Criminal Law - Inchoate Crimes and Defenses
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cbine99 on November 14, 2011
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Criminal Law - Inchoate Crimes and Defenses
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Terms | Definitions |
|---|---|
 What is an inchoate crime? | It is an activity that occurs after the formation of the mens rea but short of attainment of the criminal goal is described as "inchoate" - imperfect or incomplete - conduct. |
| What are the most common inchoate crimes? | The most common of these offenses are attempt, solicitation, and conspiracy. |
| Are inchoate crimes treated the same as substantive crimes in the common law? | Inchoate crimes are typically treated as a lesser offense than the substantive crime. |
| What is the punishment for inchoate crimes under the MPC? | In a significant departure from common law tradition, the Code provides for punishment of the inchoate offenses at the same level as the substantive crime, with the exception of crimes that carry a maximum penalty of life imprisonment ("felonies of the first degree"). [MPC § 5.05(1)] |
| What is the punishment for inchoate crimes under the MPC? cont. | - An attempt, solicitation, or conspiracy to commit one of these crimes constitutes a felony of the second degree. [MPC § 5.05(1)] |
| Under the MPC, can a judge dismiss the prosecution of an inchoate offense? | Yes, the Code grants the trial judge authority to dismiss a prosecution of an inchoate offense, or to impose a sentence for a crime of a lower degree than is otherwise allowed, if the defendant's conduct was so inherently unlikely to result in a crime that neither he nor his conduct represents a danger to society justifying his conviction and punishment at ordinary level. [MPC § 5.05(2)] |
| What is attempt? | A criminal attempt occurs when a person, with the intent to commit an offense, performs any act that constitutes a substantial step toward the commission of that offense. |
| What are the two types of Criminal Attempt? | Criminal attempts are of two varieties: "complete" (but "imperfect"); and "incomplete. |
| What is a complete attempt? | A complete, but imperfect, attempt occurs when the defendant performs all of the acts that he set out to do, but fails to attain his criminal goal. |
| What is an incomplete attempt? | In contrast, an incomplete attempt occurs when the defendant does some of the acts necessary to achieve the criminal goal, but he quits or is prevented from continuing, e.g., a police officer arrives before completion of the attempt. |
| What are the mens rea of Criminal Attempts? | The general rule is that the defendant must intentionally commit the acts that constitute the actus reus of an attempt, (i.e., acts that bring him in proximity to commission of a substantive offense or which otherwise constitute a substantial step in that direction), and he must perform these acts with the specific intention of committing the target crime. |
| Is Attempt a specific or general intent offense? | An attempt is a specific-intent offense, even if the substantive crime is a general-intent offense. |
| What is a Result Crime? | When the target crime is a "result" crime, the general rule is that a person is not guilty of an attempt unless his actions in furtherance of the target crime are committed with the specific purpose of causing the unlawful result. |
| What is the five tests to determine the actus reus of criminal attempt? | The Last Act Test, The Physical Proximity Test, the Dangerous Proximity Test, The Indispensable Element Test, The Probably Desistance Test, and the Unequivocality (Res Ipsa Loquitur) Test. |
| What is the Last Act Test? | An attempt occurs at least by the time of the last act but this test does not necessarily require that each and every act be performed on every occasion. |
| What is the Physical Proximity Test? | The defendant's conduct need not reach the last act but must be "proximate" to the completed crime. |
| What is the Dangerous Proximity Test? | An attempt occurs when the defendant's conduct is in "dangerous proximity to success," or when an act "is so near to the result that the danger of success is very great." |
| What is the Indispensable Test? | An attempt occurs when the defendant has obtained control of an indispensable feature of the criminal plan. |
| What is the Probable Desistence Test? | An attempt occurs when the defendant has reached a point where it was unlikely that he would have voluntarily desisted from his effort to commit the crime. |
| What is the Unequivocality Test? | The Unequivocality (or res ipsa loquitur) test - an attempt occurs when a person's conduct, standing alone, unambiguously manifests his criminal intent. |
| What is the Defense of Impossibility? | At common law, legal impossibility is a defense; factual impossibility is not. However, today, most jurisdictions no longer recognize legal impossibility as a defense |
| When does Factual Impossibility Exist? | When a person's intended result constitutes a crime, but he fails to consummate the offense because of an attendant circumstance unknown to him or beyond his control. Examples of factual impossibility are a pickpocket putting his hand in the victim's empty pocket; shooting into an empty bed where the intended victim customarily sleeps; or pulling the trigger of an unloaded gun aimed at a person. |
