Inchoate Crimes

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I. INCHOATE CRIMES

A. Solicitation
1. Solicitation was a common law:

2. Common law solicitation included enticing, advising, inciting, inducing, urging, or otherwise
encouraging another to commit a felony or breach of the peace.
3. The MPC defines solicitation broadly to include requesting another to commit any offense (including
misdemeanors and felonies). Look to the:

4. The solicitor must intend that the solicitee perform criminal acts (specific intent). Mere approval of the
acts is not enough.
5. The offense is complete at the time the solicitation is made. In other words, completion of the offense
solicited is unnecessary. At common law the communication must be:

6. Under the MPC, it is not required that the communication be effectively communicated. Defendant
must merely believed the communication was effective.
7. It is also unnecessary that the person solicited enter into an agreement to commit the requested crime.
Indeed, a person solicited to do a crime may not even respond, but the solicitor will still be guilty of
solicitation.
8. The crime of solicitation merges with attempt.
9. The crime of solicitation, unlike conspiracy, merges with the target felony:

10. A solicitor is treated as an accessory before the fact, and thus will be guilty of any solicited crime
(attempted or completed) by the solicitee.
11. Defenses
a. At common law, there were no defenses to solicitation if the elements described above were
present. However, under modern statutes specific intent defenses such as voluntary intoxication
and unreasonable mistake of fact are legitimate defenses to solicitation.
(1) Even where it would be impossible for the solicitee to carry out the crime, such impossibility is
no defense to the crime of solicitation. What matters is what the solicitor:

(2) At common law, withdrawal is not a:

(3) Because the crime of solicitation is complete as soon as the solicitation is made, withdrawal
cannot be a defense to the crime of solicitation. Even where the solicitor later changes his
mind, the change of heart may be a defense to the underlying crime, but not to the solicitation
crime.
B. Attempt
1. Mere preparation is never enough to prove attempt. It must be proven that the defendant went beyond
preparation and into:

2. The crime of attempt consists of two elements:
a. a specific intent to bring about a criminal result; and
b. a significant overt act in furtherance of that intent.

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3. Once the target crime is committed, the attempt:

4. There two types of attempt:
a.
b.
5. For inchoate offenses, specific intent means only:

6. The significant overt act must be an act (or act of perpetration) beyond an act of “mere” preparation.
a. Several approaches are used to determine what constitutes a sufficient overt act.
b. At common law, a defendant was required to have performed the:

c. Jurisdictions following the MPC require only an act that constitutes a “substantial step” toward
the offense that corroborates the criminal intent required, such as scouting out the scene of
the intended crime. Some courts use an equivocality test, which requires that the defendant’s
conduct be such that it can have no other purpose than the commission of the crime attempted.
Many courts apply a proximity test, which asks how close in time and physical distance a
defendant was to the time and place the target crime was to be committed.
7. Defenses
a. Abandonment
(1) At common law, abandonment is not a defense to attempt once the attempt is complete.
(2) Many jurisdictions (including MPC jurisdictions) recognize:


(a) Voluntary means a true change of heart, not simply giving up in the face of difficulties or
an increased likelihood of being caught.
(b) Complete means that the defendant is not merely postponing commission of the crime.
Complete renunciation.
b. Impossibility
(1) Legal impossibility is always regarded as a defense to attempt and involves the situation
where the defendant did all those things he intended to do, but his acts did not constitute a
crime. Defendant believes he is committing a crime but the action is not criminal.
(2) Factual impossibility (e.g., shooting an unloaded gun) is never a defense to attempt.
C. Conspiracy
1. A conspiracy is an agreement between two or more persons to commit a crime.
2. Conspiracy does not:


3. The agreement itself is the actus reus or conduct element of the offense of conspiracy.
a. Actual agreement is required. Feigned agreement, as in the case of an undercover police officer,
is insufficient.
b. Agreement need not be express but may be proven circumstantially by conduct where the
conspirators demonstrate over time that they intended to achieve the same objective and agreed
to work together toward that end. The agreement does not require a meeting of the minds but
merely a shared intent to pursue a mutual goal.

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c. The objective of the agreement must be to either commit a crime or to commit a lawful act by
unlawful means.
4. Conspiracy is a specific intent crime. The mental state required is both the intent to agree and the
intent to achieve the objective of the agreement.
5. Overt Act Requirement
a. The majority rule is that an overt act in furtherance of the conspiracy is also required for
conspiracy liability. Defendants were doing more than:

