INCHOATE CRIMES Crimes not yet completed or fully developed ATTEMPT

COMMON LAW A person is guilty of attempt if he: (1) with the specific intent to engage in conduct that meets the elements of a crime, (2) performs an act beyond mere preparation towards its commission. ACTS BEYOND MERE PREPARATION Common Law. stricter rule. Requires dangerous proximity to success. MPC 5.02(1), (2). More lenient rule. Requires a substantial step towards the commission of the crime

(1) Definition of Attempt. A person is guilty of

an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or (c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

MPC 5.01. CRIMINAL ATTEMPT. Specific Intent Crime. the must actually intend to engage in conduct that meets the elements of the crime AND actually intend to perform an act beyond mere preparation towards its commission. Minority Rule provides that failure to consummate the target offense is an essential element of attempt. Majority Rule provides that proof of a completed crime can also prove attempt (more sensible).

DEFENSES
Impossibility. Legal impossibility is a defense to the crime of attempt; factual impossibility is not. Legal impossibility occurs when the course of conduct contemplated by the defendant, even if fully carried out as he desires, and even if the circumstances were as he believed them to be, would not constitute a crime as defined by governing law. Abandonment. Some common law jurisdictions and the MPC recognize complete and voluntary abandonment as a defense to attempt, at least where no harm has yet been done.

MPC: CONDUCT THAT MAY BE HELD SUBSTANTIAL STEP UNDER SUBSECTION (1)(C).
(a) lying in wait, searching for or following the contemplated victim of the crime (b) seeking to entice the contemplated victim to go to the place contemplated for its commission; (c) reconnoitering the place contemplated for the commission of the crime; (d) unlawful entry of a structure or vehicle in which the crimes commission is contemplated; (e) possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances; (f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (g)soliciting an innocent agent to engage in conduct constituting an element of the crime.

INCHOATE CRIMES Crimes not yet completed or fully developed

Conduct shall not be held to constitute a substantial step unless it is strongly corroborative of the actor's criminal purpose. ATTEMPT Elements of Attempt (1) With the specific intent to commit a crime, (2) Performs an act beyond mere preparation towards its commission Attempt is a specific intent crime; that is, the defendant must actually intend to commit the crime [more specifically, he must intend to engage in conduct that meets the elements of the crime] AND actually intend to perform an act beyond mere preparation towards its commission. GENERAL ATTEMPT CASES: Moffett v. State The defendant tied the victim up and forced her to write a suicide notes and attempted to stage a suicide. The victim escaped and defendant was found guilty of attempted murder and burglary. To prove attempt to commit the crime, the prosecution must establish: (1) intent to commit a crime (2) performance of some act to its commission (3) failure to consummate the commission Here, the defendant did all of this by the things she did to prepare she tried to argue that mere preparation was not enough. People v. Collie The defendant was found guilty of attempted first-degree murder of his ex-wife when he tied her up, sodomized her, and lit the burner to blow up the house To prove that he could be guilty of attempted second-degree murder of the daughter, you have to show that he had a specific intent to kill cannot attempt to have implied malice People v. Van Ronk Defendant got angry with James who was trying to buy pot with them. He shot James and some others, and told another girl that he was going to shoot her, but she got away. Court held that you could have attempted voluntary manslaughter as a charge. People v. Rizzo Defendant was convicted of the crime of attempted robbery. Held that an act done with intent to commit crime and tending but failing to effect its commission, is an attempt to commit that crime o Tending means to exert activity in a particular direction o The act must come or advance very near to the accomplishment of the intended crime. Young v. State Defendant had all the necessary preparations to rob a bank but when he got there, it was locked This court used the substantial step analysis in determining whether an overt act is more than mere preparation to commit the crime - here it was o A person is guilty of an attempt to commit a crime is , acting with the kind of culpability otherwise requires for commission of the crime, he purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in the course of conduct planned to culminate in his commission of the crime.