| What is Inherent Factual Impossibility? | Although largely academic, the doctrine of inherent factual impossibility has been recognized as a statutory defense in at least one state (Minnesota). Where recognized, the defense applies if the method to accomplish the crime was one that a reasonable person would view as inadequate to accomplish the criminal objective. |
| When does Pure Legal Impossibility arise? | "Pure legal impossibility" arises when the law does not proscribe the result that the defendant seeks to achieve. |
| When does Hybrid Legal Impossibility exist? | Hybrid legal impossibility (or "legal impossibility") exists if the defendant's goal is illegal, but commission of the offense is impossible due to a factual mistake (and not simply a misunderstanding of the law) regarding the legal status of an attendant circumstance that constitutes an element of the charged offense, |
| When does Hybrid Legal Impossibility exist? cont. | (e.g., receiving unstolen property under the belief that such property was stolen, or shooting a corpse believing it is alive.) Today, most states have abolished the defense of hybrid legal impossibility on the theory that a defendant's dangerousness is plainly manifested in such cases. |
| Do most courts recognize the defense of abandonment? | Many courts do not recognize the defense of abandonment. Where recognized, it applies only if the defendant voluntarily and completely renounces his criminal purpose. |
| Do most courts recognize the defense of abandonment? cont. | Abandonment is not voluntary if the defendant is motivated by unexpected resistance, the absence of an instrumentality essential to the completion of the crime, or some other circumstance that increases the likelihood of arrest or unsuccessful consummation of the offense, or if the defendant merely postpones the criminal endeavor until a better opportunity presents itself. |
| What are the elements of attempt under the MPC? | A criminal attempt under the Code contains two elements: (1) the purpose to commit the target offense; and (2) conduct constituting a "substantial step" toward the commission of the target offense. |
| What is the mens rea of MPC attempt? | In general, a person is not guilty of a criminal attempt unless it was his purpose, i.e., his conscious object, to engage in the conduct or to cause the result that would constitute the substantive offense. A person is likewise guilty of an attempt to cause a criminal result if he believes that the result will occur, even if it were not his conscious object to cause it. [MPC §5.01(1)(b)] |
| What is the actus reus of MPC attempt? | Subsection 5.01(1)(c) provides that, to be guilty of an offense, a defendant must have done or omitted to do something that constitutes a "substantial step in a course of conduct planned to culminate in his commission of the crime." |
| What are some of the factual circumstances in which a D's conduct, if it strongly corroborates his criminal purpose, shall not be held insufficient as a matter of law? | 1. lying in wait 2. searching for or following the contemplated victim of the crime 3. reconnoitering (To make a preliminary inspection of) the contemplated scene of the crime 4. unlawful entry into a structure or building in which the crime will be committed 5. and possession of the materials to commit the offense, if they are specially designed for a criminal purpose. |
| When can a person be convicted of criminal intent, even though he did not commit or attempt to commit the crime? | Under the Attempt to Aid § 5.01(3) 1.) the purpose of his conduct is to aid another in the commission of the offense; and 2.) such assistance would have made him an accomplice in the commission of the crime under the Code's complicity statute if the offense had been committed or attempted. |
| How does abandonment work? | Under the Code, a person is not guilty of an attempt if: (1) he abandons his effort to commit the crime or prevents it from being committed; and (2) his conduct manifests a complete and voluntary renunciation of his criminal purpose. [MPC § 5.01(4)] |
| How does abandonment work? cont. | Under this provision, renunciation is not complete if it is wholly or partially motivated "by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim" or if motivated by "circumstances . . . that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose." |
| What is the actus reus of common law solicitation? | The actus reus of a solicitation takes place when one person invites, requests, commands, hires, or encourages another to commit a particular offense. For a solicitation to occur, neither the solicitor nor the solicited party needs to perform any act in furtherance of the substantive crime. The solicitation is complete upon communication of the solicitation to another. |
