Checklist: Failure to consummate the target offense Specific-intent to do the target offense Issues to think about: a How do we know that d was actually going to go through with crime? b How, why and how much to punish? Rule statements

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  Failure to consummate the target offense
  
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  Specific-intent to do the target offense
  

a) How do we know that D was actually going to go through with crime?

b) How, why and how much to punish?

Rule statements:

(Acts already done v. Acts left to be done)

Preparation alone is not enough, there must be some unequivocal fragment of crime committed, or in progress of being completed prior to interruption. (Mandujano, 755)

Courts consider various tests and factors in determining when attempt occurs. (ACL, 424). Some factors include

(1) whether the act appears to be dangerously close to causing harm, that cops must intervene.

(2) the seriousness of the threatened harm: the more serious the crime attempted, the further back along spectrum courts are willing to go.

(3) the strength of the evidence of actor’s MR: the more clear the intent is, the less proximate the acts need to be. (ACL, 424).

Some tests used are:

The Physical Proximity doctrine states that the overt act required for an attempt must be proximate to the completed crime, or directly tending toward the completion of the crime

The Dangerous Proximity doctrine where the greater the gravity and probability of the offense, and the nearer the act to the crime, the stronger the case for attempt.

The Indispensable Element test which emphasizes any indispensable aspect of the criminal endeavor over which the actor is not yet in control over.

The Probable Desistance test says the conduct constitutes an attempt if, without interruption from outside source, the conduct would of resulted in crime intended.

The Abnormal Step approach says an attempt is a step toward crime which goes beyond the point where the normal citizen would think better of his conduct and desist.

The Res Ipsa Loquitor or Unequivocality test says an attempt is committed when the actor’s conduct manifests an intent to commit a crime.

(Mandujano, 756)

Peaslee – P set up fire in building but changed his mind and never lit the fire. It was mere preparation so no attempt under dangerous proximity test. (759)

Rizzo - D w/ guns set to rob payroll guy but was arrested before finding the guy. No attempt b/c no attempt could be made. (763)

Reeves – D was 12 and tried to kill teacher by bringing rat poison – it was a substantial step b/c it was brought to scene and served no lawful purpose. (768)

Most states punish attempts as a lesser included offense (742)

Most states don’t consider attempted felony-murder an offense. (Bruce, 753)

A person may be convicted of voluntary manslaughter but not involuntary manslaughter because its unintentional and you can’t intentionally commit an unintentional crime (Bruce, 753)

Policy:

If there were no inchoate offenses, cops would lack the legal authority to stop criminal activities before they are consummated (ACL, 414)

Anyone who attempts to commit a crime is dangerous. Id.

Individuals should be held criminally liable for what they intended to do. (745)

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  CL assault was an attempt to commit a battery (801)
  
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  MPC 211.1 Assault:
  
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    A person is guilty of assault if he attempts to cause or P, K, or R causes bodily injury to another or
    
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    Negligently causes bodily injury to another w/ a deadly weapon or
    
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    Attempts by physical menace to put another in fear of imminent serious bodily injury
    

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  purpose to commit the target offense
  
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  conduct constituting a “substantial step” toward the commission of the target offense
  

A person is guilty of attempt to commit a crime if acting with the MR required for the crime, it is his conscious object to engage in the target offense OR he intends to commit an act with the purpose or belief that it will cause result. (MPC 5.01(1)(a)(b).

If it is an incomplete attempt, a person must purposely do an act constituting a substantial step toward the crime (MPC 5.01(1)(c).

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  Conduct is not a substantial step unless it strongly corroborates D’s criminal purpose (MPC 5.01(2).
  
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  Factual circumstances that might constitute substantial step:
  
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    Lying in wait
    
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    Searching for the victim
    
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    Reconnoitering the crime scene
    
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    Unlawful entry into building where crime will be committed
    
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    Possessing tools to commit the crime
    
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    Soliciting an innocent agent to do an element of the crime
    

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  the purpose of her conduct is to aid another in the crime and
  
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  such assistance would have made her an accomplice (MPC 5.01(3)
  

Attempt, solicitation, and conspiracy are graded the same as the target crime (MPC 5.05)

Defenses

Impossibility

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  Factual impossibility exists when a person intends to commit a crime, but fails to b/c mistake in AC. (Not a defense) (785)
  
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    EX: pickpocket putting hand in victim’s empty pocket
    
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  Pure legal impossibility arises when D mistakenly thought he was committing a crime, but D’s act didn’t violate law. (complete defense) (785)
  
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  Hybrid legal impossibility exists if D’s goal was illegal, but commission was impossible b/c of factual mistake regarding the legal status of AC. (786)
  
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    EX: intending to receive stolen property, which isn’t in fact stolen
    
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  Most states have abolished hybrid legal impossibility as a defense b/c it becomes factual impossibility, which is not a defense (ACL, 437)
  

MPC 5.01(1)(a) abolishes impossibility defense.