b. This prevailing view reflects a change from the traditional common law rule, which had no such
requirement (the agreement itself constituted the crime).
c. Mere preparation will suffice (e.g., purchasing matches in a conspiracy involving the burning of a
building or driving by a house to observe if someone is home in a conspiracy involving theft).
6. The Pinkerton doctrine provides that each conspirator is liable for the crimes of all the other
co-conspirators where the crimes were both:
a.
b.
7. All jurisdictions recognize liability for crimes a conspirator aids and abets under the doctrine of
accomplice liability.
8. The nature of the agreement determines whether there is a single or a multiple conspiracy.
a. In a chain relationship where several crimes are committed under one large scheme in which
each member knows generally of the other parties’ participation and a community of interest
exists, one single conspiracy results.
b. Alternatively, in the so-called hub-and-spoke relationship, where one common member enters
into agreements to commit a series of independent crimes with different individuals, multiple
conspiracies exist.
9. Procedural Issues
a. The common law rule, followed by the majority of jurisdictions, is that no conspiracy exists if only
one of the conspirators truly agrees and the other conspirator(s) feign agreement (i.e., there must
be a “meeting” of at least two “guilty minds”).
b. The MPC, however, follows the unilateral approach to conspiracy and dispenses with
the requirement that two people actually agree. Under the unilateral approach, all of the
co-conspirators, having feigned agreement or having been acquitted, will not, alone, prevent a
defendant from a conviction for conspiracy.
c. The Wharton Rule states that in crimes where two or more people are statutorily necessary for
the commission of the offense, there is no conspiracy unless the agreement involves an additional
person who is not essential to the definition of the crime.

EXAMPLE:

If A and B engage in a duel, they are guilty of the crime of dueling but not of conspiracy to duel.
(1) Wharton Rule crimes include:
(a)
(b)
(c)
(d)
(e)

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10. Defenses
a. Impossibility is not:

b. The general rule is that withdrawal is not recognized as a valid defense to conspiracy because
the conspiracy is complete as soon as the parties agreed to commit the crime and an overt act is
committed.
c. Withdrawal may cut off further liability for crimes committed in furtherance of the conspiracy if the
withdrawing conspirator communicates his withdrawal to each of the co-conspirators.
d. Under the MPC, withdrawal by a co-conspirator may be a valid affirmative defense to the charge
of conspiracy itself where the renouncing party gives timely notice of his plans to all members of
the conspiracy and performs an affirmative act to “thwart” the success of the conspiracy.

EXAMPLE:
A timely informs B and C (co-conspirators) that she will not go through with robbing a bank. A also
goes to the police and informs them of the plan to rob the bank.

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II. PARTIES TO CRIME; ACCOMPLICE LIABILITY

A. Accomplice
1. Accomplice liability is a theory by which we connect a party to the criminal behavior of the principal.
2. The common law traditionally distinguished between accessories before and after the fact.
3. The modern approach is to distinguish only between accomplices to a crime and accessories after the
fact. Under the modern approach, an accomplice to a crime is fully liable for the crime being committed
(i.e., an accomplice to a bank robbery is considered a bank robber).
4. The Act Requirement
a. Even slight assistance or encouragement is sufficient, but the defendant must actually assist or
encourage. The act is one that:

b. The facilitating act does not need to be causally necessary. It may be trivial.

EXAMPLE:

A flashes B a thumbs up sign just before B beats C. B would have beaten C anyway, but A’s act is
sufficient for complicity if B saw it and felt even slightly encouraged.
c. Mere presence does not make one:

d. Words alone may be sufficient if they assisted or encouraged.
5. Mental State Requirement
a. At common law, the person must intend to commit the acts of assistance or encouragement and
must further intend to encourage or assist another to commit the crime charged.
6. An accomplice is responsible not just for the crime assisted and encouraged, but also for other crimes
that are the natural and probable consequences of the crime assisted or encouraged.
a. The MPC limits accomplice liability to only the crime assisted or encouraged.

EXAMPLE:

An accomplice to an armed bank robbery can be held responsible for the death of a bank teller
who is shot by another defendant during the bank robbery.
7. Defenses: Withdrawal or Abandonment
a. An accomplice may cut off liability for future crimes by:

b. He must give no further assistance or encouragement.
c. He must communicate his withdrawal to his accomplices.
d. Many jurisdictions require him to make efforts to neutralize his prior assistance or encouragement,
but he does not have to try to thwart the commission of the crime.

EXAMPLE:

A had agreed to lend his car to B so that B could rob a bank. A tells B that he changed his mind. A
needs to get his car keys back from B to cut off accomplice liability in the event that B goes ahead
with the robbery, but he does not need to call the police and tell them of B’s plan.

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B. Accessory After the Fact

1. At common law, helping a felon avoid apprehension made that person an:

2. The following three requirements must be met for one to be an accessory after the fact:
a. a completed felony must have been committed;
b. the accessory must have known of the commission of the felony; and
c. the accessory must have personally given aid to the felon to hinder the felon’s apprehension,
conviction, or punishment.
3. Whereas modern law has abolished the distinction between principals in the first and second degree,
one who is an accessory after the fact is not an accomplice, nor is he punished to the same extent as
prescribed for the parties to the felony.
4. Modern statutes largely focus on punishing one for his own actions (which these statutes classify
as a separate crime called “obstruction of justice”), and not by holding that “accessory after the fact”
vicariously liable for the underlying felony.