| What is the mens rea of common law solicitation? | Common law solicitation is a specific-intent crime. A person is not guilty of solicitation unless he intentionally commits the actus reus of the inchoate offense, i.e., he intentionally invites, requests, commands, hires, or encourages another to commit a crime, with the specific intent that the other person consummate the target crime. |
| Is there solicitation if the solicitor intends to commit the substantive offense himself, but requests assistance by another? | No, no solicitation occurs if the solicitor intends to commit the substantive offense himself, but requests assistance by another. |
| What are the elements of MPC solicitation? | The Model Penal Code provides that a person is guilty of solicitation to commit a crime if: 1.) his purpose is to promote or facilitate the commission of a substantive offense; and |
| What are the elements of MPC solicitation? cont. | 2.) with such purpose, he commands, encourages or requests another person to engage in conduct that would constitute the crime, an attempt to commit it, or would establish the other person's complicity in its commission or attempted commission. [MPC § 5.02(1)] |
| What has the affect of the MPC's solicitation rule been on modern statutes? | Prior to the enactment of the Code, most state penal statutes did not provide for solicitation generally and instead proscribed solicitation of specific offenses. As a result of the Code's influence, many states today have solicitation statutes that apply to all crimes, or alternatively all felonies. |
| What is a big difference between common law solicitation and MPC solicitation? | Unlike at common law, under the Code, the relationship of the solicitor to the solicited party need not be that of accomplice to perpetrator. |
| What are the elements of MPC Reunuciation? | The Model Code establishes a defense to solicitation of "renunciation of criminal purpose." A person is not guilty of solicitation if he: 1. completely and voluntarily renounces his criminal intent; and |
| What are the elements of MPC Reunuciation? cont. | 2. either persuades the solicited party not to commit the offense or otherwise prevents him from committing the crime.[MPC § 5.02(3)] |
| What is meant by conspiracy? | Generally speaking, a conspiracy is an agreement by two or more persons to commit a criminal act or series of criminal acts, or to accomplish a legal act by unlawful means. |
| Under common law, must a conspiracy be based on an express agreement? | No, a conspiracy need not be based on an express agreement. Furthermore, an agreement can exist although not all of the parties to it have knowledge of every detail of the arrangement, as long as each party is aware of its essential nature. [Blumenthal v. United States, 332 U.S. 539, 557-58 (1947)] |
| Under common law, must a conspiracy be based on an express agreement? cont. | Moreover, a "conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense."[Salinas v. United States, 522 U.S. 52, 63 (1997)] It is enough that each person agrees, at a minimum, to commit or facilitate some of the acts leading to the substantive crime. |
| Under the MPC, what are the four types of agreement that fall within the definition of conspiracy? | A person is guilty of conspiracy if he agrees to: 1. commit an offense 2. attempt to commit an offense 3. solicit another to commit an offense 4. aid another person in the planning or commission of the offense. |
| When is a common law conspiracy considered complete? | A common law conspiracy is complete upon formation of the unlawful agreement. No act in furtherance of the conspiracy need be proved. [United States v. Shabani, 513 U.S. 10, 13 (1994)] |
| When is a common law conspiracy considered complete? cont. | Today, many statutes require proof of the commission of an overt act in furtherance of the conspiracy. In jurisdictions requiring an overt act, the act need not constitute an attempt to commit the target offense. Instead, any act (and perhaps an omission), no matter how trivial, is sufficient, if performed in pursuance of the conspiracy. A single overt act by any party to a conspiracy is sufficient basis to prosecute every member of the conspiracy, including those who may have joined in the agreement after the act was committed. Most states apply the overt-act rule to all crimes. |
| Under the MPC, when must there be a requirement of proof of an overt act? | The Code's requirement of proof of an overt act only applies to cases involving a misdemeanor or a felony of the third degree. [MPC § 5.03(5)] |
| Under the common law how many people must be involved for the act to be considered a conspiracy? | Common law conspiracy requires proof that at least two persons possessed the requisite mens rea of a conspiracy. For example, no conspiracy conviction is possible if one of the two persons is an undercover agent feigning agreement, or lacks the capacity to form the agreement due to mental illness. |
| Under the MPC how many people must be involved for the act to be considered a conspiracy? | The Model Code departs significantly from the common law by establishing a unilateral approach to conspiracy liability. The Code focuses on the culpability of the defendant whose liability is in issue, rather than on that of the larger conspiratorial group. |