INCHOATE CRIMES Crimes not yet completed or fully developed

ATTEMPT CASES INVOLVING NECESSITY: State v. Quick Defendant was charged with the unlawful manufacture of intoxicating liquor Court held that intend alone, not coupled with some overt act toward putting the intent into effect, is not recognized by the courts The law does not concern itself with mere guilty intention, unconnected with an overt act State v. Kimbrell Defendant was arrested for trafficking cocaine after her boyfriend told her to go in the room with the cocaine while he made the drug deal. Mere intent and mere presence is not enough - she has to have the power and intent to control and distribute the cocaine. This court found in favor of her Steffey doesnt agree (had control of the drugs) ATTEMPT CASES INVOLVING IMPOSSIBILITY: State v. Mitchell Defendant shoots into a bed where he thinks the victim is in the bed but he wasnt. Fits every definition of attempt did everything he wanted to do but it didnt pan out Factual impossibility is not attempt Mistake of fact is not a defense If he were there, the plan would have worked perfectly. People v. Rojas The defendant was charged with receiving stolen property, but the property had never gotten into his possession (once property is held by the police, it loses its status as stolen) Court decided that Although D did have the intent to get stolen property, he never actually got it into his possession. Therefore he cannot be guilty of receiving stolen property. Booth v. State The defendant bought a stolen coat. He was arrested when the police found the coat He couldnt be convicted of receiving stolen goods because the police had already taken it. If the property is not stolen, it will be very hard for the police to charge you with everything Ask did you intend to receive stolen property (did you intend to buy property that you believe to be stolen) Not absurd to defend that you had not idea it was stolen US v. Oviedo The defendant hid heroin in his TV. When he went to sell it, he purposely knew it was not heroin but another illegal substance. Prosecutions argument: he wouldnt hide an illegal substance Defenses argument: TV wasnt his, etc. Held that impossibility exists when there is an intention to perform a physical act, the intended physical act is performed, but the consequence resulting from the intended act does not result in crime The acts should be unique rather than so commonplace that they are engaged in by persons not in violation of the law Acts by Oviedo apart from evidence of his intent do not mark his conduct as criminal in nature.

INCHOATE CRIMES Crimes not yet completed or fully developed

INCHOATE CRIMES Crimes not yet completed or fully developed SOLICITATION

A person is guilty of solicitation if he, [1] with the specific intent that a crime be committed, [2] commands, encourages, or requests another to commit it.

CONSPIRACY
MPC 5.03. Criminal Conspiracy. Definition of Conspiracy. is guilty if with the purpose of promoting or facilitating its commission he: (a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or (b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. Conspiracy is a continuing course of conduct that terminates when the crime or crimes that are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired Scope of Conspiratorial Relationship. If a person guilty of conspiracy 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. Conspiracy with Multiple Criminal Objectives. If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship. Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged & proved to have been done by him or by a person with whom he conspired. Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete/voluntary renunciation of his criminal purpose. Duration of Conspiracy. (a) Conspiracy is a continuing course of conduct that terminates when the crime or crimes that are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired; and

INCHOATE CRIMES Crimes not yet completed or fully developed

(b) such abandonment is presumed if neither the defendant nor anyone with whom he conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation; and (c) if an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of the existence of the conspiracy and of his participation therein.

PARTIES TO A CRIME

(1) knowledge, (2) intent to assist, (3) assistance

Accomplice Liability (Liability as an Aider and Abettor, an Accessory before the Fact, or an Accessory at the Fact). A person is guilty as an accomplice if, with knowledge of the criminal purpose of the perpetrator, he purposely commits, or aids, encourages, facilitates, or solicits commission of the offense. Accomplice liability is also a specific intent crime; that is, the defendant must actually intend to commit the offense, or actually intend to aid, encourage, facilitate, or solicit its commission. Nature of Accomplice Liability. An accomplice is guilty of the underlying offense. While accomplice liability requires proof that a principal was guilty of the crime charged, it does not require that the principal be charged or convicted. Accessory After the Fact. A person is guilty as an accessory after the fact if, with knowledge of the perpetrators guilt, he intentionally assists the perpetrator to avoid arrest, trial, or conviction. Nearly all states, and the MPC, make this a far less serious crime than the underlying offense. Unlike conspiracy, for aider/Abettor, it is sufficient to be aware of the criminal purpose and agree to help. No overt act requirement and no subjective meeting of the minds are necessary.

OLD COMMON LAW DISTINCTIONS Now only 2 categories: principal & accessory after the fact
principal in the 1st (person who does the crime) principal in the 2nd lookout, getaway car driver, same punishment as primary * Why not the guy who scouts the place out before the crime? * accessory before the fact aided, counseled, commanded, or encouraged the crime w/o being present for actual crime distinctions tend to be more difficult in this category Sentencing and basic criminal liability are the same as principal. At CL, biggest distinction was procedural (couldnt try accessory before the principal). These distinctions become more important in cases where someone dies b/c of felony murder. Who besides the shooter is eligible for the death penalty? MS SupCt any principals and accessories before the fact (but not after the fact). * usually, the shooter will plead for life instead of death penalty in exchange for his testimony on all the other robbers. Incidentally, there are a lot of get-away car drivers and lookouts on death row* accessory after the fact

INCHOATE CRIMES Crimes not yet completed or fully developed

person w/ knowledge of crime who assists in avoiding capture way less serious than actual crime usually pressed against s girlfriend while asking who will take care of your kids while your in prison? how much do you have to know to know about a crime? Boyfriend comes home covered in blood, hands girl a gun and says, You gotta hide this for me. What did you do? Its better you dont know. *

