Inchoate Crimes Conspiracy Solicitation and Attempt Bar Exam

Inchoate Crimes: Conspiracy, Solicitation and Attempt Bar Exam Preparation By Thaddeus Hoffmeister

Inchoate Crimes: 4 Requirements � Generally 4 Requirements for a Crime ◦ Actus Reus: Agreement between two or more parties (express or implied) ◦ Mens Rea: (1) Intent to enter into an agreement; (2) with the purpose to achieve the objective of the agreement ◦ Concurrence: Actus Reus and Mens Rea exist at the same time ◦ Causation: Link between the act and the harmful result (1) direct cause and (2) proximate cause 2

Inchoate Crimes: Mens Rea � Assault, Solicitation and Conspiracy are all Specific Intent Crimes ◦ General Intent (Battery and Rape) ● Awareness of all factors constituting the crime ◦ Specific Intent (SCARF BAFFLE) ● Intend to engage in certain conduct (burglary) ● Conduct will have some future impact (hindering prosecution) ● Knowledge that one or more elements of the Actus Reus exists (receiving stolen property) 3

Inchoate Crimes: Specific Intent ◦ Solicitation= Intent to have the person solicited commit the crime ◦ Conspiracy= Intent to have the crime completed ◦ Attempt= Intent to complete the crime ◦ Robbery= Intent to permanently deprive property of another ◦ First Degree Premeditated Murder=Premeditated (where so defined) ◦ Burglary= Intent at the time of entry to commit a felony in the dwelling of another ◦ Assault= Intent to commit a battery ◦ Forgery= Intent to defraud ◦ False Pretenses= Intent to defraud ◦ Larceny= Intent to permanently deprive property of another ◦ Embezzlement= Intent to defraud 4

Inchoate Crimes: Attempt � 2 Elements ◦ Specific Intent to commit the crime ◦ Overt act in furtherance of that intent ● Substantial Step (MPC) ◦ Defenses ● Legal Impossibility is a defense but factual is not ● Can’t be convicted of both attempt and the underlying offense ● Abandonment ● Majority says no MPC says yes (must be complete) 5

Inchoate Crimes: Attempt � Impossibility (generally only see with Attempt) ◦ Factual Impossibility is not a defense ◦ Legal Impossibility may be a defense ◦ Factual Impossibility vs. Legal Impossibility ● Pickpocket finds an empty pocket ● D thinks touching an elbow is sexual assault ● Hybrid: Shooting a dead person 6

Inchoate Crimes: Solicitation � Inciting, counseling, advising, inducing, urging or commanding another to commit a felony with the specific intent that the person solicited commit the crime � If the other person agrees then you have conspiracy � Defenses ◦ Factual impossibility not available ◦ Can’t be convicted of both solicitation and the underlying offense ◦ Withdrawal or renunciation no defense ● This defense is recognized by the MPC 7

Inchoate Crimes: Conspiracy ◦ MPC requires an overt act ◦ CL does not require an overt act ● It doesn’t take much to have an overt act ● It can be any legal or illegal act to set the conspiracy in motion ● Less than a substantial step ◦ CL requires 2 guilty minds ◦ MPC does not require 2 guilty minds (Unilateral) ● If the Ds are tried together and one is acquitted you might not have plurality or a bilateral agreement ● Look for conspiring with a police officer 8

Inchoate Crimes: Conspiracy � Liability for co-conspirators actions ◦ (1) committed in furtherance of the conspiracy ◦ (2) foreseeable ◦ (3) doesn’t matter if the other conspirator is unaware or uninvolved (MPC rejects Pinkerton liability) 9

Inchoate Crimes: Conspiracy � Merger ◦ Conspiracy ● Does not merge with completed crime ◦ Solicitation and Attempt ● Solicitation merges with conspiracy and the underlying crime ● Attempt merges with the underlying crime ◦ (They test this by asking you what crimes the D can be charged with) 10

Inchoate Crimes: Conspiracy � Wharton’s Rule ◦ Need more parties to participate in the agreement than are necessary to commit the crime if you want to charge conspiracy and the underlying crime. ◦ E. g. , need at least three folks when charging bigamy, dueling, or adultery 11

Inchoate Crimes: Abandonment � Abandonment or Renunciation of Conspiracy ◦ No defense at CL ◦ Is a defense for the MPC ● D must thwart the success of the conspiracy ● The abandonment must be complete and voluntary 12

Inchoate Crimes: Conspiracy ◦ Withdrawal ● Is a defense to subsequent crimes at C ● Give notice to all participants ● Is a defense to subsequent crimes at MPC ● Advise co-conspirators that D is no longer involved or ● Inform law enforcement 13

Inchoate Crimes: Conspiracy � MPC � Expansive Withdrawal � Unilateral Agreement � Overt Act � No Pinkerton liability � CL � Limited Withdrawal � Bilateral Agreement � No overt act 14

Inchoate Crimes: Problem #1 � Barack and Mitt agree to kidnap Chelsea and hold her for ransom. The plan was successful and Chelsea was released after Barack and Mitt received the money. Barack and Mitt were apprehended several days later. Under the majority rule, can each one be convicted and sentenced for both kidnapping and conspiracy to commit the kidnapping? 15

