Criminal Law for the Criminal Justice Professional Norman M. Garland Fourth Edition Chapter 5 ©McGraw-Hill Education. All rights reserved. Authorized only for instructor use in the classroom.  No reproduction or further distribution permitted without the prior written consent of McGraw-Hill Education.

Chapter 5 Incomplete Crimes 5.1 Attempted crimes 5.2 Defenses to attempt 5.3 Solicitation 5.4 Conspiracy Chapter 5 Incomplete Crimes

Chapter Objectives Explain the purpose of defining attempt as a crime Explain how the Model Penal Code test for the actus reus of attempt differs from all the other tests State the elements of an attempt Name the two principal defenses to attempt Explain when the crime of solicitation can be charged Define the crime of conspiracy Define the actus reus requirement for conspiracy Explain the mens rea requirement for conspiracy

5.1 Attempted Crimes Inchoate crimes have both actus reus and mens rea requirements Inchoate crime A criminal act that is detected and punished before the ultimate or intended crime actually occurs. The principal modern inchoate crimes are attempt, conspiracy, and solicitation

Six Stages of Committing a Crime The actor: Conceives the idea of committing the crime Evaluates the idea, considering whether or not to proceed Forms the intention to go forward Prepares to commit the crime Commences commission of the offense Completes the action, achieving the goal

Historical Development Crime of attempt was not recognized as a crime before the late 1700s Rex v. Scofield Defendant was charged with attempting to set a rented house on fire Rex v. Higgins Accused solicited a servant to steal his master’s property Attempt When a person, with the intent to commit an offense, performs any act that constitutes a substantial step toward the commission of that offense

Historical Development (continued) Under the Model Penal Code (MPC), a person is guilty of attempt to commit a crime if he or she: Purposely engages in conduct that would constitute the crime Does or omits to do anything with the purpose of causing such result without further conduct on his or her part Purposely does or omits to do anything that constitutes a substantial step to culminate in commission of the crime

Mens Rea of Attempt Crime of attempt requires the specific intent to commit an act that would have resulted in a completed substantive crime For crimes defined by prohibiting a certain result, the defendant must have had the intent to cause that result

Mens Rea and the MPC Section 5.01(1) provides that a person is guilty of attempt if it was his or her purpose to engage in the conduct or to cause the result that would constitute the substantive offense

Mens Rea and the MPC (continued) Exceptions Person may be guilty of attempt if he or she believes that the result will occur, even if it is not the actor’s conscious objective to cause the result Holding a person culpable for attempt does not require that the mens rea of “purpose” or “belief” apply to the attendant circumstances

Actus Reus of Attempt Defendant cannot be held liable for an attempt unless the defendant has committed some act to further his or her plan to commit the substantive offense Law has created several tests to help measure when a person is guilty of the crime of attempt

Last Act Test Opponents note that it defeats the policy of making attempt a separate crime Test prohibits arrest of a suspect until it is too late to prevent harm Last act test A test that determines that an attempt has occurred when a person has performed all of the acts that he or she believed were necessary to commit the underlying offense

Proximity Tests Physical proximity test Dangerous proximity test A test that determines that an attempt has occurred when the perpetrator’s conduct, though not having advanced so far as the last act, approaches sufficiently near to the completed crime as to be a substantial step toward commission of the offense Dangerous proximity test A test that determines that an attempt has occurred when the perpetrator’s conduct is in dangerous proximity to success, or when an act is so near to the result that the danger of its success is very great

Indispensable Element and Unequivocality Tests Indispensable element test A test that determines that no attempt has occurred when a suspect has not yet gained control over an indispensable instrumentality of the criminal plan Unequivocality test A test that determines that an attempt has occurred when a person’s conduct, standing alone, unambiguously manifests his or her criminal intent