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Multiple Choice Questions
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 Inchoate Crimes Answer Grid

BE SURE EACH MARK IS DARK AND COMPLETELY FILLS THE INTENDED OVAL, AS SHOWN IN A B C D
THE ILLUSTRATION AT THE RIGHT. COMPLETELY ERASE ANY MISTAKES OR STRAY MARKS.
IN THE BOXES PROVIDED BELOW, PRINT YOUR LAST NAME,
SKIP A BOX, THEN PRINT YOUR FIRST NAME, SKIP A BOX,

1 A B C D 2 A B C D 3 A B C D 4 A B C D 5 A B C D
LAST NAME, THEN FIRST NAME
THEN PRINT YOUR MIDDLE INITIAL.

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Question 1
An elderly man’s house was frequently the target of
vandalism by local teenagers. Tired of having to repair
the damage they did to his home, the man decided to
lie in wait for teenagers on the night before Halloween,
when they often vandalized his home. True to form,
teenagers in costume appeared and began spray-painting
the man’s house. Wanting to scare the teenagers, the man
fired a shotgun over their heads. Some of the shotgun
pellets went through the top of a tall hat one of the
teenagers, who was dressed as Abraham Lincoln, was
wearing, but the pellets did not harm him. The man was
subsequently arrested.
What, if any, crime did the man commit?
(A) Mayhem.
(B) Battery.
(C) Attempted murder, because a shotgun is an
inherently dangerous weapon.
(D) No crime.
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Question 2
After he was turned down for a promotion, a man
decided to murder his boss. The man purchased a gun
for this purpose and then invited his boss to his house for
dinner. However, the day before the boss arrived at the
man’s house, the man changed his mind and left the gun
under his mattress. The man was subsequently charged
with attempted murder.
Should the man be convicted or acquitted?
(A) The man should be acquitted, because the boss
was unaware of the man’s motives.
(B) The man should be acquitted, because his
actions were not sufficient to constitute an
attempt.
(C) The man should be convicted, because a person
is presumed to intend the natural and probable
consequences of his acts.
(D) The man should be convicted, because he
purchased the gun with the intent to kill his
boss.

Question 3
As a practical joke, a defendant took a small container,
filled it with gas and placed it in the wood-burning stove
in the cabin owned by his neighbor. That evening, as the
temperature dropped, the neighbor decided to light a fire
in his wood-burning stove. The gas exploded, causing
extensive injuries to the neighbor and a great deal of
damage to his cabin. The defendant was arrested and
charged with arson.
Will the defendant be convicted?
(A) No, because the defendant never intended to
hurt the neighbor.
(B) No, because the cabin was unoccupied when the
neighbor entered.
(C) Yes, because the defendant’s conduct was
reckless.
(D) Yes, because the defendant’s conduct was
negligent.
Multiple Choice Questions
Question 4
Late one evening, a teenage boy and his 15-year-old
girlfriend were just leaving the library. As they were
walking through a dimly lit parking lot to get to their
bikes, an adult man, who was visibly intoxicated,
emerged from behind a parked car and ran up to them.
The man knocked the boyfriend to the ground and hit
him over the head with a wrench, causing the boyfriend
to lose consciousness. The man then forced the girlfriend
into his car. Moments later the boyfriend regained
consciousness, and the man fled the scene. The man was
subsequently charged with assault with intent to commit
rape.
Which of the following would provide the defendant with
his best defense?
(A) The defendant thought the girl had consented.
(B) The defendant did not intend to rape the
girlfriend.
(C) The defendant’s intoxication at the time negated
the required general intent.
(D) It is impossible to prove that the defendant was
the perpetrator because the parking lot was
dimly lit.
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Question 5
A disgruntled employee decided to kill his boss. The
employee planned to hide near his boss’s house and shoot
the boss when he arrived home from work. The employee
positioned himself behind a small grove of trees about
500 yards away from the boss’s home. Shortly thereafter,
the boss pulled into his driveway. As the boss exited his
vehicle, the employee fired a single shot from his rifle,
but the shot did not reach the boss. A neighbor heard
the gunfire, however, and called the police, who later
arrested the employee as he was fleeing the scene with
his rifle. At the employee’s trial for attempted murder,
it was conceded, following the testimony by a ballistics
expert, that it would have been impossible for the
employee to hit his boss from that distance with the rifle
he had used.
Is the employee guilty of attempted murder?
(A) No, because at that distance he lacked the
requisite intent to kill his boss.
(B) No, because it was legally impossible for the
employee to kill the boss from that distance.
(C) Yes, because it was merely factually impossible
for the employee to kill the boss from that
distance.
(D) Yes, because the employee’s actions were
premeditated.

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 Inchoate Crimes Answer Key

BE SURE EACH MARK IS DARK AND COMPLETELY FILLS THE INTENDED OVAL, AS SHOWN IN A B C D
THE ILLUSTRATION AT THE RIGHT. COMPLETELY ERASE ANY MISTAKES OR STRAY MARKS.
IN THE BOXES PROVIDED BELOW, PRINT YOUR LAST NAME,
SKIP A BOX, THEN PRINT YOUR FIRST NAME, SKIP A BOX,

1 A B C D 2 A B C D 3 A B C D 4 A B C D 5 A B C D
LAST NAME, THEN FIRST NAME
THEN PRINT YOUR MIDDLE INITIAL.

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