PARTIES TO A CRIME COMMON LAW ELEMENTS: (1) Have to have knowledge of the perpetrators criminal purpose Just the knowledge doesnt do it (2) With that knowledge, you aid, promote, or instigate the commission of the crime This is a specific intent element Have to know and share your criminal purpose Accessory after the fact: lesser crime usually a girlfriend, etc hiding the defendant after the crime Accomplice liability: no distinction between before the fact or after the fact If you drive the get-a-way car, if you plan, etc, you are still on the hook

INCHOATE CRIMES Crimes not yet completed or fully developed

PARTIES TO A CRIME CASES: People v. Beeman Defendant helped plan a robbery but backed out last minute. Court held A person aids and abets the commission of a crime if, with the knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages, instigates by act or advice of such crime. The defendant did not have criminal intent of the crime. State v. Sowell 3 men robbed recycling company after cased the place for them. Charged as principal in 2nd to robbery. Reversed. Accessory before the fact b/c he was not present at scene of crime. One of those weird situations where the case describes what the law isnt. goes to his job, gets his paycheck, and then goes on his delivery route to give himself an alibi. Case goes though old arbitrary common law ideas about parties to a crime. What would happen to this case if it were brought to the MS SupCt? Theyd affirm, and the poor clerk wouldnt know how to write the opinion. What are his options? Abolish distinction b/t principal in the 2nd and accessory before the fact or explore constructive presence at crime. Main Strategy: If the law is against you, you point out all the ways your case is different. If the law is for you, you point out all the ways your case is similar. * People v. Brown Defendant and his accomplice Dinino held two high school boys at gunpoint and robbed them of $50. They belonged to a gang. Natural and Probable Consequences Doctrine: If you rob someone in the car it is foreseeable that you would lock them in the car, and possibly hold them at gunpoint US v. Roberson Defendant, with three accomplices, committed an armed bank robbery, netting $130,000, which the defendants share was $50,000. Court held that Defendant is liable for the reasonably foreseeable crimes committed by his accomplices in the course of the conspiracy. Accomplice After the Fact If you know its a felony, you dont have to know which felony in order to constitute this crime. State v. Williams Defendant helped the murderer escape after he shot and wounded a man. After the police arrested him at the defendants house, the man died. There are three elements to prove accessory after the fact of felony murder: That the principle felon had actually committed the murder That the accused knew that such a felony had been committed by the principle felon, and That the accused received, relieved, comforted, or assisted the principle felon in some way in order to help him escape, or to hinder his arrest, trial or punishment. The defendants aid was giving after the mortal wound was given but before his death, therefore she gave aid before the felony murder took place. State v. Truesdell

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The defendant was charged with being an accessory to the murder of her ex-husband. The principle felon was their 12-year-old son. Just because his status as a minor prevents him from a criminal charge, it does not change the fact that the defendant was an accessory to the murder.

INCHOATE CRIMES Crimes not yet completed or fully developed

CONSPIRACY ELEMENTS OF CONSPIRACY: (1) Specific intent to agree (contract or combination) Same kind of mutual assent as contracts (2) Specific intent to commit a crime The course of conduct they intend to do (agreed to by the parties) has to meet elements of the crime Not a defense to say that you didnt know that the conduct was the crime, if you met the elements you committed the crime. Overt act would confirm the intent to commit the crime (most states dont recognize an overt act as the third element) Allows people that dont get their hands dirty to be convicted of the crime. Feds can prosecute more easily because they have unlimited resources. CONSPIRACY CASES: State v. Hanks Talks about the kind of circumstantial evidence D coorodinated and blocked the window and was charged with agreement to conspiracy There was evidence of action in concert. People v. Swain Two Defendants are convicted of conspiracy to commit murder from a drive by of a 15-year-old boy. They were given jury instructions of 2nd degree murder. Cant convict of this because 2nd degree murder does not include the intent to kill. Can conspire to commit: 1st degree murder: Intent to kill willful, deliberated, premeditated 2nd degree murder: Not felony murder (opposite of a specific intent crime) Intent to inflict grievous bodily harm is possible Have to have a specific intent crime to commit conspiracy Pinkerton v. US Demonstrates what makes conspiracy for defendants: Once you join a conspiracy, you are guilty for the conspiracy, as well as the substantive crimes you intend, and any other substantive crimes of you conspirators as long as they are reasonably foreseeable Accomplice liability: easier to prove because dont have to prove specific intent US v. Rosado-Fernandez Convicted of conspiracy with intent to distribute cocaine. He said there was insufficient evidence because he didnt actually have possession. Argues that he was involved in a different conspiracy only introduces the parties to each other Court says it doesnt matter. Conspiracy is a very fluid thing. People can add and subtract players to the conspiracy. Once they know that they will associate with someone else, they dont have to know the identify any of those people as long as it is foreseeable. So anything that everyone in the conspiracy does the main guy is responsible if it is foreseeable even if they dont know all the players. (Why it is a very effective tool for prosecutors great for mobs) Can you conspire with a police officer? (Issue because they dont really mean it) Answer is yes court recently overruled and decided that you could.