Substantial Step Test Substantial step test The MPC’s test to determine whether the actus reus of attempt has occurred, which requires that the suspect must have done or omitted to do something that constitutes “a substantial step” in the commission of the substantive offense A person can be guilty of attempt if the person has the intent to commit the crime and takes steps that a jury would find sufficient to indicate that he or she was in the process of committing the act

Handling Multiple Counts of Attempt Multiple counts of attempt can arise from a single act that goes beyond mere preparation Act must be sufficient to support an attempt to commit each substantive offense

Other Elements and Issues A crime may never get beyond the level of attempt because the police may stop it before it happens A defendant’s plan to commit a crime may not work out A defendant may get concerned that the police will intercept his actions and stops out of fear of being caught

Application Cases 5.1 Regina v. Eagleton 5.2 People v. Rizzo 5.3 People v. Vizcarra 5.4 People v. Orndorff 5.5 People v. Kraft

Figure 5.1: The Six Stages of Committing a Crime

Figure 5.2: A Comparison of the Various Tests for Attempt Liability The Last Act Test Perpetrator has performed all of the acts that he or she believed necessary to commit the intended offense. The Physical Proximity Test Perpetrator must be very close to completing all of the acts necessary to commit the intended offense. The Dangerous Proximity Test Perpetrator is guilty of attempt when his or her actions are in dangerous proximity to success or when an act is so near the result that the danger of its success is very great. The Indispensable Element Test Perpetrator is innocent until he or she gains control over an indispensable instrumentality of the criminal plan. The Unequivocality Test Perpetrator's conduct, regardless of other factors, unambiguously manifests his or her criminal intent. The Substantial Step Test Perpetrator must have done something or omitted to do something that constitutes a “substantial step” toward the commission of the substantive offense.

5.2 Defenses to Attempt Defendant may have tried but could not have committed the substantive crime Would-be pickpocket reaches into the pocket of another to remove money but discovers the pocket is empty Was reaching the pocket a case of attempted theft? Man smokes what he believes to be marijuana, but it is a garden weed Is this attempted possession of marijuana?

Impossibility Factual impossibility Legal impossibility When a person’s intended end result constitutes a crime, but the person fails to consummate the offense because of an attendant circumstance that is unknown or beyond his or her control, making commission of the crime impossible When the intended acts, even if completed, would not amount to a crime. Legal impossibility is a common law defense to the crime of attempt

Impossibility (continued) “Hybrid” legal impossibility An ambiguous case in which impossibility could be considered either legal or factual, as distinguished from cases of true legal impossibility Genuine legal impossibility Where the law does not define as criminal the goal the defendant sought to achieve. This is a valid defense to the crime of attempt

Abandonment Controversy over abandonment defense Valid defense only when the defendant has had a change of heart on his or her own because of a sincere belief that furtherance of the act is wrong Abandonment An affirmative defense to the crime of attempt that exists only if the defendant voluntarily and completely renounces his or her criminal purpose

Abandonment and the Common Law Abandonment is not a defense at common law Argument against abandonment defense is that it allows an actor to undo criminal plans by renunciation and avoid punishment This possibility may encourage persons to take preliminary steps toward a crime

Figure 5.3: Defenses to Attempt Liability Factual Impossibility A person intends to commit a crime but is unaware of an attendant circumstance beyond his or her control. Legal Impossibility A person attempts to commit an act that would not amount to a crime if completed. “Hybrid” Legal Impossibility An ambiguous case in which impossibility could be considered legal or factual, as distinguished from cases of true legal impossibility. Genuine Legal Impossibility The goal that the actor intended to achieve is not defined as criminal by law. Abandonment An actor voluntarily renounces his or her criminal purpose.

