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 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.
Legal impossibility is further divided into pure legal impossibility and hybrid legal impossibility.
The Model Penal Code and most jurisdictions only allow pure legal impossibility as a defense.
Pure Legal Impossibility
Pure legal impossibility is when one engages in conduct he thinks to be illegal, but it actually is legal for him to do.
Situations with pure legal impossibility are not a basis for criminal liability.
Hybrid Legal Impossibility
Hybrid legal impossibility is when the defendant's goal is illegal but impossible due to the legal status of some factor relevant to his conduct.
Most jurisdictions do not allow hybrid legal impossibility as a defense.
- Taking stolen property that turns out to not be stolen
- Trying to bribe a juror when the person is not actually a juror
- Trying to solicit an FBI agent posing as an underage girl in a chatroom
- Trying to hire an undercover cop posing as a hitman
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:
- 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.
- 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.
- 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.
- 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
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.
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:
- Conspiracy does not require an overt act by the defendant; accomplice liability does.
- Conspiracy is a distinct offense; accomplice liability is a method of liability for the accomplished offense.
- Pinkerton liability allows holding conspirators liable as well however.
- Conspiracy does not require an attempt an to aid; accomplice liability does require assistance.
- Under the Model Penal Code, conspiracy requires that additional crimes be planned beyond what was carried out.
- Conspiracy requires an agreement; accomplice liability does not.
Solicitation is when one:
- Solicits (Asks, hires, encourages, etc.)
- A third party to perform a crime and
- 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.