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Inchoate crime in general
an offense involving activity or steps directed toward completion of a crime, which are separate and distinct crimes (frequently as felonies). By recognizing an actor's design toward commission of an offense, the law permits police to apprehend dangerous persons who have not yet accomplished their criminal objectives, thereby affording them an opportunity to terminate such conduct at an early stage.
The attempt charge is merged into the substantive crime if completed... which is moot if the substantive crime has an attempt element (e.g., passing forged documents).
Attempt - The act requirement
an overt act that constitutes a substantial step toward commission of an offense... but fails in the perpetration or is intercepted or prevented in the execution. It however must be beyond mere preparation as defined in the model penal code, and defined by most courts as "within dangerous proximity to success".
Attempt - Requisite criminal intent
Most courts require the prosecution to prove that the defendant has a specific intent to commit the target crime, as it is logically impossible to attempt an unintended result. Some courts however uphold an attempted manslaughter, though that crime is unintentional.
Defenses to crime of attempt
Legal impossibility versus factual impossibility... with pick pocketing, no defense if there was no wallet in victim's pocket as it would have been a crime otherwise (a factual impossibility). If legally impossible, attempting to shot someone already dead, it is a defense. Though, in New York, it depends on what the perpetrator believed at the time of the act that matters, thus in most cases legal impossibility would also not be a defense. Some states also charge as attempt when the person abandons the act or otherwise prevents it.
Solicitation - Act requirement
The request, command, or enticement constitutes the actus rea required for solicitation, and as the gist of the offense is the solicitation itself, the offender may be found guilty irrespective of whether the solicited crime is ever committed... and does not require direct solicitation of another, though can be perpetrated through an intermediary... and can be charged even if the communication of solicitation was ineffective, as long as his conduct was designed to effect such communication (though not by all courts).
The solicitor must have specifically intended to induce or entice the person to commit the specific target offense.
QUESTION: CLASS NOTES SAY "A SERIOUS REQUEST..." IF THE PERSON BELIEVES SERIOUS VS MISUNDERSTOOD AS SERIOUS STILL A CRIME?
Solicitation is not an attempt
and is complete when the request is made whether the solicitee agrees, if the offense is carried out, or if no steps are taken toward consummation of the offense.
Defenses to solicitation
Model Penal Code provides that a complete and voluntary renunciation of the accused's criminal purpose is a defense, but not if motivated by a risk of apprehension or just to postpone criminal conduct.... though simply countermanding the request is not a defense.
Conspiracy (different from aiding and abetting or being principle in a crime, which requires some actual participation, which is also the focus of crime of attempt... actions)
an agreement by two or more persons to accomplish a criminal act or to use unlawful means to accomplish a non-criminal objective... husbands and wives cannot claim immunity. States differ on whether an overt act is required in furtherance of the parties agreement, which may be merely a part of the preliminary arrangements.
Actus rea is the unlawful agreement, and need not be formal or written.
Participants not even know or see one another as long as they otherwise participate in common deeds. The essence of the offense is the mutual agreement, not the acts done to accomplish its objective. The agreement need not be explicit, indeed often the agreement is implied from the acts of the parties and circumstances surrounding their activities. Also, all conspirators do not have to join the conspiracy at the same time.
In general, the prosecution must prove that a defendant intended to further the unlawful object of the conspiracy, and such intent must exist in the minds of at least two of the parties.
Whereas a member of a conspiracy is liable for all offenses committed in furtherance of the conspiracy, but not if the offenses were not reasonably foreseeable as a natural consequence of the unlawful agreement of the conspirators.
It is based on the theory that conspirators are agents of one another, and just as principals are bound by the acts of their agents, so too conspirators... . Given this, an exception to the rule of evidence that ordinarily excludes hearsay statements... with statements made in furtherance of the conspiracy.
Conspiracy does not merge into the target crime, with the exception by the Wharton's Rule when the crime is of such a nature as to necessarily require the participation of two persons for its commission (e.g. adultery, incest, or bigamy). One rationale is that these offenses do not endanger the public generally... and are consistent with legislative intent with the crime of conspiracy.
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