| Under the MPC how many people must be involved for the act to be considered a conspiracy? cont. | Specifically, the Code provides, "A person is guilty of conspiracy with another person" if "he agrees with such other person" to commit an offense. The unilateral approach has been adopted in most states. |
| In common law conspiracy, what is the mens rea requirement? | Common law conspiracy is a specific-intent offense, requiring that two or more persons: (1) intend to agree; and (2) intend that the object of their agreement be achieved. Absence of either intent renders the defendants' conduct non-conspiratorial. |
| In common law conspiracy, what is the mens rea requirement? cont. | However, courts are divided over the interpretation of "intent." Some require that the parties have the unlawful result as their purpose and others allow conviction for conspiracy based on the parties' mere knowledge that such result would occur from their conduct. |
| In the MPC conspiracy, what is the mens rea requirement? | The Code specifically provides that the conspiratorial agreement must be made "with the purpose of promoting or facilitating" the commission of the substantive offense. Thus, in jurisdictions following the Code, a conspiracy does not exist if one is aware of, but fails to share, another person's criminal purpose. |
| What is the Corrupt-Motive Doctrine? | Some common law jurisdictions apply what has come to be known as the "corrupt motive doctrine." This doctrine states that in addition to the usual mens rea requirements of conspiracy (i.e., intent to agree, and intent to commit the substantive offense), the parties to a conspiracy must also have a corrupt or wrongful motive for their actions. |
| Does the MPC recognize the corrupt-motive doctrine? | The Model Penal Code does not recognize the corrupt-motive doctrine. |
| What is the Liability of Parties for Substantive Offenses? | Each party to a conspiracy is liable for every offense committed by every other conspirator in furtherance of the unlawful agreement. Thus, an important issue in conspiracy trials may be to determine the precise confines of a conspiratorial enterprise. |
| What is the Overt-Act Requirement? | The structure of a conspiracy is critical in jurisdictions recognizing an overt-act requirement. In these jurisdictions, an act of one conspirator in furtherance of the agreement renders a prosecution permissible against every other party to the same agreement. |
| Who does common law consider to be a co-conspirator? | To be regarded as a co-conspirator, a person does not need to know the identity, or even of the existence, of every other member of the conspiracy, nor must he participate in every detail or event of the conspiracy. However, to be a co-conspirator he must have a general awareness of the scope and the objective of the criminal enterprise. |
| What is a wheel conspiracy? | A "wheel" conspiracy is characterized by a central figure or group ("the hub") that engages in illegal dealings with other parties ("the spokes") and there exists a shared criminal purpose among all spokes and the hub. Parallel but separate objectives between similarly situated people do not make a wheel conspiracy (instead this would constitute multiple chain conspiracies). |
| Kotteakos v. United States | In Kotteakos v. United States, 328 U.S. 750 (1946), a broker obtained fraudulent loans from the government for thirty-one people. All were tried under a theory of "wheel" conspiracy. . |
| Kotteakos v. United States cont. | However, evidence at trial demonstrated that the loan recipients were part of eight or more independent groups, none of which had any connection with any other group except that each used the same broker. Absent a single shared objective, the parties constituted eight or more chain conspiracies and not a single wheel conspiracy |
| What is a Chain Conspiracy? | Chain conspiracies ordinarily involve a criminal enterprise that cannot thrive unless each link successfully performs its part in the arrangement. |
| Blumenthal v. United States | In Blumenthal v. United States, 332 U.S. 539 (1947), the owner of a liquor wholesale agency distributed whiskey through two men, Weiss and Goldsmith, who arranged with Feigenbaum and Blumenthal to sell the whiskey to local tavern owners at a price in violation of the law. |
| Blumenthal v. United States cont. | The Supreme Court held that the prosecutor's charge of a single conspiracy was proper, finding that each salesman "by reason of [his] knowledge of the plan's general scope, if not its exact limits, sought a common end, to aid in disposing of the whiskey." |
| Blumenthal v. United States cont. | An opposite conclusion was reached in United States v. Peoni, 100 F.2d 401 (2d Cir. 1938). Peoni sold a small quantity of counterfeit money to Regno, who in turn sold the money to Dorsey, who passed the money in commerce to innocent persons. No common interest was found between Peoni and Dorsey, and thus the court concluded that there existed two independent conspiracies, one between Peoni and Regno and another between Regno and Dorsey. |
| What is the MPC's approach to the common law's wheel and chain conspiracies? | In addition to §5.03(1), which sets forth a unilateral approach to conspiracy, §5.03(2) provides that if a person "knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime." |
