – but where purpose cannot be
inferred through mere knowledge of the crime. Most jurisdictions require proof of purpose for
labeling a party as a co-conspirator Meeting of minds required
„ RULE FROM LAURIA (insufficient proof of his intent to conspire):
„ THE INTENT OF A SUPPLIER WHO KNOWS OF THE CRIMINAL USE TO WHICH HIS SUPPLIES ARE
PUT TO PARTICIPATE IN THE CRIMINAL ACTIVITY CONNECTED WITH THE USE OF THE SUPPLIES
MAY BE ESTABLISHED BY
„ (1) DIRECT EVIDENCE THAT HE INTENDS TO PARTICIPATE; OR
„ (2) THROUGH AN INFERENCE THAT HE INTENDS TO PARATICIPATE BASED ON
„ HIS SPECIAL INTERESTS IN THE ACTIVITY, OR
„ THE AGGRAVATED NATURE OF THE CRIME ITSELF
COMMONWEALTH V. AZIM

„ As a driver, observing the others assault and rob the

victim – did he share the common understanding that a
particular criminal objective be accomplished.
„ Agreement is at the core of conspiracy
„ Look to the relationship, conduct or circumstances of
the parties to determine whether a corrupt
confederation exists: association with the other co-
defendants; knowledge of commission of crime; presence
at scene of the crime; participation in object of the
conspiracy
ATTEMPT
Attempt requires
Specific intent to commit a target crime PLUS
A substantial step towards the commission of a crime
„ If the target crime is successfully completed, attempt is merged
Substantial Step = conduct that tends to effect the commission of a crime (mere
preparation insufficient)
„ Acts that may constitute a substantial step:
„ Lying in wait; searching for; following an intended victim
„ Unlawful entry into a place contemplated for the commission of the crime
„ Possession of materials specially designed for committing the crime
„ Possession of materials to be used in committing the crime
„ Soliciting an innocent agent to engage in criminal conduct
„ Dangerous Proximity Test – more than a substantial step is required: an attempt does
not occur until the defendant’s acts result in a dangerous proximity to completion of
the crime (NY – on the verge of…)
ATTEMPT/CONSPIRACY - DEFENSES

For Attempt: no abandonment/withdrawal

„ Once defendant has taken a substantial step, no
abandonment possible even with a change of heart. Upon
taking the substantial step, attempt as a crime is completed.
„ No abandonment defense if based on desire to avoid
detection, decision to delay commission of the crime
until a more favorable time, or selection of another
similar objective or victim (not considered “voluntary”)
FOR CONSPIRACY: WITHDRAWAL
After the conspiracy is formed (subsequent to overt act in
modern jurisdictions), no withdrawal available; but between
agreement and overt act, liability avoided if:
„ Communicates notice of intent not to participate to other co-
conspirators OR informs police about agreement
„ MPC – defendant must also act voluntarily to thwart the success of
the conspiracy
„ After an effective withdrawal, defendant limits his liability for
substantive, subsequent crimes committed in furtherance of
the conspiracy
IMPOSSIBILITY AS A DEFENSE
TO INCHOATE CRIMES