Application Cases (continued 1) 5.6 United States v. Thomas 5.7 United States v. Berrigan 5.8 Wilson v. State 5.9 People v. Kimball

5.3 Solicitation Solicitation (incitement) The act of seeking to persuade someone else to commit a crime with the intent that the crime be committed

Problems with Solicitation Possible that the individual will refuse Solicitor manifests reluctance to commit the crime, and thus is not “a significant menace” Unsuccessful solicitation is so far removed from societal harm that its punishment comes close to punishing evil thoughts or intentions alone Raises First Amendment issues

Mens Rea of Solicitation Common law solicitation is a specific intent crime A person can be convicted only if he or she requests, encourages, or commands another to commit a crime, with the specific intent that the other person successfully complete the solicited crime

Actus Reus of Solicitation Physical act of solicitation occurs when the solicitor takes any action, whether verbal or otherwise, to urge another to commit a crime

Defenses to Solicitation MPC section 5.02(3) provides that “renunciation of criminal purpose” is a defense when: Solicitor “completely and voluntarily renounces his criminal intent” Solicitor “either persuades the solicited party not to commit the offense or otherwise prevents him from committing the crime”

5.4 Conspiracy Conspiracy is an agreement between two or more people to commit an unlawful act or acts or to do a lawful act unlawfully Many have called for reformation or abolition of the crime Law is vague and requires defendants to do very little in order to be convicted of the crime

5.4 Conspiracy (continued) MPC (Section 5.03(1)) provides that someone is guilty of conspiracy if he or she: 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 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

Mens Rea of Conspiracy Mental state required for conspiracy Parties must have both the intent to agree and the specific intent that object of the agreement be achieved Courts are divided on the issue of whether knowledge alone is enough

Actus Reus of Conspiracy Actus reus of conspiracy is the act of reaching an agreement Such an act constitutes a person’s advancement of the intent to further the criminal purpose That advancement justifies the law’s intervention Most jurisdictions require that the prosecutor prove that some overt act was committed in furtherance of the conspiracy

Defenses to Conspiracy Most courts hold that impossibility is not a defense to a charge of conspiracy Courts have imposed strict requirements of proof of abandonment MPC’s approach provides that withdrawal is a valid defense if a conspirator notifies police of the criminal activity as a way to end the activity

Figure 5.4: Alaska’s Statute on Conspiracy AS 11.31.120. Conspiracy (a) An offender commits the crime of conspiracy if, with the intent to promote or facilitate a serious felony offense, the offender agrees with one or more persons to engage in or cause the performance of that activity and the offender or one of the persons does an overt act in furtherance of the conspiracy. (b) If an offender commits the crime of conspiracy and knows that a person with whom the offender conspires to commit a serious felony offense has conspired or will conspire with another person or persons to commit the same serious felony offense, the offender is guilty of conspiring with that other person or persons to commit that crime whether or not the offender knows their identities. (c) In a prosecution under this section, it is not a defense that a person with whom the defendant conspires could not be guilty of the crime that is the object of the conspiracy because of (1) lack of criminal responsibility or other legal incapacity or exemption; (2) belonging to a class of persons who by definition are legally incapable in an individual capacity of committing the crime that is the object of the conspiracy; (3) unawareness of the criminal nature of the conduct in question or of the criminal purpose of the defendant; or (4) any other factor precluding the culpable mental state required for the commission of the crime. (d) If the offense that the conspiracy is intended to promote or facilitate is actually committed, a defendant may not be convicted of conspiring to commit that offense with another person for whose conduct the defendant is not legally accountable under AS 11.16.120(b). (e) In a prosecution under this section, it is an affirmative defense that the defendant, under circumstances manifesting a voluntary and complete renunciation of the defendant's criminal intent, either (1) gave timely warning to law enforcement authorities; or (2) other-wise made proper effort that prevented the commission of the crime that was the object of the conspiracy. Renunciation by one conspirator does not affect the liability of another conspirator who does not join in the renunciation. (f) Notwithstanding AS 22.10.030, venue in actions in which the crime of conspiracy is alleged to have been committed may not be based solely on the location of overt acts done in furtherance of the conspiracy. SOURCE: Alaska Stat. § 11.31.120 (2006).

Application Case (continued 2) 5.10 United States v. Alvarez