| When is a person guilty of multiple conspiracies under the MPC? | The Model Penal Code provides that a person with multiple criminal objectives is guilty of only one conspiracy if the multiple objectives are: 1. part of the same agreement OR 2. part of a continuous conspiratorial relationship. [MPC § 5.03(3)] |
| When is a person guilty of multiple conspiracies under the MPC? cont. | Under common law was conspiracy to commit a felony a felony? No, at common law, a conspiracy to commit a felony or a misdemeanor was a misdemeanor. |
| In modern law is conspiracy to commit a felony a felony? | Under modern statutory law, the seriousness of the crime of conspiracy varies. Some states continue to treat all conspiracies, regardless of the seriousness of their objectives, as misdemeanors. |
| In modern law is conspiracy to commit a felony a felony? cont. | More often, however, the sanction for conspiracy corresponds to the contemplated crime so that conspiracy to commit a felony is graded as a felony, and conspiracy to commit a misdemeanor is a misdemeanor. In most states, a conspiracy to commit a felony is punished less severely than the target offense. |
| Under the MPC is the conspiracy to commit a felony a felony? | As with other inchoate offenses, the Model Penal Code sanctions a conspiracy to commit any crime other than a felony of the first degree at the same level as the target offense. [MPC § 5.05(1)] If a conspiracy has multiple objectives, e.g., to rape and to steal, the conspiracy is graded on the basis of the most serious target offense. |
| At common law does the offense of conspiracy merge into the attempted or completed offense that was the object of the conspiracy? | No, unlike the crimes of attempt and solicitation, the offense of conspiracy does not merge into the attempted or completed offense that was the object of the conspiracy. [Callanan v. United States, 364 U.S. 587, 593-94 (1961)] |
| Under the MPC, does the offense of conspiracy merge into the attempted or completed offense that was the object of the conspiracy? | The Code merges a conspiracy with the object of the conspiracy or an attempt to commit the target offense, unless the prosecution proves that the conspiracy involved the commission of additional offenses not yet committed or attempted.[MPC§ 1.07(1)(b)] |
| At common law is Impossibility a defense to criminal conspiracy? | The majority, but not universal, rule is that neither factual impossibility nor legal impossibility is a defense to a criminal conspiracy. |
| Under the MPC is Impossibility a defense to criminal conspiracy? | The Model Penal Code does not recognize a defense of factual or hybrid legal impossibility in conspiracy cases. [MPC § 5.03(1)] |
| At common law, what happens when there is Abandonment? | The crime of conspiracy is complete the moment the agreement is formed or, in some jurisdictions, once an overt act is committed in furtherance of a criminal objective. However, if a person withdraws from a conspiracy, he may avoid liability for subsequent crimes committed in furtherance of the conspiracy by his former co-conspirators if he communicated his withdrawal to each co-conspirator. |
| Under the MPC what happens when there is Abandonment? | The Model Code's abandonment defense to the crime of conspiracy is more onerous than that of the common law as it requires the conspirator to not only renounce his criminal purpose but to also thwart the success of the conspiracy under circumstances demonstrating a complete and voluntary renunciation of his criminal intent. |
| What is Wharton's Rule? | An agreement by two persons to commit an offense that by definition requires the voluntary concerted criminal participation of two persons - e.g., adultery, bigamy, incest, receipt of a bribe - cannot be prosecuted as a conspiracy. |
| What is Wharton's Rule? cont. | Wharton's Rule does not apply if more than the minimum number of persons necessary to commit an offense agree to commit the crime or if the two persons involved in the conspiracy are not the two people involved in committing the substantive offense. |
| What is the MPC's Wharton's Rule? | The Model Penal Code does not recognize Wharton's Rule. |
| What is the Common Law's Legislative-Exemption Rule? | A person may not be convicted of conspiracy to violate an offense if his conviction would frustrate a legislative purpose to exempt him from prosecution for the substantive crime. |
| What is the MPC'S Legislative-Exemption Rule? | Unless the legislature otherwise provides, a person may not be prosecuted for conspiracy to commit a crime under the Model Code if he would not be guilty of the consummated substantive offense: (1) under the law defining the crime; or (2) as an accomplice in its commission. |
| What is the MPC'S Legislative-Exemption Rule? cont. | A person is not guilty as an accomplice in the commission of an offense if he was the victim of the prohibited conduct, or if his conduct was "inevitably incident to its commission." [MPC § 2.06(6)(a)-(b)] |
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