Hybrid Impossibility:
Def’s goal/end is
Factual Impossibility illegal but
Pure Legal commission of
• Def. intended to Impossibility offense was
achieve end impossible due to
(crime) but fails • when the criminal
law does not factual mistake
to accomplish regarding the legal
because of a prohibit the
conduct or result; status of some
factual factor relevant to
circumstance actor engages in
conduct he her conduct (had
unknown or the facts been as
beyond her believes is
criminal but it’s the def. believed
control them to be, a crime
not prohibited by
law would have been
committed)
A criminal told his girlfriend that he was planning to rob a local
liquor store and would give her a third of the proceeds from the
robbery is she agreed to drive the getaway car. The girlfriend
agreed and following the robbery, drove the criminal away from
the scene of the crime. Subsequently, the police arrested the
criminal for the robbery and he made a constitutionally valid
confession, implicating the girlfriend.
With which, if any of the following crimes may be girlfriend be
property charged?
(A) Robbery only
(B) Conspiracy only
(C) Both robbery and conspiracy
(D) Neither robbery nor conspiracy
A husband and his business partner owned a large technology
company together. After a personally tumultuous but
professionally successful decade working together, the husband
discovered that the business partner had been fraudulently
transferring company funds to the business partner’s personal
account for years. Before he confronted his business partner
about this, he called his own wife to tell her what he had learned.
His wife reminded him that the company had a $2 million
insurance policy on the business partner. The couple formed a
plan to murder the business partner for the insurance proceeds
when he was alone in the office building. On the day that they
planned to carry out the murder, the husband told the business
partner that he had to leave early and asked the business partner
to stay late to finish up a presentation. He knew that by doing so,
the business partner would be alone in the office. Later than
night, the wife went in and shot the business partner. She then
panicked and fled the country. The husband was later charged
with the murder and conspiracy to commit the murder, but the
wife was never apprehended. The jurisdiction recognizes the
majority rule regarding conspirator liability.
Is the husband likely to be found guilty of conspiracy and murder?

(A) No, because the husband and wife were married

(B) No, because the wife was never convicted of the murder
(C) Yes, because the husband persuaded the business partner to stay late at
the office
(D) Yes, because no overt act was required in furtherance of the crime
G
A graduate student recently inherited a valuable coin collection
from her paternal uncle. The coin collection was currently at her
parent’s home, which was located in another state. She had talked
with her father about selling the collection, but he strongly
opposed the idea. To sell the coin collection without offending her
father, the student convinced a high school friend to break into
her parent’s house and take the coin collection. The friend was to
take the coin collection to a coin dealer the student had
contacted. For participating in this scheme, the friend was to
receive $500. In preparation, the friend bought a flashlight. On
the appointed night, the friend, who was high on drugs, broke into
the wrong house and was arrested. The student and her friend
have been charged with conspiracy to commit burglary.
Of the following, which is their best argument for acquittal?

(A) The friend broke into the wrong house

(B) Under the Pinkerton rule, they are not liable
(C) They were acting in defense of the student’s property
(D) They did not intend to commit burglary
A
H card player had cheated the defendant in a card game. Angered,
the defendant set out for the card player’s house with the
intention of shooting him. Just as he was about to set foot on the
card player’s property, the defendant was arrested by a police
officer who noticed that the defendant was carrying a revolver. A
statute in the jurisdiction makes it a crime to “enter the property
of another with the intent to commit any crime of violence
thereon.”
If charged with attempting to violate the statute, the defendant should be found:
(A) Not guilty, because the statute defines an attempted crime and there
cannot be an attempt to attempt
(B) Not guilty, because to convict him would be to punish him simply for having
a guilty mind
(C) Guilty, because he was close enough to entering the property and he had
the necessary state of mind
(D) Guilty, because this is a statute designed to protect the public from
violence and the defendant was dangerous
A daughter babysat her neighbor’s children every Thursday night.
Her mother had coveted the neighbor’s antique vase for many
years. The mother bought a cheap replica of the vase, broke it, and
gave the pieces to her daughter Thursday morning. The mother
told the daughter to leave the broken pieces in the neighbor’s
trash, steal the antique vase, and claim that the children had
broken it. The daughter reluctantly agreed. While she was
babysitting that evening, the daughter put the pieces of the cheap
replica in the garbage. However, before she actually stole the vase,
her mother called her. The mother had changed her mind and
told the daughter not to steal the vase. The daughter did not steal
the vase, but forgot to take the pieces of the cheap replica out of
the garbage. When the neighbor discovered the pieces of the
replica in the garbage, she confronted the daughter, and the
daughter confessed the whole plan. The neighbor called the
police, who arrested the mother; she was subsequently charged
with solicitation.
Is the mother guilty of solicitation under the common
law?

(A) No, because the daughter did not actually steal the
vase
(B) No, because the mother renounced the crime by
calling the daughter and telling her not to steal the
vase
(C) Yes, because the mother encouraged her daughter to
steal the antique vase
(D) Yes, because the mother took a substantial step
towards committing the crime by buying a cheap
replica of the vase