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  Abandonment is not voluntary if it happens b/c of unexpected resistance or change in circumstances that increase likelihood of arrest or otherwise cause D to postpone or desist (ACL, 440)
  
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  A D can’t claim abandonment as a defense once harm has been done. Id.
  

MPC adopts vol. and complete abandonment as a defense (MPC 5.01(4)

CL Solicitation

Checklist:

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  An act to solicit
  
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  w/ specific intent for the other person to commit a crime
  

Solicitation is complete the instant the actor communicates the solicitation to the other person. Id.

MPC Solicitation

A person is guilty of solicitation to commit a crime if the actor’s purpose is to promote or facilitate the commission of a substantive offense and with such purpose, he commands, encourages, or requests another person to engage in conduct that would constitute the crime, an attempt to commit it, or complicity. (MPC 5.02(1)

An uncommunicated solicitation is itself a solicitation (MPC 5.02(2)

Defense:

It’s a complete defense to solicitation if a person completely and voluntarily renounces his criminal intent and either persuades the solicitor to not commit the crime or prevents him from committing the crime (MPC 5.02(3)

Solicitation is graded the same as the target offense (MPC 5.05(1)

CL Conspiracy

Checklist:

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  An agreement
  
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  Btw. 2 or more D to commit a crime
  

A CL conspiracy involves an agreement to commit a crime or to commit a lawful act in an unlawful manner. (811)

Intent may be proven by:

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  direct evidence or
  
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  inferred by evidence of circumstances like
  
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    when there’s a stake in the venture
    
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    when there’s no legitimate use for the goods/services
    
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    when volume of business is grossly disproportionate to any legitimate demand
    
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    a special interest in the activity or
    
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    the aggravated nature of the crime itself
    

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  A mere tacit understanding suffices (ACL, 463)
  
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  A conspiracy may be inferred from circumstances. Id.
  

A person can be convicted of conspiracy by proving he was an accomplice in the conspiracy

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  Collective action involves a greater risk to society than individual action toward the same crime (810)
  
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  It’s a preventative intervention against people who manifest disposition toward crime (ACL, 459)
  

No defenses to conspiracy.

MPC Conspiracy

Checklist:

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  purpose to bring about crime
  
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  an overt act
  
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  btw. 2 or more people
  

A person is guilty of conspiracy with another person(s) to commit a crime if with the purpose of promoting or facilitating its commission he:

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  agrees that they will engage in the crime or
  
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  attempt to commit the crime or
  
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  solicits another to commit an offense or
  
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  aid another person in the planning or commission of the crime (MPC 5.03)
  

Its an affirmative defense to conspiracy if the conspirator completely and voluntarily renounces his criminal purpose, and stops the conspiracy. (MPC 5.03(6)

CL Accomplice Liability

Checklist:

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  intent to assist
  
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  intent for crime to occur
  
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  physical conduct or encouragement
  

An accomplice is not guilty of an independent crime of aiding and abetting; instead is guilty of the substantive offense committed by the perpetrator (862)

1. 
   intent to assist the principal and
   
2. 
   intent for underlying offense to occur
   
   1. 
      intent to have P commit conduct required for offense
      
   2. 
      intent to have P commit offense itself
      
   3. 
      intent as to AC (866)
      

Majority rule is a MR of purpose, not knowledge (868)

To apply:

1. 
   did P commit target offense?
   
2. 
   if yes, did accomplice assist in the crime (was he an accomplice?)
   
3. 
   if yes, did P commit any other crimes?
   
4. 
   if yes, were the crimes reasonably foreseeable consequences of the target offense? (878)
   

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  Knowledge and mere presence alone is insufficient to satisfy accomplice liability (Vaillancourt, 881)
  
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  There must be active participation. Id.
  
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  A person is not an accomplice unless his conduct in fact assists the crime (ACL, 508)
  
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  Any aid, no matter how trivial, suffices (ACL, 508)
  

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  He who chooses to aid in a crime forfeits his right to be treated as an individual (ACL, 499)
  

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  Legislative-Exemption Rule states that a person can’t be an accomplice to a crime if he by definition protected by the law (ACL, 526)
  
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  Abandonment states that one who communicates and makes b.f. effort to neutralize the effect of his prior assistance can avoid accountability for the principal’s subsequent criminal acts (ACL, 527)
  

A person is an accomplice of another person of a crime if with the purpose of promoting or facilitating the crime he solicits, aids or agrees or attempts to aid, or breaches a legal duty (MPC 2.06(3)

When causing a particular result is an element of an offense, a person is an accomplice of that offense if he acts with the kind of culpability of that crime (MPC 2.06(4)