Criminal Law

Inchoate Offense

Inchoate offenses are offenses of preparing for and taking steps to commit another crime.


Attempt liability is the most common form of inchoate liability.

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.

A defendant must intend both his conduct and to bring about the crime.

In most jurisdictions, one cannot attempt crimes of recklessness since they do not involve a defendant intending to cause the resulting harm in the first place.


Impossibility is a common defense to attempt crimes. It is divided into factual impossibility and legal impossibility.

Factual Impossibility

Factual impossibility occurs when the defendant's objective is illegal but, unbeknownst to him, impossible to accomplish under the circumstances.

e.g., pointing a gun at someone and pulling the trigger, but the gun jams

Factual impossibility is rarely a valid defense.


Abandonment is a defense to attempt crimes if, after reaching the threshold for the attempt crime, the defendant voluntarily abandons his crime.

Abandonment is not a defense if it occurs as a result of victim resistance or police detection.


A conspiracy is an agreement by two or more persons to commit a criminal act.

Conspiracy usually does not merge into a completed offense.

Conspiracy has three elements:

  1. An agreement to commit an unlawful act
    • Can be implied
    • Not all of the parties have to know of every detail of the arrangement, only its essential nature
    • Each person must agree to commit or facilitate some part of the acts leading to the substantive crime.
    • At common law, the object of the agreement does not have to be criminal, but under the Model Penal Code it does.
  2. Specific intent or purpose to achieve the object of the conspiracy
    • Conspiracy requires that the defendant intend to agree and that he intend the result of their agreement to occcur.
      • Some courts and the Model Penal Code require that they purposely bring about the unlawful result, while some others allow a conviction if they merely do it knowingly.
    • The common law adopted the bilateral approach of requiring both the defendant and another to possess the requisite mens rea, however the Model Penal Code and most states have adopted the unilateral approach of only requiring the defendant's culpability.
      • This is especially relevant in situations when the defendant makes a conspiracy with an undercover agent.
  3. Overt act in furtherance of the conspiracy
    • At common law, the conspiracy was complete upon formation of the unlawful agreement. No overt act was required.
    • Most states require proof of the commission of an overt act by any party to the conspiracy. Any act may be sufficient as long as it is in furtherance of the conspiracy. The overt act may be committed before a conspirator joins.
    • The Model Penal Code only requires an overt act in cases involving a misdemeanor or a felony of the third degree.
Abandonment & Renunciation
Common Law

At common law, the conspiracy is committed once an overt act is committed and thus abandonment is not possible.

Model Penal Code

The Model Penal Code allows a conspirator to abandon by renouncing the conspiracy and thwarting the success of the conspiracy. Usually this means contacting the police.

Pinkerton Liability

The Pinkerton liability doctrine says that one is liable for the crimes of his coconspirators as long as such crimes were committed in furtherance of the conspiracy and reasonable forseeable consequences of the conspiracy.

Conspiracy v. Complicity

Although usually an accomplice is a conspirator, conspiracy differs from accomplice liability in several ways:


Solicitation is when one:

  1. Solicits (Asks, hires, encourages, etc.)
  2. A third party to perform a crime and
  3. Has the specific intent or purpose that the third party carry out the crime.

Solicitation usually merges with the solicited offense but usually not with a conspiracy.

The Model Penal Code and many jurisdictions allow a renunciation defense if the defendant prevents the solicitee from carrying out the crime.