Inchoate Crimes: Problem #1 � � � A. Yes, because conspiracy does not merge with the completed offense, so convictions for both the completed offense and conspiracy to commit that offense would be allowed B. No. Conspiracy and the kidnapping share the same objectives, merger of the two offenses is required C. No. As with other inchoate offenses of solicitation and attempt, conspiracy merges with the completed offense if the completed offense is a felony D. No, because the common law rule dictates that one act cannot result in more than one punishment E. None of the above 16

Inchoate Crimes: Problem #2 �A drug dealer in Ohioa agreed with Mack to purchase heroin in order to sell it. Unknown to the drug dealer, Mack was an undercover police officer whose job was to arrest drug dealers. The drug dealer made a down payment for the heroin and agreed to pay the remainder after he sold it on the street. As soon as Mack handed over the heroin, other officers moved in and arrested the drug dealer. Ohioa follows the common law approach to conspiracy. Can the drug dealer be prosecuted for conspiring to distribute drugs? 17

Inchoate Crimes: Problem #2 � A. No, because there was no overt act � B. No, because there was no bilateral agreement � C. Yes, because the overt act occurred as soon as Mack handed over the heroin � D. Yes, because the drug dealer did not know that Mack was an undercover agent � E. Yes, because neither an overt act nor bilateral agreement was required at common law 18

Inchoate Crimes: Problem #3 � Under � A. the MPC would your answer change? Remains the same � B. Mack could be prosecuted because the MPC does not require an overt act � C. Mack could be prosecuted because the MPC does not require a bilateral agreement � D. Mack could not be prosecuted 19

Inchoate Crimes: Problem #4 � � � Abigail offered to pay her friend one-third of the stolen proceeds if the friend would drive the getaway car to be used in a bank robbery. The friend agreed but made the woman promise not to hurt anyone during the robbery. The woman then drove to Door-Mart where she explained to the store owner that she needed a small firearm for use in a bank robbery. The store owner responded that he would charge extra because the woman was so unwise as to confide her unlawful plans for using the weapon, and he sold her a handgun at four times the regular price. During the robbery, the woman used the gun to threaten a bank teller handing over the money. The gun discharged by accident and killed a bank customer. 20

Inchoate Crimes: Problem #4 � At common law, who in addition to Abigail could properly be convicted of murder in the death of the customer? � A. Both the friend and the store owner of Door-Mart � B. Neither the friend nor the store owner � C. Only the friend � D. Only the store owner 21

Inchoate Crimes: Problem #5 � Nick, Mike and Mark have a meeting and agree to rob a bank. On the way to the bank, Nick gets cold feet and tells Mike to stop the car because he can’t go forward with the robbery. Mike calls Nick a “coward” and then lets him out of the car. Mike and Mark go to the bank and while robbing it kill the security guard. Can Nick be charged with any crime? 22

Inchoate Crimes: Problem #5 � A. Under the MPC, Nick is not guilty of any crime because he withdrew from the conspiracy � B. Under the CL, Nick is not guilty of any crime because he withdrew from the conspiracy � C. Under the MPC, Nick is guilty of conspiracy � D. Under the MPC, Nick is guilty of conspiracy and felony murder 23

Ohio Distinctions � Conspiracy ◦ Object of the conspiracy must be a proscribed offense ◦ (1) D must plan or aid in planning the offense with another or (2) agree with another that one of them will engage in conduct that facilitates a specified offense ◦ Conspiracy merges with the underlying crime 24

Ohio Distinctions � Attempt ◦ Impossibility is no defense if the crime could have been committed if the attendant circumstances were as the D believed them to be ◦ Abandonment is a defense if the D can show that he voluntarily abandoned his efforts to commit the intended crime, or that he prevented the intended crime’s commission 25

Bar Exam Outline �Homicide ◦ Intended Killings ● Premeditation, deliberation ● Provocation ◦ Unintended Killings ● Intent to injure ● Reckless and negligent killings ● Felony murder ● Misdemeanor manslaughter 26

Bar Exam Outline � Property ◦ ◦ Crimes Theft (Larceny, Embezzlement, False Pretenses) Receiving Stolen Goods Burglary Robbery 27

Bar Exam Outline � Other ◦ ◦ ◦ Crimes Assault and battery Rape Kidnapping Arson Possession 28

Bar Exam Outline � Inchoate Crimes and Parties ◦ Attempts ◦ Conspiracy ◦ Solicitation � Parties to a crime 29

Bar Exam Outline � General Principles ◦ Acts and Omissions ◦ State of Mind ● Required Mental State ● Strict liability ● Mistake of law and fact ◦ Responsibility ● Mental Disorder ● Intoxication ◦ Causation ◦ Justification and Excuse ◦ Jurisdiction 30

Bar Exam Outline � Constitutional ◦ ◦ ◦ ◦ Protections of Accused Persons Arrest, search and seizure Confessions and privilege against self-incrimination Lineups and other forms of identification Right to counsel Fair trial and guilty pleas Double jeopardy Cruel and unusual punishment Burdens of proof and persuasion 31

Bar Exam Outline � Approximately half of the Criminal Law and Procedure questions on the MBE will be based on Criminal Procedure 32

Studying For the Bar Genius: 1% inspiration and 99 % perspiration � Discipline � Remove � Rote memorization � Never � Use distractions too early to start studying UDSL resources 33